sbsw_8k-ex1001.htm


    Exhibit
10.1

    SEPARATION
AGREEMENT

    


    


    This
Separation Agreement (“Agreement”) is entered into by and between Vincent Rossi
(“Employee”) and St. Bernard Software, Inc. and any and all predecessor or
successor entities thereof and its and their affiliates, any and all holding,
parent or subsidiary entities and any predecessor or successor entities thereof,
any other merged entities, and all present, former and future directors,
officers, representatives, agents, principals, administrators, agents, partners
and employees, stockholders, predecessors and successors and/or assigns,
insurers, attorneys, and any fiduciaries of any employee benefits plan (all
collectively referred to as “Employer”). Employee and Employer are hereinafter
collectively referred to as “the Parties”.

    


    1.           Resignation of
Employment.  The Parties agree that effective January 1, 2009
(the “Termination Date”) Employee’s employment with Employer will end, and
Employee will no longer hold any position with Employer or be employed in any
capacity.

    


    2.           Claims and
Settlement.  Employee has or may have claims related to his
employment, the termination of his employment, his resignation, (claims related
to his stock options and/or the vesting of such options, breach of his
employment contract, discrimination, retaliation, claims for wages or other
consideration, other breach of contract,) or other claims which have or could be
asserted (“Claims.”)  In consideration of and in return for the
covenants and promises contained in this Agreement, and as full and final
settlement to Employee:

    


    A.    Employee
shall receive from Employer, on the next regular payroll date after Employer
receives an affirmation of this release of all claims by Employee on or after
the Termination Date as provided on the last page of this Agreement or the
effective date as defined in Paragraph 20B and 20C, whichever is later, six (6)
months severance based on Employee’s base salary and bonus, totaling $225,000
(the “Cash Severance”), as well as deferred bonus compensation through November
30, 2008 in the amount of $137,500 (estimated to be payable in the second
payroll period of January 2009), with appropriate deductions and
withholdings.  The Cash Severance will be payable in accordance with
Employer’s regular payroll practices for a period of six (6) months in the
amount of $18,750 per payroll period (i.e. twice a month) not to exceed in the
aggregate the Cash Severance, with appropriate deductions and
withholdings.  In addition, Employer shall pay Employee and Employee’s
dependents’ COBRA health insurance premiums for six (6) months after the
effective date and upon receipt of an affirmation of this release of all claims
by Employee on or after the Termination Date as provided on the last page of
this Agreement. After the Termination Date, Employee shall have the right to pay
for health insurance at his own expense pursuant to COBRA. Notwithstanding
anything herein to the contrary, the payment of the COBRA health insurance
premiums shall immediately cease when Employee becomes eligible for coverage
under another plan. This severance is separate and apart from, and in addition
to, Employee’s final paycheck and all accrued and unused vacation.

    


    B.    Employee will
retain 127,416 stock options at a strike price of $1.90 per share and 320,000
stock options at a strike price of $1.95 per share. These stock options exist
and are already vested as of the Termination Date.  Employee shall
retain the ability to exercise same for a period of [90] days after the
Termination Date; and

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    C.    Employee
acknowledges that the agreements described under this Paragraph 2 constitute
full payment of any and all claims of every nature and kind arising out of or
relating in any way to Employee’s employment by Employer or the termination
thereof, benefits owed, or any other Claims; and

    


    3.           Employee’s Release of All
Claims against Employer.

    


    A.    In
consideration of the covenants and other benefits described herein, Employee
does hereby unconditionally, irrevocably, and absolutely release and discharge
Employer, and any and all predecessor or successor entities thereof and its and
their affiliates, any and all holding, parent or subsidiary entities and any
predecessor or successor entities thereof, any other merged entities, and all
present, former and future directors, officers, representatives, agents,
principals, administrators, agents, partners and employees, stockholders,
predecessors and successors and/or assigns, insurers, attorneys, and any
fiduciaries of any employee benefits plan from any and all loss, liability,
claims, demands, causes of action or suits of any type, whether in law or in
equity, related directly or indirectly, or in any way connected with any
transaction, affairs, or occurrences between them, including, without
limitation, Employee’s employment with Employer and/or the resignation and/or
termination of said employment (whether known or unknown to Employee and
including any continuing effects of any acts or practices before the date of
execution of this Agreement).  This Agreement specifically applies,
without limitation, to a release of any and all contract or tort claims
(including any claims for breach of employment contract, claims related to stock
options and/or the vesting of such options), breach of the implied covenant of
good faith and fair dealing, claims for wrongful termination, retaliation,
employment discrimination, emotional distress, fraud, misrepresentation,
defamation, interference with prospective economic advantage, failure to pay
wages due or other monies owed, including, without limitation, severance,
overtime compensation, accrued and unused vacation, stock options, any claims
under any stock option agreement to which Employee is a party, and claims
arising under Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act, the Equal Pay Act, the Fair Labor Standards Act, the Family
and Medical Leave Act, the California Family Rights Act, The Older Workers’
Benefit Protection Act of 1990, the Age Discrimination in Employment Act, the
California Fair Employment and Housing Act, the Occupational Safety and Health
Act, any applicable California Industrial Wage Orders, all as amended, and any
other local, state or federal law, rule, or regulation relating to or affecting
Employee’s employment by Employer and/or the termination of said
employment.  Nothing in this release is intended to affect Employer’
obligation to defend and/or indemnify Employee in the event he is sued in his
capacity as an (officer or) employee of Employer for work performed in the
course and scope of his employment.  Nothing in this release is
intended to affect Employee’s right to coverage under the California worker’s
compensation laws (although Employee represents he is not currently aware of any
such claim.)

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      B.     Employee
irrevocably and absolutely agrees that he will not prosecute nor allow to be
prosecuted on his behalf, in any administrative agency, whether federal or
state, or in any court, whether federal or state, any claim or demand of any
type related to the matters released above, it being the intention of the
Parties that with the execution by Employee of this Agreement, Employer and any
and all predecessor or successor entities thereof and its and their affiliates,
any and all holding, parent or subsidiary entities and any predecessor or
successor entities thereof, any other merged entities, and all present, former
and future directors, officers, representatives, agents, principals,
administrators, agents, partners and employees, stockholders, predecessors and
successors and/or assigns, insurers, attorneys, and any fiduciaries of any
employee benefits plan will be irrevocably, absolutely, unconditionally, and
forever discharged of and from all obligations to or on behalf of Employee
related in any way to the matters discharged herein.  If Employee
should bring any action arising out of the subject matter covered by this
Agreement, Employee understands and agrees that he will, at the option of
Employer, be considered in breach of this Agreement and shall be required to
immediately return any and all funds received pursuant to this
Agreement.  Furthermore, if Employer should prevail concerning any or
all of the issues so presented, Employee shall pay to Employer all of its costs
and expenses of defense, including Employer’s attorneys’
fees.

    

    


    4.           Left
Intentionally Blank.

    


    5.           Unknown
Claims.  Employee understands and agrees that this Agreement
extends to all claims of every nature, known or unknown, suspected or
unsuspected, past or present, and that any and all rights granted to Employee
under Section 1542 of the
California Civil Code or any analogous federal law or regulation are hereby
expressly waived.  Section 1542 provides:

    


    “A
general release does not extend to claims which the creditor does not know of or
suspect to exist in his or her favor at the time of executing the release, which
if known by him or her must have materially affected his or her settlement with
the debtor.”

    


    Employee certifies that he has read all
of this Agreement, including the release provisions contained herein and the
quoted Civil Code section, and that he fully understands all of the
same.

    


    7.           Confidentiality.

    


    A.    The Parties
agree and promise that the existence, terms, and conditions of this Agreement
(including, but not limited to, the fact and amount of payment), and all
communications relating to the existence, terms, and conditions of this
Agreement (collectively the “Confidential Matters”), shall not be, and have not
been to the best of their knowledge, described or discussed, or caused to be
described or discussed in any manner, either written or oral, directly or
indirectly, with any person, organization, company or entity other than the
Parties’ respective counsel and/or financial advisors.  EMPLOYEE
SPECIFICALLY AGREES NOT TO DISCLOSE THE TERMS OF THIS AGREEMENT TO OTHER CURRENT
OR FORMER EMPLOYEES OF EMPLOYER.  Employer may report this settlement
to the extent necessary to comply with any public reporting
requirements.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    B.    Except as
required by law, or any SEC rules and regulations, the Parties agree and promise
to avoid any and all publicity with respect to this Agreement and/or any of its
terms or conditions and specifically agree and promise not to describe or
discuss the Confidential Matters with any person or entity.  It shall
not be a violation for the Parties to disclose Confidential Matters to their
spouses or their professional legal and tax advisors so long as they maintain
the confidentiality.  In the event any person or entity asks Employee
or Employer about any disputes relating to Employee’s employment with Employer
and/or the termination of said employment, Employee and Employer shall respond
only that “the matter has been resolved,” and refuse to discuss any such matters
further.  If Employer receives requests for employment references
regarding Employee, Employer will only provide dates of employment, salary
information, and title to prospective employers, and neither this Agreement nor
the events and/or allegations leading up to this Agreement shall be
mentioned.  Any requests for employment references shall be directed
to Chairman of the Board of Directors.  Any breach of confidentiality
by any of the Parties shall be deemed to be a material breach of this
confidentiality provision.

    


    C.    The Parties
agree that the provisions of this section of this Agreement are to be liberally
construed for the purpose of protecting the confidentiality of the Confidential
Matters, and stipulate and agree that any violation of the provisions of this
section of this Agreement shall be deemed to be a material breach of the
Agreement.

    


    D.    Nothing in
this confidentiality provision shall be construed as prohibiting any disclosure
of information required by law.

    


    8.           Confidential Information,
Trade Secrets and Company Property.  Employee acknowledges that
all confidential materials, records and documents, including, without
limitation, all company property, files, e-mails and other electronic
information concerning Employer that have come into Employee’s possession during
his employment with Employer will be returned to Employer within seven (7) days
of the Termination Date.  Employee specifically agrees to
electronically return all work-related e-mails and not retain hard copies or
electronic copies.  Employee agrees not to disclose to any person or
entity, including any competitor of Employer and any future employer, any of
Employer’s trade secrets or other confidential information. Employee
acknowledges all Employer’s property obtained during the course of his
employment with Employer has been returned to Employer.  Employee
further agrees that he will not, for any reason, disclose to others for the
benefit of anyone other than Employer any trade secret, confidential or
proprietary information, including, without limitation, information relating to
Employer’s customers, employees, consultants, affiliates, products, know-how,
techniques, intellectual property, computer systems, programs, policies and
procedures, software programs, research projects, future developments, costs,
profits, pricing and/or marketing, attorney-client communications, customer
business information or other financial information.  Employee further
understands and agrees that the use or disclosure of any trade secret,
confidential or proprietary information belonging to Employer shall be a
material breach of this Agreement.

    


    9.           Non-Disparagement.  The
Parties agree not to make and/or publish any derogatory or adverse statements,
written or verbal, which tend to criticize or discredit the other, except as
required by law.  This is a material provision of this
Agreement.  (If Employee breaches this Non-Disparagement provision,
Employer shall have the right to recover fifty percent (50%) of the compensation
paid under this Agreement.)

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
 

    10.           No Future
Employment.  Employee agrees that Employer shall not be in any
way obligated to offer employment to Employee or to hire him for any reason,
regardless of the circumstances, at any time on or after the date of this
Agreement. Employee acknowledges that any such application for employment may be
denied and agrees to waive any and all claims arising out of or related to his
application and/or the denial of such employment.

    


    11.           No Admission of
Liability.  This Agreement is a compromise and settlement of
all disputed and potentially disputed claims being released, and therefore this
Agreement and the payments provided for in this Agreement do not constitute an
admission of liability on the part of Employer, or an admission, directly or by
implication, that Employer has violated any law, rule, regulation, policy or any
contractual right or other obligation owed to Employee.  Employer
intends, by entering into this Agreement, to avoid litigation.

    


    12.           No Assignment or Transfer of
Claims.  The Parties represent and warrant that they have not
assigned or transferred to any other person or entity any rights, claims or
causes of action  released and discharged, and no other person or
entity has any interest in the matters released and discharged, except as
disclosed by the terms of this Agreement.

    


    13.           Entire
Agreement.  The Parties declare and represent that no promise,
inducement or agreement not expressed in this Agreement has been made to them
and that this Agreement contains the full and entire agreement between the
Parties, and that the terms of this Agreement are contractual and not a mere
recital.

    


    14.           Applicable
Law.  The validity, interpretation, and performance of this
Agreement shall be construed and interpreted according to the laws of the State
of California.  To that end, this Agreement is binding on the Parties
pursuant to Section 664.6 of the California Code of Civil Procedure, even though
no lawsuit or claim has been filed.

    


    15.           Arbitration of
Disputes.  Any dispute arising out of this Agreement or
Employee’s employment and/or termination of said employment shall be resolved by
binding arbitration by a mutually agreed arbitrator, or, if no arbitrator can be
agreed to, then under the rules and procedures of the Judicial Arbitration and
Mediation Service (“JAMS”) in San Diego, California. The findings of the
arbitrator shall be final and binding upon the Parties.  The Parties
shall equally pay for the arbitration costs of any such arbitration, but the
prevailing party shall be entitled to reasonable attorneys’ fees and
costs.

    


    16.           Attorneys’
Fees.  In any dispute involving this Agreement, the prevailing
party shall be entitled to attorneys’ fees and costs.

    


    17.           Complete Defense.
This Agreement may be pleaded as a full and complete defense against any action,
suit or proceeding which may be prosecuted, instituted or attempted by
Employee.

    


    18.           Severability.  If
any provision of this Agreement, or part, is held invalid, void or voidable as
against public policy or otherwise, the invalidity shall not affect other
provisions, or parts, which may be given effect without the invalid provision or
part.  To this extent, the provisions, and parts thereof, of this
Agreement are declared to be severable.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    19.           
Successors and
Assigns.  This Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective heirs, legal representatives,
successors and assigns.

    


    20.           
ADEA
Release.

    


    A.    Employee
acknowledges Employer hereby has advised Employee in writing to discuss this
Agreement with an attorney before executing it and that Employer has provided
Employee at least twenty-one (21) days within which to review and consider this
Agreement before signing it.

    


    B.    The Parties
acknowledge and agree that Employee may revoke this Agreement for up to seven
(7) calendar days following the execution of this Agreement, and that it shall
not become effective or enforceable until the revocation period has
expired.  The Parties further acknowledge and agree that such a
revocation must be in writing, addressed to Michel Urich, Esq., 7668 El Camino
Real, Suite 104-238, Carlsbad, CA 92009, and received not later than 5:00 p.m.
on the seventh (7th) day following execution of this Agreement by
Employee.  If Employee revokes this Agreement, it shall not be
effective or enforceable and Employee will not receive the monies and benefits
described above.

    


    C.    If Employee
does not revoke this Agreement in the time frame specified in this section 20,
the Agreement shall become effective at 12:01 a.m. on the eighth (8th) day after
it is signed by Employee.

    


    21.           Counterparts.  This
Agreement may be signed in counterparts.  A facsimile signature shall
have the same force and effect as an original signature, and trigger the
obligations under this Agreement.

    
 

    (Signatures on following
page)

    


    


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    EMPLOYEE HAS READ THIS AGREEMENT AND
KNOWS ITS CONTENTS AND FULLY UNDERSTANDS IT.  EMPLOYEE ACKNOWLEDGES
THAT HE HAS FULLY DISCUSSED THIS AGREEMENT WITH HIS ATTORNEY TO THE EXTENT
DESIRED AND FULLY UNDERSTANDS THE CONSEQUENCES OF THIS AGREEMENT.  NO
PARTY IS BEING INFLUENCED BY ANY STATEMENT MADE BY OR ON BEHALF OF ANY OF THE
OTHER PARTY TO THIS AGREEMENT.  THE PARTIES HAVE RELIED AND ARE
RELYING SOLELY UPON THEIR BELIEF AND KNOWLEDGE OF THE NATURE, EXTENT, EFFECT AND
CONSEQUENCES RELATING TO THIS AGREEMENT AND/OR UPON THE ADVICE OF THEIR OWN
LEGAL COUNSEL CONCERNING THE CONSEQUENCES OF THIS AGREEMENT.

    


    


    IN WITNESS WHEREOF, the
undersigned have executed this Agreement on the dates shown below.

     

    


     

    
      
        	
                DATED:
      December 2, 2008

              	
                 

              	/s/ Vincent
      Rossi                  	 
	 	 	VINCENT
      ROSSI	 


      



    
      
        	 	ST.
      BERNARD SOFTWARE, INC.	 
	 	 	 	 
	
                DATED:
      December 2, 2008

              	
                By:
      

              	
                /s/
      Louis Ryan                   

              	 
	 	 	
                Louis
      Ryan

              	 
	 	 	
                Executive
      Chairman of the

              	 
	 	 	Board
      of Directors	 


      

    

    
 

    


    DO NOT
SIGN BELOW UNTIL ON OR AFTER THE TERMINATION DATE

    


    I,
Vincent Rossi, hereby affirm the terms and conditions of this release,
specifically including but not limited to the release in paragraph 3, and
paragraphs 5, 8 and 9.

    


    
      
        	
                Date:  January
      __, 2009

              	/s/                            	 
	 	Vincent
      Rossi