Exhibit 10.95
SEPARATION
AGREEMENT
AND FULL AND FINAL RELEASE OF
CLAIMS
This Separation Agreement and Full
and Final Release of Claims (hereinafter referred to as
“Agreement”) is made and entered into by and between
Michael Sullivan (hereinafter referred to as
“Employee”), and Borland Software Corporation
(hereinafter referred to as the “Company” or
“Borland”).
WHEREAS, Borland Software
Corporation acquired Segue Software, Inc., (“Segue”) in
a merger transaction (“the Merger”) that closed on
April 19, 2006;
WHEREAS, Employee’s employment
with the Company as Principal Accounting Officer is terminating on
September 18, 2006 (the “Termination Date”), at
which time all employee compensation and benefits shall cease,
except provided herein;
WHEREAS, Employee and the Company
desire to settle fully and finally any and all claims of Employee
arising out of Employee’s employment with the Company and his
termination therefrom;
NOW, THEREFORE, in consideration of
the mutual covenants and promises herein contained and other good
and valuable consideration, receipt of which is hereby
acknowledged, and to avoid unnecessary litigation, it is hereby
agreed by and between the parties as follows:
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1.
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PAYMENTS. In consideration for this Agreement, the Company
shall:
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(a) The Company shall pay Employee a
severance payment of Two Hundred Forty-One Thousand, Six Hundred
and Sixty-Six Dollars ($241,666) minus applicable withholdings,
payable six (6) months after your separation date (i.e., on
March 19, 2007).
(b) Provided the Employee elects
COBRA coverage, the Company shall pay COBRA premiums necessary to
continue in the group health and dental insurance coverages for
Employee and his dependents through September 18, 2007 or the
date on which Employee first becomes enrolled in a new group health
insurance program with another employer, whichever occurs first.
Employee agrees to promptly notify the Borland Benefits Department
at (831) 431-1654, in the event that he becomes enrolled in
new group health insurance program.
(c) Provided the Employee elects to
continue life insurance coverage, the Company shall pay the premium
necessary to continue Three-Hundred and Fifty Thousand Dollars
($350,000) of life insurance coverage for a period of twelve
(12) months following termination. The Employee must notify
the Company in writing of his intent to continue life insurance
coverage and complete the required application within 31 days of
termination.
(d) The Company shall provide
Employee with outplacement services from a provider selected by the
Company in accordance with Company policy, and at the service level
typically accorded by Company to its highest ranking
executives.
(e) Borland will pay Employee the
in-the-money dollar value of all unvested Segue stock options not
already accelerated and paid out to Employee pursuant to the Merger
Agreement between Borland and Segue Software, Inc. or pursuant to
his vesting schedule following closing of the Merger as of the date
hereof, less all applicable taxes and other withholdings as
determined by the Borland payroll department, in the amount of
Eighty-Seven Thousand Six Hundred Seventy Eight Dollars and
Thirty-Nine Cents ($87,678.39) payable six (6) months after
your separation date ( i.e., on March 19, 2007).
(f) Borland will pay Employee a
retention bonus lump sum payment of One Hundred and Fifty Thousand
Dollars ($150,000). Such payment shall be mailed to Employee in the
next practical payroll run.
The above payments will
be contingent on your signing and returning this Agreement on
or before October 10, 2006 (the “acceptance
deadline”) and not revoking the Agreement prior to the time
it becomes effective.
2. NO OBLIGATION.
Employee expressly acknowledges that upon receipt of the payments
specified in Section 1 above, he will have been fully
compensated for all payments and benefits whatsoever under
(i) the Segue Software, Inc. Special Termination and Vesting
Plan and any other similar severance or change of control plan and
(ii) the employment
2.
agreement with the Company dated
July 5, 2006 (the “Employment Agreement”) and any
other retention, employment, consulting or other agreement, and he
will have been fully compensated for all wages, payments and
reimbursements due and owing to him, and all claims related to any
wages, payments and reimbursements which may have been unpaid, or
paid late, all attorney fees related to any such claims, and that
he will have been fully compensated for work done as a result of
his employment with or service to Borland, and all claims for
attorney fees. Employee further acknowledges and agrees that he
will cease to accrue vacation as of the Separation Date. The
Employment Agreement is hereby terminated and is of no further
force or effect, and Employee shall not be entitled to any further
monetary payments, other remuneration or other benefits of any
kind, including, but not limited to, any stock option grants, stock
option vesting or other equity-based compensation from Borland or
Segue Software, Inc. or from any other person or entity that acts
or has acted on Borland or Segue’s behalf, other than as
expressly set forth in this Agreement.
3. FULL AND FINAL RELEASE.
Except with respect to obligations created by, arising out of, or
confirmed by this Agreement, Employee, for himself and his
respective legal successors and assigns, irrevocably and
unconditionally releases, and forever discharges and acquits
Borland and its respective current and former parent companies and
predecessors, including without limitation Segue Software, Inc, and
each of its and their respective divisions, subsidiaries,
shareholders, officers, directors, current and former employees,
insurers, attorneys, accountants, agents, affiliates, legal
successors and assigns (all of whom are referred to throughout this
Agreement as the “Released Parties or Release
Parties”), from any and all charges, complaints, claims,
causes of action, debts, demands, sums of money, controversies,
agreements, promises, damages and liabilities of any kind or nature
whatsoever, both at law and equity, known or unknown, suspected or
unsuspected, anticipated or unanticipated (hereinafter referred to
as “claim” or “claims”), arising from
conduct occurring on or before the date of this Agreement,
including without limitation any claims incidental to or arising
out of Employee’s employment with the Company or the
termination thereof. It is expressly understood by Employee that
among the various rights and claims being waived in this release
are those arising under Title VII of the Civil Rights Act of 1964,
the Fair Labor Standards Act, the Equal Pay Act of 1963, the
Americans With Disabilities Act, the Civil Rights Act of 1866, the
Family and Medical Leave Act, claims of age discrimination under
the Age Discrimination in Employment Act, or any other federal,
state or local law
3.
or regulation. This provision is
intended by the parties to be all encompassing and to act as a full
and total release of any claim, whether specifically enumerated
herein or not, that Employee might have or has had, that exists or
ever has existed on or to the date of this Agreement. Nothing
contained in this Release shall alter Employee’s right (if
any) to indemnification granted under the Company’s directors
and officers liability insurance policies or Section 5.12 of
the “Agreement and Plan of Merger by and between Borland
Software Corporation, Beta Merger Sub, Inc. and Segue Software,
Inc. dated February 7, 2006, subject to the terms and
provisions set forth therein.
4. LEGAL
REPRESENTATION. You understand and agree that you:
1)