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SEPARATION AGREEMENT AND FULL AND FINAL RELEASE OF CLAIMS

Release Agreement

SEPARATION AGREEMENT AND FULL AND FINAL RELEASE OF CLAIMS | Document Parties: BORLAND SOFTWARE CORP | Michael Sullivan You are currently viewing:
This Release Agreement involves

BORLAND SOFTWARE CORP | Michael Sullivan

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Title: SEPARATION AGREEMENT AND FULL AND FINAL RELEASE OF CLAIMS
Governing Law: Massachusetts     Date: 9/22/2006
Industry: Software and Programming    

SEPARATION AGREEMENT AND FULL AND FINAL RELEASE OF CLAIMS, Parties: borland software corp , michael sullivan
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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:

 

 

1.

PAYMENTS. In consideration for this Agreement, the Company shall:

(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)


 
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