exhibit10_q308.htm

SEPARATION OF EMPLOYMENT AND GENERAL RELEASE AGREEMENT

        THIS SEPARATION OF EMPLOYMENT AND GENERAL RELEASE AGREEMENT (the “ Agreement ”) is made by and between Novell, Inc. (the “Company ”) and Thomas Francese (“ Executive ”), as of the Effective Date (as defined below).

        WHEREAS, Executive formerly was employed by the Company as Executive Vice President, Worldwide Sales of the Company;

        WHEREAS, Executive and Company entered into the Severance Agreement, dated October 3, 2005, (the “ Severance Agreement ”) which provides for certain benefits in the event that Executive’s employment is terminated on account of a reason set forth in the Severance Agreement;

        WHEREAS, Executive and the Company mutually desire to terminate Executive’s employment on an amicable basis, such termination to be effective July 31, 2008 (“ Date of Resignation ”); and

        WHEREAS, in connection with the termination of Executive’s employment, the parties have agreed to a separation package and the resolution of any and all disputes between them.

        NOW, THEREFORE, IT IS HEREBY AGREED by and between Executive and the Company as follows:

1.      Release :

        (a)        Executive, for and in consideration of the commitments of the Company as set forth in paragraph 3 of this Agreement, and intending to be legally bound, does hereby REMISE, RELEASE AND FOREVER DISCHARGE the Company, its affiliates, subsidiaries and parents, and its officers, directors, employees, and agents, and its and their respective successors and assigns, heirs, executors, and administrators (collectively, “ Releasees ”) from all causes of action, suits, debts, claims and demands whatsoever in law or in equity, which Executive ever had, now has, or hereafter may have, whether known or unknown, or which Executive’s heirs, executors, or administrators may have, by reason of any matter, cause or thing whatsoever, from the beginning of Executive’s employment to the date of this Agreement, and particularly, but without limitation of the foregoing general terms, any claims arising from or relating in any way to Executive’s employment relationship with the Company, the terms and conditions of that employment relationship, and the termination of that employment relationship, including, but not limited to, any claims arising under the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, Title VII of The Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act of 1993, the Employee Retirement Income Security Act of 1974, Chapter 151B of the Massachusetts General Laws, the Massachusetts Equal Rights Act, Chapters 21 and 22 of the Texas Labor Code, and any other claims under any federal, state or local common law, statutory, or regulatory provision, now or hereafter recognized, and any claims for attorneys’ fees and costs. This Agreement is effective without regard to the legal nature of the claims raised and without regard to whether any such claims are based upon tort, equity, implied or express contract or discrimination of any sort.

         (b)        To the fullest extent permitted by law, and subject to the provisions of paragraph 2(f) below, Executive represents and affirms that (i) Executive has not filed or caused to be filed on Executive’s behalf any claim for relief against the Company or any Releasee and, to the best of Executive’s knowledge and belief, no outstanding claims for relief have been filed or asserted against the Company or any Releasee on Executive’s behalf; (ii) Executive has not reported any improper, unethical or illegal conduct or activities to any supervisor, manager, department head, human resources representative, agent or other representative of the Company, to any member of the Company’s legal or compliance departments, or to the ethics hotline, and has no knowledge of any such improper, unethical or illegal conduct or activities; and (iii) Executive will not file, commence, prosecute or participate in any judicial or arbitral action or proceeding against the Company or any Releasee based upon or arising out of any act, omission, transaction, occurrence, contract, claim or event existing or occurring on or before the date of this Agreement.

2.      Future Conduct :

        (a)        Nondisclosure, Nonsolicitation and Noncompetition : In consideration of the Company’s agreements as set forth in Paragraph 3 below, Executive agrees to comply with the restrictive covenants described in Sections 10 and 11 of the Severance Agreement relating to nondisclosure of confidential information, nonsolicitation of employees and noncompetition. Furthermore, Executive and the Company hereby agree that the nine (9) month period during which Executive is obligated under the Covenant Not to Compete pursuant to Section 11(a)(i) of the Severance Agreement will be extended to an eighteen (18) month period commencing August 1, 2008. Executive further agrees that the remaining provisions contained in the Severance agreement relating to his restrictive covenant obligations, including Sections 1(o)-(p), 10 and 11(b)-(d) will remain in full force and effect. Notwithstanding the foregoing, the Company agrees to consider a limited waiver of Executive’s noncompetition obligations in the event that Executive wishes to be engaged in certain activities for a Restricted Business that may be deemed acceptable by the Company in its sole discretion, such approval not to be unreasonably withheld, and provided that Executive agrees to inform the Company prior to engaging in any interviews or negotiations over future employment terms and/or any similar prospective business venture of the existence and nature of such prospective activities. Executive agrees that he will so inform the Company by contacting its Senior Vice President-People directly. The Company agrees that it will promptly respond to such information and/or requests for consideration.

        (b)        Separation of Relationship : Executive agrees and recognizes that he has permanently and irrevocably severed his employment relationship with the Company, that Executive shall not seek employment with the Company or any affiliated entity at any time in the future, and that the Company has no obligation to employ him in the future.

        (c)        Nondisparagement :

                     (i)        By Executive : Executive agrees that he will not disparage or subvert the Company, or make any statement reflecting negatively on the Company, its affiliated corporations or entities, or any of their officers, directors, employees, agents or representatives, including, but not limited to, any matters relating to the operation or management of the Company, Executive’s employment and the termination of Executive’s employment, irrespective of the truthfulness or falsity of such statement.

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                     (ii)        By the Company : The Company agrees that its officers and directors will not disparage or subvert the Executive, or make any statement reflecting negatively on the Executive, including, but not limited to, any matters relating to the termination of Executive’s employment, irrespective of the truthfulness or falsity of such statement.

        (d)        Confidentiality of this Agreement : Executive agrees not to disclose the terms of this Agreement, and any preliminary discussions relating to this Agreement, to anyone, except Executive’s spouse, attorney and, as necessary, tax/financial advisor. Likewise, the Company agrees that the terms of this Agreement will not be disclosed except as required by law or as may be necessary to obtain approval or authorization to fulfill its obligations hereunder. It is expressly understood that any violation of the confidentiality obligation imposed hereunder constitutes a material breach of this Agreement.

        (e)        Return of Company Property : Executive represents that he does not presently have in his possession any records and business documents, whether on computer or hard copy, and other materials (including but not limited to computer disks and tapes, computer programs and software, office keys, correspondence, files, customer lists, technical information, customer information, pricing information, business strategies and plans, sales records and all copies thereof) (collectively, the “Corporate Records”) provided by the Company and/or its predecessors, subsidiaries or affiliates or obtained as a result of Executive’s prior employment with the Company and/or its predecessors, subsidiaries or affiliates, or created by Executive while employed by or rendering services to the Company and/or its predecessors, subsidiaries or affiliates. Executive acknowledges that all such Corporate Records are the property of the Company. In addition, Executive shall promptly return in good condition any and all Company owned equipment or property, including, but not limited to, automobiles, personal data assistants, facsimile machines, copy machines, pagers, credit cards, mobile telephone equipment, business cards, laptops and computers. As of the Date of Resignation, the Company will make arrangements to remove, terminate or transfer any and all business communication lines including network access, cellular phone, fax line and other business numbers.

        (f)        Nothing in this Agreement shall prohibit or restrict Executive from: (i) making any disclosure of information required by law; (ii) providing information to, or testifying or otherwise assisting in any investigation or proceeding brought by, any federal regulatory or law enforcement agency or legislative body, any self-regulatory organization, or the Company’s Compliance and Ethics Committee and its designees; or (iii) filing, testifying, p