Exhibit 10.1
TERMINATION AND
MUTUAL RELEASE
AGREEMENT
THIS TERMINATION AND MUTUAL RELEASE
AGREEMENT (this “ Agreement ”) is made as of
December 16, 2006, by and among EMB Holding Corp. (“
Parent ”), EMBT Merger Corp. (“ Merger
Sub ,” and together with Parent, the “ EMB
Parties ”), and Embarcadero Technologies, Inc. (the
“ Company ,” and together with the EMB Parties,
the “ Parties ”).
WHEREAS, on September 6, 2006,
Parent, Merger Sub and the Company entered into an Agreement and
Plan of Merger providing for the merger of Merger Sub with and into
the Company (the “ Merger Agreement ”), and
Thoma Cressey Fund VIII, L.P. executed a Limited Guarantee with
respect to the Merger Agreement (the “ Limited
Guarantee ”) and an equity commitment letter (the “
Equity Commitment ”) with respect to the Merger
Agreement. The Merger Agreement, the Limited Guarantee and the
Equity Commitment are collectively referred to herein as the
“ Transaction Documents ”).
WHEREAS, the Parties have determined
that it is in their mutual best interests to terminate the Merger
Agreement in accordance with the provisions of Section 7.1(a)
thereof.
NOW, THEREFORE, for and in
consideration of the foregoing and the mutual agreements
hereinafter set forth, the parties hereby agree as
follows:
1. Termination . Each of the
Parties, on behalf of itself or himself and its or his Affiliates,
in any capacity, agrees and acknowledges that the Merger Agreement
shall be, and that it hereby is, terminated by the mutual written
consent of Parent and the Company in accordance with
Section 7.1(a) thereof, and that as a result of such
termination and of the mutual releases set forth in Section 2
below, no Party shall have any continuing liabilities or
obligations to the other of any nature whatsoever with respect to
the proposed merger, whether under the Transaction Documents or
otherwise.
2. Releases .
|
|
(a)
|
Release by
the Company . The
Company, on behalf of itself and each of its Affiliates, and each
of their respective agents, representatives, equityholders,
attorneys, accountants, advisors, predecessors, successors,
successors-in-interest and assigns (each, a “ Company
Releasor ” and collectively, the “ Company
Releasors ”), does hereby forever release, remise and
discharge each of the EMB Parties, Thoma Cressey Equity Partners
Inc. (“ TCEP ”) and any entities, funds or
persons affiliated or associated with TCEP in any way (the “
TCEP Parties ”), and each of their respective agents,
representatives, equityholders, attorneys, accountants, advisors,
predecessors, successors, successors-in-interest and assigns (each,
a “ Company Releasee ” and collectively, the
“ Company Releasees ”) from any and all Released
Claims, and hereby agrees and covenants not to assert or prosecute
against any or all of the Company Releasees any Released Claims,
that any of the Company Releasors ever had, may have or hereafter
can, may or shall have.
|
|
|
(b)
|
Release by
the EMB Parties . Each of
the EMB Parties, on behalf of itself and TCEP and each of the TCEP
Parties, and each of their respective agents, representatives,
equityholders, attorneys, accountants, advisors, predecessors,
successors, successors-in-interest and assigns (each, an “
EMB Releasor ” and collectively, the “ EMB
Releasors ”), does hereby forever release, remise and
discharge the Company and each of its Affiliates, and each of their
respective agents, representatives, equityholders, attorneys,
accountants, advisors, predecessors, successors,
successors-in-interest and assigns (each, an “ EMB
Releasee ” and collectively, the “ EMB
Releasees ”) from any and all Released Claims, and hereby
agrees and covenants not to assert or prosecute against any or all
of the EMB Releasees any Released Claims, that any of the EMB
Releasors ever had, may have or hereafter can, may or shall
have.
|
|
|
(c)
|
Certain
Definitions .
|
“ Affiliate ”
shall mean, with respect to any Person, (a) each Person that,
directly or indirectly, controls, is controlled by, or is under
common control with such Person, (b) each Person that,
directly or indirectly, owns or controls, whether beneficially, or
as a trustee, guardian or other fiduciary, five percent
(5%) or more of any capital stock, general or limited
partnership interest, or other equity interest of such Person,
(c) in the case of a limited liability company, any Person
that is the managing member of that Person and in all instances
each Person that controls, is controlled by or is under common
control with such Person, and (d) each of such Person’s
officers, directors, joint venturers and partners. For purposes of
this definition, “control” (including with correlative
meanings, the terms “controlling,” “controlled
by” and “under common control with”) means the
possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether
through the ownership of voting securities or by contract or
otherwise.
“ Claim(s) ”
shall mean, individually or collectively, as applicable, any and
all actions, causes of action, counterclaims, suits, debts, dues,
sums of money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions,
rights, claims, demands, liabilities, losses, rights to
reimbursement, subrogation, indemnification or other payment, costs
or expenses, and reasonable attorneys’ fees, whether in law
or in equity, of any nature whatsoever, known or unknown, suspected
or unsuspected, fixed or contingent, and whether representing a
past, present or future obligation.
“ Person ”
sha
|
