{"id":40452,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/separation-agreement-and-mutual-release-accrue-software-inc5.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"separation-agreement-and-mutual-release-accrue-software-inc5","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/separation-agreement-and-mutual-release-accrue-software-inc5.html","title":{"rendered":"Separation Agreement and Mutual Release &#8211; Accrue Software Inc. and Gregory Walker"},"content":{"rendered":"<pre>                              ACCRUE SOFTWARE, INC.\n\n                     SEPARATION AGREEMENT AND MUTUAL RELEASE\n\n         This Separation Agreement (\"AGREEMENT\") is made by and between Accrue\nSoftware, Inc., a Delaware corporation (the \"COMPANY\"), and Gregory Walker (\"MR.\nWALKER\" or \"EMPLOYEE\").\n\n         WHEREAS, Mr. Walker was employed by the Company pursuant to the terms\nof an offer letter dated March 3, 1999 (the \"OFFER LETTER\"); and\n\n         WHEREAS, the Company and Mr. Walker have mutually agreed to terminate\nthe employment relationship, to release each other from any claims arising from\nor related to the employment relationship and to enter into a consulting\narrangement.\n\n         NOW, THEREFORE, in consideration of the mutual promises made herein,\nthe Company and Mr. Walker (collectively referred to as the \"PARTIES\") hereby\nagree as follows:\n\n         1.    RESIGNATION AND TERMINATION OF EMPLOYMENT. Mr. Walker and the\nCompany acknowledge and agree that Mr. Walker resigned as Vice President and\nChief Financial Officer of the Company (and as an officer and\/or director of any\nother entity which was deemed to be an affiliate of the Company) and terminated\nhis employment with the Company effective on April 30, 2001 (the \"RESIGNATION\nDATE\").\n\n         2.    SEPARATION BENEFITS. In consideration for the release of claims\nset forth below and other obligations under this Agreement, and provided this\nAgreement is signed by Mr. Walker and not revoked under Section 7 herein, and\nfurther provided that Mr. Walker remains in full compliance with his obligations\nto the Company under this Agreement, the Company agrees to provide the following\nseparation benefits to Mr. Walker:\n\n               (a)     The Company shall make a lump-sum payment to Mr. Walker\nin the amount of $50,000, reduced by applicable tax withholding. This bonus\npayment shall be made on the Effective Date of this Agreement (as defined in\nSection 18 below);\n\n               (b)     Following the Termination Date, the Company shall\ncontinue to pay as severance to Mr. Walker his regular base salary for a\nsix-month period (the \"Severance Period\"). Each severance payment shall be\nreduced by applicable tax withholding and shall be paid in accordance with the\nCompany's regular payroll schedule and practices. The first severance payment\nshall be made on the first regular payroll date following the Effective Date of\nthis Agreement;\n\n               (c)     The Company shall retain Mr. Walker as a consultant for\nthe period from May 1, 2001 through October 31, 2001 (the \"CONSULTING PERIOD\"),\nto perform such services as may reasonably be requested in writing by the\nCompany (the \"Consulting Arrangement\"). The terms of the Consulting Arrangement\nare more fully described in Exhibit A attached hereto;\n\n\n   2\n\n               (d)     If Mr. Walker accurately and timely elects to continue\nhis health insurance benefits under COBRA, as described in Section 3(a) below,\nthe Company shall pay the applicable COBRA premiums through the end of the\nConsulting Period.\n\n         3.    EMPLOYEE BENEFITS.\n\n\n               (a)     Mr. Walker continued to receive the Company's life,\nmedical, dental and vision insurance benefits at Company expense until April 30,\n2001, which date was the \"qualifying event\" date under the Consolidated Omnibus\nBudget Reconciliation Act of 1985, as amended (\"COBRA\"). If Mr. Walker timely\nand accurately elects to continue his health insurance benefits under COBRA\nfollowing such date, the Company shall pay the applicable COBRA premiums through\nthe end of the Consulting Period. Following such date, Mr. Walker has the right\nto continue the COBRA coverage at his own expense.\n\n               (b)     Except as otherwise provided above, Mr. Walker shall not\nbe entitled to participate in any of the Company's benefit plans or programs\noffered to employees of the Company after the Resignation Date.\n\n         4.    STOCK OPTIONS.\n\n               (a)     VESTING. Mr. Walker and the Company acknowledge and agree\nthat Mr. Walker holds two stock options granted to him by the Company during his\nemployment: (i) an option granted to Mr. Walker on April 29, 1999 to purchase\n260,000 shares of the Company's Common Stock under the terms of the Company's\n1996 Stock Plan; and (ii) an option granted to Mr. Walker on April 17, 2000 to\npurchase 30,000 shares of the Company's Common Stock under the terms of the\nCompany's 1996 Stock Plan (the details of which are provided on the Options and\nAwards Summary attached hereto as Exhibit B) . Mr. Walker and the Company\nfurther acknowledge and agree that, in accordance with the terms of the stock\noption agreements issued to Mr. Walker (collectively, the \"STOCK OPTION\nAGREEMENTS\"), the options shall continue to vest and become exercisable by Mr.\nWalker through the end of the Consulting Period. Mr. Walker acknowledges and\nagrees that any vested option shares must be exercised within the time period\nfollowing the end of the Consulting Period set forth in the Stock Option\nAgreements.\n\n               (b)     CHANGE OF CONTROL. Mr. Walker acknowledges and agrees\nthat termination of his employment under this Agreement is not in connection\nwith a Change of Control of the Company, as such term is defined in certain\ndocuments related to a Change of Control, including without limitation, the\nOffer Letter, and the Stock Option Agreements (collectively, the \"CHANGE OF\nCONTROL DOCUMENTS\"). Accordingly, in the event there is a Change of Control of\nthe Company following the Resignation Date, Mr. Walker shall not be entitled to\nany of the benefits described in the Change of Control Documents.\n\n               Except as set forth in this Section 4, the Stock Option\nAgreements and the Change of Control Documents, Mr. Walker acknowledges that he\nhas no right, title or interest in or to any shares of the Company's capital\nstock under the Offer Letter, the Stock Option Agreements, the Change of Control\nDocuments or any other agreement (oral or written) with the Company.\n\n\n                                      -2-\n   3\n\n         5.    NO OTHER PAYMENTS DUE. Mr. Walker and the Company agree that the\nCompany paid to Mr. Walker on or before the Resignation Date all salary, accrued\nPTO and other sums as were then due to Mr. Walker. By executing this Agreement,\nMr. Walker hereby acknowledges receipt of all such payments as received and\nacknowledges that, in light of the payment by the Company of all wages due to\nMr. Walker, California Labor Code Section 206.5 is not applicable to the Parties\nhereto. That section provided in pertinent part as follows:\n\n               No employer shall require the execution of any release of any\n               claim or right on account of wages due, or to become due, or made\n               as an advance on wages to be earned, unless payment of such wages\n               has been made.\n\n         6.    RELEASE OF CLAIMS. In consideration for the obligations of both\nparties set forth in this Agreement, Mr. Walker and the Company, on behalf of\nthemselves, and their respective heirs, executors, officers, directors,\nemployees, investors, stockholders, administrators and assigns, hereby fully and\nforever release each other and their respective heirs, executors, officers,\ndirectors, employees, investors, stockholders, administrators, parent and\nsubsidiary corporations, predecessor and successor corporations and assigns, of\nand from any claim, duty, obligation or cause of action relating to any matters\nof any kind, whether presently known or unknown, suspected or unsuspected, that\nany of them may possess arising from any omissions, acts or facts that have\noccurred up until and including the date of this Agreement including, without\nlimitation:\n\n               (a)     any and all claims relating to or arising from Mr.\nWalker's employment relationship with the Company and the termination of that\nrelationship;\n\n               (b)     any and all claims relating to, or arising from, Mr.\nWalker's right to purchase, or actual purchase of shares of stock of the\nCompany;\n\n               (c)     any and all claims for wrongful discharge of employment;\nbreach of contract, both express and implied; breach of a covenant of good faith\nand fair dealing, both express and implied, negligent or intentional infliction\nof emotional distress; negligent or intentional misrepresentation; negligent or\nintentional interference with contract or prospective economic advantage;\nnegligence; and defamation;\n\n               (d)     any and all claims for violation of any federal, state or\nmunicipal statute, including, but not limited to, Title VII of the Civil Rights\nAct of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment\nAct of 1967, and the Americans with Disabilities Act of 1990;\n\n               (e)     any and all claims arising out of any other laws and\nregulations relating to employment or employment discrimination; and\n\n               (f)     any and all claims for attorneys' fees and costs.\n\n         The Company and Mr. Walker agree that the release set forth in this\nSection 6 shall be and remain in effect in all respects as a complete general\nrelease as to the matters released. This release does not extend to any\nobligations incurred or specified under this Agreement.\n\n\n                                      -3-\n   4\n\n         7.    ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER ADEA. Mr. Walker\nacknowledges that he is waiving and releasing any rights he may have under the\nAge Discrimination in Employment Act of 1967 (\"ADEA\") and that this waiver and\nrelease is knowing and voluntary. Mr. Walker and the Company agree that this\nwaiver and release does not apply to any rights or claims that may arise under\nADEA after the Effective Date of this Agreement. Mr. Walker acknowledges that\nthe consideration given for this waiver and release Agreement is in addition to\nanything of value to which Mr. Walker was already entitled. Mr. Walker further\nacknowledges that he has been advised by this writing that (a) he should consult\nwith an attorney prior to executing this Agreement; (b) he has at least\ntwenty-one (21) days within which to consider this Agreement; (c) he has seven\n(7) days following his execution of this Agreement to revoke the Agreement (the\n\"Revocation Period\"). This Agreement shall not be effective until the Revocation\nPeriod has expired. Nothing in this Agreement prevents or precludes Mr. Walker\nfrom challenging or seeking a determination in good faith of the validity of\nthis waiver under the ADEA, nor does it impose any condition precedent,\npenalties or costs for doing so, unless specifically authorized by federal law.\n\n         8.    CIVIL CODE SECTION 1542. The Parties represent that they are not\naware of any claim by either of them other than the claims that are released by\nthis Agreement. Mr. Walker and the Company acknowledge that they are familiar\nwith the provisions of California Civil Code Section 1542, which provides as\nfollows:\n\n               A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR\n               DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF\n               EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY\n               AFFECTED HIS SETTLEMENT WITH THE DEBTOR.\n\n         Mr. Walker and the Company, being aware of said Code section, agree to\nexpressly waive any rights they may have thereunder, as well as under any other\nstatute or common law principles of similar effect.\n\n         9.    EMPLOYEE COVENANTS.\n\n               (a)     GENERAL. Mr. Walker agrees that for all periods described\nin this Agreement, he shall continue to conduct himself in a professional manner\nthat is supportive of the business of the Company.\n\n               (b)     CONFIDENTIAL INFORMATION. Mr. Walker represents and\nwarrants that he has not breached his obligations to the Company under the terms\nof the Proprietary Information and Assignment of Inventions Agreement he\nexecuted on April 26, 1999 (the \"PROPRIETARY AGREEMENT\"), a copy of which is\nattached hereto as Exhibit C. Mr. Walker understands and agrees that his\nobligations to the Company under the Proprietary Agreement continue through the\nConsulting Period and survive the termination of his relationship with the\nCompany under this Agreement.\n\n\n                                      -4-\n   5\n\n               (c)     CONFIDENTIALITY OF THIS AGREEMENT. The Parties each agree\nto use their best efforts to maintain in confidence the existence of this\nAgreement, the contents and terms of this Agreement, and the consideration for\nthis Agreement (hereinafter collectively referred to as \"SEPARATION\nINFORMATION\"). Each Party hereto agrees to take every reasonable precaution to\nprevent disclosure of any Separation Information to third parties, except as may\nbe or has been disclosed in a press release and except for disclosures required\nby law or necessary to effectuate the terms of this Agreement. Mr. Walker\nunderstands and acknowledges that Company may be required to file a copy of this\nAgreement with the Securities and Exchange Commission and to disclose its terms\nin Company's next proxy statement. The Parties agree to take every precaution to\ndisclose Separation Information only to those employees, officers, directors,\nattorneys, accountants, governmental entities, and family members who have a\nreasonable need to know of such Separation Information.\n\n               (d)     SEC REPORTING. Mr. Walker will cooperate with the Company\nin providing information with respect to all reports required to be filed by the\nCompany with the Securities and Exchange Commission as they relate to required\ninformation with respect to Mr. Walker.\n\n               (e)     NONCOMPETITION. During the period from the Resignation\nDate through the end of the Consulting Period, Mr. Walker agrees that he shall\nnot engage in any employment, consulting or business relationship with any\ncompany that is in competition with the Company, including without limitation\nthe following companies: Andromedia, Inc., net.Genesis Corporation, WebTrends\nCorporation, Broadbase Software, Inc. and E.piphany, Inc.\n\n         10.   AUTHORITY. The Company represents and warrants that the\nundersigned has the authority to act on behalf of the Company and to bind the\nCompany and all who may claim through it to the terms and conditions of this\nAgreement. Mr. Walker represents and warrants that he has the capacity to act on\nhis own behalf and on behalf of all who might claim through his to bind them to\nthe terms and conditions of this Agreement. Each Party warrants and represents\nthat there are no liens or claims of lien or assignments in law or equity or\notherwise of or against any of the claims or causes of action released herein.\n\n         11.   NO REPRESENTATIONS. Neither Party has relied upon any\nrepresentations or statements made by the other Party hereto which are not\nspecifically set forth in this Agreement.\n\n         12.   SEVERABILITY. In the event that any provision hereof becomes or\nis declared by a court or other tribunal of competent jurisdiction to be\nillegal, unenforceable or void, this Agreement shall continue in full force and\neffect without said provision.\n\n         13.   ARBITRATION. The Parties shall attempt to settle all disputes\narising in connection with this Agreement through good faith consultation. In\nthe event no agreement can be reached on such dispute within fifteen (15) days\nafter notification in writing by either Party to the other concerning such\ndispute, the dispute shall be settled by binding arbitration to be conducted in\nContra Costa County, California before the American Arbitration Association\nunder its California Employment Dispute Resolution Rules, or by a judge to be\nmutually agreed upon.\n\n\n                                      -5-\n   6\n\nThe arbitration decision shall be final, conclusive and binding on both Parties\nand any arbitration award or decision may be entered in any court having\njurisdiction. The Parties agree that the prevailing party in any arbitration\nshall be entitled to injunctive relief in any court of competent jurisdiction to\nenforce the arbitration award. The Parties further agree that the prevailing\nParty in any such proceeding shall be awarded reasonable attorneys' fees and\ncosts. This Section 13 shall not apply to the Proprietary Agreement. THE PARTIES\nHEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRABLE\nCLAIMS.\n\n         14.   INDEMNIFICATION. The Indemnification Agreement entered into by\nMr. Walker and the Company on April 26, 1999, a copy of which is attached hereto\nas Exhibit D, shall remain in effect following the Termination Date in\naccordance with the terms of such agreement.\n\n         15.   ENTIRE AGREEMENT. This Agreement, and the exhibits hereto,\nrepresent the entire agreement and understanding between the Company and Mr.\nWalker concerning Mr. Walker's separation from the Company, and supersede and\nreplace any and all prior agreements and understandings concerning Mr. Walker's\nrelationship with the Company and his compensation by the Company.\n\n         16.   NO ORAL MODIFICATION. This Agreement may only be amended in\nwriting signed by Mr. Walker and the Company.\n\n         17.   GOVERNING LAW. This Agreement shall be governed by the laws of\nthe State of California, without regard to its conflicts of law provisions.\n\n         18.   EFFECTIVE DATE. This Agreement is effective upon the expiration\nof the Revocation Period described in Section 7 and such date is referred to\nherein as the \"EFFECTIVE DATE.\"\n\n         19.   COUNTERPARTS. This Agreement may be executed in counterparts, and\neach counterpart shall have the same force and effect as an original and shall\nconstitute an effective, binding agreement on the part of each of the\nundersigned.\n\n         20.   ASSIGNMENT. This Agreement may not be assigned by Mr. Walker or\nthe Company without the prior written consent of the other party.\nNotwithstanding the foregoing, this Agreement may be assigned by the Company to\na corporation controlling, controlled by or under common control with the\nCompany without the consent of Mr. Walker.\n\n         21.   VOLUNTARY EXECUTION OF AGREEMENT. This Agreement is executed\nvoluntarily and without any duress or undue influence on the part or behalf of\nthe Parties hereto, with the full intent of releasing all claims. The Parties\nacknowledge that:\n\n               (a)     they have read this Agreement;\n\n               (b)     they have been represented in the preparation,\nnegotiation, and execution of this Agreement by legal counsel of their own\nchoice or that they have voluntarily declined to seek such counsel;\n\n\n                                      -6-\n   7\n\n               (c)     they understand the terms and consequences of this\nAgreement and of the releases it contains; and\n\n               (d)     they are fully aware of the legal and binding effect of\nthis Agreement.\n\n\n\n         IN WITNESS WHEREOF, the Parties have executed this Separation Agreement\nand Mutual Release on the respective dates set forth below.\n\n                                        Accrue Software, Inc.\n\nDated as of June 12, 2001               By: \/s\/ JEFFREY WALKER  \n                                            ------------------------------------\n                                        Title:  CEO\n\n\n                                        Gregory Walker, an individual\n\nDated as of June 12, 2001               \/s\/ GREGORY WALKER      \n                                        ----------------------------------------\n                                        Gregory Walker\n\n\n\n                                      -7-\n   8\n\n                                    EXHIBIT A\n\n                         TERMS OF CONSULTING ARRANGEMENT\n\n         SCOPE OF SERVICES: Consulting and advice related to finance, merger and\nacquisition and business model issues.\n\n         COMPENSATION: An hourly fee of $105, payable upon submission of monthly\ninvoices by Mr. Walker for services rendered to the Company during the preceding\nmonth, and continued vesting of Mr. Walker's outstanding stock options.\n\n         TERM: May 1, 2001 - October 31, 2001, subject to extension by mutual\nwritten agreement of the Company and Mr. Walker.\n\n\n\n   9\n\n\n\n\n\n                                    EXHIBIT B\n\n                           OPTIONS AND AWARDS SUMMARY\n\n\n   10\n\n\n\n\n\n                                    EXHIBIT C\n\n                            CONFIDENTIALITY AGREEMENT\n\n\n   11\n\n\n\n\n\n                                    EXHIBIT D\n\n                            INDEMNIFICATION AGREEMENT\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6556],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9539,9551],"class_list":["post-40452","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-accrue-software-inc","corporate_contracts_industries-technology__software","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\/40452","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=40452"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40452"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40452"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40452"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}