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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 .
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(a)
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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.
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(b)
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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.
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(c)
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Certain Definitions .
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" 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 " shall mean any individual, firm, corporation,
business enterprise, trust, association, joint venture, partnership
or any other entity, whether acting in an individual, fiduciary or
other capacity.
" Released Claims " shall mean, individually and
collectively, any and all Claims that may r
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