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Exhibit
10.17
SETTLEMENT AGREEMENT AND
GENERAL RELEASE
I, Robert Lamvik, acknowledge
and agree that my employment with Embarcadero Technologies, Inc., a
Delaware corporation (together with its subsidiaries, the “
Company ”) will end, effective October 31, 2006
(the “ Effective Date ”). This Settlement
Agreement and General Release (this “ Release ”)
is in consideration of the commitments made by the parties released
hereby, all of which commitments are set forth in this
document.
| 1. |
The Company agrees, for my benefit, that
(a) notwithstanding anything to the contrary contained in
(i) the Option Agreement dated as of October 13, 2005 by
and between the Company and myself, or (ii) the Option Agreement
dated as of March 10, 2005 by and between the Company and
myself (together, the “ Specified Option Agreements
”), the options to purchase common stock of the Company owned
by me and that are set forth on the attached Exhibit A (the
“ Specified Options ”) shall become fully vested
and exercisable as of the Effective Date and b) that I shall
continue to receive my base salary and benefits (at a rate of
$200,000 per annum) payable in regular bi-monthly installments in
accordance with the Company’s general payroll practices from
the Effective Date for a period of six months
thereafter. |
| 2. |
I and the Company acknowledge and agree that the Employment
Agreement dated as of August 31, 2006, by and between the
Company and myself, to be effective upon the consummation of the
transactions contemplated by that certain Agreement and Plan of
Merger by and among the Company, EMB Holding Corp. and EMBT Merger
Corp., is terminated and is of no force and effect as of the date
hereof. I and the Company further acknowledge and agree that the
Non-Competition Agreement dated as of September 6, 2006, by
and between the Company and myself, is not terminated and remains
in full force and effect as of the date hereof. |
| 3. |
In consideration of and subject to the performance by the
Company of its obligations under paragraph 1 of this Release, I do
hereby release and forever discharge as of the date hereof the
Company and its affiliates and all present and former directors,
officers, agents, representatives, employees, successors and
assigns of the Company and its affiliates and the Company’s
direct or indirect owners (collectively, the “ Released
Parties ”) to the extent provided below. |
| 4. |
I understand that any payments or benefits paid or granted to
me under paragraph 1 of this Release represent, in part,
consideration for signing this Release and are not salary, wages or
benefits to which I was already entitled. I understand and agree
that I will not receive the payments and benefits specified in
paragraph 1 of this Release unless I execute this Release and do
not revoke this Release within the time period permitted hereafter
or breach this Release. Such payments and benefits will not be
considered compensation for purposes of any employee benefit plan,
program, policy or arrangement maintained or hereafter established
by the Company or its affiliates. |
| 5. |
Except as
provided in paragraph 7 below, I knowingly and voluntarily (for
myself, my heirs, executors, administrators and assigns) release
and forever discharge the Company
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and the other Released
Parties from any and all claims, suits, controversies, actions,
causes of action, cross-claims, counter-claims, demands, debts,
compensatory damages, liquidated damages, punitive or exemplary
damages, other damages, claims for costs and attorneys’ fees,
or liabilities of any nature whatsoever in law and in equity, both
past and present (through the date this Release becomes effective
and enforceable) and whether known or unknown, suspected, or
claimed against the Company or any of the Released Parties which I,
my spouse, or any of my heirs, executors, administrators or
assigns, may have, which arise out of or are connected with my
employment with, or my separation or termination from, the Company
(including, but not limited to, any allegation, claim or violation,
arising under: Title VII of the Civil Rights Act of 1964, as
amended; the Civil Rights Act of 1991; the Age Discrimination in
Employment Act of 1967, as amended (including the Older Workers
Benefit Protection Act); the Equal Pay Act of 1963, as amended; the
Americans with Disabilities Act of 1990; the Family and Medical
Leave Act of 1993; the Worker Adjustment Retraining and
Notification Act; the Employee Retirement Income Security Act of
1974; any applicable Executive Order Programs; the Fair Labor
Standards Act; or their state or local counterparts; or under any
other federal, state or local civil or human rights law, or under
any other local, state, or federal law, regulation or ordinance; or
under any public policy, contract or tort, or under common law; or
arising under any policies, practices or procedures of the Company;
or any claim for wrongful discharge, breach of contract, infliction
of emotional distress, defamation; or any claim for costs, fees, or
other expenses, including attorneys’ fees incurred in these
matters) (all of the foregoing collectively referred to herein as
the “ Claims ”).
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| 6. |
I represent that I have made no assignment or transfer of any
right, claim, demand, cause of action, or other matter covered by
paragraph 5 above. |
| 7. |
I agree that this Release does not waive or release any rights
or claims that I may have under the Age Discrimination in
Employment Act of 1967 which arise after the date I execute this
Release. I acknowledge and agree that my separation from employment
with the Company shall not serve as the basis for any claim or
action (including, without limitation, any claim under the Age
Discrimination in Employment Act of 1967). |
| 8. |
In signing this Release, I acknowledge and intend that it shall
be effective as a bar to each and every one of the Claims
hereinabove mentioned or implied. I expressly consent that this
Release shall be given full force and effect according to each and
all of its express terms and provisions, including those relating
to unknown and unsuspected Claims (notwithstanding any state
statute that expressly limits the effectiveness of a general
release of unknown, unsuspected and unanticipated Claims), if any,
as well as those relating to any other Claims hereinabove mentioned
or implied. I acknowledg |
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