EXHIBIT 10.19
SEVERANCE AGREEMENT
This Severance Agreement (hereinafter referred to as "Agreement") is made
and entered into by and between Jay Shiveley (hereinafter referred to as
"Shiveley"), and Forte Software, Inc. (hereinafter referred to as "Company")
effective July 9, 1997 ("Effective Date").
WHEREAS, Shiveley's employment with the Company terminated effective
September __, 1997 ("Separation Date");
WHEREAS, Shiveley and the Company desire to settle fully and finally any
and all claims of Shiveley arising out of Shiveley's employment with the Company
and his termination therefrom;
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained and other good and valuable consideration, receipt of which is
hereby acknowledged, and to avoid unnecessary litigation, it is hereby agreed by
and between the parties as follows:
1. In consideration for this Agreement, the Company shall:
a. Pay to Shiveley the gross amount of Eighty-Seven Thousand, Five
Hundred Dollars and No Cents ($87,500.00). Said amount shall be paid in equal
installments by normal payroll check, less legally required withholdings as in
effect for Shiveley on July 9, 1997, on normal pay days between the July 9,
1997, and December 31, 1997. Such installment net amounts shall be paid to
Shiveley by check made payable to "Jay Shiveley." Said checks shall be mailed
to Shiveley at his address last known to the Company. Shiveley acknowledges
receipt of all installments due prior to the Separation Date.
b. Continue to December 31, 1997 Shiveley's medical insurance as
existing and provided by the Company on July 9, 1997. After this date, Shiveley
may continue medical insurance benefits at his own cost under COBRA terms and
conditions. As of the Effective Date, Shiveley shall not be eligible for any
other employee benefits from Company, including life insurance and participation
in Company's 401(k) plan.
c. Amend (by this Agreement) Shiveley's outstanding stock option
agreements dated January 11, 1995 ("January Agreement") and February 15, 1995
("February Agreement") so that (i) on December 31, 1997, he will accrue the
right to exercise an additional 2806 shares under the January Agreement and 8419
under the February Agreement, which shares must be exercised on or prior to the
date of Shiveley's execution of this Agreement; and (ii) on June 30, 1998, he
will accrue the right to exercise an additional 2806 shares under the January
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Agreement and 8419 under the February Agreement, which shares must be exercised
on or prior to the date of Shiveley's execution of this Agreement. No further
vesting shall occur under any of Shiveley's stock options following the
Effective Date of this Agreement, and such options shall terminate following the
Separation Date in accordance with their terms. The January Agreement and
February Agreement are further amended to allow Shiveley to exercise such
options prior to vesting pursuant to the attached "Early Exercise Stock Purchase
Agreement" dated August __, 1997, between Shiveley and Company. The $15,000.75
associated with such early exercise must be paid at the time of exercise.
d. Pay to Shiveley the gross amount of Thirteen Thousand, Four
Hundred, Fifty-One Dollars and Fifty-Three Cents ($13,461.53) as sabbatical pay.
Said amount, less legally required withholdings as in effect for Shiveley on the
termination date of Shiveley's employment, shall be paid to Shiveley by check
made payable to "Jay Shiveley." Said checks shall be mailed to Shiveley at his
address last known to the Company.
e. Pay to Shiveley $16,753 in accrued salary, unused and accrued
vacation, commissions and bonuses owing Shiveley up to and including July 9,
1997 pursuant the terms of the plans in effect for Shiveley on July 9, 1997.
Said amount, less legally required withholdings as in effect for Shiveley on the
termination date of Shiveley's employment, shall be paid to Shiveley by check
made payable to "Jay Shiveley." Said check shall be mailed to Shiveley at his
address last known to the Company. Shiveley acknowledges that, upon such
payment, the Company will have paid to him all accrued salary, commissions,
bonuses and all unused and accrued vacation earned prior to the date of
Shiveley's termination.
f. Allow Shiveley to purchase the equipment listed on Exhibit A
attached hereto for the amounts set forth therein (approximately the book value
recorded by the Company for such equipment). This amount will be paid by
reducing the amount actually paid to Shiveley under this Agreement.
g. Shiveley agrees that the foregoing and the Company's other
obligations under this Agreement shall constitute an accord and satisfaction and
a full and complete settlement of his claims, shall constitute the entire amount
of monetary consideration provided to him under this Agreement, and that he will
not seek any further compensation for any other claimed damage, costs or
attorneys' fees in connection with the matters encompassed in this Agreement
unless in connection with the Company's breach of this Agreement.
h. Shiveley acknowledges and agrees that the Company has made no
representations to him regarding the tax consequences of any amounts received by
him pursuant to this Agreement. Shiveley agrees to pay federal or state taxes
which are required by law to be paid with respect to this Agreement.
2. Shiveley represents that he has not filed any complaint, claims or
actions against the Company, its officers, agents, directors, supervisors,
employees or representatives with any state, federal or local agency or court
and that he will not do so at any time hereafter unless arising from the
Company's breach of this Agreement.
3. Shiveley hereby agrees that all rights he may have under section 1542
of the Civil
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Code of the State of California are hereby waived by him. Section 1542
provides as follows:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at
the time of executing the release, which if known by him
must have materially affected his settlement with the
debtor."
4. Notwithstanding the provisions of section 1542 of the Civil Code of
the State of California, except for (i) obligations under this Agreement, (ii)
stock option and proprietary information and inventions agreements between
Shiveley and the Company, (iii) the terms of the Company's retirement plans in
which Shiveley was participating on July 9, 1997; and (iv) the terms of the
Indemnification Agreement between Shiveley and Company dated February 21, 1996
as provided for therein ("Continuing Agreements"), Shiveley without limitation
hereby irrevocably and unconditionally releases and forever discharges the
Company, its officers, agents, directors, supervisors, employees,
representatives, successors and assigns, and all persons acting by, through,
under, or in concert with any of them from any and all charges, complaints,
claims, causes of action, debts, sums of money, controversies, agreements,
promises, damages and liabilities of any kind or nature whatsoever, both at law
and equity, known or unknown, suspected or unsuspected (hereinafter referred to
as "claim" or "claims"), arising from conduct occurring on or before the date of
this Agreement, including without limitation any claims incidental to or arising
out of Shiveley's employment with the Company or the termination thereof. It is
expressly understood by Shiveley that among the various rights and claims being
waived in this release are those arising under the Age Discrimination in
Employment Act of 1967 (29 U.S.C. Section 621. et seq.). This provision is
intended by the parties to be all encompassing and to act as a full and total
release of any claim, whether specifically enumerated herein or not, that
Shiveley might have or has had, that exists or ever has existed on or to the
date of this Agreement.
5. The parties understand the word "claim" or "claims" to include without
limitation all actions, claims and grievances, whether actual or potential,
known or unknown, related, incidental to or arising out of Shiveley's employment
with the Company and the termination thereof. All such claims, including
related attorneys' fees and costs, are forever barred by this Agreement and
without regard to whether those claims are based on any alleged breach of a duty
arising in contract or tort; any alleged unlawful act, any other claim or cause
of action; and regardless of the forum in which it might be brought.
6. Shiveley will not file, commence, voluntarily aid in any way,
prosecute or cause to be filed, commenced or prosecuted against the Company any
action or proceeding arising from any claims released by this Agreement.
7. Each of the Company and Shiveley will keep the terms and monetary
settlement amount of this Agreement completely confidential, and shall not
disclose such to any other person directly or indirectly. As an exception to
the foregoing Shiveley may disclose the terms and monetary settlement amount of
this Agreement to Shiveley's attorney, tax advisor, accountant and immediate
family (defined as and limited to spouse and children) who shall be advised of
its confidentiality. Should any of the foregoing individuals disclose the terms
and/or monetary settlement amount of this Agreement to any other person, such
shall be considered an indirect disclosure in breach of this provision for which
Shiveley shall be liable. As an
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additional exception to the foregoing Company may disclose the terms and
monetary settlement amount of this Agreement to its attorneys, tax advisors,
accountants, auditors officers, directors and employees as well as other third
parties with a need for such information and who shall be advised of its
confidentiality. Notwithstanding the foregoing, Shiveley and the Company may
make such disclosures of the terms and monetary settlement amount of this
Agreement as are required by law or as necessary for legitimate enforcement or
compliance purposes. In the event that either party is required by law to make
any portion of the terms or monetary settlement amount of this Agreement public
record, the other party shall be free to disclose such portion without breach
of this Section 7 and without liability to the other party.
8. Each of the Company and Shiveley agrees that the failure to comply
with the terms of paragraph 7 above shall amount to a material breach of this
Agreement which will subject the breaching party to liability for all damages
the other party might incur. In the event of such a breach, the non-breaching
party will be entitled to all legal and equitable remedies available, including,
but not limited to, injunctive relief.
9. Shiveley hereby relinquishes any employment rights he might have with
the Company.
10. Shiveley confirms his confidentiality obligations under his existing
proprietary information and inventions agreement with the Company. Shiveley
represents that he has complied with his obligations under the proprietary
information and inventions agreement to deliver the Company's documents, data,
proprietary information and property to the Company.
11. Shiveley and his immediate family (defined as and limited to spouse
and children) shall not make negative or disparaging comments about the Company,
its officers or employees, to any current or prospective employees, suppliers,
customers or investors of the Company. Should this provision be violated, in
addition to any other remedies available to the Company, the Company will be
relieved of all obligations and/or continuing obligations to Shiveley created by
subparagraphs a, b and c of paragraph 1 of this Agreement. The Company and its
officers, directors and agents shall not make negative or disparaging comments
about Shiveley to any current or prospective employer, employees, suppliers, or
customers of Shiveley. The Company will respond to requests for information
about Shiveley's employment and its termination only with his dates of service
and positions held.
12. For a period of one (1) year following the Effective Date this
Agreement, Shiveley shall not directly or indirectly, for himself or any other
business, solicit or recommend solicitation of the services or otherwise hire
anyone employed by the Company while Shiveley was employed by the Company or
employed by the Company during the period of one (1) year following the
Effective Date of this Agreement. Should this provision be violated, in
addition to any other remedies available to the Company, the Company will be
relieved of all obligations and/or continuing obligations to Shiveley created by
subparagraphs a, b and c of paragraph 1 of this Agreement.
13. For a period of six (6) months following the Effective Date of this
Agreement, Shiveley shall not accept employment with, become employed by and/or
perform any work for
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Net Dynamics, Kiva Software, Nat Systems, Weblogic and/or Sterling Software,
whether or not for compensation. Should this provision be violated, in
addition to any other remedies available to the Company, the Company will be
relieved of all obligations and/or continuing obligations to Shiveley created
by subparagraphs a, b and c of paragraph 1 of this Agreement.
14. Until July 31, 1998, Shiveley agrees to act as a consultant to Forte
by, INTER ALIA, assisting Forte, upon request, in the completion of licensing
deals with Forte customers with which Shiveley was or is familiar.
15. This Agreement and compliance with this Agreement shall not be
construed as an admission by any party of any liability whatsoever, or as
admission by any party of any violation of the rights of any person, violation
of any order, law, statute, duty or contract whatsoever. The Company
specifically disclaims any liability to Shiveley for any alleged violation of
the rights of Shiveley, or for any alleged violation of any order, law,
statute, duty or contract whatsoever. The Company specifically disclaims any
liability to Shiveley for any alleged violation of the rights of Shiveley, or
for any alleged violation of any order, law, statute, duty or contract on the
part of the Company or their employees or agents.
16. The parties hereto represent and acknowledge that in executing this
Agreement they do not rely and have not relied upon any representation or
statement made by any of the parties or by any of the parties' agents, attorneys
or representatives with regard to the subject matter or effect of this Agreement
or otherwise, other than those specifically stated in this written Agreement.
17. This Agreement shall be binding upon the parties hereto and upon their
heirs, administrators, representatives, executors, successors, and assigns, and
shall inure to the benefit of said parties and each of them and to their heirs,
administrators, representatives, executors, successors, and assigns. Shiveley
expressly warrants that he has not transferred to any person or entity any
rights or causes of action, or claims released by this Agreement.
18. Should any provision of this Agreement be declared or be determined by
any court of competent jurisdiction to be illegal, invalid, or unenforceable,
the legality, validity and enforceability of the remaining parts, terms or
provisions shall not be effected thereby and said illegal, unenforceable, or
invalid term, part or provision shall be deemed not to be a part of this
Agreement.
19. Except for the Continuing Agreements, all of which shall remain in
full force and effect and are unaffected by this Agreement except as specified
in this Agreement, this Agreement sets forth the entire agreement between the
parties hereto and fully supersedes any and all prior agreements and
understandings, written or oral, between the parties hereto pertaining to the
subject matter hereof. This Agreement may only be amended or modified by a
writing signed by the parties hereto. Any waiver of any provision of this
Agreement shall not constitute a waiver of any other provision of this Agreement
unless expressly so indicated otherwise.
20. This Agreement shall be interpreted in accordance with the plain
meaning of its
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terms and not strictly for or against any of the parties hereto.
21. This Agreement is made and entered into in the State of California,
and shall in all respects be interpreted, enforced and governed by and under the
laws of the State of California. Any dispute arising between Shiveley and the
Company pertaining to the formation, validity, interpretation, effect or alleged
breach of this Agreement (hereinafter referred to as "Arbitrable Dispute") will
be submitted to binding arbitration in Alameda County, California. The parties
agree to submit any such dispute to binding arbitration pursuant to the
Employment Dispute Resolution Rules of the American Arbitration Association
within six (6) months of the date on which the complaining party first becomes
aware of the alleged violation of the Agreement. Any such claims not presented
within six (6) months shall be deemed waived. Except as provided in
paragraph 21 below, the parties agree that such arbitration shall be the
exclusive remedy for any Arbitrable Dispute arising out of this Agreement, and
hereby expressly waive any right they have or may have to a jury trial of any
dispute arising out of this Agreement. In making the Arbitrator's award, the
Arbitrator shall have no power to add to, delete from, or modify the terms of
this Agreement, or to construe implied terms or covenants herein, the parties
being in agreement that no such implied terms or covenants are intended. In
reaching the Arbitrator's decision, the Arbitrator shall adhere to relevant law
and applicable legal precedent, and shall have no power to vary therefrom. At
the time of issuing the Arbitrator's award, the Arbitrator shall, in the award
or separately, make specific findings of fact, and set forth such facts in
support of the Arbitrator's decision, as well as the reasons and basis for the
Arbitrator's opinion. Should the Arbitrator exceed the jurisdiction or
authority here conferred, any party aggrieved thereby may file a petition to
vacate, amend or correct the award so rendered in a court of competent
jurisdiction.
22. Notwithstanding the provisions of paragraph 21, the provisions of
paragraph 21 shall not restrict the right of the Company or Shiveley to file an
action in court seeking legal and/or equitable relief for an alleged violation
of the provisions of paragraphs 7, 8, 10, 11, 12 and/or 13 of this Agreement.
For an alleged violation of the foregoing paragraphs, the non-breaching party
at its election may pursue relief through the arbitration provisions of
paragraph 21 or through legal action filed in court.
23. The Company shall continue to provide to Shiveley the assistance
previously provided in filing any Form 4 and Form 5 under Section 16 of the
Securities Exchange Act of 1934 required after termination of his employment.
The Company represents that Shiveley is not subject to any "trading window" or
other Company policy which would restrict his ability to buy or sell Company
stock.
24. This Agreement may be executed in counterparts and each counterpart,
when executed, shall have the efficacy of a second original. Photographic or
facsimile copies of any such signed counterparts may be used in lieu of the
original for any said purpose.
For Jay Shiveley:
Dated: By:
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Jay Shiveley
For Forte Software, Inc.:
Dated: By:
EXHIBIT A
1. Digital Litebook TS31D ("D" or "0"): $2298.81
2. Digital docking station TSR1: $273.00
3. ViewSonic 17GS monitor: $597.33
4. Brother Intellifax-1250 fax: $292.42
5. HP Desk Jet340 portable printer: $322.49
6. HP Laser Jet5L: $292.42
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