Exhibit 10.1


 


SEPARATION AGREEMENT AND RELEASE


 


This
Separation Agreement and Release (the “Agreement”)
is made by and between SeeBeyond Technology Corporation, a Delaware Corporation
doing business in California (the “Company”),
and Mark D. Magarian (“Executive”).


 


WHEREAS,
Executive is employed by the Company as the Senior Vice President of Human
Resources, is a registered officer of the Company, and is the Company’s 401k
Plan Administrator;


 


WHEREAS, the Company and Executive have mutually agreed
to end the regular full-time employment relationship effective January 31, 2005
(“the Transition Date”), at which
time Executive will become a part-time employee/consultant for a period of ten
(10) months thereafter, up to and including November 31, 2005 (“the Separation Date”).  During said ten (10) month period, Executive
shall act in the capacity of an attorney at law, duly licensed to practice in
the State of California, and will report directly to the Company’s Vice
President Legal Affairs and General Counsel;


 


WHEREAS, on or about the Transition Date Executive will no longer be a
registered officer of the Company;


 


WHEREAS, on or about the Transition Date Executive will no longer be
the Plan Administrator for the Company’s 401k Plan;


 


NOW
THEREFORE, in consideration of the mutual promises made herein, the Company and
Executive (collectively referred to as “the Parties”)
hereby agree as follows:


 


1.             Consideration.  The
Company and Executive agree as follows:


 


A.           On or about the Transition Date, Executive
will receive, in one lump sum, the equivalent of eleven (11) months base
salary, to wit: One Hundred Ninety Two Thousand Five Hundred Dollars
($192,500.00), less normal and customary payroll withholding taxes and
deductions;


B.             On or about the Transition Date, Executive
will receive his earned and accrued but unused vacation pay, less normal and
customary payroll withholding taxes and deductions;


C.             Executive will receive his Q4 2004 Incentive
Compensation Bonus, less normal and customary payroll withholding taxes and
deductions, when the Company processes said bonuses for other senior corporate
executives.  Said Incentive Compensation
Bonus will be calculated pursuant to the terms of the Board approved Q4 2004
Incentive Compensation Plan for senior corporate executives, provided however,
the “MBO component” shall not be less than 100%;


D.            During the ten (10) month period between the
Transition Date and the Separation Date, while Executive is acting in the
capacity of an attorney at law, Executive will receive Three Thousand Dollars
($3,000.00) per month, less normal and customary


 


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payroll
withholding taxes and deductions.  During
this time, Executive will make himself reasonably available to the Company, by
and through the Vice President Legal Affairs and General Counsel, for a
mutually agreed number of hours per month to provide legal advice and
counsel.  (For purposes of clarity,
Executive shall have the right to work and/or be employed, on a regular
full-time basis or otherwise, for any other business or entity (with the
exception of any pure play integration software provider such as but not
limited to Tibco, Vitria, or WebMethods during this period or thereafter)).  The Company shall pay or reimburse
Executive for all pre-approved reasonable business expenses incurred in the
performance of Executive’s duties and which are consistent with the Company’s
policies, practices and procedures, upon submission of appropriate vouchers and
other supporting data.  The Company will
also allow Executive to utilize one of the Company’s laptop computers and
mobile phones;


E.              During
the ten (10) month period between the Transition Date and the Separation Date,
Executive and his dependants will continue to be eligible for and participate
in all Company benefit programs, including but not limited to medical, dental,
life, disability, FSA and 401k. (For purposes of clarity, during this period, Executive’s
401k contribution (if any) and the Company’s corresponding match (if any) shall
be based upon the $3,000.00 per month referred to in paragraph D, above).  Notwithstanding this section, Executive will
not earn or accrue vacation pay during the ten (10) month period;


F.              Executive will continue to be eligible
for and participate in the Company’s Stock Option Program, consistent with the
terms of the Company’s Stock Option Plan, through the Separation Date.  Executive’s rights in said Stock Option
Program, in particular with respect to accelerated vesting upon a Change of
Control, will remain identical to those established in Executive’s Offer Letter
of Employment which is attached hereto as Exhibit “A” and incorporated herein
by reference. (For purposes of clarity, the maximum number of unvested options
Executive shall be eligible to vest in — either through ordinary vesting or the
Change of Control provision set forth in 
Executive’s Offer Letter — shall be 31,250 options.)


G.             Executive will have 90 days from the
Separation Date to exercise any outstanding and vested but unexercised stock
options, thereafter they will be canceled;


H.            Executive
will not be eligible to participate in
any Incentive Compensation Bonus programs in 2005 or thereafter;


I.                 To the extent Executive has been named as a
party, or is named as a party in the future, in any administrative, civil or
criminal action as a result of the performance of his duties in the ordinary
course of employment with the Company, the Company agrees to defend Executive
and indemnify Executive for any and all reasonable costs associated with such
action(s).  The Company shall have the
option to select and monitor defense counsel. For purposes of clarity this
obligation shall not apply should it be determined that Executive was acting
outside of the course and scope of his employment


 


2. Confidential
Information.   Executive understands and acknowledges that in
the course of Executive’s employment, he has had access to information which is
both confidential and proprietary to the Company and its subsidiaries
affiliates (the “Company


 


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Group”) that concerns the technological innovations, operation
and methodology of the Company Group, including, without limitation, business
plans, financial information, company policies, company strategies, protocols,
proposals, manuals, procedures and guidelines, computer source codes, programs,
software, know-how and specifications, copyrights, trade secrets, market
information, Developments (as hereinafter defined), data and customer
information (collectively, “Proprietary Information”).  Executive agrees that during the period
beginning on the date of his hiring and continuing in perpetuity thereafter,
Executive shall keep confidential and shall not disclose any such Proprietary
Information to any third party, and shall not misuse, misappropriate or exploit
such Proprietary Information in any way. 
The restrictions contained herein shall not apply to any information
which Executive can demonstrate (i) was already available to the public at
the time of disclosure, or subsequently became available to the public,
otherwise than by breach of this Agreement or (ii) was the subject of a
court order to disclose.


 


“Developments” shall mean all
data, discoveries, findings, reports, designs, inventions, improvements, methods,
practices, techniques, developments, programs, concepts and ideas, whether or
not patentable, relating to the present or planned activities, or the products
and services of the Company .


 


3.
Release of Claims.  Executive and the Company agree that the foregoing
consideration represents settlement in full of all outstanding obligations owed
to Executive by the Company or to the Company by Executive.  Executive and the Company, on behalf of
themselves, and their respective heirs, family members, executors and assigns,
hereby fully and forever releases one another and their respective officers,
directors, executives, investors, attorneys, shareholders, administrators,
affiliates, divisions, subsidiaries, predecessor and successor corporations,
and assigns, and other third parties 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 they
may possess arising from any omissions, acts or facts that have occurred up
until and including the Effective Date of this Agreement including, without
limitation,


 


(a)           any and all claims relating to or
arising from Executive’s employment relationship (including but not limited to
claims for wages and salary with the Company and the termination of that
relationship;


 


(b)           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 fraud,
misrepresentation, breach of fiduciary duty, breach of duty under applicable
state corporate law, and securities fraud under any state or federal law;


 


(c)           any and all claims for wrongful
discharge of employment; termination in violation of public policy;
discrimination; 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


 


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economic advantage; unfair
business practices; defamation; libel; slander; negligence; personal injury;
assault; battery; invasion of privacy; false imprisonment; and conversion;


 


(d)           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 Executive
Retirement Income Security Act of 1974, The Worker Adjustment and Retraining
Notification Act, Older Workers Benefit Protection Act; the California Fair
Employment and Housing Act, and Labor Code section 201, et seq.
and section 970, et seq.;


 


(e)           any and all claims for violation of
the federal, or any state, constitution;


 


(f)            any and all claims arising out of
any other laws and regulations relating to employment or employment
discrimination; and


 


(g)           any and all claims for attorneys’
fees and costs.


 


Executive
and the Company agree 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.  This release does not
extend to any obligations incurred under this Agreement.


 


4.
Acknowledgment of Waiver of Claims under ADEA. 
Executive 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 of this Agreement.  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. 
Executive further acknowledges that he has been advised by this writing
that (a) he should consult with an attorney prior to executing this Agreement;
(b) she has 45 days within which to consider this Agreement; (c) he has 7 days
following the execution of this Agreement by the parties to revoke the
Agreement (“Revocation Period”); and (d) this Agreement shall not be effective
until the revocation period has expired. Any revocation must be in writing and
delivered to Mark A. Brooks at the Company by the close of business on the
seventh day from the date that Executive signed this agreement.  Executive understands that, although
Executive has forty-five (45) days to consider the Agreement, Executive may
accept the terms of the Agreement at any time during those forty-five (45)
days.


 


5.
Civil Code Section 1542.  Executive and the Company represent that they
are not aware of any claims against one another other than the claims that are
released by this Agreement.  Executive
and the Company 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:


 


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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.


 


Executive
and the Company, being aware of said code section, agree to expressly waive any
rights they may have thereunder, as well as under any other statute or common
law principles of similar effect.


 


6. No
Pending or Future Lawsuits.  Executive and the Company
represent that they have no lawsuits, claims, or actions pending in their
names, or on behalf of any other person or entity, against Executive or the
Company or any other person or entity referred to herein.  Executive and the Company also represent that
they do not intend to bring any claims on their own behalf or on behalf of any
other person or entity against the Company or any other person or entity
referred to herein.


 


7. No
Cooperation.    Executive and the Company agree that they
will not actively counsel or assist any attorneys or their clients in the
presentation or prosecution of any disputes, differences, grievances, claims,
charges, or complaints by any third party against Executive, the Company and/or
any officer, director, executive, agent, representative, shareholder, other
third party or attorney of Executive or the Company, unless under a subpoena or
other court order to do so.


 


8. No
Defamation or Tortuous Interference.  Executive and the Company
agree to refrain from any defamation, libel or slander of Executive or the
Company and its respective officers, directors, executives, investors,
shareholders, administrators, affiliates, divisions, subsidiaries, predecessor
and successor corporations, and assigns or tortuous interference with the
contracts and relationships of Executive or the Company and its respective
officers, directors, executives, investors, shareholders, administrators,
affiliates, divisions, subsidiaries, predecessor and successor corporations,
and assigns.  All inquiries by potential
future employers of Executive will be directed to the Vice President of Legal
Affairs and General Counsel or Chief Financial Officer.  Upon inquiry, the representative shall state
the following:  It is the policy of the
Company to only provide an Executive’s last position and dates of employment,
and with the written authorization of the Executive, his or her terms of
compensation.


 


9. Tax
Consequences. The
Company makes no representations or warranties with respect to the tax
consequences of the payment of any sums to Executive under the terms of this
Agreement.  Executive agrees and
understands that he is responsible for payment, if any, of local, state and/or
federal taxes on the sums paid hereunder by the Company and any penalties or
assessments thereon.  Executive further
agrees to indemnify and hold the Company harmless from any claims, demands,
deficiencies, penalties, assessments, executions, judgments, or recoveries by
any government agency against the Company for


 


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any
amounts claimed due on account of Executive’s failure to pay federal or state
taxes or damages sustained by the Company by reason of any such claims, including
reasonable attorneys’ fees.


 


10.
No-Solicitation. Executive agrees that for one (1)
year from the Transition Date, Executive will not directly induce any employee,
consultant, or independent contractor of the Company to terminate his or her
employment or relationship with the Company.


 


11. No Admission of Liability.  The Parties understand and acknowledge that
this Agreement constitutes a compromise and settlement of claims related to the
employment relationship between the parties. 
No action taken by the Parties hereto, or either of them, either
previously or in connection with this Agreement shall be deemed or construed to
be (a) an admission of the truth or falsity of any claims heretofore made
or (b) an acknowledgment or admission by either party of any fault or
liability whatsoever to the other party or to any third party.


 


12. Costs. 
The Parties shall each bear their own costs, expert fees, attorneys’
fees and other fees incurred in connection with this Agreement


 


13. Arbitration.  The
Parties agree that any and all disputes arising out of the terms of this
Agreement, including their interpretation and/or enforceability, shall be
subject to final and binding arbitration held in Los Angeles County, California.  Said arbitration to be conducted by an
arbitrator that is mutually agreeable to both Executive and the Company, all in
accordance with the rules of the American Arbitration Association then in
effect.  If Executive and the Company cannot
agree upon an arbitrator, the arbitration shall be settled before a panel of
three arbitrators, one to be selected by the Company, one by Executive and the
other by the two persons so selected, all in accordance with the rules of the
American Arbitration Association then in effect.  Judgment upon the award rendered by the
arbitrator(s) may be entered by any court having jurisdiction over the
matter.  Costs and fees of the
arbitration will be divided equitably by the arbitrator between both parties; provided, however, that,
in the event that either party prevails over the other party in connection with
an arbitration arising out of a breach of this Agreement, the non-prevailing
party shall be liable for all reasonable attorney’s fees and expenses incurred
in connection with any action for damages or the enforcement of any provision
of this Agreement brought by the other party.


 


14.
Authority.  The Company represents and warrants that the
undersigned has the authority to act on behalf of the Company and to bind the
Company and all who may claim through it to the terms and conditions of this
Agreement.  Executive represents and
warrants that he has the capacity to act on his own behalf and on behalf of all
who might claim through him to bind them to the terms and conditions of this
Agreement.  Executive warrants and
represents that there are no liens or claims of lien or assignments in law or
equity or otherwise of or against any of the claims or causes of action
released herein.


 


15. No
Representations.  Executive represents that he has had the
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the


 


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provisions
of this Agreement.  Neither party has
relied upon any representations or statements made by the other party hereto
which are not specifically set forth in this Agreement.


 


16.
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.


 


17.
Entire Agreement.  This Agreement represents the entire
agreement and understanding between the Company and Executive concerning
Executive’s separation from the Company, and supersedes and replaces any and
all prior agreements and understandings concerning Executive’s relationship
with the Company.


 


18. No
Oral Modification.  This Agreement may only be amended in writing
signed by Executive and the Vice President of Legal Affairs and General
Counsel.


 


19.
Governing Law.  This Agreement shall be governed by the laws
of the State of California.


 


20.
Effective Date.  This Agreement is effective immediately after
it has been signed by both Parties.


 


21.
Counterparts.  This Agreement may be executed in
counterparts, and each counterpart shall have the same force and effect as an
original and shall constitute an effective, binding agreement on the part of
each of the undersigned.


 


22.
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.  The Parties acknowledge that:


 


1.             They have read this Agreement;


 


2.             They have been represented in the
preparation, negotiation, and execution of this Agreement by legal counsel of
their own choice or that they have voluntarily declined to seek such counsel;


 


3.             They understand the terms and
consequences of this Agreement and of the releases it contains;


 


4.             They are fully aware of the legal
and binding effect of this Agreement.


 


23. Successors.  This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective heirs, legal representatives,
successors and, in the case of the Company, business successors (whether direct
or indirect, by purchase, merger, consolidation or otherwise), but no other
person shall


 


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acquire or have any
rights under or by virtue of this Agreement, and the obligations of Executive
under this Agreement may not be assigned or delegated.


 


 


IN
WITNESS WHEREOF, the Parties have executed this Agreement on the respective
dates set forth below.


 


	
   

  	
   

  	
  SEEBEYOND
  TECHNOLOGY CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:
  January 31, 2005

  	
   

  	
  By:

  	
  /S/
  BARRY J. PLAGA

  	
   

  
	
   

  	
   

  	
  Barry
  J. Plaga

  
	
   

  	
   

  	
  Chief
  Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:
  January 31, 2005

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /S/MARK
  D. MAGARIAN

  	
   

  
	
   

  	
   

  	
  Mark
  D. Magarian

  



 


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