{"id":39790,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/executive-change-in-control-and-severance-plan-tibco-software.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"executive-change-in-control-and-severance-plan-tibco-software","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/executive-change-in-control-and-severance-plan-tibco-software.html","title":{"rendered":"Executive Change in Control and Severance Plan – TIBCO Software Inc."},"content":{"rendered":"

TIBCO Software Inc. <\/strong><\/p>\n

Executive Change in Control and Severance Plan
\n<\/strong><\/p>\n

Amended and Restated March 2, 2011 <\/strong><\/p>\n

1. Introduction.<\/strong> The purpose of this TIBCO Software Inc.
\nExecutive Change in Control and Severance Plan (the “Plan”) (formerly the TIBCO
\nSoftware Inc. Change in Control Plan) is to provide assurances of specified
\nseverance benefits to eligible employees of the Company whose employment is
\nsubject to being involuntarily terminated (other than for Cause, death or
\npermanent disability) or terminated for Good Reason under the circumstances
\ndescribed in the Plan, including but not limited to following a Change in
\nControl of the Company. The Company recognizes that the potential of a Change in
\nControl can be a distraction to employees and can cause such employees to
\nconsider alternative employment opportunities. The Plan is intended to (i)
\nassure that the Company will have continued dedication and objectivity of its
\nemployees, notwithstanding the possibility, threat or occurrence of a Change in
\nControl and (ii) provide the Company153s employees with an I ncentive to continue
\ntheir employment and to motivate its employees to maximize the value of the
\nCompany prior to and following a Change in Control for the benefit of its
\nstockholders. This Plan is an “employee welfare benefit plan,” as defined in
\nSection 3(1) of the Employee Retirement Income Security Act of 1974, as amended.
\nThis document constitutes both the written instrument under which the Plan is
\nmaintained and the required summary plan description for the Plan.<\/p>\n

2. Important Terms.<\/strong> To help you understand how this Plan
\nworks, it is important to know the following terms:<\/p>\n

2.1 “Administrator”<\/strong> means the Company, acting through its
\nEVP, General Counsel & Secretary or any person to whom the Administrator has
\ndelegated any authority or responsibility pursuant to Section 14, but only to
\nthe extent of such delegation.<\/p>\n

2.2 “Base Pay”<\/strong> means a Covered Employee153s regular
\nstraight-time salary as in effect during the last regularly scheduled payroll
\nperiod immediately preceding the date on which the Change in Control Severance
\nBenefit becomes payable, or if greater, the Covered Employee153s regular
\nstraight-time salary as of the date of the Change of Control. Base Pay does not
\ninclude payments for overtime, shift premium, incentive compensation, incentive
\npayments, bonuses, commissions or other compensation.<\/p>\n

2.3 “Board”<\/strong> means the Board of Directors of the Company.\n<\/p>\n

2.4 “Cause”<\/strong> means (i) an act of fraud or personal dishonesty
\nundertaken by a Covered Employee in connection with the Covered Employee153s
\nresponsibilities as an employee that is intended to result in substantial gain
\nor personal enrichment of the Covered Employee at the expense of the Company,
\n(ii) a Covered Employee153s conviction of, or plea of nolo contendere to, a
\nfelony, (iii) a Covered Employee153s gross misconduct in connection with the
\nperformance or failure of performance of a material component of the Covered
\nEmployee153s responsibilities as an employee that is materially injurious to the
\nCompany, or (iv) a Covered Employee153s continued substantial violations of his or
\nher employment duties after the Covered Employee has received a written demand
\nfor performance from the Company which specifically sets forth the factual basis
\nfor the Company153s belief that the Covered Employee has not substantially
\nperformed such duties.<\/p>\n

\n

2.5 “Change in Control”<\/strong> means (a) a sale of all or
\nsubstantially all of the Company153s assets, (b) any merger, consolidation, or
\nother business combination transaction of the Company with or into another
\ncorporation, entity, or person, other than a transaction in which the holders of
\nat least a majority of the shares of voting capital stock of the Company
\noutstanding immediately prior to such transaction continue to hold (either by
\nsuch shares remaining outstanding or by their being converted into shares of
\nvoting capital stock of the surviving entity) a majority of the total voting
\npower represented by the shares of voting capital stock of the Company (or the
\nsurviving entity) outstanding immediately after such transaction, (c) the direct
\nor indirect acquisition (including by way of a tender or exchange offer) by any
\nperson, or persons acting as a group, of beneficial ownership or a right to
\nacquire beneficial ownership of shares representing a majority of the voting
\npower of the then outstanding shares of capital stock of the Company, (d) a
\ncontested election of Directors, as a result of which or in connection with
\nwhich the persons who were Directors before such election or their nominees
\ncease to constitute a majority of the Board, or (e) a dissolution or liquidation
\nof the Company.<\/p>\n

2.6 “Change in Control Determination Period”<\/strong> means the time
\nperiod beginning on the date of the Change in Control and ending twelve months
\nfollowing the Change in Control.<\/p>\n

2.7 “Change in Control Severance Benefit”<\/strong> means the
\ncompensation and other benefits the Covered Employee will be provided pursuant
\nto Section 4.<\/p>\n

2.8 “Company”<\/strong> means TIBCO Software Inc., a Delaware
\ncorporation, and any successor by merger, acquisition, consolidation or
\notherwise that assumes the obligations of the Company under the Plan.<\/p>\n

2.9 “Covered Employee”<\/strong> means an employee of the Company who
\nhas been designated by the Administrator to participate in the Plan. Each such
\ndesignated employee is shown on Appendix A and\/or Appendix B attached hereto as
\na “Covered Employee.”<\/p>\n

2.10 “Effective Date”<\/strong> means July 10, 2005.<\/p>\n

2.11 “Equity Award Benefit”<\/strong> means the equity award vesting
\nacceleration benefit the Covered Employee will be provided pursuant to Section
\n5.<\/p>\n

2.12 “ERISA”<\/strong> means the Employee Retirement Income Security
\nAct of 1974, as amended.<\/p>\n

2.13 “Good Reason”<\/strong> means without the Covered Employee153s
\nwritten consent (a) a material reduction in the Covered Employee153s authority,
\nstatus or responsibilities (including reporting responsibilities) relative to
\nthe Covered Employee153s authority, status or responsibilities in effect
\nimmediately prior to the Change in Control where such reduction was imposed
\nwithout Cause; (b) a reduction in the Covered Employee153s annualized Base Pay
\n(unless the Company also reduces the Base Pay of substantially all other
\nemployees of the Company); (c) a reduction in the kind or level of benefits (not
\nincluding Base Pay, target bonus or equity compensation) for which the Covered
\nEmployee is eligible (unless the Company also reduces the kind or level of
\nbenefits available to substantially all other employees of the Company); or (d)
\nthe relocation of the Covered Employee153s principal place of performing his or
\nher duties as an employee of the Company by more than thirty (30) miles.
\nNotwithstanding the foregoing, an event described in this Section 2.13 shall not
\nconstitute Good Reason unless it is communicated by the Covered Employee to the
\nCompany in writing and is not corrected by the Company in a manner which is
\nreasonably satisfactory to such Covered Employee (including full<\/p>\n

\n

retroactive correction with respect to any monetary matter) within 10 days of
\nthe Company153s receipt of such written notice.<\/p>\n

2.14 “Involuntary Termination”<\/strong> means a termination of
\nemployment of a Covered Employee under the circumstances described in Sections
\n4.1 and 5.1.<\/p>\n

2.15 “Plan”<\/strong> means the TIBCO Software Inc. Executive Change
\nin Control and Severance Plan, as set forth in this document, and as hereafter
\namended from time to time.<\/p>\n

2.16 “Target Bonus”<\/strong> means, with respect to a Covered
\nEmployee, the Covered Employee153s target bonus pursuant to the Company153s
\nExecutive Incentive Compensation Plan or any other applicable corporate bonus
\nplan (a) at the rate in effect as of the date of the Covered Employee153s
\ntermination, or at a rate of 100% if no such rate is in effect as of the date of
\nthe Covered Employee153s termination, or, if higher, at the highest rate in effect
\nas of any date within the twelve-month period preceding the date of the Change
\nin Control and (b) assuming one hundred percent (100%) achievement of the
\nCovered Employee153s and the Company153s objectives, if any. Notwithstanding the
\nforegoing, the Covered Employee153s target bonus for purposes of the Plan shall be
\ndeemed to be the amount received as a bonus by the Covered Employee for the
\nCompany153s fiscal year preceding the date of the Covered Employee153s termination
\nif a target bonus has not been established for the then current fiscal year and
\nthe Covered Employee153s bonuses, if any, are discretionary and not pursuant to
\nany non-discretionary bonus plan or commission rate established by the Company.
\nThe Covered Employee153s Target Bonus shall not include amounts attributable to
\nany other bonus, including, but not limited to, any other discretionary bonuses
\nsuch as spot bonuses.<\/p>\n

2.17 “Tier 1 Covered Employee” <\/strong>means (a) with respect to the
\nChange in Control Severance Benefits provided pursuant to Section 4, any
\nemployee of the Company designated as an employee under Tier 1 as shown on
\nAppendix A attached hereto and (b) with respect to the Equity Award Benefits
\nprovided pursuant to Section 5, any employee of the Company designated as an
\nemployee under Tier 1 as shown on Appendix B attached hereto.<\/p>\n

2.18 “Tier 2 Covered Employee” <\/strong>means (a) with respect to the
\nChange in Control Severance Benefits provided pursuant to Section 4, any
\nemployee of the Company designated as an employee under Tier 2 as shown on
\nAppendix A attached hereto and (b) with respect to the Equity Award Benefits
\nprovided pursuant to Section 5, any employee of the Company designated as an
\nemployee under Tier 2 as shown on Appendix B attached hereto.<\/p>\n

2.19 “Tier 3 Covered Employee” <\/strong>means (a) with respect to the
\nChange in Control Severance Benefits provided pursuant to Section 4, any
\nemployee of the Company designated as an employee under Tier 3 as shown on
\nAppendix A attached hereto and (b) with respect to the Equity Award Benefits
\nprovided pursuant to Section 5, any employee of the Company designated as an
\nemployee under Tier 3 as shown on Appendix B attached hereto.<\/p>\n

2.20 “Tier 4 Covered Employee” <\/strong>means any employee of the
\nCompany designated as an employee under Tier 4 as shown on Appendix A attached
\nhereto.<\/p>\n

3. Eligibility for Change in Control Severance Benefits and Equity
\nAward Benefits<\/strong>. An individual is eligible for the Change in Control
\nSeverance Benefit or the Equity Award Benefit under the Plan, in the amount set
\nforth in Section 4 or Section 5, respectively, only if<\/em> he or she is a
\nCovered Employee on the date he or she experiences an Involuntary Termination.\n<\/p>\n

\n

4. Change in Control Severance Benefit.<\/strong><\/p>\n

4.1 Involuntary Termination Following a Change in Control<\/strong>.
\nIf following a Change in Control, and during the time period specified in
\nSection 4.1.1 below, (i) a Covered Employee terminates his or her employment
\nwith the Company (or any parent or subsidiary of the Company) for Good Reason,
\nor (ii) the Company (or any parent or subsidiary of the Company) terminates such
\nCovered Employee153s employment for other than Cause, death or permanent
\ndisability, then, subject to the Covered Employee153s compliance with Section 7,
\nthe Covered Employee shall receive the following Change in Control Severance
\nBenefit from the Company:<\/p>\n

4.1.1 Change in Control Severance Benefit<\/strong>.<\/p>\n

4.1.1.1 Tier 1 Covered Employee<\/strong>. If the Covered Employee is
\na Tier 1 Covered Employee, and his or her employment terminates on or following
\nthe Change in Control, he or she shall be entitled to receive a lump sum cash
\npayment equal to twelve (12) months of Base Pay and the Covered Employee153s
\nTarget Bonus.<\/p>\n

4.1.1.2 Tier 2 Covered Employee<\/strong>. If the Covered Employee is
\na Tier 2 Covered Employee, and his or her employment terminates on or following
\nthe Change in Control, he or she shall be entitled to receive a lump sum cash
\npayment equal to nine (9) months of Base Pay and nine (9) months of the Covered
\nEmployee153s Target Bonus.<\/p>\n

4.1.1.3 Tier 3 Covered Employee<\/strong>. If the Covered Employee is
\na Tier 3 Covered Employee, and his or her employment terminates on or following
\nthe Change in Control, he or she shall be entitled to receive a lump sum cash
\npayment equal to six (6) months of Base Pay and six (6) months of the Covered
\nEmployee153s Target Bonus.<\/p>\n

4.1.1.4 Tier 4 Covered Employee<\/strong>. If the Covered Employee is
\na Tier 4 Covered Employee, and his or her employment terminates during the
\nChange in Control Determination Period, he or she shall be entitled to receive a
\nlump sum cash payment equal to three (3) months of Base Pay and three (3) months
\nof the Covered Employee153s Target Bonus.<\/p>\n

4.1.2 Continued Medical Benefits<\/strong>. If the Covered Employee,
\nand any spouse and\/or dependents of the Covered Employee (“Family Members”) has
\nmedical and dental coverage under a group health plan sponsored by the Company,
\non the date of Covered Employee153s termination of employment and such termination
\noccurs during the period specified in Section 4.1.1, then the Company will
\nreimburse Covered Employee for the total applicable premium cost for medical and
\ndental coverage under the Consolidated Omnibus Budget Reconciliation Act of
\n1986, 29 U.S.C. Sections 1161-1168; 26 U.S.C. Section 4980B(f), as amended, and
\nall applicable regulations (referred to collectively as “COBRA”) for Covered
\nEmployee and his Family Members as follows:<\/p>\n

4.1.2.1 Tier 1 Covered Employee<\/strong>. For a period of up to
\ntwelve (12) months.<\/p>\n

4.1.2.2 Tier 2 Covered Employee<\/strong>. For a period of up to nine
\n(9) months.<\/p>\n

4.1.2.3 Tier 3 Covered Employee<\/strong>. For a period of up to six
\n(6) months.<\/p>\n

\n

4.1.2.4 Tier 4 Covered Employee<\/strong>. For a period of up to three
\n(3) months.<\/p>\n

Notwithstanding the forgoing, the Company shall have no obligation to
\nreimburse the Covered Employee for the premium cost of COBRA coverage beginning
\non or after the date the Covered Employee and his Family Members first become
\neligible to obtain comparable benefits from a subsequent employer. In addition,
\nand notwithstanding anything to the contrary in this 4.1.2, if the Company
\ndetermines in its sole discretion that it cannot provide the COBRA benefits
\nwithout potentially violating applicable law (including, without limitation,
\nSection 2716 of the Public Health Service Act), the Company will in lieu thereof
\nprovide to the Covered Employee a taxable monthly payment in an amount equal to
\nthe monthly COBRA premium that the Covered Employee would be required to pay to
\ncontinue his or her group health coverage in effect on the date of his or her
\ntermination of employment (which amount will be based on the premium for the
\nfirst month of COBRA coverage), which payments will be made regardless of
\nwhether the Covered Employee elects COBRA continuation coverage. If the Company
\nchooses to make payments under this paragraph rather than directly reimbursing
\nthe Covered Employee, the amounts paid to the Covered Employee shall include any
\nadditional amounts necessary to put the Covered Employee in the same after-tax
\nposition as if the Company had made COBRA reimbursements to the Covered
\nEmployee.<\/p>\n

5. Equity Award Benefit. <\/strong><\/p>\n

5.1 Involuntary Termination Following a Change in Control<\/strong>.
\nIf at any time within the Change in Control Determination Period, (i) a Covered
\nEmployee terminates his or her employment with the Company (or any parent or
\nsubsidiary of the Company) for Good Reason, or (ii) the Company (or any parent
\nor subsidiary of the Company) terminates such Covered Employee153s employment for
\nother than Cause, death or permanent disability, then, subject to the Covered
\nEmployee153s compliance with Section 7, the Covered Employee shall receive the
\nfollowing equity award acceleration from the Company (in addition to any Change
\nin Control Severance Benefit provided by Section 4 above):<\/p>\n

5.1.1 Tier 1 Covered Employee<\/strong>. Fifty (50) percent of each
\nTier 1 Covered Employee153s outstanding and unvested equity compensation awards,
\nas determined on such Covered Employee153s date of termination, shall
\nautomatically accelerate, all restrictions or repurchase rights applicable
\nthereto shall immediately lapse, and any performance goals or other vesting
\ncriteria applicable thereto shall be deemed achieved at target levels so as to
\nbecome fully vested and exercisable. The period over which such equity
\ncompensation awards may be exercised shall be governed by the applicable
\nprovisions of the Company153s Stock-Plans and related award agreements.<\/p>\n

5.1.2 Tier 2 and Tier 3 Covered Employees<\/strong>. Twenty-five (25)
\npercent of each Tier 2 Covered Employee153s and each Tier 3 Covered Employee153s
\noutstanding and unvested equity compensation awards, as determined on such
\nCovered Employee153s date of termination, shall automatically accelerate, all
\nrestrictions or repurchase rights applicable thereto shall immediately lapse,
\nand any performance goals or other vesting criteria applicable thereto shall be
\ndeemed achieved at target levels so as to become fully vested and exercisable.
\nThe period over which such equity compensation awards may be exercised shall be
\ngoverned by the applicable provisions of the Company153s Stock Plans and related
\naward agreements.<\/p>\n

5.1.3 Tier 4 Covered Employee<\/strong>. The acceleration of vesting
\nupon a Change in Control of each Tier 4 Covered Employee153s outstanding and
\nunvested equity compensation awards, as determined on such Covered Employee153s
\ndate of termination, and the period over which such equity compensation awards
\nmay be exercised shall be governed by the applicable provisions of the Company153s\n<\/p>\n

\n

Stock Plans and related award agreements.<\/p>\n

6. Parachute Payments.<\/strong> In the event that the severance and
\nother benefits provided for in this Plan or otherwise payable or provided to the
\nCovered Employee (i) constitute “parachute payments” within the meaning of
\nSection 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and
\n(ii) but for this Section 6, would be subject to the excise tax imposed by
\nSection 4999 of the Code (the “Excise Tax”), then the Employee153s severance
\nbenefits hereunder shall be either:<\/p>\n

(a) delivered in full, or<\/p>\n

(b) delivered as to such lesser extent which would result in no portion of
\nsuch severance benefits being subject to the Excise Tax,<\/p>\n

whichever of the foregoing amounts, taking into account the applicable
\nfederal, state and local income taxes and the Excise Tax, results in the receipt
\nby the Covered Employee on an after-tax basis, of the greatest amount of
\nseverance benefits, notwithstanding that all or some portion of such severance
\nbenefits may be taxable under Section 4999 of the Code. Unless the Company and
\nthe Covered Employee otherwise agree in writing, any determination required
\nunder this Section 6 shall be made in writing in good faith by the accounting
\nfirm serving as the Company153s independent public accountants immediately prior
\nto the Change in Control (the “Accountants”). In the event of a reduction in
\nbenefits hereunder, the reduction will occur in the following order: the vesting
\nacceleration of stock options, then cash severance benefits, then vesting
\nacceleration of restricted stock awards, and then Company-paid COBRA coverage.
\nIn the event that acceleration of vesting of stock options or restricted stock
\nawards is to be reduced, such acceleration of vesting shall be cancelled in the
\nreverse order of the date of grant for the Covered Employee153s stock options or
\nrestricted stock awards, as applicable. If two or more stock options or
\nrestricted stock awards are granted on the same day, the stock options or
\nrestricted stock awards, as applicable, will be reduced on a pro-rata basis. For
\npurposes of making the calculations required by this Section 6, the Accountants
\nmay make reasonable assumptions and approximations concerning applicable taxes
\nand may rely on reasonable, good faith interpretations concerning the
\napplication of Sections 280G and 4999 of the Code. The Company and the Covered
\nEmployee shall furnish to the Accountants such information and documents as the
\nAccountants may reasonably request in order to make a determination under this
\nSection. The Company shall bear all costs the Accountants may reasonably incur
\nin connection with any calculations contemplated by this Section 6.<\/p>\n

7. Release and Non-Disparagement Agreement.<\/strong> As a condition
\nto receiving Change in Control Severance Benefits or Equity Award Benefits under
\nthis Plan, each Covered Employee will be required to sign and not revoke the
\nform of Release and Non-Disparagement Agreement (the “Release”) attached hereto
\nas Exhibit 1. The Release must be effective no later than sixty (60) days
\nfollowing the date of the Covered Employee153s Involuntary Termination, inclusive
\nof any revocation period set forth in the Release.<\/p>\n

8. Timing of Benefits. <\/strong>Change of Control Severance Benefits
\nand Equity Award Benefits shall be paid as soon as administratively practicable
\nfollowing the date of the Covered Employee153s termination, subject to Section 11
\nbelow and the Covered Employee153s compliance with Section 7 above.
\nNotwithstanding the foregoing and subject to Section 11 below, if the Covered
\nEmployee153s Involuntary Termination occurs on or before October 15 of a calendar
\nyear, his or her cash severance benefits and any other Deferred Compensation
\nSeparation Benefits will be paid within ten (10) calendar days after the date of
\nthe Covered Employee153s termination or, if later, on the date the Release becomes
\neffective but on or before December 31 of that calendar year. If the Covered
\nEmployee153s Involuntary Termination occurs after October 15 of a calendar year,
\nthe Covered Employee153s cash severance benefits and any other Deferred
\nCompensation Separation Benefits will be paid on the later of (a) the second
\npayroll date in the<\/p>\n

\n

calendar year next following the calendar year of the Covered Employee153s
\nInvoluntary Termination or (b) the first payroll date following the date his or
\nher Release becomes effective, subject to Section 11 below.<\/p>\n

9. Termination of Benefits.<\/strong> Benefits under this Plan shall
\nterminate immediately for a Covered Employee if such Covered Employee, at any
\ntime, violates any proprietary information or confidentiality obligation to the
\nCompany or the terms of any applicable non-competition agreement with the
\nCompany.<\/p>\n

10. Other Benefit Arrangments.<\/strong> The Change in Control
\nSeverance Benefits and Equity Award Benefits provided hereunder shall be in
\naddition to any other severance and\/or retention plan benefits (including,
\nwithout limitation, provisions applicable to equity-based compensation awards)
\nprovided to a Covered Employee under any other plan or arrangement.<\/p>\n

11. Section 409A.<\/strong><\/p>\n

11.1 Change in Control Severance Benefits and Equity Award Benefits shall be
\npaid as soon as administratively practicable following the date of the Covered
\nEmployee153s termination, subject to the Covered Employee153s compliance with
\nSection 7. Notwithstanding the foregoing, no Deferred Compensation Separation
\nBenefits (as defined below) or other severance benefits that otherwise are
\nexempt from Section 409A (as defined below) pursuant to Treasury Regulation
\nSection 1.409A-1(b)(9) payable under this Plan will be considered due or payable
\nuntil the Covered Employee has a “separation from service” within the meaning of
\nSection 409A of the Internal Revenue Code of 1986, as amended and the final
\nregulations and any guidance promulgated thereunder (together, “Section 409A”).
\nIn addition, if the Covered Employee is a “specified employee” within the
\nmeaning of Section 409A at the time of the Covered Employee153s separation from
\nservice (other than due to death), then the Change in Control Severance Benefits
\nor Equity Award Benefits otherwise due to the Covered Employee under this Plan,
\nif any, that may be considered deferred compensation under Section 409A, and any
\nother severance payments or separation benefits that may be considered deferred
\ncompensation under Section 409A (together, the “Deferred Compensation Separation
\nBenefits”) otherwise due to the Covered Employee on or within the six (6) month
\nperiod following the Covered Employee153s termination will accrue during such six
\n(6) month period and will become payable in a lump sum payment on the date six
\n(6) months and one (1) day following the date of the Covered Employee153s
\nseparation from service. All subsequent payments, if any, will be payable in
\naccordance with the payment schedule applicable to each payment or benefit.
\nNotwithstanding anything herein to the contrary, if the Covered Employee dies
\nfollowing his separation but prior to the six (6) month anniversary of his date
\nof separation, then any payments delayed in accordance with this paragraph will
\nbe payable in a lump sum as soon as administratively practicable after the date
\nof the Covered Employee153s death and all other Deferred Compensation Separation
\nBenefits will be payable in accordance with the payment schedule applicable to
\neach payment or benefit.<\/p>\n

11.2 It is the intent of this Plan to comply with the requirements of Section
\n409A so that none of the severance payments and benefits to be provided
\nhereunder will be subject to the additional tax imposed under Section 409A, and
\nany ambiguities herein will be interpreted to so comply. Notwithstanding
\nanything to the contrary in the Plan, including but not limited to Section 16,
\nthe Company reserves the right to amend the Plan as it deems necessary or
\nadvisable, in its sole discretion and without the consent of the Covered
\nEmployees, to comply with Section 409A of the Code or to otherwise avoid income
\nrecognition under Section 409A of the Code prior to the actual payment of Change
\nin Control Severance Benefits or Equity Award Benefits or imposition of any
\nadditional tax (provided that no such amendment shall materially reduce the
\nbenefits provided hereunder).<\/p>\n

12. Vacation Days.<\/strong> Any unused vacation pay accrued as of a
\nCovered Employee153s date of Involuntary Termination will be paid no later than
\nthe date required by applicable law. No Covered<\/p>\n

\n

Employee may use any accrued but unused vacation pay to extend his or her
\nInvoluntary Termination date or to postpone or delay the start of his or her
\nSeverance Period.<\/p>\n

13. Withholding.<\/strong> The Company will withhold from any Change
\nin Control Severance Benefits or Equity Award Benefits all federal, state, local
\nand other taxes required to be withheld therefrom and any other required payroll
\ndeductions.<\/p>\n

14. Administration.<\/strong> The Company is the administrator of the
\nPlan (within the meaning of section 3(16)(A) of ERISA). The Plan will be
\nadministered and interpreted by the Administrator (in his or her sole
\ndiscretion). The Administrator is the “named fiduciary” of the Plan for purposes
\nof ERISA and will be subject to the fiduciary standards of ERISA when acting in
\nsuch capacity. Any decision made or other action taken by the Administrator with
\nrespect to the Plan, and any interpretation by the Administrator of any term or
\ncondition of the Plan, or any related document, will be conclusive and binding
\non all persons and be given the maximum possible deference allowed by law. The
\nAdministrator has the authority to act for the Company (in a non-fiduciary
\ncapacity) as to any matter pertaining to the Plan; provided, however,<\/em>
\nthat this authority does not apply with respect to (a) the Company153s power to
\namend or terminate the Plan or (b) any action that could reasonably be expected
\nto increase significantly the cost of the Plan is subject to the prior approval
\nof the Executive Vice President Strategic Operations of the Company. The
\nAdministrator may delegate in writing to any other person all or any portion of
\nhis or her authority or responsibility with respect to the Plan.<\/p>\n

15. Eligibility to Participate.<\/strong> The Administrator will not
\nbe excluded from participating in the Plan if otherwise eligible, but he or she
\nis not entitled to act or pass upon any matters pertaining specifically to his
\nor her own benefit or eligibility under the Plan. The Executive Vice President,
\nStrategic Operations of TIBCO Software Inc. will act upon any matters pertaining
\nspecifically to the benefit or eligibility of the Administrator under the Plan.\n<\/p>\n

16. Amendment or Termination.<\/strong> The Company reserves the right
\nto amend, modify or terminate the Plan at any time, without advance notice to
\nany Covered Employee; provided, however, that, prior to a Change in Control, the
\nCompany shall provide nine (9) months advance notice to each Covered Employee of
\nany amendment or modification to the Plan with respect to the Change in Control
\nSeverance Benefit or Equity Award Benefit that would be adverse to such Covered
\nEmployee with respect to eligibility or the amount of the Change in Control
\nSeverance Benefit or Equity Award Benefit payable hereunder. Notwithstanding the
\npreceding, commencing on the date of a Change in Control, no amendment or
\ntermination of the Plan shall reduce the Change in Control Severance Benefit or
\nEquity Award Benefit payable to any Covered Employee who terminates employment
\non or following the Change in Control (unless the affected Covered Employee
\nconsents to such amendment or termination). Any action of the Company in
\namending or terminating the Plan will be taken in a non-fiduciary capacity.<\/p>\n

17. Claims Procedure.<\/strong> Any employee or other person who
\nbelieves he or she is entitled to any payment under the Plan may submit a claim
\nin writing to the Administrator. If the claim is denied (in full or in part),
\nthe claimant will be provided a written notice explaining the specific reasons
\nfor the denial and referring to the provisions of the Plan on which the denial
\nis based. The notice will also describe any additional information needed to
\nsupport the claim and the Plan153s procedures for appealing the denial. The denial
\nnotice will be provided within 90 days after the claim is received. If special
\ncircumstances require an extension of time (up to 90 days), written notice of
\nthe extension will be given within the initial 90-day period. This notice of
\nextension will indicate the special circumstances requiring the extension of
\ntime and the date by which the Administrator expects to render its decision on
\nthe claim.<\/p>\n

18. Appeal Procedure.<\/strong> If the claimant153s claim is denied, the
\nclaimant (or his or her authorized representative) may apply in writing to the
\nAdministrator for a review of the decision denying<\/p>\n

\n

the claim. Review must be requested within 60 days following the date the
\nclaimant received the written notice of their claim denial or else the claimant
\nloses the right to review. The claimant (or representative) then has the right
\nto review and obtain copies of all documents and other information relevant to
\nthe claim, upon request and at no charge, and to submit issues and comments in
\nwriting. The Administrator will provide written notice of his or her decision on
\nreview within 60 days after it receives a review request. If additional time (up
\nto 60 days) is needed to review the request, the claimant (or representative)
\nwill be given written notice of the reason for the delay. This notice of
\nextension will indicate the special circumstances requiring the extension of
\ntime and the date by which the Administrator expects to render its decision. If
\nthe claim is denied (in full or in part), the claimant will be provided a
\nwritten notice explaining the specific reasons for the denial and referring to
\nthe provisions of the Plan on which the denial is based. The notice shall also
\ninclude a statement that the claimant will be provided, upon request and free of
\ncharge, reasonable access to, and copies of, all documents and other information
\nrelevant to the claim and a statement regarding the claimant153s right to bring an
\naction under Section 502(a) of ERISA.<\/p>\n

19. Source of Payments.<\/strong> All Change in Control Severance
\nBenefits will be paid in cash from the general funds of the Company; no separate
\nfund will be established under the Plan; and the Plan will have no assets. No
\nright of any person to receive any payment under the Plan will be any greater
\nthan the right of any other general unsecured creditor of the Company.<\/p>\n

20. Inalienability.<\/strong> In no event may any current or former
\nemployee of the Company or any of its subsidiaries or affiliates sell, transfer,
\nanticipate, assign or otherwise dispose of any right or interest under the Plan.
\nAt no time will any such right or interest be subject to the claims of creditors
\nnor liable to attachment, execution or other legal process.<\/p>\n

21. No Enlargement of Employment Rights.<\/strong> Neither the
\nestablishment or maintenance of the Plan, any amendment of the Plan, nor the
\nmaking of any benefit payment hereunder, will be construed to confer upon any
\nindividual any right to be continued as an employee of the Company. The Company
\nexpressly reserves the right to discharge any of its employees at any time, with
\nor without cause.<\/p>\n

22. Applicable Law.<\/strong> The provisions of the Plan will be
\nconstrued, administered and enforced in accordance with ERISA and, to the extent
\napplicable, the laws of the State of California.<\/p>\n

23. Severability.<\/strong> If any provision of the Plan is held
\ninvalid or unenforceable, its invalidity or unenforceability will not affect any
\nother provision of the Plan, and the Plan will be construed and enforced as if
\nsuch provision had not been included.<\/p>\n

24. Headings.<\/strong> Headings in this Plan document are for
\npurposes of reference only and will not limit or otherwise affect the meaning
\nhereof.<\/p>\n

25. Indemnification.<\/strong> The Company hereby agrees to indemnify
\nand hold harmless the officers and employees of the Company, and the members of
\nits boards of directors, from all losses, claims, costs or other liabilities
\narising from their acts or omissions in connection with the administration,
\namendment or termination of the Plan, to the maximum extent permitted by
\napplicable law. This indemnity will cover all such liabilities, including
\njudgments, settlements and costs of defense. The Company will provide this
\nindemnity from its own funds to the extent that insurance does not cover such
\nliabilities. This indemnity is in addition to and not in lieu of any other
\nindemnity provided to such person by the Company.<\/p>\n

\n

26. Additional Information.<\/strong><\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Plan Name:<\/strong><\/p>\n<\/td>\n

<\/td>\n\n

TIBCO Software Inc. Change in Control and Severance Plan<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

Plan Sponsor:<\/strong><\/p>\n<\/td>\n

<\/td>\n\n

TIBCO Software Inc.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

3303 Hillview Ave<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Palo Alto, CA 94304<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

Identification Numbers:<\/strong><\/p>\n<\/td>\n

<\/td>\n\n

EIN:<\/strong> 77-0449727<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

PLAN:<\/strong> 5 <\/u><\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

Plan Year:<\/strong><\/p>\n<\/td>\n

<\/td>\n\n

Company153s Fiscal Year<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

Plan Administrator:<\/strong><\/p>\n<\/td>\n

<\/td>\n\n

TIBCO Software Inc.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Attention:<\/em> Executive Vice President, General Counsel & Secretary\n<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

3303 Hillview Ave<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Palo Alto, CA 94304<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

(650) 846-1000<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

Agent for Service of <\/strong><\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

Legal Process:<\/strong><\/p>\n<\/td>\n

<\/td>\n\n

TIBCO Software Inc.<\/p>\n

Attention:<\/em> General Counsel<\/p>\n

3303 Hillview Ave<\/p>\n

Palo Alto, CA 94304<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

(650) 846-1000<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Service of process may also be made upon the Plan Administrator.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

Type of Plan<\/strong><\/p>\n<\/td>\n

<\/td>\n\n

Severance Plan\/Employee Welfare Benefit Plan<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

Plan Costs<\/strong><\/p>\n<\/td>\n

<\/td>\n\n

The cost of the Plan is paid by the Employer.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

\n

28. Statement of ERISA Rights.<\/strong><\/p>\n

As a Covered Employee under the Plan, you have certain rights and protections
\nunder ERISA:<\/p>\n

(a) You may examine (without charge) all Plan documents, including any
\namendments and copies of all documents filed with the U.S. Department of Labor,
\nsuch as the Plan153s annual report (IRS Form 5500). These documents are available
\nfor your review in the Company153s Human Resources Department.<\/p>\n

(b) You may obtain copies of all Plan documents and other Plan information
\nupon written request to the Plan Administrator. A reasonable charge may be made
\nfor such copies.<\/p>\n

In addition to creating rights for Covered Employees, ERISA imposes duties
\nupon the people who are responsible for the operation of the Plan. The people
\nwho operate the Plan (called “fiduciaries”) have a duty to do so prudently and
\nin the interests of you and the other Covered Employees. No one, including the
\nCompany or any other person, may fire you or otherwise discriminate against you
\nin any way to prevent you from obtaining a benefit under the Plan or exercising
\nyour rights under ERISA. If your claim for a severance benefit is denied, in
\nwhole or in part, you must receive a written explanation of the reason for the
\ndenial. You have the right to have the denial of your claim reviewed. (The claim
\nreview procedure is explained in Sections 17 and 18 above.)<\/p>\n

Under ERISA, there are steps you can take to enforce the above rights. For
\ninstance, if you request materials and do not receive them within 30 days, you
\nmay file suit in a federal court. In such a case, the court may require the Plan
\nAdministrator to provide the materials and to pay you up to $110 a day until you
\nreceive the materials, unless the materials were not sent because of reasons
\nbeyond the control of the Plan Administrator. If you have a claim which is
\ndenied or ignored, in whole or in part, you may file suit in a state or federal
\ncourt. If it should happen that you are discriminated against for asserting your
\nrights, you may seek assistance from the U.S. Department of Labor, or you may
\nfile suit in a federal court.<\/p>\n

In any case, the court will decide who will pay court costs and legal fees.
\nIf you are successful, the court may order the person you have sued to pay these
\ncosts and fees. If you lose, the court may order you to pay these costs and
\nfees, for example, if it finds that your claim is frivolous.<\/p>\n

If you have any questions regarding the Plan, please contact the Plan
\nAdministrator. If you have any questions about this statement or about your
\nrights under ERISA, you may contact the nearest area office of the Employee
\nBenefits Security Administration (formerly the Pension and Welfare Benefits
\nAdministration), U.S. Department of Labor, listed in your telephone directory,
\nor the Division of Technical Assistance and Inquiries, Employee Benefits
\nSecurity Administration, U.S. Department of Labor, 200 Constitution Avenue, N.W.
\nWashington, D.C. 20210. You may also obtain certain publications about your
\nrights and responsibilities under ERISA by calling the publications hotline of
\nthe Employee Benefits Security Administration.<\/p>\n

\n

29. Execution.<\/strong><\/p>\n

In Witness Whereof<\/em>, the Company, by its duly authorized officer, has
\nexecuted this amended Plan on the date indicated below.<\/p>\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

TIBCO Software Inc.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ William R. Hughes<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

Title:<\/p>\n<\/td>\n

<\/td>\n\n

Executive Vice President, General Counsel and Secretary<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

Date:<\/p>\n<\/td>\n

<\/td>\n\n

March 2, 2011<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

\n

Exhibit 1 <\/u><\/strong><\/p>\n

Form of Release and Non-Disparagement Agreement
\n<\/u><\/strong><\/p>\n

\n

TIBCO SOFTWARE INC. CHANGE IN CONTROL SEVERANCE PLAN
\n<\/strong><\/p>\n

RELEASE AND NON-DISPARAGEMENT AGREEMENT <\/strong><\/p>\n

RECITALS <\/u><\/strong><\/p>\n

This Release and Non-Disparagement Agreement (the “Agreement”) is made by and
\nbetween [CLICK AND TYPE NAME] (“Employee”) and TIBCO Software Inc. or its
\nsubsidiary (the “Company”) (collectively referred to as the “Parties” or
\nindividually referred to as a “Party”):<\/p>\n

WHEREAS, Employee was employed by the Company;<\/p>\n

WHEREAS, Employee is an eligible participant under the Company153s Change in
\nControl and Severance Plan (the “Plan”);<\/p>\n

WHEREAS, the Employee153s employment with the Company has terminated effective
\n[Click And Type Date] (“Termination Date”) and Employee shall be eligible to
\nreceive benefits under the Plan; and,<\/p>\n

WHEREAS, the Parties wish to resolve any and all disputes, claims,
\ncomplaints, grievances, charges, actions, petitions and demands that the
\nEmployee may have against the Company, including, but not limited to, any and
\nall claims arising out of or in any way related to Employee153s employment with or
\nseparation from the Company.<\/p>\n

NOW, THEREFORE, in consideration of the promises made herein, the Parties
\nhereby agree as follows:<\/p>\n

COVENANTS <\/u><\/strong><\/p>\n

1. Release of Claims<\/u>. Employee agrees that the benefits provided by
\nthe Plan represents settlement in full of all outstanding obligations owed to
\nEmployee by the Company and its current and former officers, directors,
\nemployees, agents, investors, attorneys, shareholders, founders, administrators,
\naffiliates, divisions, subsidiaries, predecessor and successor corporations and
\nassigns (the “Releasees”). Employee, on his\/her own behalf, and on behalf of
\nhis\/her respective heirs, family members, executors, agents, and assigns, hereby
\nand forever releases the Releasees from, and agrees not to sue concerning, or in
\nany manner to institute, prosecute or pursue, any claim, complaint, charge,
\nduty, obligation or cause of action relating to any matters of any kind, whether
\npresently known or unknown, suspected or unsuspected, that Employee may possess
\nagainst any of the Releasees arising from any omissions, acts or facts or
\ndamages that have occurred up until and including the Effective Date of this
\nAgreement including, without limitation:<\/p>\n

(a) any and all claims relating to or arising from Employee153s employment
\nrelationship with the Company and the termination of that relationship;<\/p>\n

1<\/p>\n

\n

(b) any and all claims relating to, or arising from, Employee153s right to
\npurchase, or actual purchase of shares of stock of the Company, including,
\nwithout limitation, any claims for fraud, misrepresentation, breach of fiduciary
\nduty, breach of duty under applicable state corporate law, and securities fraud
\nunder any state or federal law;<\/p>\n

(c) any and all claims for wrongful discharge of employment; constructive
\ndischarge; termination in violation of public policy; discrimination;
\nharassment; retaliation; breach of contract, both express and implied; breach of
\na covenant of good faith and fair dealing, both express and implied; promissory
\nestoppel; negligent or intentional infliction of emotional distress; negligent
\nor intentional misrepresentation; negligent or intentional interference with
\ncontract or prospective economic advantage; unfair business practices;
\ndefamation; libel; slander; negligence; personal injury; assault; battery;
\ninvasion of privacy; false imprisonment; and conversion;<\/p>\n

(d) any and all claims for violation of any federal, state or municipal
\nstatute, including, but not limited to, Title VII of the Civil Rights Act of
\n1964; the Civil Rights Act of 1991; the Age Discrimination in Employment Act of
\n1967; the Americans with Disabilities Act of 1990; the Fair Labor Standards Act,
\nexcept as prohibited by law; the Fair Credit Reporting Act; the Employee
\nRetirement Income Security Act of 1974; the Family and Medical Leave Act, except
\nas prohibited by law; the Worker Adjustment and Retraining Notification Act; the
\nOlder Workers Benefit Protection Act; the California Fair Employment and Housing
\nAct; the California Labor Code and the Sarbanes-Oxley Act of 2002;<\/p>\n

(e) any and all claims for violation of the federal, or any state,
\nconstitution;<\/p>\n

(f) any and all claims arising out of any other laws and regulations relating
\nto employment or employment discrimination;<\/p>\n

(g) any claim for any loss, cost, damage, or expense arising out of any
\ndispute over the non-withholding or other tax treatment of any of the proceeds
\nreceived by Employee as a result of this Agreement; and<\/p>\n

(h) any and all claims for attorneys153 fees and costs.<\/p>\n

Employee agrees that the release set forth in this section shall be and
\nremain in effect in all respects as a complete general release as to the matters
\nreleased. This release does not extend to any obligations incurred under this
\nAgreement or the Plan. This release does not release claims that cannot be
\nreleased as a matter of law, including, but not limited to Employee153s right to
\nfile a charge with or participate in a charge by the Equal Employment
\nOpportunity Commission, or any other local, state, or federal administrative
\nbody or government agency that is authorized to enforce or administer laws
\nrelated to employment, against the Company (with the understanding that any such
\nfiling or participation does not give Employee the right to recover any monetary
\ndamages against the Company; Employee153s release of claims herein bars Employee
\nfrom recovering such monetary relief from the Company).<\/p>\n

2. [Include Only if Age 40 or Over] Acknowledgement of Waiver of Claims
\nUnder ADEA<\/u>. Employee acknowledges that he\/she is waiving and releasing any
\nrights he\/she may have under the<\/p>\n

2<\/p>\n

\n

Age Discrimination in Employment Act of 1967 (“ADEA”), and that this waiver
\nand release is knowing and voluntary. Employee agrees that this waiver and
\nrelease does not apply to any rights or claims that may arise under the ADEA
\nafter the Effective Date of this Agreement. Employee acknowledges that the
\nconsideration given under the Plan for this waiver and release is in addition to
\nanything of value to which Employee was already entitled. Employee further
\nacknowledges that he\/she has been advised by this writing that: (a) he\/she
\nshould consult with an attorney prior<\/u> to executing this Agreement; (b)
\nhe\/she has forty-five (45) days within which to consider this Agreement; (c) as
\nset forth in the Decisional Unit Information Letter attached hereto as Exhibit
\nA, he\/she has been advised in writing by the Company of the decisional unit for
\nthis reduction in force, as well as the class, unit, or group of individuals
\naffected, and the job titles and ages of all individuals who were and were not
\naffected; (d) he\/she has seven (7) days following his\/her execution of this
\nAgreement to revoke this Agreement; (e) this Agreement shall not be effective
\nuntil after the revocation period has expired; and (f) nothing in this Agreement
\nprevents or precludes Employee from challenging or seeking a determination in
\ngood faith of the validity of this waiver under the ADEA, nor does it impose any
\ncondition precedent, penalties, or costs for doing so, unless specifically
\nauthorized by federal law. In the event Employee signs this Agreement and
\nreturns it to the Company in less than the 45-day period identified above,
\nEmployee hereby acknowledges that he\/she has freely and voluntarily chosen to
\nwaive the time period allotted for considering this Agreement. Employee
\nacknowledges and understands that revocation must be accomplished by delivery of
\na written notification to [insert contact information for appropriate
\nCompany representative : e.g., HR and contact information]<\/strong> prior to the
\nEffective Date.<\/p>\n

3. Civil Code Section 1542<\/u>. The Employee represents that the Employee
\nis not aware of any claim by him\/her other than the claims that are released by
\nthis Agreement. Employee acknowledges that he\/she has been advised by legal
\ncounsel and is familiar with the provisions of California Civil Code Section
\n1542, which provides as follows:<\/p>\n

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
\nOR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
\nKNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.<\/p>\n

Employee, being aware of said code section, agrees to expressly waive any
\nrights Employee may have thereunder, as well as under any other statute or
\ncommon law principles of similar effect.<\/p>\n

4. No Pending or Future Lawsuits<\/u>. Employee represents that Employee
\nhas no lawsuits, claims, or actions pending in his\/her name, or on behalf of any
\nother person or entity, against the Company or any of the other Releasees.
\nEmployee also represents that Employee does not intend to bring any claims on
\nEmployee153s own behalf or on behalf of any other person or entity against the
\nCompany or any of the other Releasees.<\/p>\n

5. Non-Disparagement<\/u>. Employee agrees to refrain from any
\ndisparagement, defamation, libel or slander of any of the Releasees, or any
\ntortious interference with the contracts, relationships and prospective economic
\nadvantage of any of the Releasees. Employee agrees that Employee shall direct
\nall inquiries by potential future employers to the Company153s Human Resources
\nDepartment.<\/p>\n

3<\/p>\n

\n

Upon inquiry, the Company shall only state the following: Employee153s last
\nposition and dates of employment.<\/p>\n

6. Severability<\/u>. In the event that any provision, or any portion
\nthereof, becomes or is declared by a court of competent jurisdiction to be
\nillegal, unenforceable or void, this Agreement shall continue in full force and
\neffect without said provision or portion of said provision.<\/p>\n

7. Attorneys153 Fees<\/u>. Except as provided in paragraph 2 hereof, in the
\nevent that either Party brings an action to enforce or effect its rights under
\nthis Agreement, the prevailing Party shall be entitled to recover its costs and
\nexpenses, including the costs of mediation, arbitration, litigation, court fees,
\nplus reasonable attorneys153 fees, incurred in connection with such an action,
\nexcept as prohibited by law.<\/p>\n

8. No Waiver<\/u>. The failure of the Company to insist upon the
\nperformance of any of the terms and conditions in this Agreement, or the failure
\nto prosecute any breach of any of the terms and conditions of this Agreement,
\nshall not be construed thereafter as a waiver of any such terms or conditions.
\nThis entire Agreement shall remain in full force and effect as if no such
\nforbearance or failure of performance had occurred.<\/p>\n

9. No Oral Modification<\/u>. This Agreement may only be amended in a
\nwriting signed by Employee and an authorized representative of the Company.<\/p>\n

10. Governing Law<\/u>. This Agreement shall be construed, interpreted,
\ngoverned and enforced in accordance with the laws of the State of California,
\nwithout regard to choice-of-law provisions. Employee hereby consents to personal
\nand exclusive jurisdiction and venue in the State of California.<\/p>\n

11. Effective Date<\/u>. Employee has seven (7) days after he\/she signs
\nthis Agreement to revoke it. This Agreement will become effective on the eighth
\n(8th<\/sup>) day after Employee signed this Agreement, so long as it has
\nbeen signed by both Parties and has not been revoked before that date (the
\n“Effective Date”).<\/p>\n

12. Counterparts<\/u>. This Agreement may be executed in counterparts and
\nby facsimile, and each counterpart and facsimile shall have the same force and
\neffect as an original and shall constitute an effective, binding agreement on
\nthe part of each of the undersigned.<\/p>\n

13. Voluntary Execution of Agreement<\/u>. Employee understands and agrees
\nthat he\/she executed this Agreement voluntarily, without any duress or undue
\ninfluence on the part or behalf of the Company or any third party, with the full
\nintent of releasing all of his\/her claims against the Company and any of the
\nother Releasees. Employee acknowledges that:<\/p>\n

(a) he\/she has read this Agreement;<\/p>\n

(b) he\/she has been represented in the preparation, negotiation, and
\nexecution of this Agreement by legal counsel of his\/her own choice or that
\nhe\/she has voluntarily declined to seek such counsel;<\/p>\n

4<\/p>\n

\n

(c) he\/she understands the terms and consequences of this Agreement and of
\nthe releases it contains; and<\/p>\n

(d) he\/she is fully aware of the legal and binding effect of this Agreement.\n<\/p>\n

IN WITNESS WHEREOF, the Parties have executed this Agreement on the
\nrespective dates set forth below.<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

[CLICK & TYPE EMPLOYEE NAME], an individual<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

Dated:<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

[Click and Type Employee Name]<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

TIBCO Software Inc.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Dated:<\/p>\n<\/td>\n

<\/td>\n\n

By<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

[Click and Type Officer Name]<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

[Click and Type Title]<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

5<\/p>\n

<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9057],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9539,9551],"class_list":["post-39790","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-tibco-software-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-compensation","corporate_contracts_types-compensation__severance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39790","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39790"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39790"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39790"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39790"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}