exv10w1



 




Exhibit 10.1




AMENDMENT TO EMPLOYMENT AGREEMENT

AND RELEASE OF CLAIMS




     This Amendment to Employment Agreement and Release of Claims (“Agreement”)
is made by and between Critical Path, Inc. (the “Company”), and Robert A. Shipp
(“Executive”) (collectively referred to herein as the “Parties”) and dated as
of August 16 2003 (the “Effective Date”).




     WHEREAS, Executive has been employed by the Company pursuant to a signed
Offer Letter dated October 9, 2002 (“Employment Agreement”);




     WHEREAS, Executive and Company hereby agree to amend and/or terminate
certain terms and conditions of such Employment Agreement; and




     WHEREAS, Executive and Company hereby agree to the terms and conditions of
a modified employment relationship going forward;




     NOW THEREFORE, in consideration of the mutual promises made herein, the
Company and Executive hereby agree as follows:



1.      Modification of Employment. Executive shall remain President of the Company
and report to the Chairman and Chief Executive Officer (the “CEO”). However,
Executive’s duties shall consist of managing and closing certain key customer
accounts and prospects and other strategic relationships at the direction of
the CEO. Executive’s employment shall continue to be an at-will relationship
as provided under the Employment Agreement.



2.       Consideration. As of the Effective Date, the Company agrees to pay
Executive the sum of two-hundred sixty-two thousand five hundred dollars and
zero cents ($262,500.00), less all applicable withholdings in accordance with
the Company’s standard payroll practices (the “Employment Agreement Amount”).
No other amounts are due or payable to the Executive now or at any future time,
except as specifically contemplated or described in this agreement.



3.      Payment of Salary; Reimbursement of Expenses. As of the Effective Date, all
payment of regular base salary and eligibility for bonuses will terminate,
except as specifically contemplated and described in this Agreement. Executive
shall be compensated in accordance with a new Compensation Plan (“Plan”), as
mutually identified, agreed and determined by the Parties, no later than August
30, 2003. Such Plan shall be appended to this Agreement in the form of Exhibit
A hereto, as soon as such Plan is finalized and shall thereafter be
incorporated by reference and form a part of this Agreement. The failure for
any reason to finalize the plan shall not affect any provision of this
Agreement or the validity of any release given hereunder. In the event that
the Plan is not agreed upon, Executive shall have no claim for salary, wages or
any other amounts due other than as expressly set forth in this Agreement.



 









 



On the Effective Date, Company shall pay Executive for final earned but unpaid
salary through the Effective Date. Company will continue to reimburse
Executive for approved business related expenses incurred in accordance with
the current Company travel and expense policies applicable to Executive and
properly submitted.



4.      Vesting of Stock Options. As of the Effective Date, Executive shall
continue to vest in all previously granted options to purchase shares of
Company common stock in accordance with the applicable vesting schedules found
in each Stock Option Agreement and as provided in the Employment Agreement.
Except as provided below, nothing in this Agreement is intended to otherwise
supersede or modify the terms and conditions of the Company’s Stock Option
Plans or any agreements issued in connection with those plans including any
provision contained in any agreement (including the Employment Agreement) for
accelerated vesting and/or any change of control arrangement.



5.       Benefits. Executive shall continue to be covered by all employee health and
welfare benefit plans pursuant to the terms and conditions of the Employment
Agreement, other than Paid Time Off which ceased accruing as of January 2003.
Nothing in this Agreement is intended to supercede or modify the terms and
conditions of the Company’s health and benefits plans.



6.      Amendment of Employment Agreement. The following provisions of the
Employment Agreement and all obligations of either party thereunder shall
immediately terminate and be of no further force or effect: Bonus, Review,
Paid Time Off, and Severance. The following provisions of the Employment
Agreement shall be modified as provided hereunder: Position and Compensation.
In the event of any conflict between the terms of the Employment Agreement
and this Amendment, this Amendment shall control. In addition, there shall be
added to the definition of “Good Reason” in Appendix A of the Employment
Agreement, the following additional item (a) (6) as follows: “employee’s
compensation hereunder in any quarter following a Change of Control is less
than $25,000.”



7.      Release of Claims.



     a.      Civil Code Section 1542. In connection with all releases given under
this Agreement (“Release”), Executive expressly waives any rights or benefits
under Section 1542 of the California Civil Code, or any other equivalent
statute, 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.



 








 



     b.      Release. Executive agrees that the Employment Agreement Amount
constitutes settlement in full of all outstanding obligations owed to Executive
by the Company under the Employment Agreement. Except for the promises or
obligations made or undertaken in this Agreement and in exchange for the
payments and other consideration provided hereunder, Executive, on behalf of
himself, and his respective heirs, family members, executors, and assigns,
hereby fully and forever releases, acquits, and discharges the Company and its
respective officers, directors, employees, investors, shareholders, affiliates,
divisions, subsidiaries, predecessor and successor corporations, and assigns,
from, and agrees not to sue concerning, any claim, duty, obligation or cause of
action relating to any matters of any kind, whether presently known or unknown,
suspected or unsuspected, that he or she may possess arising from any
omissions, acts or facts that have occurred up until the Effective Date. The
foregoing release shall include, without limitation, any and all claims
relating to or arising from Executive’s employment relationship with the
Company and the termination or modification of that relationship; any and all
claims relating to, or arising from, Executive’s right to purchase, or actual
purchase of shares of stock of the Company, including, without limitation, any
claims for rights of rescission, personal tax liabilities, fraud,
misrepresentation, breach of fiduciary duty, breach of duty under applicable
state corporate law, and securities fraud under any state or federal law; any
and all claims for wrongful discharge of employment, wages or other
compensation, including but not limited to bonuses and commissions; breach of
contract, both express and implied; breach of a covenant of good faith and fair
dealing, both express and implied; negligent or intentional infliction of
emotional distress; negligent or intentional misrepresentation; negligent or
intentional interference with contract or prospective economic advantage;
defamation; negligence; personal injury; discrimination, disability
discrimination; violation of public policy; retaliation; harassment; any tort
claims, including wrongful discharge, assault; battery; harassment; invasion of
privacy; false imprisonment; and conversion; any and all claims for violation
of any federal, state or municipal statute, including, but not limited to,
Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the
Age Discrimination in Employment Act of 1967, the Americans with Disabilities
Act of 1990, the Fair Labor Standards Act, the California Fair Employment and
Housing Act, and Labor Code section 201, et seq., and all as may be amended
from time to time; any and all claims arising out of any other laws and
regulations relating to employment or employment discrimination; and any and
all claims for attorneys’ fees and costs. This release extends to any and all
administrative or criminal charges whether before the Division of Labor
Standards, Equal Employment Opportunity Commission or the Department of Fair
Employment and Housing or any other court or agency to which Executive
currently is or shall later become a party. Should Executive ever become a
party to any such proceeding, he shall immediately ask any such administrative
agency or court to withdraw any such charge as to him.




     The parties acknowledge and agree that all potential or actual disputes
between them with respect to the Employment Agreement have been fully and
finally settled to their complete satisfaction, leaving no disputes,
controversies, claims or grievances of any kind between them. The parties
therefore covenant and agree that, except as may be compelled by legal process,
they will not raise or in any way pursue any claims which are




 








 




 being released and discharged in this Agreement in any forum of any kind,
including, without limitation, the federal, state or local courts, or federal,
state or local agencies or offices of any kind, be they administrative,
regulatory, judicial, quasi-judicial, or otherwise. The parties further agree
that, except as compelled by legal process, they will not aid, assist, abet or
in any way encourage any third party to in any way pursue any claims which are
being released and discharged in this Agreement.




     Executive agrees that the release set forth in this section shall be and
remain in effect in all respects as a complete general release as to the
matters released. Executive understands and agrees that this Release
extinguishes all claims by the Executive as of the Effective Date whether known
or unknown and foreseen or unforeseen.




     c.      Acknowledgment of Waiver of Claims under ADEA. To the extent
applicable, Executive further acknowledges that he is waiving and releasing any
rights he may have under the Age Discrimination in Employment Act of 1967
(“ADEA”) and that this waiver and release is knowing and voluntary. Executive
and the Company agree that this waiver and release does not apply to any rights
or claims that may arise under ADEA after the Effective Date. Executive
acknowledges that the consideration given for this waiver and release Agreement
is in addition to anything of value to which Executive was already entitled.
To the extent the ADEA is applicable to Executive, Executive further
acknowledges that he or she has been advised by this writing, as required by
the ADEA, that (a) he or she has the right to and should consult with an
attorney prior to executing this Agreement (although he or she may execute this
Agreement voluntarily earlier); (b) he or she has at least forty-five (45) days
within which to consider this Agreement; (c) he or she has seven (7) days
following the execution of this Agreement to revoke the Agreement by sending a
written notice to the Company to the attention of General Counsel, Critical
Path, Inc., 350 The Embarcadero, 6th Floor, San Francisco, California
94105-1204; and (d) this Agreement shall not be effective until the revocation
period has expired, which shall be the eighth day after it is signed by
Executive and Company.



8.       Confidentiality. Executive understands and agrees that the terms of this
Agreement are highly confidential and the Parties hereto each agree to use
their best efforts to maintain in confidence the existence of this Agreement,
the contents and terms of this Agreement, and the consideration for this
Agreement (hereinafter collectively referred to as “Settlement Information”).
Each Party hereto agrees to take every reasonable precaution to prevent
disclosure of any Settlement Information to third parties, and each agrees that
there will be no publicity, directly or indirectly, concerning any Settlement
Information, except where such disclosure is required by law and as required by
the regulations promulgated under the Securities and Exchange Act of 1934, as
amended. The Parties hereto agree to take every precaution to disclose
Settlement Information only to those employees, officers, directors, attorneys,
accountants, governmental entities, and family members who have a reasonable
need to know of such Settlement Information.



 








 



9.       No Representations. Neither party has relied upon any representations or
statements made by the other party hereto which are not specifically set forth
in this Agreement.



10.       Severability. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision. Such provision shall be modified by the court so as to be rendered
enforceable insofar as possible consistent with the intent of the Parties to
all remaining portions of the Agreement.



11.      Entire Agreement. This Agreement represents the entire agreement and
understanding between the Company and Executive concerning Executive’s
employment with the Company, and supersedes and replaces any and all prior
agreements and understandings, whether oral or written, concerning Executive’s
relationship with the Company and his or her compensation by the Company,
except for (i) the Employment Agreement, to the extent not expressly modified
hereunder, (ii) any prior agreement or understanding to indemnify Executive as
against third party claims which may arise in connection with Executive’s
service as an executive officer, including but not limited to employee’s
Indemnification Agreement and (iii) employee’s stock option agreements and the
provisions of any other agreement related to such stock option agreements. This
Agreement may only be amended in writing signed by Executive and the Chief
Executive Officer or Chief Financial Officer of the Company.



12.      Governing Law. This Agreement shall be governed by the laws of the State
of California.



13.       Voluntary Execution of Agreement. This Agreement is executed voluntarily
and without any duress or undue influence on the part or behalf of the Parties
hereto, with the full intent of releasing all claims. Executive acknowledges
that: (a) he or she has read this Agreement; (b) has been represented in the
preparation, negotiation, and execution of this Agreement by legal counsel of
his or her own choice or that he or she has voluntarily declined to seek such
counsel; (c) understands the terms and consequences of this Agreement and of
the releases it contains; (d) is fully aware of the legal and binding effect of
this Agreement.




     IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date set forth on the first page of this Agreement.




	 	 	 	 	 
	Dated: As of August 16, 2003	 	
By	 	/s/ William E. McGlashan, Jr.
	 	 	 	 	

	  	 	
Name:
	 	William E. McGlashan, Jr.
	 	 	
Title:
	 	Chairman and CEO
	 	 	 	 	 
	Dated: As of August 16, 2003	 	
By	 	/s/ Robert Allen Shipp
	 	 	 	 	

	 	 	 	 	Robert Allen Shipp







 









 



EXHIBIT A




Compensation Plan



Critical Path will pay you commissions on any transactions which you are
substantially materially and principally involved in closing (such
determination to be in the sole reasonable discretion of the Chairman and
CEO), provided that 1) such transaction is not yet completed or
substantially completed as of the date of this agreement, and 2) such
transaction is listed below, or otherwise approved in writing by an email
exchange between you and the CEO:




BEA

Delphi

Kaiser

State Farm

State of North Carolina

Z-Tel

GE

EPOK



Commissions payable on the above deals shall be as follows:




	 	i.	 	License transactions 10% of the
realized and collected net revenue received by CP in
connection with these deals.






	 	ii.	 	Hosted Transactions — 10% of the
first months MRR, multiplied by 12.






	 	iii.	 	3.5% on net Professional Services
revenue. An additional 3.5% “profitability kicker” will
be paid on deals that achieve over 38% margin billing.






	 	iv.	 	Commissions will be payable on first
year SUSS in accordance with and at the rate provided in
CP’s standard SUSS commission policy.





Any dispute as to payments and policies surrounding payment will be
resolved with reference to CP’s 2003 Sales Incentive Plan Guidelines.