exv10w43



 






EXHIBIT 10.43




August 4, 2005




Jim Davis




Dear Jim:




This letter (the “Agreement”) sets forth the substance of the arrangements between you and Vitria
Technology, Inc. (the “Company”) in connection with your employment transition.



     1. Separation. Your last day of work with the Company and your employment
termination date was June 28, 2005 (the “Separation Date”).



     2. Accrued Salary And Paid Time Off. On the Separation Date, the Company paid you
all accrued salary, and all accrued and unused vacation earned through the Separation Date, subject
to standard payroll deductions and withholdings. You are entitled to these payments by law.



     3. Severance Benefits. Although the Company has no obligation to do so, if you sign
this Agreement and allow it to become effective, then the Company will pay you, as severance, the
amount of $125,000, subject to standard payroll deductions and withholdings. Additionally, the
Company will pay you an amount equal to 50% of your prorated target bonus amount based upon your
time employed ($25,000). Both of these amounts will be paid in a lump sum within ten (10) days
after the Effective Date (as defined in paragraph 14 below).



     4. Health Insurance. To the extent provided by the federal COBRA law or, if
applicable, state insurance laws, and by the Company’s current group health insurance policies, you
will be eligible to continue your group health insurance benefits at your own expense following the
Separation Date. Later, you may be able to convert to an individual policy through the provider of
the Company’s health insurance, if you wish. You will be provided with a separate notice
describing your rights and obligations under COBRA.



     5. Stock Options. Under the terms of your stock option agreement and the applicable
plan documents, vesting of your stock options will cease as of the Separation Date. Your right to
exercise any vested shares, and all other rights and obligations with respect to your stock
options(s), will be as set forth in your stock option agreement, grant notice and applicable plan
documents.



     6. Other Compensation Or Benefits. You acknowledge that, except as expressly
provided in this Agreement, you will not receive any additional compensation, severance, or
benefits after the Separation Date.



     7. Expense Reimbursements. Within ten (10) days of the Effective Date, you will be
paid the amount of $20,000 which you agree is payment in full for all business expenses you
incurred in connection with your employment or employment transition.



     8. Return Of Company Property. You represent, and the Company acknowledges, that to
its knowledge you have returned to the Company all Company documents (and all copies thereof) and
other Company property that you have had in your possession at any time, including, but not limited
to, Company files, notes, drawings, records, business plans and forecasts, financial information,
specifications, computer-recorded information, tangible property (including, but not limited to,
computers), credit cards, entry cards, identification badges, and keys; and, any materials of any
kind that contain or embody any proprietary or confidential information of the Company (and all
reproductions thereof).



     9. Proprietary Information Obligations. You acknowledge your continuing obligations
under your Proprietary Information and Inventions Agreement, a copy of which is attached hereto as
Exhibit A.



     10. Confidentiality. The provisions of this Agreement will be held in strictest
confidence by you and the Company and will not be publicized or disclosed in any manner whatsoever;
provided, however, that: (a) you may disclose this Agreement in confidence to your immediate
family; (b) the parties may disclose this Agreement in confidence to their respective attorneys,
accountants, auditors, tax preparers, and financial advisors; (c) the Company may disclose this
Agreement as necessary to fulfill standard or legally required corporate reporting or disclosure
requirements; and (d) the parties may disclose this Agreement insofar as such disclosure may be
necessary to enforce its terms or as otherwise required by law. In particular, and without
limitation, you agree not to disclose the terms of this Agreement to any current or former Company
employee.



     11. Nondisparagement. The parties agree not to disparage each other (which for the
Company includes its officers, directors, employees, shareholders, and agents) in any manner likely
to be harmful to its or their business, business reputation, or



 









 







personal reputation; provided that you will respond accurately and fully to any question,
inquiry or request for information when required by legal process.



     12. No Admissions. You understand and agree that the promises and payments in
consideration of this Agreement shall not be construed to be an admission of any liability or
obligation by the Company to you or to any other person, and that the Company makes no such
admission.



     13. Release of Claims. In exchange for the consideration under this Agreement to
which you would not otherwise be entitled, you hereby generally and completely release the Company
and its directors, officers, employees, shareholders, partners, agents, attorneys, predecessors,
successors, parent and subsidiary entities, insurers, affiliates, and assigns from any and all
claims, liabilities and obligations, both known and unknown, that arise out of or are in any way
related to events, acts, conduct, or omissions occurring at any time prior to and including the
date you sign this Agreement. This general release includes, but is not limited to: (a) all claims
arising out of or in any way related to your employment with the Company or the termination of that
employment; (b) all claims related to your compensation or benefits from the Company, including
salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits,
stock, stock options, or any other ownership interests in the Company; (c) all claims for breach of
contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing;
(d) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in
violation of public policy; and (e) all federal, state, and local statutory claims, including
claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under
the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of
1990, the federal Age Discrimination in Employment Act of 1967, as amended (“ADEA”), and the
California Fair Employment and Housing Act (as amended). Notwithstanding the above, nothing in
this Section 13 constitutes a waiver by you of any rights you have to be indemnified by the
Company, whether such rights arise under applicable law, the Company’s charter documents or any
agreement between you and the Company.



     14. ADEA Waiver. You acknowledge that you are knowingly and voluntarily waiving and
releasing any rights you may have under the ADEA (“ADEA Waiver”). You also acknowledge that the
consideration given for the ADEA Waiver is in addition to anything of value to which you were
already entitled. You further acknowledge that you have been advised by this writing, as required
by the ADEA, that: (a) your ADEA Waiver does not apply to any rights or claims that arise after
the date you sign this Agreement; (b) you should consult with an attorney prior to signing this
Agreement; (c) you have twenty-one (21) days to consider this Agreement (although you may choose to
voluntarily sign it sooner); (d) you have seven (7) days following the date you sign this Agreement
to revoke the ADEA Waiver (in a written revocation sent to me); and (e) the ADEA Waiver will not be
effective until the date upon which the revocation period has expired, which will be the eighth day
after you sign this Agreement (the “Effective Date”).



     15. Section 1542 Waiver. In granting the release herein, which includes claims
which may be unknown to you at present, you acknowledge that you have read and understand Section
1542 of the California Civil Code: “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.” You hereby expressly waive
and relinquish all rights and benefits under that section and any law or legal principle of similar
effect in any jurisdiction with respect to the releases granted herein, including but not limited
to the release of unknown and unsuspected claims granted in this Agreement.



     16. Miscellaneous. This Agreement, including Exhibit A, constitutes the complete,
final and exclusive embodiment of the entire agreement between you and the Company with regard to
its subject matter; provided that any indemnification agreement between you and the Company
referred to in Section 13 above shall remain in full force and effect pursuant to its terms. It is
entered into without reliance on any promise or representation, written or oral, other than those
expressly contained herein, and it supersedes any other such promises, warranties or
representations. This Agreement may not be modified or amended except in a writing signed by both
you and a duly authorized officer of the Company. This Agreement will bind the heirs, personal
representatives, successors and assigns of both you and the Company, and inure to the benefit of
both you and the Company, their heirs, successors and assigns. If any provision of this Agreement
is determined to be invalid or unenforceable, in whole or in part, this determination will not
affect any other provision of this Agreement and the provision in question will be modified so as
to be rendered enforceable. This Agreement will be deemed to have been entered into and will be
construed and enforced in accordance with the laws of the State of California as applied to
contracts made and to be performed entirely within California. Any ambiguity in this Agreement
shall not be construed against either party as the drafter. Any waiver of a breach of this
Agreement shall be in writing and shall not be deemed to be a waiver of any successive breach.
This Agreement may be executed in counterparts and facsimile signatures will suffice as original
signatures.



     If this Agreement is acceptable to you, please sign below and return the original to me.



     We wish you the best in your future endeavors.



Sincerely,




VITRIA TECHNOLOGY, INC.




	 	 	 
	By:

	 	/s/ Dale Skeen
	 

	 	 
	 

	 	Dale Skeen

Chief Executive Officer






I HAVE READ, UNDERSTAND AND AGREE FULLY TO THE FOREGOING AGREEMENT:




/s/ James A. Davis



 




JIM DAVIS




Date: 8/05/05




 









 





EXHIBIT A




PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT