Separation Agreement and General Release - Embarcadero Technologies Inc. and Stuart Browning
SEPARATION AGREEMENT AND GENERAL RELEASE
("Agreement")
This Separation Agreement and General Release (the "Agreement")
effective as of February 1, 2000 (the "Effective Date") is made by and between
Embarcadero Technologies, Inc., a California corporation (the "Company"), and
Stuart Browning, an individual ("Browning").
WITNESSETH:
WHEREAS, the parties to this Agreement are Stuart Browning, his heirs,
representatives, successors and assigns (hereinafter referred to collectively as
"Browning") and Embarcadero Technologies, Inc. and/or any of its predecessors,
successors, subsidiaries, affiliates or related companies (hereinafter referred
to collectively as "the Company").
WHEREAS, Browning has served the Company as an employee from the
Company's formation to the present; and
WHEREAS, Browning has agreed to resign his employment from the Company
effective February 1, 2000 pursuant to the terms below; and
WHEREAS, the Company intends to make certain payments and to provide
certain other benefits to Browning on the terms and conditions herein set forth.
NOW, THEREFORE, IN CONSIDERATION of the mutual promises hereinafter set
forth, the parties hereto agree as follows:
1. The Company shall pay Browning severance compensation in the amount
of one hundred twenty thousand dollars ($120,000). This amount shall be paid in
monthly installments of ten thousand dollars ($10,000) per month for a period of
one year beginning February 1, 2000 and ending January 31, 2001 (the "Severance
Period"). All amounts paid pursuant to this Paragraph shall be subject to the
appropriate withholdings, in the same manner as withholdings were deducted
throughout Browning's tenure of employment.
2. The Company further agrees to provide Browning with full
participation in the Company's health, disability and life insurance benefit
programs, at the Company's expense, during the Severance Period. At the
conclusion of the Severance Period, Browning will be eligible for continued
coverage in the aforementioned benefit plans to the fullest extent provided by
applicable law. Browning hereby agrees that if at any time during the Severance
Period he becomes
<PAGE>
employed by another entity and becomes eligible for benefit coverage, he will
notify the Company and terminate his insurance coverage with and through the
Company at the earliest possible date.
3. The Company further agrees that Browning shall have full right,
title and interest to the 2,400,000 shares of Common Stock in the Company held
by Browning as of the Effective Date of this Agreement.
4. As consideration and inducement for this Agreement, Browning hereby
waives, releases and forever discharges the Company, its affiliates, and its
directors, officers, shareholders, employees and agents from any and all
complaints, claims, suits, causes of action, known or unknown, whether in law or
in equity, which he has asserted or could now assert at common law or under any
statute, regulation, or law, whether federal, state or local, on any ground
whatsoever, including, but not limited to, the California Labor Code, as
amended, Title VII of the Civil Rights Act of 1964, as amended, the California
Fair Employment and Housing Act, as amended, the Equal Pay Act, as amended, the
Rehabilitation Act of 1973, as amended, the Employee Retirement Income Security
Act of 1974, as amended, Section 1981 of Title 42 of the United States Code, the
Age Discrimination in Employment Act of 1967, the Older Workers' Benefit
Protection Act, the Americans with Disabilities Act, and any other claims
relating to or with respect to any event, matter, or occurrence arising out of
or in any way associated with his employment by the Company, the termination of
that employment or any acts or omissions of the Company relating thereto prior
to the Effective Date of this Agreement; provided, however, that this release
shall not constitute a release with respect to any obligations of the Company
set forth in this Agreement.
5. The Company hereby waives, releases and forever discharges Browning,
his heirs, executors, administrators, insurers, successors and assigns from any
and all complaints, claims, suits, causes of action, known or unknown, whether
in law or in equity, which the Company has asserted or could now assert at
common law or under any statute, regulation, or law, whether federal, state or
local, on any ground whatsoever, and any other claims relating to or with
respect to any event, matter, or occurrence arising out of or in any way
associated with Browning's employment by the Company, the termination of that
employment or any acts or omissions of Browning relating thereto prior to the
Effective Date of this Agreement (including, without limitation, his ownership
of the Common Stock referred to in paragraph 3, above); provided, however, that
this release shall not constitute a release with respect to any obligations of
Browning set forth in this Agreement.
6. Browning also agrees that he will not make any written or oral
communications that could reasonably be considered to be in derogation of the
Company in any respect, including, but not limited to, the Company's business,
technology, products, employees, officers, directors, or agents.
2
<PAGE>
7. The Company also agrees that it will cause its officers and
directors not make any written or oral communications that could reasonably be
considered to be in derogation of Browning or the performance of his job duties
while employed by the Company.
8. During the Severance Period, Browning will make himself available
upon reasonable notice, at reasonable times and places, to act as a consultant
to the Company in connection with its business activities.
9. Browning further agrees that any and all information and data
obtained by or disclosed to him at any time during his employment with the
Company, which is not generally known to the public, including but not limited
to information concerning the Company's customers, methods of operation,
processes, practices, policies, programs procedures, and/or personnel data, are
confidential and/or proprietary to the Company, constitute trade secrets of the
Company and shall not be disclosed, discussed, or revealed to any persons,
entities or organizations, outside of the Company, without prior written
approval of an authorized representative of the Company, to the extent permitted
by law.
10. Browning also agrees that as part of his consideration for the
payments and benefits provided herein and to protect the Company's confidential
and proprietary information, Browning agrees that during the Severance Period:
a. he will not directly or indirectly solicit or accept
customers/clients/or business opportunities of the Company;
b. he will not directly or indirectly solicit or induce any
employee of the Company to terminate his or her employment with the
Company; and
c. he will not engage in or pursue any business opportunity to
develop or design products competitive with the products of the
Company. (Browning and the Company agree and acknowledge that the
Company's products include those products listed on Attachment B.)
11. As to the matters released in Paragraphs 4 and 5 above, Browning
and the Company hereby respectively waive and release any and all rights under
Section 1542 of the California Civil Code or any analogous state, local, or
federal law, statute, rule, order or regulation. California Civil Code Section
1542 reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
3
<PAGE>
Subject to the limitations of paragraphs 4 and 5 above, Browning and
the Company hereby expressly agree that this Agreement shall extend and apply to
all unknown, unsuspected and unanticipated injuries and damages as well as those
that are now disclosed.
9. Browning agrees that, if so requested by the Company and the
representative of the underwriter(s), he shall not sell or otherwise transfer
(other than to donees who agree to be similarly bound) any securities of the
Company during the 180 day period following the effective date of a registration
statement of the Company filed under the Securities Act of 1933, as amended,
provided that all officers and directors of the Company and persons holding 5%
or more of the Company's securities enter into similar agreements.
10. The parties hereby acknowledge that in signing this Agreement they
may be waiving certain legal rights.
11. Browning warrants and represents that he has not filed any claim,
charge, action or complaint concerning any matter referred to in this Agreement.
Browning further agrees neither to file nor to encourage another to file any
claims, charges, actions or complaints for damages concerning any matter
referred to in this Agreement, except as otherwise provided by law.
12. This settlement was either negotiated for the parties by
representatives of their own choosing, or, after having had a reasonable
opportunity to obtain representatives of their own choosing, they elected to
represent themselves in such negotiations. The parties are voluntarily agreeing
to this compromise agreement. It is agreed that this is a compromise settlement
and that the payment under this Agreement is not an admission of any liability
or obligation.
13. Browning and the Company agree that he and it will neither disclose
nor voluntarily allow anyone else to disclose either the fact of, the reasons
for, or the provisions of this Agreement without the prior written consent of
the other party, unless required to do so by law, provided, that Browning and
the Company nonetheless may disclose this Agreement and its provisions to his or
its attorney, accountants and any taxing authority, and that the Company may
disclose the fact of Browning's resignation and the fact that he is being paid
severance (including the amount of such severance) as required pursuant to
necessary corporate disclosures.
14. Browning and the Company expressly state that they have read this
Agreement and understands all of its terms, that the preceding paragraphs recite
the sole consideration for this Agreement, and that this Agreement constitutes
the entire agreement with respect to any matters referred to in it. This
Agreement supersedes any and all other agreements between Browning and the
Company. This Agreement may
4
<PAGE>
only be amended in writing signed by Browning and an officer of the Company, and
it is executed voluntarily and with full knowledge of its significance.
15. If any provision of this Agreement shall be determined to be
invalid or unenforceable for any reason, it shall be adjusted rather than
voided, if possible, in order to achieve the intent of the parties to the extent
possible. In any event, all other provisions of this Agreement shall be deemed
valid and enforceable to the full extent possible.
16. As further mutual consideration of the promises set forth herein,
the Company and Browning agree that they each are responsible for their own
attorney's fees and costs, and each agrees not to seek from the other or others
released hereby reimbursement for attorney's fees and/or costs incurred in this
action or relating to any matters addressed in this Agreement.
17. This Agreement shall be construed and interpreted in accordance
with the laws of the State of California.
18. Any notice required or permitted to be given under this Agreement
by one party hereto to the other shall be sufficient if given or confirmed in
writing addressed as respectively indicated:
To Company: Embarcadero Technologies, Inc
425 Market Street, Suite 425
San Francisco, CA 94105
Attention: President
To Browning: Mr. Stuart Browning
510 Stockton Street, Apt. 5
San Francisco, CA 94108
and
Blaine Greenberg, Esq.
3400 Red Rose Dr.
Encino, CA 91436
19. Browning acknowledges and agrees he has been told that he has up to
twenty one (21) days from the date he and his attorney (Blaine Greenberg, Esq.)
first received this Agreement to obtain the advice and counsel of the legal
representative of his choice and to decide whether to sign it. Browning
understands and agrees that for seven (7) calendar days after he signs this
Agreement he has the right to revoke it, and this Agreement shall not become
effective and enforceable until after the passage of this
5
<PAGE>
seven-day period without Browning having revoked it. This Agreement may not be
revoked by Browning after the seven-day period. Browning understands and agrees
that payment will be made and benefits extended to him pursuant to this
Agreement only if he signs and returns Attachment A, confirming that he does not
revoke this Agreement, and provided that Attachment A is signed no earlier than
eight (8) calendar days after Browning signs this Agreement.
IN WITNESS WHEREOF, the Company has caused its corporate name to be
subscribed hereto by its duly authorized officer, and Browning has hereunto set
his hand.
Dated: February 4, 2000 /s/ Stuart Browning
-----------------------------------
Stuart Browning
Dated: February 4, 2000 EMBARCADERO TECHNOLOGIES, INC.
By: /s/ Ellen Taylor
--------------------------------
Ellen Taylor
President and Chief Executive
Officer
6
<PAGE>
ATTACHMENT A
STATEMENT OF NON-REVOCATION
AS OF THE DATE SHOWN ON THIS FORM
By signing below, I hereby verify that I have chosen not to revoke my
agreement to and execution of the General Release and Settlement Agreement. My
signature confirms my renewed agreement to the terms of that agreement,
including the release and waiver of any and all claims relating to my employment
with the Embarcadero Technologies, Inc. and/or the termination of that
employment.
Stuart Browning
-------------------------------- ----------------------
Name (Please Print) Social Security Number
/s/ Stuart Browning 2-13-2000
-------------------------------- -----------------------
Signature* Date*
*DO NOT SIGN, DATE OR RETURN THIS DOCUMENT UNTIL EIGHT (8) DAYS AFTER YOU SIGN
THE GENERAL RELEASE AND SETTLEMENT AGREEMENT
7