Exhibit 10.14
Shiva Corporation
AGREEMENT AND GENERAL RELEASE
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It is hereby agreed by and between Jean-Pierre Boespflug (hereinafter
referred to as the "Employee") and Shiva Corporation (hereinafter
referred to as "Shiva"), for good and sufficient consideration more
fully described below that:
1. Employment Status. The Employee's service as Senior Vice
President, Research and Development, with Shiva terminated effective
July 23, 1997. Notwithstanding such termination, Employee's
employment with Shiva has continued without interruption from July 23,
1997 to and including the execution of this Agreement and General
Release ("Agreement") and shall continue from and after such date
pursuant to and subject to the terms of this Agreement. Employee
shall continue to be employed with Shiva on a part-time consulting
basis with Shiva until April 10, 1998 (hereinafter referred to as
"Termination Date"). Employee's salary as a consultant shall be equal
to Employee's current base level salary, excluding incentive
compensation. (Employee may not participate in either the 1997 or
1998 Shiva Bonus Plans). Employee agrees to be available as a
consultant to Shiva for up to forty (40) hours per calendar month from
July 24, 1997 through the Termination Date to participate in meetings,
to complete certain project deliverables as needed, and deliver
presentations at Shiva or other locations as needed. In the event of
disagreement over quantity or quality of work performed, the Company
may withhold up to 20% of agreed upon compensation as a sole and
unique remedy. Shiva acknowledges that Employee has complied with any
obligations that he may have had pursuant to this paragraph effective
from July 24, 1997 to and including the execution of this Agreement.
The maximum monthly hours required under this Agreement shall be
adjusted pro rata for the balance of the calendar month following
execution of this Agreement and for the portion of April, 1998 that
Employee shall serve as a consultant. Employee agrees to be
reasonably responsive when Shiva requests services and to use his best
efforts to perform his responsibilities. Shiva agrees to be reasonable
in its requests for specific time and deliverable dates in light of
any professional and/or personal commitments that Employee may have.
Employee hereby agrees that Employee will not represent himself to
third parties as Shiva's Senior Vice President of Research and
Development. The Employee may represent himself as a consultant to
Shiva.
Employee shall not be entitled to participate in any Shiva employee
benefit plans or programs effective after July 23, 1997, except as
stated in this Agreement. Shiva shall continue Employee's current
base level salary as a consultant effective to and including the
Termination Date. On or before the regular Shiva payroll date next
following the Termination Date, Shiva shall pay Employee for all
vacation pay that was accrued but unused by Employee effective as of
July 23, 1997. Employee shall not be considered to have used or
accrued vacation time after July 23, 1997.
2. Tax Treatment. Shiva shall reduce payments to be made to Employee
pursuant to this Agreement by deductions and withholdings that it
reasonably determines to be required for tax purposes.
3. Severance Pay/Benefit Continuance/Options/Miscellaneous. In
return for the execution of this Agreement, Shiva shall provide the
following to Employee:
(a) Severance Pay. Shiva shall pay Employee a lump sum severance
payment of US$50,000 on or before the regular Shiva payroll date next
following the Termination Date.
(b) Benefits.
(1) Medical/Dental. Based on the reduction of Employee's
working hours, Employee became eligible for continuation of
medical/dental coverage pursuant to COBRA effective July 24,
1997. Employee is considered to have elected COBRA coverage
effective July 24, 1997. Shiva shall pay the premiums for such
coverage to and including July 23, 1998, provided that (1)
effective to and including April 10, 1998, Shiva may reduce
Employee's salary by the amount withheld from salary payments to
full-time employees with the same medical/dental coverage for
sharing of medical/dental premium costs; (2) any continuation of
COBRA coverage after July 23, 1998 shall be at Employee's
expense; and (3) notwithstanding the foregoing, Shiva's
obligations under this Section 3(b)(1) shall end effective no
later than Employee's commencement of other employment or
Employee's ineligibility for COBRA under the terms of COBRA.
(2) Other Benefits. Employee's participation in all other
Shiva benefit plans and programs, including but not limited to
life insurance, short and long-term disability, and the 401(k)
plan, ended effective July 23, 1997, provided that Employee shall
have rights under the 401(k) plan based on his participation to
and including July 23, 1997. Employee's rights under the 401(k)
plan shall be governed by the terms of such plan.
(c) Stock Options. Pursuant to the 1988 Stock Plan, as amended and
restated (the "Plan"), Employee will have up to sixty (60) days after
the Termination Date to exercise any vested Stock Rights (as defined
in the Plan). All unvested Stock Rights will be canceled on the
Termination Date.
(d) Miscellaneous.
(1) Relocation Reimbursement. In lieu of repatriation of
Employee and Employee's family back to France, Shiva shall pay
Employee US$20,000.00 on or about April 10, 1998. Without
limiting the scope of the General Release set forth in paragraph
5 below, Employee acknowledges that this payment is in exchange
for Employee's release of all of Shiva's obligations under the
relocation letter to Employee dated June 16, 1997, a copy of
which is attached as Exhibit A, except that notwithstanding such
release, Shiva agrees to provide effective through July 23, 1998
the benefits pursuant to the terms listed under the following
sections in Exhibit A: Car, Children's Schooling, Tax and Tax
Equalization, provided that tax equalization shall only be
provided for Shiva compensation. In addition Shiva shall
reimburse to Employee US$4,500.00 per month for Employee's leased
home in the United States through July 23, 1998, paid in one lump
sum at the date of execution of this agreement. These items
were provided to compensate the Employee for the obligation to
move to the USA as a condition of his employment and subsequent
consulting contract.
(2) Voice Mailbox. Shiva will maintain a voice mail box for
Employee's use at Shiva.
(3) Indemnification. To the extent permitted by its by-laws,
Shiva shall indemnify Employee against any present or future
litigation filed against Shiva for all causes of action. This
indemnification includes, and is not limited to, the present
class action shareholder actions known to Shiva.
4. Company Files, Documents and Other Property. Effective
immediately, the Employee will return to Shiva any keys, credit cards
or other items that he might have in his possession that are the
property of Shiva or of Shiva's French subsidiary, including but not
limited to the following:
(1) an ATT and France Telecom card
(2) a toll pass "Escota"
(3) keys to the Sophia office
(4) payment cards issued on the name Shiva France (Shell/Esso,
Hertz gold, Elf)
(5) Company car in France
Notwithstanding the foregoing, (a) for the purpose of assisting
Employee in his performance of his consulting responsibilities,
Employee may retain Shiva files, reports, books, data and other
documents until no later than the Termination Date; and (b) Shiva
hereby transfers ownership of its Toshiba Tecra laptop computer and
the Nokia mobile phone with PCMCIA and SIM cards that Employee has in
his possession. Employee agrees to change the billing for the service
to his Nokia mobile phone to Employee directly prior to the execution
of this Agreement.
5. Release.
(a) Employee hereby remises, releases, and forever discharges Shiva,
its successors and assigns, all related entities, and the current and
former directors, officers, employees, and agents of each of them (all
referred to hereinafter as the "Company") of and from all debts,
actions, causes of action, suits, accounts, covenants, contracts,
agreements, damages and any and all claims, demands, and liabilities
whatsoever of every name and nature which against the Company Employee
has, claims to have, ever had, or ever claimed to have had, known or
unknown (all hereinafter referred to as "claims") including but not
limited to all claims relating to Employee's employment with Shiva,
the termination of Employee's service with Shiva as Senior Vice
President, Research and Development, or Employee's agreement to the
termination of his employment pursuant to this Agreement; all claims
of alleged wrongful or bad faith termination of employment; all claims
of misrepresentation; all claims of any form of alleged unlawful
employment discrimination, including but not limited to all claims
based upon the Age Discrimination Employment Act of 1967, as amended,
42 U.S.C. 621 et seq., Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. 2000e et seq., or Mass. Gen. Laws ch. 151B; all
claims of breach of either express or implied contract; all claims of
intentional or negligent infliction of emotional distress; all claims
for wages, vacation pay, separation pay, expense reimbursement, or any
form of compensation; all claims for attorneys' fees; and all claims
for reinstatement of employment with Shiva. Employee hereby remises,
releases, and forever discharges Shiva, its successors and assigns,
all related entities, and the current and former directors, officers,
employees, and agents of each of them (all referred to hereinafter as
the "Company") against all claims of a similar nature to the above
listed claims which Employee has, claims to have, ever had, or ever
claimed to have had, known or unknown, which might have arisen under
the laws of France. This release is fully mutual in nature providing
the Employee with the same rights, protection, and certainty accorded
Shiva.
(b) The Employee agrees and acknowledges the payments and benefits
set forth in this Agreement, together with payments and benefits
previously provided to the Employee by Shiva, are the only payments
and benefits he will receive in connection with his employment and
termination.
6. Waiver of Rights and Claims Under the Age Discrimination in
Employment Act of 1967:
(a) The Employee has been informed that since he is 40 years of age
or older, he might have specific rights and/or claims under the
Age Discrimination in Employment Act of 1967, as amended. In
consideration of the compensation described in this Agreement,
the Employee specifically waives such rights and/or claims to the
extent that such rights and/or claims arose prior to the date
this Agreement was executed.
(b) The Employee was advised by Shiva to consult an attorney prior to
executing this Agreement.
(c) The Employee was further advised when presented with this
Agreement on September 15, 1997 that he had at least twenty-one
(21) days from the date of such presentation within which to
consider the Agreement. Employee acknowledges that if he
executed this Agreement before the end of such twenty-one (21)
day period, his decision to do so was entirely voluntary.
7. No Admission. Nothing in this Agreement is to be construed as an
admission by Shiva, its successors, assigns, officers, employees,
and/or agents, whether in their individual or official capacity, of
any liability or unlawful conduct whatsoever.
8. Confidentiality.
(a) Employee agrees not to disclose, either directly or indirectly,
any information whatsoever regarding any claim that Employee
might have or might have had against Shiva of the substance of
this Agreement to any person or organization, including but not
limited to, members of the press and media, present and former
employees of Shiva and other members of the public.
Notwithstanding the foregoing, Employee may disclose such matters
to Employee's spouse, accountant, and/or attorney, provided that
any such person agrees in advance of such disclosure to keep such
information completely confidential. Employee further agrees
that a breach of such obligation by any such person shall be
considered to be a breach of this Agreement by Employee.
Employee may further make disclosure of information identified
above to the extent required by law or legal process, provided
that Employee shall give as much advance notice of such
disclosure as is practicable under the circumstances. Employee
may further make disclosure to the extent reasonably necessary to
enforce Employee's rights under this Agreement. Employee further
agrees that Employee shall not disparage the Company in a
personal manner, a professional manner or otherwise. Likewise,
Shiva agrees that its directors and officers shall not disparage
Employee in a personal matter, a professional matter or
otherwise.
(b) Employee understands and agrees that Employee's employment
created a relationship of confidence and trust between Employee
and Shiva with respect to (i) proprietary information of Shiva;
(ii) trade secrets and other confidential information of Shiva;
(iii) the confidential information of others with which Shiva has
or has had a business relationship (the information referred to
in clauses (i), (ii) and (iii) is referred to, collectively, as
"Confidential Information"). Employee agrees that at all times
Employee shall keep in confidence and trust all Confidential
Information and shall not use or disclose any Confidential
Information without the written consent of Shiva, except as to
the extent necessary to Employee's performance of Employee's
responsibilities as a consultant. The restrictions set forth in
this paragraph 8(b) shall not apply to any information which is
in the public domain, unless such information is in the public
domain as a result of an unauthorized disclosure by Employee.
Notwithstanding anything else contained herein, Employee and
Shiva expressly agree that this Release and the settlement of
Employee's claims will remain non-public and confidential, except
as required by law.
9. Representations and Governing Law.
(a) This Agreement represents a complete understanding between the
parties, supersedes any and all other agreements and
understandings (including, but not limited to, the employment
agreement dated March 24, 1994 between Employee and Shiva),
whether oral or written and may not be modified, altered or
changed except upon written consent of the parties.
(b) This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts without giving
effect to the principles of conflicts of law thereof.
(c) This Agreement shall be binding upon and inure to the benefit of
both parties and their respective successors and assigns,
including any Corporation with which or into which Shiva may be
merged or which may succeed to its assets or business. Employee
represents that he has not assigned any claims or rights that he
has had or may have had against Shiva or the Company to anyone.
(d) In case any one or more of the provisions contained in this
Agreement for any reason shall be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such
invalid, illegal or unenforceable provisions had never been
contained herein.
(e) The Employee represents that he has read the foregoing Agreement,
fully understands the terms and conditions of such Agreement, and
is voluntarily executing the same. In entering into this
Agreement, the Employee does not rely on any representation,
promise or inducement made by Shiva, with the exception of the
consideration described in this document.
(f) The Employee may revoke this Agreement for a period of seven (7)
days following its execution and the Agreement shall not become
effective or enforceable until this revocation period has
expired.
Signed this 24th day of October, 1997.
SHIVA CORPORATION
By: /s/ Larry Whitman Employee: /s/ J. Boespflug
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Dated: 10/24/97 Dated: Oct 24, 1997
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