Agreement and Release - Convera Technologies Inc. and Christopher Mann
Agreement and Release
Agreement and Release Convera Technologies, Inc. ("Convera" or "the
Company") and Christopher Mann ("Mr. Mann") hereby make and enter into this
Agreement and Release (the "Agreement").
NOW, THEREFORE, in consideration of the provisions and promises contained
herein, Mr. Mann and the Company agree as follows:
1. Mr. Mann will resign his position as Chief Financial Officer of the
Company, effective December 16, 2003, and the Company agrees to continue to
employ Mr. Mann from December 16, 2003 to September 30, 2004 (the
"Continued Employment Period"). During the Continued Employment Period, Mr.
Mann will make himself available, as needed, including without limitation,
for the remainder of Fiscal Year 2004, and with the Company's year-end
financial activities. Mr. Mann will also assist, as requested, with the
transition of his prior duties to the Company's new Chief Financial
Officer.
2. Effective December 16, 2003, Mr. Mann's on-site duties at Convera's offices
will cease and Mr. Mann will return to Convera all Confidential Information
(defined below) and other Company property in his possession or control
except that which may be required to fulfill his obligations in Paragraph 1
above and will return all such Confidential Information and Company
property on request of the Company.
3. After Mr. Mann has signed this Agreement, and throughout the remainder of
the Continued Employment Period, the Company will pay Mr. Mann a monthly
base salary of $17,500 (which is equivalent to an annual salary of
$210,000), 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.
4. During the Continued Employment Period, Mr. Mann's stock options (100,000
at $4.38 vesting 1/8 every 6 months from December 22, 2000 and 100,000 at
$4.07 vesting 1/8 every 6 months from January 31 2002) will continue to
vest according to their regular schedule. In accordance with the Convera
Corporation 2000 Stock Option Plan (incorporated herein by reference), Mr.
Mann may exercise vested stock options for a period of ninety(90) days
following the end of the Continued Employment Period.
5. In accordance with its standard policies and practices, Convera will
reimburse Mr. Mann 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, Mr. Mann acknowledges and agrees that he shall
not receive any other form of compensation or benefits from Convera during
the Continued Employment Period, except health and dental insurance under
the Company's benefit plan. For example, Mr. Mann will not be eligible to
accrue vacation leave during the Continued Employment Period.
<PAGE>
7. At the conclusion of the Continued Employment Period on September 30, 2004,
Mr. Mann's employment with the Company shall be terminated. At that time,
Convera will:
(a) pay Mr. Mann for his accrued but unused vacation time of 120
hours less deduction of any federal, state or local taxes that Convera
may be required to collect or withhold ("Withholding Adjustments");
and
(b) terminate Mr. Mann's regular health and dental coverage as of
September 30, 2004; thereafter, Mr. Mann may extend such coverage at
his own expense through COBRA continuation.
8. In consideration for the Company's agreement to provide Mr. Mann with
continued employment and the payments described above, and for other good
and valuable consideration, the receipt and sufficiency of which are
expressly acknowledged, Mr. Mann hereby unconditionally waives, releases
and forever discharges Convera and any of Convera's current or former,
owners, officials, directors, officers, shareholders, affiliates, agents,
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. Mann'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, 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
attorney's fees. 401(k) accrued benefits are unaffected by this release and
Mr. Mann will continue to vest in the employer match portion of his account
through September 30, 2004 and continue to receive a summary of his 401(k)
account information in the ordinary course.
9. In return for good and valuable consideration, the receipt and
sufficiency of which is expressly acknowledged, Convera hereby
unconditionally waives, releases and forever discharges Mr. Mann
from any and all claims, causes of action, demands or charges that
are known to any Officer (other than Mr. Mann) or Director of
Convera prior to December 16, 2003, including but not limited to
those arising out of an inquiry performed by the Audit Committee
of Convera's Board of Directors from August 1, 2003 through
December 16, 2003 related to the accounting for certain
transactions.
10. This Agreement constitutes full and final settlement of any and
all claims Mr. Mann has or may have, arising out of or relating in
any way to Mr. Mann's employment, with or separation from Convera.
For the purpose of implementing a full and complete release and
discharge of Convera, Mr. Mann expressly acknowledges that this
Agreement is intended to include in its effect, without
limitation, all claims that Mr. Mann 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>
11. Mr. Mann hereby acknowledges that the agreements and covenants
relating to the Continued Employment Period described herein do
not arise from any pre-existing legal obligations of Convera, and
that, except as set forth herein, Mr. Mann 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. Mann and Convera or
the Predecessors.
12. Mr. Mann 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. Mann's employment or engagement with Convera and its
Predecessors, are proprietary to Convera and are highly sensitive
in nature. Mr. Mann 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.
13. Mr. Mann 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. Mann and Convera or the Predecessors
(the "Employee Confidentiality Agreement") and that Mr. Mann 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 or personal property (including
any documents or other written materials, or any items of
computer or other hardware, or any software, or any office
equipment) belonging to, or in the possession of, Convera.
14. Mr. Mann confirms his promise to continue to perform the obligations he
undertook in any Employee Confidentiality Agreement, including (but not by
way of limitation) Mr. Mann'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. Mann further agrees that during
the Continued Employment Period and for a period of twelve (12) months
thereafter 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. Mann 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. Mann further agrees
and acknowledges that all work performed, created and conceived relating to
Mr. Mann'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. Mann and Convera, is the property of Convera. Mr.
Mann 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. Mann.
<PAGE>
15. Mr. Mann acknowledges that by virtue of Mr. Mann's employment by Convera,
and over the course of that employment, Mr. Mann has obtained trade secrets
and Confidential Information of Convera, the use or disclosure of which
would cause irreparable harm to Convera. Mr. Mann 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 either Convera or Mr. Mann is required to
enforce its or his rights under this Agreement and prevails, both parties
agree that the prevailing party shall be entitled to recover all costs and
fees incurred, including attorneys' fees.
16. Mr. Mann 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.
17. Except as provided herein (particularly in section 14), this Agreement
supersedes, cancels and replaces any other agreement between Mr. Mann and
Convera. Any right or entitlement in effect or available to Mr. Mann under
any such other agreement is hereby unconditionally and irrevocably waived
by Mr. Mann to the maximum extent permissible. Notwithstanding the
foregoing, any agreement between Mr. Mann and Convera and/or the
Predecessors, by which Mr. Mann has assigned intellectual property to
Convera shall remain in effect.
18. This Agreement may not be changed or altered, except by a writing signed by
Convera and Mr. Mann. 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
Mr. Mann shall excuse Convera 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.
19. 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. Mann
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. Mann's employment by Convera or the termination of
such employment, and Mr. Mann 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. Mann in
the state or federal courts of the State of Virginia.
<PAGE>
20. Mr. Mann 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. 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.
CONVERA TECHNOLOGIES, INC. CHRISTOPHER MANN
By: /s/ PATRICK C. CONDO /s/ CHRISTOPHER MANN
______________________________ ______________________________
Authorized Signature Signature
Dated: January 7, 2004 Dated: January 7, 2004