SEPARATION AGREEMENT
Exhibit 10.1
Execution Version
This SEPARATION AGREEMENT (the “Agreement”) is entered into by and between Progress Software
Corporation (the “Company”) and Xxxxxx X. Xxxxx, an individual (the “Executive”). This Agreement
shall be effective on the Effective Date, as defined in Section 6.2.
WHEREAS, the Executive and the Company wish to terminate certain of the Executive’s
relationships with the Company amicably under the terms and conditions set forth herein;
WHEREAS, the Company recognizes the Executive’s key role as a founder of the Company and his
twenty-seven years of loyal service; and
WHEREAS, the Company recognizes that the Executive is receiving no monetary severance and has
resigned from his positions as President and CEO and agreed, as provided below, not to stand for
reelection to the Board of Directors.
NOW, THEREFORE, in consideration of the foregoing and of the respective covenants and
agreements set forth below, and intending to be legally bound, the Company and the Executive agree
as follows:
1. Resignation from Employment; Departure from Board of Directors
Both parties acknowledge that the Executive’s service as President and Chief Executive Officer
ended effective on March 29, 2009. The Executive shall remain employed by the Company to June 30,
2009 (the “Separation Date”) at his current base salary and with his current benefits. During the
remaining period of the Executive’s employment, he shall provide transitional assistance if
reasonably requested by the Lead Independent Director of the Board of Directors (the “Board”).
Effective on the Separation Date, the Executive resigns from his employment and resigns from and
relinquishes any right to service in or privileges relating to
any and all other positions that he holds with the Company (other than as a shareholder and
optionholder), and with any and all of the Company’s subsidiaries and/or affiliates and, further,
agrees not to stand for re-election as a member of the Board at the 2009 Annual Meeting of the
Shareholders.
2. Severance Benefits
The Company shall provide the following:
2.1 Stock Options
The Company, as of the Effective Date, shall accelerate the vesting of all of the Executive’s
unvested outstanding stock options as listed on Exhibit A attached hereto and subject to the terms
of the respective Company stock option plans with respect to treatment of options upon a sale,
merger or other acquisition of the Company, shall allow the Executive or his estate, beneficiary,
legal representative or legatee to exercise all of his outstanding stock options until the earlier
of their (a) original expiration date as set forth on Exhibit A or (b) March 31, 2014, with no
exercise to be permitted thereafter. In addition, the Company hereby acknowledges that all stock
options outstanding under all Company stock option plans other than the 1992 Incentive and
Nonqualified Stock Option Plan and the 1994 Stock Incentive Plan may be transferred by the
Executive at any time from and after the Effective Date in accordance with the applicable plan
provisions and agrees to cooperate in allowing the Executive to do so and permit any such
transferee to exercise the options during their terms as set forth in the preceding sentence;
provided that the transferee agrees in writing to be bound by the terms of the Company stock option
plans and the provisions of this Section 2.1. The Company also agrees to allow the Executive and
any such transferee to make use of its “cashless option exercise” process and any other benefits
afforded to other employees in tracking and exercising stock options.
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Except as provided in this Section 2.1, the Company shall not terminate or cancel the stock
options subject to this Section 2.1 (the “Options”) or otherwise restrict the Executive’s rights
thereto without an order of a court of competent jurisdiction finding that the Company has grounds
to do so and permitting such action, including, without limitation, an order of rescission or such
equitable relief as the court deems proper. In the event that the Company files an action that
alleges a breach of this Agreement, the Executive’s right to exercise the Options after such filing
shall be subject to an obligation of the Executive to place any proceeds from the sale of shares
resulting from such exercise (net of any sales commissions paid by the Executive and tax
withholding by the Company) in an interest bearing escrow account at a federally insured and
chartered bank of his choice with offices in Massachusetts that is reasonably acceptable to the
Company (the “Escrow Agent”) immediately upon such sale, with instructions to the Escrow Agent to
hold all such proceeds and interest in escrow until one of the following: (i) a final judgment,
all appeals having been exhausted, awarding payment of a specified amount or no amount to the
Company, in which event the Escrow Agent shall pay such amount, if any, to the Company and the
balance, if any, to the Executive, (ii) any final dismissal of such action with prejudice, all
appeals having been exhausted, and without the issuance of any order making any directions with
respect to such payment, in which event the Escrow Agent shall pay all such amounts to the
Executive, or (iii) a direction concerning disposition made jointly by the Executive and the
Company, in which event the Escrow Agent shall follow such direction. During the period when any
such court action is pending, the Executive also shall not have the right to transfer any Options
to any third party.
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2.2 Liability Insurance and Indemnification
The Company, for a minimum of six (6) years following the Separation Date, shall maintain, for
the benefit of the Executive, director and officer liability insurance (“D&O”) in form at least as
comprehensive as, and in an amount that is at least equal to, that maintained by the Company for
its officers and directors at the same time during such period. In addition, the Executive shall
be indemnified by the Company against liability, including costs and attorneys’ fees, as a current
or former director, officer and/or employee of the Company and any subsidiary or affiliate of the
Company to the extent set forth in the Company’s By-Laws.
2.3 Office Access
The Company shall permit the Executive reasonable access to his office during regular business
hours and such other times as approved by the Lead Independent Director of the Board of Directors,
and shall provide reasonable administrative support, primarily through the services of his existing
assistant, to the extent reasonably available, through the Separation Date for the purpose of
transitioning matters and property to the Company, organizing his own affairs, and removing his own
property.
2.4 Voicemail/Email
The Company shall maintain and permit the Executive to use his existing Company voicemail and
email accounts through March 31, 2010. The Executive agrees to promptly forward all voicemails and
emails pertaining to business of the Company to whoever is designated by the Company to receive
them. Nothing in this Agreement shall be construed to limit the Company’s right to include an
automated greeting for voicemails and an automated reply to any email that provide notice that the
Executive is no longer employed by the Company.
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2.5 Computer/PDA
The Executive on request of the Company shall deliver to the Company the laptop computer and
BlackBerry PDA device (together, the “Devices”) that the Executive normally uses. The Company may
remove from the Devices any and all materials, messages and other information that the Company
reasonably and in good faith determines relate to the business of the Company. The Company shall
permit the Executive a reasonable opportunity to consult and cooperate with the Company concerning
such removal. If the Company initiates a removal process, it shall use reasonable diligence to
complete such process as promptly as can reasonably be expected under the circumstances. No later
than five (5) days after the later of (i) the Separation Date; or (ii) the completion of any
removal process that the Company undertakes, the Company shall return the Devices to the Executive
and shall transfer ownership of the Devices to the Executive.
3. Other Compensation
The Executive will be paid all accrued but unused vacation through the Separation Date no
later than the second normal payroll cycle following the Separation Date.
4. Covenants of the Executive
4.1 Return and Protection of Company Property
The Executive agrees to return to the Company all Company documents and property (except as
set forth above) no later than seven (7) days following the Executive’s return from his current
trip, and to abide by the terms of his Employee Proprietary Information and Confidentiality
Agreement signed as of July 9, 1998 (the “Proprietary Information Agreement”).
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4.2 Cooperation
The Executive agrees to make himself available to the Company after the Separation Date either
by telephone or in person upon reasonable notice and with reasonable accommodation to the
Executive’s personal and business affairs, to assist the Company (which shall include for purposes
of this Section 4.2 any subsidiary or other affiliate) in connection with any matter relating to
services performed by the Executive on behalf of the Company prior to the Separation Date,
including, without limitation, to assist in the transition of his duties to the Company’s new Chief
Executive Officer. The Executive, also upon reasonable notice and with reasonable accommodation to
his personal and business affairs, further agrees to cooperate with the Company in the defense or
prosecution of any claims or actions now in existence or which may be brought or threatened in the
future against or on behalf of the Company, its directors, shareholders, officers, or employees and
which relates to the aforesaid services, including without limitation, by meeting with the
Company’s counsel and appearing to testify truthfully in any proceeding without the necessity of a
subpoena. The Company shall reimburse the Executive for his reasonable documented travel expenses
incurred in connection with such cooperation. Notwithstanding the aforesaid, the Executive’s
obligations set forth above shall not apply to any matter in which the Executive’s interests are
materially adverse to those of the Company. To the extent that any services requested by the
Company pursuant to this Section 4.2 (“Cooperation Services”) exceed fifteen (15) hours, the
Company shall compensate the Executive at an hourly rate of $500; provided that the following
Cooperation Services shall not be subject to a compensation right nor shall they be counted toward
such fifteen (15) hours: (i) time spent testifying in any proceeding and any related travel and
waiting time; and (ii) time spent assisting the Company in connection with any then threatened or
pending litigation,
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investigation or regulatory proceeding in which the Executive is a party, subject or target, or in
which the Executive has been informed by an adverse party or governmental agency that he will be a
party, subject or target. Reimbursements of expenses shall be paid within thirty (30) days of the
Company’s receipt of an invoice from the Executive or his designee for the same. Any reimbursement
in one calendar year shall not affect the amount that may be reimbursed in any other calendar year
and a reimbursement (or right thereto) may not be exchanged or liquidated for another benefit or
payment. Any business expense reimbursements subject to Section 409A of the Code shall be made no
later than the end of the calendar year following the calendar year in which such business expense
is incurred by Executive. The Executive shall submit any such expense requests in a sufficiently
timely manner so as to permit the Company to comply with the previous sentence.
4.3 Non-Competition; Non-Solicitation
The Executive recognizes the highly competitive nature of the Company’s business and that the
Executive’s position with the Company and access to and use of the Company’s confidential records
and proprietary information renders the Executive special and unique. The Executive further
acknowledges that he has the opportunity to obtain additional equity in the Company pursuant to
Section 2.1. The Executive hereby agrees that for the shorter of five (5) years from the
Separation Date or one (1) year from the exercise or termination, by voluntary relinquishing to the
Company or other cancellation or termination in accordance with the terms of the applicable Company
stock option plans (but not, for the avoidance of doubt, due to any transfer of options by the
Executive as described in Section 2.1 without the subsequent exercise or termination of such
transferred options), of all of his stock options in the Company (the “Restricted Period”), he
shall not, directly or indirectly, own, manage, operate, join, control,
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participate in, invest in or otherwise be connected or associated with, in any manner, including as
an officer, director, employee, independent contractor, stockholder, member, partner, consultant,
advisor, agent, proprietor, trustee or investor, any Competing Business with operations in the
United States; provided, however, that (i) ownership of two percent (2%) or less of the stock or
other securities of a publicly traded corporation and (ii) passive ownership of less than a five
percent (5%) interest as a limited partner of a venture capital fund, private equity fund or
similar investment vehicle, or ownership of shares in a mutual fund shall not constitute a breach
of this Section 4.5, in each case under this clause (ii), with respect to which the Executive has
no role in the review, selection or management of any investments. For purposes hereof, the
phrase, “Competing Business,” shall mean any business or venture listed on Schedule A, or any other
business or venture that has significant product activity in any of the areas listed in Schedule B,
provided, however, that a business or venture which imbeds or resells products or technology from
the companies listed on Schedule A or from companies in the product areas listed in Schedule B but
which itself has no significant product activity in the area shall not be considered a Competing
Business.
Notwithstanding the foregoing, if the Executive seeks employment with any subsidiary,
division, affiliate or unit of a Competing Business (a “Related Unit”) and if that Related Unit
does not compete with the Company or any subsidiary or other affiliate with respect to products and
services of the Company or any other affiliate at the times and as described above (a “Noncompeting
Related Unit”), the Executive may request a waiver of this Section 4.3 with respect to employment
with such Noncompeting Related Unit. The Company shall not unreasonably withhold its agreement to
such a waiver; provided that in no event may the Executive engage in or assist in the activities of
any Related Unit that is competitive with the
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Company or any subsidiary or other affiliate with respect to products and services of the Company
or any other affiliate at the times and as described above.
During the Restricted Period, the Executive shall not, directly or indirectly, (i) hire,
subcontract, employ, engage or solicit any person who was an employee of the Company at the
Separation Date or within six (6) months prior thereto, nor will the Executive attempt to hire or
solicit any such person, provided, however, that this subsection (i) shall not apply with respect
to any person following the expiration of one hundred eighty (180) days from his/her termination of
employment with the Company or (ii) solicit for a Competing Business or endeavor to entice away
from the Company or any of its subsidiaries, in either case with respect to products or services
described in Schedule B, any person or entity who is, or was within the then most recent 12-month
period, a customer of the Company or any of its subsidiaries.
The Executive acknowledges that the business of the Company is worldwide in scope and
therefore understands and agrees that there is no geographic limitation on the scope of this
Section 4.3. The Executive further agrees that the nature of the Company’s confidential
information and the goodwill relationships that were developed for the Company during the
Executive’s employment support the continuation of the restrictions pursuant to this Section for
five (5) years. Notwithstanding the foregoing, if a court determines that the geographic scope of
this Section or the length of the Restricted Period is excessive, the parties agree that this
Section should be enforced to the maximum extent that the court determines to be permissible.
4.4 Remedies for Breach of
Non-Competition/Non-Solicitation Covenants
The parties agree that, throughout his employment with the Company, the Executive has been
obligated to render personal services of a special, unique, unusual,
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extraordinary and intellectual character, thereby giving this Agreement special value, and, in
the event of a breach or threatened breach of the covenants of the Executive in Section 4.3 hereof,
the injury or imminent injury to the value and the goodwill of the Company’s business could not be
reasonably or adequately compensated in damages in an action at law. Accordingly, the Executive
acknowledges that, in addition to any other remedies that may be awarded, the Company shall be
entitled to specific performance, injunctive relief or any other equitable remedy against the
Executive, without the posting of a bond, in the event of any breach or threatened breach of any
provision of this Agreement by the Executive. In addition, in the event the Executive breaches or
threatens to breach Section 4.3 of this Agreement, such breach or threatened breach will entitle
the Company, without posting of a bond, to an injunction prohibiting the Executive from violating
the terms of such Section 4.3. The Company agrees that should it decide to seek injunctive relief,
it shall provide the Executive with at least three (3) business days’ advance notice of any hearing
in which it seeks such relief; provided that for the purpose of this Section 4.4 (so long as the
Company has made reasonably diligent efforts to provide actual notice by phone, email or
otherwise), receipt of such notice shall be presumed three (3) days after mailing of notice by
nationally recognized overnight delivery service if not actually received before then.
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5. Non-Disparagement
The Executive agrees that, except as required by law or to enforce the terms of this
Agreement, the Executive shall not make any disparaging statements about the Company (including for
these purposes any subsidiary or affiliate), its officers, directors, employees, products or
services. The Company shall direct its directors and the Executive’s successor as Chief
Executive Officer and the Company’s other executive officers as of the Effective Date, during the
course of their status as directors and executive officers of the Company, respectively, not to
make any disparaging statements about the Executive, except as required by law or to enforce this
Agreement. For purposes of this Agreement, statements in the course of testimony in a legal or
regulatory proceeding or in response to an inquiry by a governmental or other regulatory entity
shall be considered to be “required by law.”
6. Release of Claims by the Executive
6.1 Release
In consideration of the covenants set forth herein, and more particularly the terms afforded
the Executive by way of Section 2 hereof, and other good and valuable consideration, the Executive
and his agents, heirs, legatees, successors and assigns (collectively hereinafter “Executive”),
hereby unconditionally release and forever discharge the Company, its subsidiaries and other
affiliates, its and their respective predecessors, successors and assigns, its and their respective
employee benefit plans and fiduciaries of such plans and the current and former officers,
directors, shareholders, employees, attorneys, accountants and agents of each of the foregoing in
their official and personal capacities (collectively referred to as the “Released Parties”) of and
from any and all actions, causes of actions, suits, debts, charges, complaints, claims,
liabilities, obligations, promises, agreements, controversies, damages, and expenses
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(including attorney’s fees and costs actually incurred), of any nature whatsoever, in law or
equity, known or unknown (collectively “Claims”), which, as of the date when the Executive signs
this Agreement, the Executive then has, ever had, then claims to have or ever claimed to have had
against all or any of the Released Parties. The Executive acknowledges that the termination of the
Executive’s employment and other actions that occur pursuant to this Agreement shall not give rise
to any Claims.
Without limiting the foregoing general waiver and release of claims, the Executive
specifically waives and releases the Company from any Claim arising from or related to his
employment relationship with the Company or the termination thereof, including, without limitation:
(a) Claims under any local, state or federal discrimination, fair employment practices or
other employment related statute, regulation or executive order (as they may have been
amended through the Effective Date) prohibiting discrimination or harassment based upon any
protected status including, without limitation, race, national origin, age, gender, marital
status, disability, veteran status or sexual orientation. Without limitation, specifically
included in this paragraph are any Claims arising under the federal Age Discrimination in
Employment Act, the Older Workers Benefit Protection Act, the Civil Rights Acts of 1866 and
1871, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Equal Pay
Act, the Americans With Disabilities Act, the Worker Adjustment and Retraining Notification
Act, and any similar federal, state or local statute;
(b) Claims under any other local, state or federal employment related statute, regulation or
executive order (as they may have been amended through the Effective Date) relating to
wages, hours or any other terms and conditions of employment. Without limitation,
specifically included in this paragraph are any Claims arising under the Family and Medical
Leave Act of 1993, the National Labor Relations Act, the Employee Retirement Income Security
Act of 1974, the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), and any
similar federal, state or local statute;
(c) Claims under any local, state or federal common law theory including, without
limitation, wrongful discharge, breach of express or implied contract, promissory estoppel,
unjust enrichment, breach of a covenant of good faith and fair dealing, violation of public
policy, defamation, interference with contractual relations, intentional or negligent
infliction of emotional distress, invasion of privacy, misrepresentation, deceit, fraud or
negligence;
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(d) Claims under any local, state or federal securities law, including, without limitation,
the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and
any other state or local securities statutes and regulations; and
(e) Any other Claim arising under local, state or federal law.
Notwithstanding the foregoing, this Section shall not release the Company from any obligation
set forth in this Agreement, nor shall it affect the Executive’s vested rights under the Company’s
Section 401(k) plan or the Executive’s rights to continue group medical and dental plan benefits in
the future to the extent authorized by COBRA, any obligations of the Company to provide
indemnification to the Executive under the Company’s By-Laws, and any obligation of the Company
under any joint defense agreement between the Executive and the Company.
The Executive agrees that he shall not seek or accept damages of any nature, other equitable
or legal remedies for his own benefit, attorneys’ fees or costs from any of the Released Parties
with respect to any Claim released by this Agreement. The Executive further represents that he has
not assigned to any third party any Claim released by this Agreement.
6.2 OWPBA
The Executive explicitly acknowledges that because he is over forty (40) years of age, he has
specific rights under the Older Workers Benefits Protection Act (“OWBPA”), which prohibits
discrimination on the basis of age, and that the releases set forth in this section are intended to
release any right that the Executive may have to file a claim against the Company alleging
discrimination on the basis of age.
It is the Company’s desire and intent to make certain that the Executive fully understands the
provisions and effects of this Agreement. To that end, the Executive has
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been advised, encouraged and given the opportunity to consult with legal counsel for the purpose
of reviewing the terms of this Agreement, which the Executive has done. Consistent with the
provisions of OWBPA, the Executive has the opportunity to consider a proposed agreement between the
Executive and the Company for more than twenty-one (21) days before signing it. The Executive
acknowledges that he received a proposed agreement on or before March 27, 2009. To accept this
Agreement, the Executive must return a signed original of this Agreement so that it is received by
the undersigned representative of the Company or the Company’s counsel on or before July 15, 2009.
If the Executive signs this Agreement before July 15, 2009, the Executive acknowledges by signing
this Agreement that such decision was entirely voluntary and that he had the opportunity to
consider this Agreement until July 15, 2009. The parties further agree that in the event that
there are any modifications, regardless of whether or not material, from the form of agreement
originally proposed by the Company, such modifications shall not restart the period for
consideration or otherwise affect the deadline for signing of July 15, 2009. For a period of seven
(7) days from the date when this Agreement is signed by the Executive, the Executive has the right
to revoke this Agreement by written notice to the undersigned representative of the Company or the
Company’s counsel. For such a revocation to be effective, it must be delivered so that it is
received by the undersigned representative of the Company or the Company’s counsel at or before the
expiration of the seven (7) day revocation period. This Agreement shall not become effective or
enforceable during the revocation period. This Agreement shall become effective on the first
business day following the expiration of the revocation period (the “Effective Date”).
Notwithstanding the foregoing, if the Executive engages in any conduct during the period before the
Effective Date that would
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have violated this Agreement if it had then been in effect, the Company shall have the right to
void this Agreement by notice to the Executive.
7. Release of Claims by the Company
The Company, on behalf of itself and its affiliates, hereby releases and forever discharges
the Executive, his heirs, estate, trustees, representatives, attorneys, accountants and agents from
any and all Claims, that, as of the date when the Company signs this Agreement, the Company or any
of its affiliates then has, ever had, then claims to have or ever claimed to have had against the
Executive; provided, however, that this Section shall not release the Executive from (i) any
obligation set forth in this Agreement, (ii) any repayment obligation set forth in any affirmation
or undertaking provided to the Company in connection with indemnification claims by the Executive
or any obligation in a joint defense agreement between the Executive and the Company, (iii) Claims
based on conduct that satisfies the elements of a criminal offense and for which the Executive is
determined not to be entitled to indemnification pursuant to Massachusetts General Laws c. 156D,
Section 8.55, or (iv) Claims based on acts or omissions that constitute a breach of fiduciary duty
(without prejudice to any rights of indemnification that the Executive may have under the Company’s
By-Laws).
8. Absence of Reliance
In signing this Agreement, each party represents that he or it is not relying upon any
promises or representations made by the other party.
9. Assignment and Transfer
9.1 The Company
This Agreement shall inure to the benefit of and be enforceable by, and may be assigned by the
Company to, any purchaser of all or substantially all of the Company’s
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business or assets, and any successor to the Company or any assignee thereof (whether direct
or indirect, by purchase, merger, consolidation or otherwise).
9.2 The Executive
The Executive’s rights and obligations under this Agreement shall not be transferable by the
Executive by assignment or otherwise, and any purported assignment, transfer or delegation thereof
shall be void; provided, however, that if the Executive shall die, amounts then payable to or on
behalf of the Executive or rights which he may have hereunder shall be paid and provided to his
heirs and/or beneficiaries in accordance with the terms of this Agreement.
10. Notices
All notices required or permitted under this Agreement shall be in writing and delivered by
any method providing for proof of delivery. Any notice shall be deemed to have been given on the
date of receipt. Notices shall be delivered to the parties at the following addresses until a
different address has been designated by written notice to the other party:
If to the Executive:
Xxxxxx X. Xxxxx
00 Xxxxxxxx Xxxxxx, Xxx 00
Prides Crossing, MA 10965-0076
00 Xxxxxxxx Xxxxxx, Xxx 00
Prides Crossing, MA 10965-0076
xxx@xxxxx.xxx
With a copy to:
R. Xxxxxx Xxxxx, Esquire
Xxxxxx X. Xxxxx, Esquire
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxx X. Xxxxx, Esquire
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
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If to the Company:
Progress Software
00 Xxx Xxxx
Xxxxxxx, XX 00000
Attention: General Counsel
00 Xxx Xxxx
Xxxxxxx, XX 00000
Attention: General Counsel
With a copy to:
Xxxxxxx X. Xxxxxxxx, Xx., P.C.
Xxxxxxx Procter LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxxx Procter LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
11. Miscellaneous
11.1 Amendment
No amendments, modifications or waivers to this Agreement shall be valid unless in writing and
signed by all parties to the Agreement.
11.2 Severability
If any provision of this Agreement should, for any reason, be held invalid or unenforceable in
any respect by a court of competent jurisdiction, then the remainder of this Agreement, and the
application of such provision in circumstances other than those as to which it is so declared
invalid or unenforceable, shall not be affected thereby, and each such provision of this Agreement
shall be valid and enforceable to the fullest extent permitted by law.
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11.3 Recitals & Headings
The recitals herein constitute an integral part of the Agreement. The captions and headings
contained in this Agreement have been inserted for reference and convenience only and in no way
define or limit the intent of any provision.
11.4 Counterparts
This Agreement may be executed in one or more counterparts, each of which shall be deemed to
be an original, but all of which together will constitute one and the same instrument.
11.5 Facsimiles
A telecopy or facsimile transmission of a signed counterpart of this Agreement shall be
sufficient to bind the party or parties whose signature(s) appear thereon.
12. Governing Law
This Agreement and all performance under the terms of this Agreement shall be governed by the
laws of Massachusetts without regard to conflict-of-law principles, and Massachusetts shall be the
sole and exclusive forum for the resolution of all disputes arising under or relating to this
Agreement and arising under or relating to the performance of its terms. The parties agree to
submit to the jurisdiction of the state and federal courts of Massachusetts for purposes of
enforcement of this Agreement.
13. Entire Agreement
This Agreement sets forth the entire agreement and understanding between the parties hereto
and supersedes and extinguishes all prior discussions, agreements, and understandings between the
parties except as set forth herein. By executing this Agreement, the Executive specifically
acknowledges that he has been afforded sufficient time to understand the
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terms and effects of this Agreement, that his agreements and obligations hereunder are made
voluntarily, knowingly and without duress, and that neither the Company nor its agents or
representatives have made any representations inconsistent with the provisions of this Agreement.
14. Warranty of Authority
Each of the undersigned hereby personally warrants that he has the full authority to execute
and enter into this Agreement and has obtained all consents, approvals and authorities of any
person, committee or entity necessary to make this Agreement binding and fully enforceable against
the party for which he signs.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date and year
first above written.
| EXECUTIVE | PROGRESS SOFTWARE CORPORATION | |||||||||
/s/ Xxxxxx X. Xxxxx
|
By: | /s/ Xxxxxxx X. Xxxx | ||||||||
Xxxxxx X. Xxxxx
|
NAME: Xxxxxxx X. Xxxx | |||||||||
| TITLE: Lead Independent Director | ||||||||||
| June 30, 2009 | June 26, 2009 | |||||||||
| Date Signed | Date Signed | |||||||||
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EXHIBIT A
| Option | ||||||||||||||||
| Number of Securities | Exercise | Option | ||||||||||||||
| Underlying | Price | Expiration | ||||||||||||||
| Name | Unexercised Options (#) | ($) | Date | |||||||||||||
| Exercisable | Unexercisable1 | |||||||||||||||
Xxxxxx X. Xxxxx |
||||||||||||||||
| 125,000 | 0 | $ | 21.86 | 11/10/2013 | ||||||||||||
| 37,000 | 23,000 | $ | 23.07 | 05/21/2013 | ||||||||||||
| 24,500 | 5,500 | $ | 23.07 | 05/21/2013 | ||||||||||||
| 37,000 | 23,000 | $ | 25.01 | 09/19/2013 | ||||||||||||
| 24,500 | 5,500 | $ | 25.01 | 09/19/2013 | ||||||||||||
| 10,200 | 0 | $ | 23.00 | 02/18/2010 | ||||||||||||
| 89,800 | 0 | $ | 23.00 | 02/18/2010 | ||||||||||||
| 150,000 | 0 | $ | 14.94 | 10/06/2010 | ||||||||||||
| 100,000 | 0 | $ | 14.30 | 04/02/2011 | ||||||||||||
| 25,000 | 0 | $ | 14.30 | 04/02/2011 | ||||||||||||
| 75,000 | 0 | $ | 17.42 | 10/09/2011 | ||||||||||||
| 50,000 | 0 | $ | 17.42 | 10/09/2011 | ||||||||||||
| 229,000 | 0 | $ | 13.50 | 08/01/2012 | ||||||||||||
| 21,000 | 0 | $ | 13.50 | 08/01/2012 | ||||||||||||
| 125,000 | 0 | $ | 16.99 | 02/23/2013 | ||||||||||||
| 75,000 | 0 | $ | 18.75 | 05/23/2014 | ||||||||||||
| 124,500 | 0 | $ | 21.45 | 09/26/2014 | ||||||||||||
| 500 | 0 | $ | 21.45 | 09/26/2014 | ||||||||||||
| 27,396 | 38,354 | $ | 31.18 | 04/25/2014 | ||||||||||||
| 24,500 | 5,500 | $ | 31.18 | 04/25/2014 | ||||||||||||
| 6,250 | 8,750 | $ | 32.25 | 10/15/2014 | ||||||||||||
| 21,146 | 29,604 | $ | 32.25 | 10/15/2014 | ||||||||||||
| 24,500 | 5,500 | $ | 32.25 | 10/15/2014 | ||||||||||||
| 18,959 | 68,541 | $ | 29.94 | 04/23/2015 | ||||||||||||
| 18,850 | 68,150 | $ | 19.51 | 10/15/2015 | ||||||||||||
| 109 | 391 | $ | 19.51 | 10/15/2015 | ||||||||||||
| 1 | As of March 16, 2009 |
-21-
SCHEDULE A
Core Competitors
Tibco
Software AG
SAP
Tibco
Software AG
SAP
Mega-Vendors
IBM
Oracle
Microsoft
IBM
Oracle
Microsoft
Event Processing
Streambase
Aleri
Systar
SL
Agent Logic
SAS
Streambase
Aleri
Systar
SL
Agent Logic
SAS
Capital Markets Expansion
Flextrade
Trading Screen
Vhayu
Kx Systems
Portware
Xxx Systems
Orc Software
FTEN
Flextrade
Trading Screen
Vhayu
Kx Systems
Portware
Xxx Systems
Orc Software
FTEN
SOA and Data Integration
Mulesource
SpringSource
Red Hat
Amberpoint
Pervasive
GoldenGate
Cast Iron
Composite Software
Gigaspaces
Mulesource
SpringSource
Red Hat
Amberpoint
Pervasive
GoldenGate
Cast Iron
Composite Software
Gigaspaces
BPM
Xxxxxxxx
Pegasystems
Savvion
Appian
Metastorm
Global 360
Intalio
Ultimus
Xxxxxxxx
Pegasystems
Savvion
Appian
Metastorm
Global 360
Intalio
Ultimus
Other
Sybase (just announced CEP product)
Versant (object databases)
iNet (database drivers)
Altova (XML/XQuery tools and processing)
Corticon (rules)
Sybase (just announced CEP product)
Versant (object databases)
iNet (database drivers)
Altova (XML/XQuery tools and processing)
Corticon (rules)
-22-
SCHEDULE B
Any other company that has significant product activity in any of the areas of:
| • | Transaction processing languages | ||
| • | Event processing infrastructure | ||
| • | Service oriented architecture infrastructure | ||
| • | Data integration infrastructure | ||
| • | Business process monitoring infrastructure | ||
| • | Algorithmic trading infrastructure |
-23-
