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Addendum To Employment Offer Letter For Severance Benefits

Addendum or Modifications

Addendum To Employment Offer Letter 

For Severance Benefits 

 | Document Parties: BORLAND SOFTWARE CORP |  Gregory Wrenn | Borland Software Corporation You are currently viewing:
This Addendum or Modifications involves

BORLAND SOFTWARE CORP | Gregory Wrenn | Borland Software Corporation

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Title: Addendum To Employment Offer Letter For Severance Benefits
Governing Law: California     Date: 10/19/2006
Industry: Software and Programming    

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Exhibit 10.97

Addendum To Employment Offer Letter

For Severance Benefits

The provisions of this Employment Offer Letter Addendum for Severance Benefits (the “ Addendum ”) are incorporated into, and are made a part of, that employment offer letter (the “ Offer Letter ”) by and between you, Gregory Wrenn, and Borland Software Corporation (“Borland”). Capitalized terms used in this Addendum are either defined herein or in Appendix A.

1. Severance Benefits .

(a) Termination of Employment Outside of the Change in Control Period . If your employment is terminated as a result of an Involuntary Termination other than during the Change in Control Period and you sign a release of claims (in a form satisfactory to Borland, an example of which is attached hereto as Appendix B), then you shall be entitled to payment of fifty percent (50%) of your annual Base Salary, less applicable withholding. Such amount shall be payable in a lump sum no later than five (5) days following expiration of any revocation period required in connection with the release of claims; provided, however, if this payment is subject to Section 409A and you are a “specified employee” (as defined in Section 409A), this payment shall be made within five (5) days after the six (6) month anniversary of the Termination Date (or such sooner date that is permitted under Section 409A).

(b) Termination of Employment During the Change in Control Period . If your employment is terminated as a result of an Involuntary Termination during the Change in Control Period and you sign a release of claims (substantially in the form attached hereto as Appendix B), then you shall be entitled to payment of one hundred percent (100%) of your annual Base Salary, less applicable withholding. Such amount shall be payable in a lump sum no later than five (5) days following expiration of any revocation period required in connection with the release of claims; provided, however, if this payment is subject to Section 409A and you are a “specified employee” (as defined in Section 409A), this payment shall be made within five (5) days after the six (6) month anniversary of the Termination Date (or such sooner date that is permitted under Section 409A).

(c) Continuing Medical Coverage . If your employment is terminated as a result of an Involuntary Termination, whether or not a Change in Control Period, and you sign a release of claims (in a form satisfactory to Borland, an example of which is attached hereto as Appendix B), then you shall be entitled to payment for your premiums for health (i.e., medical, vision and dental) continuation coverage under COBRA; provided, however, that (i) you are eligible for COBRA on the Termination Date and (ii) you elect continuation coverage pursuant to COBRA, within the required time period. Borland shall continue to provide you with health coverage pursuant to this paragraph until the earliest of (i) the date you are no longer eligible to receive continuation coverage pursuant to COBRA, (ii) twelve (12) months from the Termination Date or (iii) the date on which you obtain comparable health coverage. You agree to notify Borland promptly after you obtain alternative health coverage.

2. Mitigation . Except as otherwise specifically provided herein, you shall not be required to mitigate damages or the amount of any payment provided under this Addendum by seeking other employment or otherwise, nor shall the amount of any payment provided for under this Addendum be reduced by any compensation you earn as a result of your employment by another employer or by any retirement benefits you receive after the Termination Date.

3. Successors .

(a) Borland’s Successors . Any successor to Borland (whether direct or indirect and whether by purchase, lease, merger, consolidation, liquidation or otherwise) to all or substantially all of Borland’s business and/or assets shall assume Borland’s obligations under this Addendum and agree expressly to perform Borland’s obligations under this Addendum in the same manner and to the same extent as Borland would be required to perform such obligations in the absence of a succession. For all purposes under this Addendum, the term “Borland” shall include any successor to Borland’s business and/or assets which acknowledges it will be bound by the terms of this Addendum or which becomes bound by the terms of this Addendum by operation of law.


(b) Your Successors . Without the written consent of Borland, you shall not assign or transfer this Addendum or any right or obligation under this Addendum to any other person or entity. Notwithstanding the foregoing, the terms of this Addendum and all you rights hereunder shall inure to the benefit of, and be enforceable by, your personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.

4. Notices . Notices and all other communications contemplated by this Addendum shall be in writing and shall be deemed to have been duly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid. In your case, mailed notices shall be addressed to you at the home address which you most recently communicated to Borland in writing. In the case of Borland, mailed notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of its General Counsel.

5. Code Section 409A . The parties agree to amend this Addendum to the extent necessary to avoid imposition of any additional tax or income recognition prior to actual payment to you under Code Section 409A and any temporary or final Treasury Regulations and Internal Revenue Service guidance thereunder.

6. Miscellaneous Provisions .

(a) Integration . This Addendum represents the entire agreement and understanding between the parties as to the subject matter herein and supersede all prior or contemporaneous agreements and provisions in other agreements related to severance benefits, whether written or oral. With respect to any conflict between this Addendum and any stock option agreement, stock issuance agreement or other stock award agreement, this Addendum shall prevail. With respect to any conflict between this Addendum and the Offer Letter or any other employment related agreement, this Addendum shall prevail. For the avoidance of doubt, with respect to any severance benefits provided for under your Offer Letter, this Addendum shall supersede the provisions of your Offer Letter with respect to severance benefits provided thereunder.

(b) Choice of Law . The validity, interpretation, construction and performance of this Addendum shall be governed by the internal substantive laws, but not the conflicts of law rules, of the State of California.

(c) Employment Taxes . All payments made pursuant to this Addendum shall be subject to withholding of applicable income and employment taxes.

(d) Non-Publication . The parties mutually agree not to disclose the terms of this Addendum except to the extent that disclosure is mandated by applicable law, standard or required corporate reporting, or disclosure is made to the parties’ respective advisors and agents ( e.g. , attorneys, accountants) or immediate family members.

IN WITNESS WHEREOF, each of the parties has executed this Addendum, in the case of Borland by its duly authorized officer, as of the day and year first above written.

 

 

 

 

 

 

 

 

B ORLAND SOFTWARE CORPORATION :

 

E XECUTIVE :

 

 

/s/ Tod Nielsen

 

/s/ Gregory Wrenn

 

 

 

 

 

  

(Signature)

 

 

 

(Signature)

 

 

 

 

By:

  

Tod Nielsen

 

By:

 

Gregory Wrenn

Title:

  

President and Chief Executive Officer

 

Title:

 

Senior VP and General Counsel


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