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EXHIBIT 10.26
SEPARATION AGREEMENT AND GENERAL RELEASE
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THIS AGREEMENT, dated this 11th day of August, 2000, is between SCC
Communications Corp., 6285 Lookout Road, Boulder, Colorado (the "Employer") and
Carol Nelson (the "Employee").
WHEREAS, the Employee has been employed by the Employer in the capacity
Chief Financial Officer; and
WHEREAS, certain discussions have occurred between the Employer and the
Employee with respect to the future employment of Employee; and
WHEREAS, the Employer and the Employee agree that the employment
relationship is hereby severed effective as of the end of the Transition Period,
as defined below, unless earlier termination occurs pursuant to the terms and
conditions stated herein; and
WHEREAS, in exchange for the consideration set forth below; the Employee
has agreed to give a general release and to waive any right or interest she may
have in severance pay, and in consideration therefore and subject to the terms
and conditions hereof, Employer has agreed, subject to approval by SCC
Communications Corp.'s Board of Directors, to pay Employee for her services
through a "Transition Period" defined herein, to pay Employee the "Retention
Bonus" described herein and to accelerate the vesting of certain of Employee's
stock options in the manner described herein; and
WHEREAS, in agreeing to offer and pay these amounts to Employee, Employer
does not waive any right, past, present or future, to exercise its exclusive
discretion to establish or modify its severance, retention or other policies.
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NOW THEREFORE, in consideration of the foregoing paragraphs and the
following mutual covenants, the sufficiency of which is hereby acknowledged, it
is hereby agreed:
1. Assuming the conditions contained in this section 1 and elsewhere in
this Agreement are fully met, the Employee agrees to work from the date of
execution hereof until the end of the business day on September 30, 2000 (the
"Transition Period"). If Employee is employed by Employer at the end of the
Transition Period, or if her employment has been terminated by the Employer
during the Transition Period other than for Cause (as defined below), Employer
shall pay Employee the "Retention Bonus" described in sections 2 (a) and (b)
below. During the Transition Period, Employer retains the right to terminate
Employee with or without Cause, and Employee retains the right to quit at any
time for any reason. "Cause" shall mean (i) Employee's willful failure to comply
with the lawful directives of the Employer's Chief Executive Officer or its
Board of Directors, or (ii) any criminal act or act of dishonesty, disloyalty,
misconduct or moral turpitude by Employee that is injurious in any significant
respect to the property, operations, business or reputation of Employer after,
in the case of non-criminal conduct, notice and an opportunity to cure if such
conduct is capable of cure within reasonable period of time, or (iii) uncured
material breach by the Employee of any written agreement with Employer.
2. Employee Compensation and Accelerated Vesting Schedule:
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In consideration for this Agreement and the matters contained within the
succeeding paragraphs, and subject to Employer's unconditional right to
terminate Employee prior to the expiration of the Transition Period, the
Employee shall work for
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Employer in her normal capacity as Chief Financial Officer and shall receive
Employee's regular pay and benefits in effect as of the date of execution hereof
through the end of the Transition Period. Such pay and benefits will include any
bonus(es) to which Employee would otherwise be entitled during the Transition
Period. Such bonus(es) will be calculated on a pro rata basis using the number
of days in the relevant bonus period as compared to the number of days Employee
is employed during that period. The number of days that Employee is employed
will be tolled as of the Employee's the last date of employment which date shall
be deemed to be September 30, 2000 unless Employee is terminated for Cause or
voluntarily resigns prior thereto in which case the last date of employment
shall be deemed to be the date on which such earlier termination or resignation
occurs. If Employee is terminated without Cause prior to September 30, 2000,
Employee will be entitled to such pro rata bonus(es) based on the September 30,
2000 date.
Subject to the terms and conditions stated above in section 1, Employee
shall also be entitled to the Retention Bonus described in sections 2 (a) and
(b) below.
Employee shall also be entitled to the stock option benefits expressly
described in section 2 (c) below:
(a) The "Retention Bonus" means (i) the Employee's regular pay
measured from the expiration of the Transition Period through April 30,
2001 which pay shall be at the rate of the Employee's wages in effect as of
the effective date of this agreement, and (ii) the benefits described in
section 2 (b) below. Such pay and benefits shall be subject to all
applicable deductions and payable under Employer's normal pay schedule.
Employee will not be entitled to the
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Retention Bonus if Employee is terminated for Cause during the Transition
Period. Nothing contained in this Agreement, nor the performance by the parties
hereunder, shall be construed as an agreement to employ the Employee during or
after the Transition Period. Employment continues to be "at the will" of both
parties; and
(b) The Employee benefits that are included within the Retention
Bonus shall include no less than all employee benefits in effect as of the
date of execution hereof, including but not limited to health and dental
benefits, and 401(k) plan, except to the extent not permitted by law.
Applicable deductions in place at the effective date of this agreement for
such benefits will continue through April 30, 2001, except that Employee
may modify such deductions under the terms allowed by all employees of
Employer.
(c) Subject to the approval of SCC Communications Corp.'s Board of
Directors, and subject to all terms and conditions set forth in any
relevant Incentive Stock Option Agreement(s) ("ISOA"), including all
exhibits thereto, to which Employee and Employer are parties pursuant to
Employee's employment by Employer, the Employee's stock options will
continue to vest in the manner and shall otherwise be treated as described
in the particular ISOA, except that, with respect to those options that
would vest between September 30, 2000 and April 30, 2001 pursuant to any
such ISOA, such options shall be deemed to vest as of the date of execution
of this agreement. Except as otherwise expressly provided in this section
2(c), nothing in this Agreement shall be deemed to affect, alter or modify
any other provision contained in such option agreement(s),
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including but not limited to method and timing of exercising options, and
conditions or restrictions related to options or stock.
3. Termination of Employment:
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Employee shall be deemed terminated at the end of the Transition Period,
unless sooner terminated pursuant to the provisions of this Agreement, in which
case date of termination shall be the date on which Employee or Employer so
terminates. Employee agrees to cooperate with Employer on any necessary filings
with the Securities and Exchange Commission or other requirements. Any public
announcements regarding the Employee or the Employee's replacement will be
subject to the review and approval of Employee prior to release.
4. Release:
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In consideration of the foregoing, Employee for her, her heirs, personal
representatives and assigns, hereby fully and forever releases and discharges
Employer, and its respective affiliated corporations, predecessors, successors,
insurers, assigns, affiliates, agents, attorneys, officers, directors,
employees, and representatives from any and all claims, demands, obligations,
actions, liabilities and damages of every kind and nature whatsoever, in law or
in equity, whether known or unknown to Employee, including but not limited to,
claims or the right to collect damages under Title VII of the Civil Rights Act
of 1964, the Civil Rights Act of 1866, the Age Discrimination in Employment Act
of 1967, the Employment Retirement Income Security Act of 1974, Executive Orders
111246 and 11141, and all federal, state and local claims, whether statutory or
common law, including, but not limited to, those under the laws of the State of
Colorado and any other state in which Employee performs duties on behalf of
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Employer (including, but not limited to, the Colorado Anti-discrimination Act)
which Employee may have against Employer, and/or its respective affiliated
corporations, predecessors, successors, insurers, assigns, affiliates, agents,
attorneys, officers, directors, employees, and representatives, by reason of any
act or omission by Employer and/or its respective affiliated corporations,
predecessors, successors, insurers, assigns, affiliates, agents, attorneys,
officers, directors, employees, and representatives, in any capacity, arising
prior to the date of the Transition Period including, without limitation, those
(a) arising from or based upon any transaction, act, matter, event or thing
involved while Employee was employed by Employer, and (b) arising from or based
upon any other transaction, act, matter, event or thing involving any of the
parties to this Agreement, and/or their respective affiliated corporations,
predecessors, successors, insurers, assigns, affiliates, agents, attorneys,
officers, directors, employees, and representatives, which occurred prior to the
Transition Period but excluding however (a) any claims or cause of action based
upon a breach or alleged breach of this Agreement or (b) any claim by Employee
for indemnification in circumstances where Employee was acting in her official
capacity as Chief Financial Officer and is the subject of a third party claim
involving Employee in that capacity; provided, however, a claim against Employer
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by Employee for indemnification shall not survive this release where a court of
competent jurisdiction determines that Employee is personally liable in whole or
in part for the alleged harm claimed by such third party. Nothing herein shall
be construed to, nor shall, alter any relevant provisions contained in any
written agreement between the parties with respect to officer or director
indemnification.
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5. Return of Company Property:
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Employee agrees that upon expiration of the Transition Period, or upon
earlier termination pursuant to the terms hereof, Employee will immediately
return to Employer all items in her possession which are the property of
Employer.
6. Binding Effect / Integration:
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This Agreement shall be binding upon the parties hereto and upon their
respective executors, administrators, legal representatives, successors and
assigns. This Agreement supercedes all prior agreements between the parties
with respect to the subject matter herein, and all such agreements are
integrated herewith.
7. Opportunity to Review:
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The Employee agrees that she has executed this Agreement after reading the
Agreement, that she had the opportunity to consult with counsel prior to its
execution and that the execution of the Agreement is of her own free will. The
Employee agrees that no other inducements or consideration have been promised to
her by the Employer other than the consideration specifically described herein.
8. Security and Non-Disclosure Agreement:
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Employee acknowledges that adherence to the Non-Disclosure Agreement signed
by Employee upon joining SCC Communication Corp. survives separation and is
mandatory.
9. Applicable Law:
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This Agreement shall be governed for all purposes by the laws of the State
of Colorado. If any provision of this Agreement is declared void, such
provision shall be
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deemed severed from this Agreement, which shall otherwise remain in full force
and effect.
10. Confidentiality
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Employer and Employee expressly acknowledge that the terms of this
Agreement shall remain confidential to the extent permitted by law and shall not
be disclosed to any third party, other than any announcements agreed to by
Employer and Employee and approved by Employee prior to release. The parties
acknowledge that the terms of this Agreement may be disclosed as follows: (1)
the parties may disclose the terms of this Agreement to any tax, financial or
legal advisor in regard to any disclosure to the Internal Revenue Service or the
Colorado Department of Revenue; and (2) disclosure as may be required or
necessary to enforce the terms of this Agreement or as required by Court order.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first above written.
SCC COMMUNICATIONS CORP.
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By and through George Heinrichs
President and Chief Executive Officer
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(Date)
EMPLOYEE:
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Carol Nelson
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(Date)
