Exhibit 10.1


 


SEPARATION AGREEMENT AND RELEASE


 


This Separation Agreement and Release (the “Agreement”) is made
by and between Unify Corporation, a Delaware corporation (the “Company”) and
Kurt Garbe, an individual (“Director”).


 


WHEREAS, Director is a member of the Unify Board of Directors;


 


WHEREAS, the Company and Director have agreed to terminate the directorship
relationship;


 


WHEREAS, Director desires to release the Company, and the Company
desires to release Director, from any claims arising from or related to the
relationship, the entering into the relationship, and the termination of the
relationship;


 


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


 


1.                                         Separation.  Director agrees to resign from his position on
the Company’s Board of Directors effective as of the date of the resignation
letter referred to in the next sentence (the “Separation Date”). 
Director will provide to the Board of Directors a formal resignation
letter in the form attached hereto as Exhibit A.


 


2.                                         Consideration.  The Company agrees to grant Director a
restricted stock grant equivalent of ten thousand dollars ($10,000) worth of
restricted stock based on the fair market value of the stock at close on the Separation
Date. Said grant will be made under the Company’s Director Stock Plan and will
be effective immediately prior to the effective date of the resignation.  Share certificates with respect to this grant
will be delivered within ten days of the Separation Date.   Additionally, the Company agrees to accelerate
and fully vest the remaining unvested options shares and extend the exercise
period for the Director’s Stock Option Grants 3531 & 3579 for a period
of 24 months from the Separation Date. 
Except as mentioned in the previous sentence the terms of Director’s
options shall remain in full force and effect.


 


3.                                         Confidential
Information.  Director shall continue
to maintain the confidentiality of all confidential and proprietary information
of the Company pursuant to the terms of the confidentiality agreement between
Director and the Company.


 


4.                                         Release
of Claims.  Director acknowledges, as
set forth above, that the Company has already paid all amounts and benefits due
to director and agrees that the foregoing consideration represents additional
consideration over and above any obligations previously owed to Director by the
Company. Director, on behalf of himself, and his respective heirs, family
members, executors and assigns, hereby fully, finally and forever releases the
Company and its officers, directors, agents, investors, stockholders,
administrators, affiliates, divisions, subsidiaries, predecessor and successor
corporations, and their respective 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 may possess arising from


 


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any omissions,
acts or facts that have occurred up until and including the Separation Date.  The Company, on behalf of itself and its
agents and assigns, hereby fully, finally and forever releases Director and his
respective heirs, family members, executors 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 the Company may possess arising from any omissions, acts or
facts that have occurred up until and including the Separation Date.  Claims released by the parties hereunder
include, without limitation:


 


(a)                                 any
and all claims relating to or arising from Director’s relationship with the
Company, the entering into the relationship and the termination of that
relationship;


 


(b)                                any
and all claims relating to, or arising from, Director’s right to purchase, or
actual purchase of shares of stock of the Company or options or other
securities exercisable for 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 directorship; 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;
promissory estoppel; negligent or intentional infliction of emotional distress;
negligent or intentional misrepresentation; negligent or intentional
interference with contract or prospective 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 Family and Medical Leave Act, the
Fair Labor Standards Act, the Employee 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.


 


The Company and Director agree that the release set forth in this section shall
be and will 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.


 


5.                                         Acknowledgment
of Waiver of Claims under ADEA. 
Director acknowledges that he is waiving and releasing any rights he may
have under the Age Discrimination in Employment


 


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Act of 1967 (“ADEA”) and that
this waiver and release is knowing and voluntary. Director 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.  Director acknowledges that the consideration
given for this waiver and release is in addition to anything of value to which Director
was already entitled. Director further acknowledges that he has been advised by
this writing that (a) he should consult with an attorney prior to
executing this Agreement; (b) he has twenty-one (21) days within which to
consider this Agreement; (c) he has seven (7) days following the
execution of this Agreement by Director to revoke the Agreement (the “Revocation Period”); and
(d) this Agreement shall not be effective with regard to ADEA claims until
the revocation period has expired. 
Director also acknowledges that his right to revoke acceptance of this
Agreement ends after the seventh day following his execution of this Agreement
and he shall have no further right to revoke his acceptance of this Agreement
after such date.


 


6.                                       Civil
Code Section 1542.  The parties
represent that they are not aware of any current claims.  The parties 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:


 


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.


 


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


 


7.                                       No
Pending or Future Lawsuits.  Director
represents that there are no lawsuits, claims, or actions pending in his name,
or on his behalf, against the Company or any other person or entity released
herein.  Director also represents that he
does not intend to bring any claims on his own behalf or on behalf of any other
person or entity against the Company, its subsidiaries, or any successor, or
any other person or entity referred to herein. 
The Company represents that there are no lawsuits, claims, or actions
pending in its name, or on its behalf, against Director or any other person or
entity released herein.  The Company also
represents that it does not intend to bring any claims on its own behalf or on
behalf of any other person or entity against Director or any other person or
entity referred to herein.


 


8.                                       Non-Solicitation.  Director acknowledges and agrees that for a
period of twelve (12) months after the Effective Date he shall not either
directly or indirectly solicit, induce, recruit or encourage any of the Company’s
employees to leave their employment, or take away such employees, or attempt to
solicit, induce, recruit, encourage or take away employees of the Company,
either for him/herself or for any other person or entity.


 


9.                                       Company
Property.  Director agrees to
refrain, either directly or indirectly, from entry onto Company premises and to
make no contact with Company equipment, including, but not limited to, computer
systems, hardware and software.  In
addition, Director agrees to return or


 


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delete all
Company software on personal computer systems and not to utilize or access any
Company resources, systems, equipment, networks, services or data.  Director acknowledges and agrees that he
shall not, either directly or indirectly, perform or undertake any actions that
could disrupt or cause disruption of any Company resources, systems, equipment,
networks, services, or data and shall not contact any Company customers or
access or utilize any customer data or proprietary information.  Further, Director agrees to return any
Company equipment, including, but not limited to, computers, cell phones, keys
and card keys and all Company-related documents (including any and all copies
thereof), manuals and other similar information and records within one month of
the Separation Date (as defined in Section 1).


 


10.                                 Intentionally
omitted.


 


11.                                   Non-Disparagement.  Director agrees to refrain from any
defamation, libel or slander of the Company and its respective officers,
directors, investors, stockholders, administrators, affiliates, divisions,
subsidiaries, predecessor and successor corporations, and assigns or tortious
interference with the contracts and relationships of the Company and its respective
officers, directors, investors, stockholders, administrators, affiliates,
divisions, subsidiaries, predecessor and successor corporations, and assigns.
The Company agrees to refrain from any defamation, libel or slander of Director
and his heirs, family and successors and assigns or tortious interference with
the contracts and relationships of Director and his heirs, family and
successors and assigns.


 


12.                                   No
Cooperation.  Director agrees he will
not act in any manner that might damage the business of the Company.  Director will not 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 the Company and/or any officer, director, agent, representative,
stockholder or attorney of the Company, unless under a subpoena or court order
to do so.


 


13.                                   Tax
Consequences.  The Company makes no
representations or warranties with respect to the tax consequences of the
payment of any consideration for this Agreement to Director under the terms of
this Agreement.  Director 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.  Director 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 any amounts claimed due on
account of Director’s failure to pay federal or state taxes or damages
sustained by the Company by reason of any such claims, including reasonable
attorneys’ fees.


 


14.                                   No
Admission of Liability.  The Parties
understand and acknowledge that this Agreement constitutes a compromise and
settlement of disputed claims.  No action
taken by the Parties, 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
acknowledgement or admission by either party of any fault or liability
whatsoever to the other Party or to any third party.


 


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15.                             Dispute Resolution.  The
Parties agree that any and all disputes arising out of this Agreement, or its
breach, which the Director and Company have not resolved within fifteen (15)
days after written notice by one Party to the other, specifying in reasonable
detail the nature of the receiving Party’s alleged breach thereof, will be
finally settled by binding arbitration in Sacramento, California, in accordance
with the rules of the American Arbitration Association (AAA) then in
force, by one AAA arbitrator appointed in accordance with such rules.  The arbitrator will apply California law
without regard to rules of conflict of laws or rules of statutory
arbitration, to the resolution of any such dispute.  The award of the arbitrator will be final and
binding upon Director and the Company, and judgment upon the award may be
entered in any court having jurisdiction.  Director and the Company acknowledge that a
breach or threatened breach by either Director or the Company of the other
Party’s proprietary rights or rights to confidentiality under this Agreement
will cause irreparable injury to the other Party, for which there are
inadequate remedies at law.  Therefore,
the Party whose proprietary rights or rights of confidentiality are breached
may seek equitable relief from any court of competent jurisdiction, in addition
to all other remedies provided by this Agreement or available at law.


 


16.                                   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.  Director represents and
warrants that he has the capacity to act on his own behalf and on behalf of all
who might claim through him/her to bind them to the terms and conditions of
this Agreement.  Director 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.


 


17.                                   No
Representations.  Director represents
that he has consulted with an attorney to the extent he has desired, and has
carefully read and understands the scope and effect of the provisions of this
Agreement.  Neither Party has relied upon
any representations or statements made by the other Party which are not
specifically set forth in this Agreement.


 


18.                                   Severability.  In the event that any provision hereof
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, the remainder Agreement shall continue in full force and
effect without said provision.


 


19.                                   Entire
Agreement.  This Agreement represents
the entire agreement and understanding between the Company and Director
concerning Director’s separation from the Company, and supersedes and replaces
any and all prior agreements and understandings concerning Director’s
relationship with the Company and his compensation by the Company.


 


20.                                   No
Oral Modification.  This Agreement
may only be amended in writing signed by Director and the President of the
Company.


 


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


 


22.                                   Costs.
The Parties shall each bear their own costs, expert fees, attorneys’ fees and


 


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other fees incurred in connection with the preparation and execution of
this Agreement.


 


23.                                   Intentionally omitted.


 


24.                                   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.


 


25.                                   Voluntary
Execution of Agreement. This Agreement is executed voluntarily and without
any duress or undue influence on the part or behalf of the Parties, with the
full intent of releasing all claims. The Parties acknowledge that:


 


(a)                                 They
have read this Agreement;


 


(b)                                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;


 


(c)                                 They
understand the terms and consequences of this Agreement and of the releases it
contains; and


 


(d)                                They
are fully aware of the legal and binding effect of this Agreement.


 


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


 


	
  COMPANY

  	
   

  	
  DIRECTOR

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Todd
  Wille

  	
   

  	
   

  	
  /s/ Kurt
  Garbe

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Todd Wille

  	
   

  	
   

  	
  Dated:

  	
  May 9, 2005

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  CEO &
  President

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Dated:

  	
  May 9, 2005

  	
   

  	
   

  	
   

  



 


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EXHIBIT A


 


RESIGNATION LETTER


 


To:  Unify Corporation Board of Directors


 


I, Kurt Garbe,
do hereby resign as a member of the Board of Directors of Unify Corporation
effective as of the date hereof.  I have
had no disagreement with Unify Corporation on any matter relating to Unify
Corporation’s policies or practices.


 


 


	
  /s/ Kurt
  Garbe

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Kurt Garbe

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  May 9, 2005

  	
   

  	
   

  
				



 


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