Separation Agreement & Mutual Release - Ask Jeeves Inc. and General Counsel
SEPARATION AGREEMENT & MUTUAL RELEASE
This Separation Agreement and Release of Claims (the "Agreement") is
entered into by and between (" ") and Ask Jeeves, Inc.
(the "Company"), each a "Party" and collectively the "Parties."
RECITALS
WHEREAS, has been employed by the Company as its General
Counsel commencing on January 24, 2000;
WHEREAS, 's employment with the Company shall terminate
effective December 31, 2002 (the "Termination Date");
WHEREAS, the Parties wish to enter into an agreement to clarify and
resolve any disputes that may exist between them arising out of the employment
relationship and its termination, and any continuing obligations of the Parties
to one another following the end of the employment relationship;
NOW, THEREFORE, for and in consideration of the promises and
undertakings described below, the Parties agree as follows:
AGREEMENT
1. Payment of Salary. The Company shall continue to provide
her base salary and benefits through the Termination Date.
2. Severance. In consideration of the promises and covenants
contained herein, and provided executes and does not revoke this
Agreement, the Company agrees to provide the following compensation
and benefits: (i) a lump sum payment of one hundred thousand dollars ($100,000),
less any applicable deductions and withholdings, which is equivalent to six (6)
months of 's current base salary, payable on the later of the Effective
Date (as defined in Section 11 herein) or the Termination Date; (ii) a lump sum
payment of thirty thousand dollars ($30,000), less any applicable deductions and
withholdings, which is equivalent to fifty percent (50%) of 's target
bonus for fiscal year 2002, payable on the later of the Effective Date or the
Termination Date; (iii) reasonable customary outplacement assistance for up to
(6) months following the Termination Date; (iv) immediate vesting in an
additional number of shares under 's Spring 2002 Focal Review Option,
as if she had performed six (6) additional months of service to the Company
immediately following the Termination Date; and (v) if elects to
continue her health insurance coverage under the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended ("COBRA") following the termination of
her employment, then the Company shall pay 's monthly premium under
COBRA until the earlier of: (a) six (6) months following the Termination Date,
(b) the first date that she is covered under another employer's health benefit
program without exclusion for any pre-existing medical condition, or (c) the end
of her statutory entitlement to health care coverage pursuant to COBRA.
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3. Assistance following Termination. Following the Termination
Date and through March 31, 2003, agrees to remain available to assist
the Company, up to a maximum of four (4) hours per month, in such reasonable
tasks as shall be assigned to her by the Company. will be paid an
hourly rate of one hundred dollars ($100) for such assistance, and shall
function as in independent contractor. No employment relationship shall exist
between the Parties following the Termination Date. The Company shall issue an
IRS Form 1099 for its payments to made pursuant to this Section. In
addition, aside from her monthly obligation to the Company, agrees to
provide information for, and reasonably assist the Company in the preparation
of, Securities and Exchange Commission filings concerning the period in which
was employed with the Company. The Company has provided with
a memorandum, attached hereto as Exhibit A, regarding certain continuing
obligations she has under federal securities laws.
4. Stock. The Parties agree that for purposes of determining the
number of shares of the Company's common stock which is entitled to
purchase from the Company pursuant to the exercise of outstanding options,
will be considered to have vested only up to the Termination Date,
except as noted in Section 2(iv). The exercise of any stock options shall
continue to be subject to the terms and conditions of the Company's 1999 Equity
Incentive Plan (the "Option Plan"), as well as any stock option or stock
purchase agreements entered into between and the Company (together the
"Stock Agreements").
5. Confidential Information. hereby acknowledges and
agrees that she is bound by and has continuing obligations under the
Confidentiality of Information and Inventions Agreement, attached hereto as
Exhibit B.
6. Cessation of Benefits. 's participation in all of
the Company's benefits and incidents of employment shall cease on the
Termination Date, except as noted in Section 2 herein.
7. Release by . In consideration of the benefits
provided to under Section 2 herein, fully and forever
releases, waives, discharges (and promises not to sue or otherwise institute or
cause to be instituted) any legal or administrative proceedings against the
Company, and any of its officers, directors, attorneys, insurers, shareholders,
predecessors, successors, affiliated or related companies, agents, current and
former employees, representatives, attorneys and other agents, and assignees
thereof, with respect to any and all liabilities, claims, demands, contracts,
debts, obligations and causes of action of any nature, kind, and description,
whether in law, equity or otherwise, whether or not now known or ascertained,
which currently do or may exist, including without limitation any matter, cause
or claim arising out of or related to or connected with 's hire,
employment with the Company or its predecessor, or the termination therefrom, as
well as any act or omission by the Company, and any of its officers, directors,
attorneys, insurers, shareholders, predecessors, successors, affiliated or
related companies, agents, employees, and assignees thereof, occurring on or
before the date of this Agreement. Such liabilities, claims, demands, contracts,
debts, obligations and causes of action, include but are not limited to any
claims for unpaid or late wages, severance, stock options, retirement, pension
benefits, or other benefits, penalties, breach of contract, breach of the
covenant of good faith and fair dealing, infliction of emotional distress,
misrepresentation, fraud, claims under Title VII of the Civil Rights Act, under
the California Fair Employment and Housing Act, under the Employment Retirement
Income and Security Act, under the California Labor Code, and under any other
statutory or common law claim relating to
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employment, and any act or omission by the Company occurring on or before the
date of this Agreement except any claims for: (1) benefit rights (if any) that
may in the future be denied regarding benefits she claims vested under a Company
benefit plan (401(k) or related retirement plan) on or prior to the Termination
Date, (2) rights under California Labor Code section 2802, (3) workers'
compensation insurance benefits, and (4) indemnification (if available) pursuant
to the Company's certificate or incorporation or bylaws, the Company's
indemnification agreement with , or any insurance policy maintained by
the Company with respect to, and for the benefit of, as an officer or
employee (or former officer or employee) of the Company or any of its
subsidiaries (including directors' and officers' liability insurance, errors and
omissions insurance and other similar insurance, if any), it being understood
and agreed that nothing herein shall require the Company to purchase or maintain
any such insurance or limit the Company's rights to amend its certificate of
incorporation and bylaws in accordance with, and subject to the limitations of,
applicable law.
8. Release by the Company. The Company fully and forever
releases, waives, discharges (and promises not to sue or otherwise institute or
cause to be instituted) any legal or administrative proceedings against either
or any of her heirs, executors, administrators, representatives,
attorneys and other agents, with respect to any and all liabilities, claims,
demands, contracts, debts, obligations and causes of action of any nature, kind,
and description, whether in law, equity or otherwise, whether or not now known
or ascertained, which currently do or may exist, including without limitation
any matter, cause or claim arising out of or related to or connected to her
employment with the Company and with any predecessor thereof, and any act or
omission by occurring on or before the date of this Agreement except
for any claim against for fraud, misappropriation of the Company's
property or assets; willful misconduct in connection with a communication to any
government agency or entity; any breach by of her fiduciary duties, or
a breach of the Confidentiality of Information and Inventions Agreement.
9. Waiver: Civil Code Section 1542. The Parties represent that
they are not aware of any claim other than the claims that are released by this
Agreement. The Parties acknowledge that they have been advised by legal counsel
and are familiar with the provisions of California Civil Code Section 1542,
which 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.
The Parties being aware of said code section, agree to expressly waive
any rights they may have thereunder, as well as under any other federal or state
statute or common law principles of similar effect.
10. ADEA Release and Waiver. acknowledges that she is
waiving and releasing any rights she may have under Age Discrimination in
Employment Act (ADEA), as amended, and that the waiver and release of these
rights is knowing and voluntary. and the Company agree that this
waiver and release do not apply to any rights or claims that may arise under
ADEA after the date this Agreement is signed.
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11. Time to Consider; Revocation Period; Effective Date. In
accordance with the federal Older Workers Benefit Protection Act of 1990, and
any amendments thereto, represents and acknowledges that she has been
made aware of the following: (a) she has the right to consult with an attorney
before signing this Agreement and agreeing to the release set forth herein (the
"Release" for purposes of this paragraph only); (b) she has twenty-one (21) days
from delivery of this Agreement to consider this Release; and (c) she has seven
(7) days after signing this Release to revoke it. Such revocation shall be made
by means of a writing sent to Confidentiality of Information and Inventions
Agreement. This Release shall not be effective or enforceable, and no payment
will be made pursuant hereto, until such revocation period has expired
("Effective Date").
further understands that the Effective Date of this Agreement
shall be the eighth (8th) day after she has signed it, provided that she has
delivered it to the Company and she has not revoked it during the seven (7) days
after she signed it.
12. Confidentiality. Except as may otherwise be required, in a
Party's good faith judgment following consultation with legal counsel, by
applicable law, rule, regulation or order, or as required by any governmental
agency or tribunal, the Parties agree to maintain in complete confidence the
contents and terms of this Agreement, and to disclose the contents and terms of
this Agreement only to those employees of the Company, those members of
's immediate family and those attorneys, accountants, tribunals and
governmental entities who have a reasonable need to know the contents and terms
of this Agreement, or to third parties considering a potential transaction with
the Company in connection with their "due diligence" pursuant to a customary
confidentiality agreement.
13. No Pending or Future Lawsuits. The Parties represent to each
other that they have no lawsuits, claims, or actions pending in their name, or
on behalf of any other person or entity, against each other or any other person
or entity referred to herein. The Parties also represent to each other that as
of the date of this Agreement, they do not have any basis for and do not intend
to bring any claims on their behalf or on behalf of any other person or entity
against each other or any other person or entity referred to herein.
14. No Prior Assignments. hereby represents and warrants
that she has not assigned or transferred, or purported to assign or transfer, to
any third person or entity any claim, right, liability, demand, obligation,
expense, action or causes of action being waived or released pursuant to this
Agreement.
15. Non-Disparagement. agrees not to make any derogatory
statements about the Company or any of its current or former agents, attorneys,
representatives, employees, officers, directors, successors, predecessors,
assigns, parent corporations, subsidiaries, or affiliated companies, and the
Company agrees to direct its directors and officers not to make any derogatory
statements about .
16. Restrictive Covenants. acknowledges that the Company
has invested substantial time, money and resources in the development and
retention of its inventions, confidential information (including trade secrets),
customers, accounts and business partners, and further acknowledges that during
the course of her employment with the Company, she has had and will continue to
have access
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to the Company's inventions and confidential information (including trade
secrets), and has been introduced to existing and prospective customers,
accounts and business partners of the Company. acknowledges and agrees
that any and all "goodwill" associated with any existing or prospective
customer, account or business partner belongs exclusively to the Company,
including, but not limited to, any goodwill created as a result of direct or
indirect contacts or relationships between and any existing or
prospective customers, accounts or business partners. further
acknowledges that the Company has operations and conducts business on a global
scale.
In recognition of this, covenants and agrees that during her
employment with the Company and for a period of two (2) years following the
Termination Date, she will not (without the prior written consent of the Board
of Directors of the Company): (i) participate in any capacity (whether as an
employee, agent, servant, owner, partner, consultant, independent contractor,
representative, stockholder or in any other capacity whatsoever) with any of the
six companies listed on Exhibit C hereto; (ii) entice, solicit or encourage any
Company employee to leave the employ of the Company or any independent
contractor to sever its engagement with the Company; or (iii) directly or
indirectly, entice, solicit or encourage any client, customer, prospective
client or customer, vendor, strategic partner or business associate of the
Company to cease doing business with the Company, reduce its relationship with
the Company or refrain from establishing or expanding a relationship with the
Company. agrees that the Company may suffer irreparable harm should
she breach this Section 16, and therefore agrees that the Company may seek and
obtain injunctive relief as a remedy for any such breach by her.
17. No Admission. Nothing contained in this Agreement shall
constitute, be construed or be treated as an admission of liability or
wrongdoing by the Company or any of its current or former agents, attorneys,
representatives, employees, officers, directors, successors, predecessors,
assigns, parent corporations, subsidiaries, or affiliated companies.
18. Results of Negotiation; Knowing and Voluntary Execution. The
Parties hereby acknowledge that this Agreement is the results of negotiation
between them, and that each has read and understands the foregoing Agreement and
that each affixes their respective signature to this Agreement knowingly,
voluntarily and without coercion.
19. Entire Agreement. The Parties hereby acknowledge and agree
that no promises or representations were or are made which do not appear written
in this Agreement, that this Agreement, as well as the Option Plan, Stock
Agreements and the Confidentiality of Information and Inventions Agreement
contain the entire agreement between and the Company, and that neither
is relying on any representation or promise that does not appear in this
Agreement.
20. Modifications and Waivers. No provision of this Agreement
shall be modified, waived or discharged unless the modification, waiver or
discharge is agreed to in writing and signed by and by an authorized
officer of the Company.
21. Governing Law. The construction, interpretation and
enforcement of this Agreement shall be governed by the internal laws of the
State of California applicable to contracts made and to be performed wholly
within such state, without regard to the conflict of laws rules of any
jurisdiction.
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22. Severability. The Parties hereby agree that if any provision,
or portion thereof, of this Agreement shall for any reason be held to be invalid
or unenforceable or to be contrary to public policy or any law, then the
remainder of the Agreement shall not be affected thereby.
23. Arbitration. Each Party agrees that any and all disputes which
arise out of or relate to this Agreement or any of the subjects hereof shall be
resolved through final and binding arbitration. Such arbitration shall be in
lieu of any trial before a judge and/or jury, and the Parties expressly waive
all rights to have such disputes resolved via trial before a judge and/or jury.
Such disputes shall include, without limitation, claims for breach of contract
or of the covenant of good faith and fair dealing, claims of discrimination,
claims under any federal, state or local law or regulation now in existence or
hereinafter enacted and as amended from time to time concerning in any way the
subject of 's employment with the Company or its termination. The only
claims not covered by this Agreement to arbitrate disputes are: (i) claims for
benefits under the unemployment insurance benefits; (ii) claims for workers'
compensation benefits under any of the Company's workers' compensation insurance
policy or fund; (iii) claims the Company may have against for fraud,
misappropriation of the Company's property or assets; willful misconduct in
connection with a communication to any government agency or entity; any breach
by of her fiduciary duties, or a breach of the Confidentiality of
Information and Inventions Agreement; and (iv) any breach by of the
covenants contained in Section 16 herein. With respect to such disputes, they
shall not be subject to arbitration; rather, they will be resolved pursuant to
applicable law.
Binding arbitration will be conducted in Emeryville, CA in accordance
with California Code of Civil Procedure section 1282, et seq., and the rules and
regulations of the American Arbitration Association then in effect for
resolution of commercial disputes. Each of the Parties will bear their own
respective attorneys' fees and will equally share the cost of arbitration,
although the arbitrator may award the prevailing party his/its reasonable
attorneys' fees and costs of arbitration except that such fees and costs may not
be recovered by the Company that result from the Company's defense against any
claim by challenging the waiver, release and discharge of rights under
the Age Discrimination in Employment Act.
24. Attorneys Fees and Expenses. If an action is brought by either
Party for breach of any provision of this Agreement, the non-breaching Party
shall be entitled to recover all reasonable attorneys' fees and costs in
defending or bringing such an action.
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25. Counterparts. This Agreement may be signed in counterpart
originals with the same force and effect as though a single original were
executed.
Date: December 23, 2002 /s/
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Ask Jeeves, Inc.:
Date: December 23, 2002 By: /s/ Glen C. Sunnergren
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Name: Glen C. Sunnergren
Title: VP, Human Resources
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