Agreement and Release - Convera Corp., Convera Technologies Inc. and James Buchanan
Agreement and Release
Agreement and Release Convera Corporation and Convera Technologies, Inc.
("Convera" or "the Company") and James Buchanan ("Mr. Buchanan") hereby make and
enter into this Agreement and Release (the "Agreement").
NOW, THEREFORE, in consideration of the provisions and promises contained
herein, Mr. Buchanan and the Company agree as follows:
1. Mr. Buchanan hereby resigns his position as Chief Operating Officer of
the Company, effective January 31, 2004, and the Company agrees to
continue to employ Mr. Buchanan from January 31, 2004 to January 31,
2005(the "Continued Employment Period"). During the Continued
Employment Period, Mr. Buchanan will make himself available to the
Company as needed on a reasonable basis upon reasonable notice from
the Company.
2. Effective January 31, 2004, Mr. Buchanan's on-site duties at Convera's
offices will cease and Mr. Buchanan will return to Convera all
Confidential Information (defined below).
3. After Mr. Buchanan has signed this Agreement, and throughout the
remainder of the Continued Employment Period, the Company will pay Mr.
Buchanan a monthly base salary of $29,166 (which is equivalent to an
annual salary of $350,000), less applicable withholdings (the "Base
Salary"), in equal semi-monthly installments. The first installment
will be made on the first payroll date occurring after this Agreement
has become effective. The Company will provide health, dental, vision
and all other employee benefits consistent with Mr. Buchanan's
enrollment and participation in the Company's employee benefit plan as
of January 31, 2004 (the "Employee Benefits") throughout the term of
the Continued Employment Period with the exception that Mr. Buchanan
will not be eligible to accrue vacation leave during this Continued
Employment Period. Mr. Buchanan will inform Convera of his newly
acquired coverage under another plan if it occurs during the Continued
Employment Period and coverage through the Convera plan will be
discontinued.
4. During the Continued Employment Period, Mr. Buchanan's stock options
listed on the attached schedule will continue to vest according to
their regular schedule. In accordance with applicable Convera
Corporation Stock Option Plans (incorporated herein by reference), Mr.
Buchanan may exercise vested stock options during the Continued
Employment Period subject to any imposed Blackout Periods and subject
to all applicable legal restrictions and for a period of ninety (90)
days following the end of the Continued Employment Period. Mr.
Buchanan acknowledges that the 400,000 Deferred Shares granted to him
by the Company's Board of Directors on May 20, 2003 will terminate
with no Deferred Shares vested.
5. In accordance with its standard policies and practices, Convera will
reimburse Mr. Buchanan for reasonable and authorized out-of-pocket
business expenses incurred by him, on behalf of Convera, through the
end of the Continued Employment Period.
6. Other than his Base Salary and Employee Benefits and the one year
continuation of certain stock options under Paragraph 4, Mr. Buchanan
acknowledges and agrees that he shall not receive any other form of
compensation or benefits from the Company during the Continued
Employment Period.
<PAGE>
7. At the conclusion of the Continued Employment Period on January 31,
2005, Mr. Buchanan's employment with the Company shall be terminated.
At that time, Convera will:
(a) pay Mr. Buchanan for his accrued but unused vacation time of
130.66 hours due and owing as of the end of the Continued Employment
Period in accordance with Convera's standard policies and practices,
less deduction of any federal, state or local taxes that Convera may
be required to collect or withhold ("Withholding Adjustments");
(b) terminate Mr. Buchanan's Employee Benefits as of January 31,
2005; thereafter, Mr. Buchanan may extend his health, dental, and
vision coverage at his own expense through COBRA continuation; and
(c) pay Mr. Buchanan, for a period of twelve (12) months,
severance pay of $12,500 per month (which is equivalent to annual
severance pay of $150,000), less applicable withholdings, in equal
semi-monthly installments.
8. In consideration for the Company's agreement to provide Mr. Buchanan
with continued employment and the severance pay described above, and
for other good and valuable consideration, the receipt and sufficiency
of which are expressly acknowledged, Mr. Buchanan hereby
unconditionally waives, releases and forever discharges Convera and
any of Convera's current or former, owners, officials, directors,
officers, shareholders, affiliates, agents, Mr. Buchanan's benefit
plans, representatives, servants, employees, attorneys, subsidiaries,
parents, divisions, branches, units, successors, predecessors, and
assigns (collectively referred to as "Released Parties") from any and
all claims, causes of action, demands or charges arising out of or
relating to Mr. Buchanan's employment by or separation from Convera,
whether known or unknown, including but not limited to, claims of
discrimination or breach of contract, and claims based in whole or in
part on the Civil Rights Act of 1991, the Civil Rights Act of 1964,
the Americans with Disabilities Act of 1990, the Age Discrimination in
Employment Act, Executive Order 11246, the Equal Pay Act of 1963, the
Rehabilitation Act of 1973, the Fair Labor Standards Act, the Civil
Rights Act of 1866, or under any other employee relations law,
employee benefits law or applicable federal, state, local, foreign or
other law or regulations in any jurisdiction, or causes of action
sounding in tort or in contract, and including but not limited to any
claims for wages, commissions, bonuses, expense reimbursement or other
forms of compensation, monetary or equitable relief, damages of any
nature and/or attorneys' fees.
9. This Agreement constitutes full and final settlement of any and all
claims Mr. Buchanan has or may have, arising out of or relating in any
way to Mr. Buchanan's employment, with or separation from Convera. For
the purpose of implementing a full and complete release and discharge
of Convera, Mr. Buchanan expressly acknowledges that this Agreement is
intended to include in its effect, without limitation, all claims that
Mr. Buchanan does not know or suspect to exist in his favor at the
time of execution hereof, and that the Agreement contemplates the
extinguishment of any such claim or claims. This Agreement shall be
and remain in effect as a full and complete general release
notwithstanding the discovery or existence of any additional or
different facts.
<PAGE>
10. Mr. Buchanan hereby acknowledges that the agreements and covenants
relating to the Continued Employment Period, and the severance pay
thereafter, described herein do not arise from any pre-existing legal
obligations of Convera, and that, except as set forth herein, Mr.
Buchanan has no legal or other entitlement to the payments described
herein under any policy, plan or procedure of Convera (including its
predecessors Excalibur Technologies, Inc. and/or Intel Corporation's
Interactive Media Services division (collectively, the
"Predecessors")) or under any prior agreement (written or oral)
between Mr. Buchanan and Convera or the Predecessors.
<PAGE>
11. Mr. Buchanan agrees and acknowledges that information and materials in
written, oral, magnetic, photographic, optical or other form, and
whether now existing or developed or created during the period of Mr.
Buchanan's employment or engagement with Convera and its Predecessors,
are proprietary to Convera and are highly sensitive in nature. Mr.
Buchanan and Convera further agree that "Confidential Information" is
any information not in the public domain, including but not limited
to:
(a) All data, documents, materials, drawings and information
received in tangible form and marked "Proprietary" or
"Confidential."
(b) Any and all ideas, concepts, know-how, methods, techniques,
structures, information and materials relating to existing
software products and software in various states of research and
development including, but not limited to, source code, object
and load modules, requirements specifications, design
specification, design notes, flow charts, coding sheets,
annotations, documentation, technical and engineering data,
laboratory studies, benchmark test results, and the structures,
organization, sequence, designs, formulas and algorithms which
reside in the software and which are not generally known
independently to the public or within the industries or trades in
which Convera competes.
(c) Internal business procedures and business plans,
including analytical methods and procedures, licensing
techniques, manufacturing information and procedures such as
formulations, processes and equipment, technical and engineering
data, vendor names, other vendor information, purchasing
information, financial information, service and operational
manuals and related documentation, ideas for new products and
services and other such information which relates to the way
Convera conducts its business which is not generally known to the
public.
(d) Patents, copyrights, trade secrets, trademarks, service
marks, and the like.
<PAGE>
(e) Any and all customer and marketing information and
materials, such as strategic data, including marketing and
development plans, forecasts and forecast assumptions and
volumes, and future plans and potential strategies which have
been or are being discussed; financial data, including price and
cost objectives, price lists, pricing policies and procedures,
and quoting policies and procedures; and customer data, including
customer lists, names of existing, past or prospective customers
and their representatives, data provided by or about prospective,
existing or past customers, customer service information and
materials, data about the terms, conditions and expiration dates
of existing contracts with customers and the type, quantity and
specifications of products and services purchased, leased or
licensed by customers of Convera.
(f) Any and all information and materials in Convera's
possession or under its control from any other person or entity
to which it is obligated to treat as confidential or proprietary.
12. Mr. Buchanan represents and warrants that he has complied with the
provisions of any employment and/or confidentiality agreement or
similar agreements previously entered into between Mr. Buchanan and
Convera or the Predecessors (the "Employee Confidentiality Agreement")
and that Mr. Buchanan has not done or in any way been a party to, or
knowingly permitted, and will not engage in or permit any of the
following:
(a) Disclosure of any Confidential Information or trade
secrets of Convera;
(b) Retention of any trade secrets or Confidential
Information of Convera;
(c) Copying any of the above; or
(d) Retention of any materials (including any documents or
other written materials, ) belonging to, or in the possession of,
Convera.
13. Mr. Buchanan confirms his promise to continue to perform the
obligations he undertook in any Employee Confidentiality Agreement,
including (but not by way of limitation) Mr. Buchanan's agreement not
to copy, remove, disclose to his employer (or to anyone else), or to
use in any way for any purpose, any Confidential Information, trade
secrets, business records or other materials or property provided or
disclosed to him or created or learned by him during his employment
with Convera. Mr. Buchanan further agrees that he will not solicit or
induce, or attempt to solicit or induce, any current or future
employee of Convera to leave Convera for any reason and that Mr.
Buchanan agrees that he will not attempt to contact Convera's clients
or potential clients of which he is aware with regard to Convera's
products and business nor to solicit, divert, or take away any of the
customers of the Company or any of its suppliers. Mr. Buchanan further
agrees and acknowledges that all work performed, created and conceived
relating to Mr. Buchanan's scope of employment while an employee of
Convera and/or the Predecessors, was done so pursuant to the Work Made
for Hire Doctrine and as such, as between Mr. Buchanan and Convera, is
the property of Convera. Mr. Buchanan expressly confirms that he knows
of no reason why any promise or obligation set forth in any Employee
Confidentiality Agreement should not be fully enforceable against Mr.
Buchanan.
<PAGE>
14. Mr. Buchanan acknowledges that by virtue of Mr. Buchanan's employment
by Convera, and over the course of that employment, Mr. Buchanan has
obtained trade secrets and Confidential Information of Convera, the
use or disclosure of which would cause irreparable harm to Convera.
Mr. Buchanan further acknowledges that money damages are not a
sufficient remedy for breach of this Agreement and that Convera shall
be entitled, in addition to any and all other remedies available to
Convera, the entry of preliminary injunctive relief as a remedy for
such breach without the need to post a bond and without proof of
actual damages. In the event that Convera is required to enforce its
rights under this Agreement and prevails, Mr. Buchanan agrees that
Convera shall be entitled to recover all costs and fees incurred,
including attorneys' fees.
15. Mr. Buchanan confirms that, during the Continued Employment Period and
for a period of twelve (12) months thereafter, he will not engage in
any activity that is or is intended to be, directly or indirectly
competitive with the products developed, manufactured or marketed by
the Company, or products which the Company has under development or
which are the subject of active planning at any time during his
employment. Companies for which he will not accept employment or
consultancy for a period of up to twelve (12) months following the end
of the Continued Employment Period include Verity, Autonomy, and Fast
Company and their respective successors, if any.
16. Except as provided herein (particularly in section 13), this Agreement
supersedes, cancels and replaces any other agreement between Mr.
Buchanan and Convera. Any right or entitlement in effect or available
to Mr. Buchanan under any such other agreement is hereby
unconditionally and irrevocably waived by Mr. Buchanan to the maximum
extent permissible. Notwithstanding the foregoing, any agreement
between Mr. Buchanan and Convera and/or the Predecessors, by which Mr.
Buchanan has assigned intellectual property to Convera shall remain in
effect.
17. Notwithstanding any other provision in this Agreement, the Company
expressly acknowledges its obligation to indemnify Mr. Buchanan in
accordance with Convera's by-laws and to the fullest extent permitted
by the Delaware General Corporation Law in respect of all claims that
arise from, are based on or relate or otherwise are attributable to
Mr. Buchanan in his capacity as Company officer prior to January 31,
2004.
18. This Agreement may not be changed or altered, except by a writing
signed by Convera and Mr. Buchanan. The parties agree that if any
provision of this Agreement is deemed invalid, the remaining
provisions will still be given full force and effect. Further, any
material breach of this Agreement by either party shall excuse the
other party from further performance of this Agreement. The remedies
set forth herein are not intended to exclude any other remedies
available to either party at law or equity.
<PAGE>
19. Mr. Buchanan agrees that he has been given a period of at least
forty-five (45) days to consider the terms of this Agreement, although
he may accept it at any time within those forty-five (45) days. To
accept this Agreement, Mr. Buchanan must date and sign this Agreement
and return it to Nancy McKinley of Convera. Once he has done so, he
will have seven (7) days in which to revoke his acceptance. To revoke,
Mr. Buchanan must send a written statement of revocation to Ms.
McKinley. If he does not revoke, the Agreement will become effective
on the eighth (8th) day after it is signed by Mr. Buchanan. Mr.
Buchanan also acknowledges that he is being provided with Attachment
A, which is a schedule of the ages and job titles of employees at
Convera who are also being offered severance packages and a list of
the ages and job titles of those individuals in the same job
classifications who are not being offered packages.
20. This Agreement shall be governed by and, for all purposes, construed
and enforced in accordance with the laws of the State of Virginia
applicable to contracts made and to be performed in such state.
Convera and Mr. Buchanan agree that the federal or state courts of the
State of Virginia shall have sole and exclusive jurisdiction over any
claim or cause of action relating to this Agreement or Mr. Buchanan's
employment by Convera or the termination of such employment, and Mr.
Buchanan hereby consents to accept service of process as provided
under Virginia law or by registered mail, return receipt requested,
and waives any objection to personal jurisdiction of Mr. Buchanan in
the state or federal courts of the State of Virginia.
21. Mr. Buchanan agrees that the terms and conditions of this Agreement
are confidential and are not to be discussed with any current, future
or past employees of Convera, except those designated by Convera. The
parties agree to hold these terms and conditions in strict confidence,
except as required by law, or as necessary to obtain legal or
financial advice. Any violation of this confidentiality provision
shall be considered a material breach of this Agreement.
ACKNOWLEDGMENT
I AGREE TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND RELEASE. I
ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT AND RELEASE AND UNDERSTAND
ALL OF ITS TERMS, INCLUDING THE FULL AND FINAL RELEASE OF CLAIMS SET FORTH
ABOVE. I FURTHER ACKNOWLEDGE THAT I HAVE VOLUNTARILY ENTERED INTO THIS AGREEMENT
AND RELEASE, THAT I HAVE NOT RELIED UPON ANY REPRESENTATION OR STATEMENT,
WRITTEN OR ORAL, NOT SET FORTH IN THIS AGREEMENT, AND THAT I HAVE BEEN GIVEN THE
OPPORTUNITY AND ENCOURAGED TO HAVE THIS AGREEMENT AND RELEASE REVIEWED BY AN
ATTORNEY.
<PAGE>
CONVERA TECHNOLOGIES, INC. JAMES BUCHANAN
By: /s/ PATRICK C. CONDO /s/ JAMES BUCHANAN
______________________ _______________________
Authorized Signature Signature
Dated: February 6, 2004 Date: February 6, 2004