{"id":40454,"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-inc8.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"separation-agreement-and-mutual-release-accrue-software-inc8","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/separation-agreement-and-mutual-release-accrue-software-inc8.html","title":{"rendered":"Separation Agreement and Mutual Release &#8211; Accrue Software Inc. and Jeffrey 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 Jeffrey Walker (\"MR.\nWALKER\" or \"EMPLOYEE\").\n\n         WHEREAS, Mr. Walker is employed by the Company pursuant to the terms of\nan offer letter dated March 8, 2001 (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 President and Chief\nExecutive Officer and as a member of the Board of Directors of the Company (and\nas an officer and\/or director of any other entity which was deemed to be an\naffiliate of the Company) effective on April 17, 2002 (the \"RESIGNATION DATE\")\nand that Mr. Walker will terminate his employment with the Company effective on\nApril 19,2002 (the \"TERMINATION DATE\").\n\n         2. SEPARATION BENEFITS. In consideration for the release of claims set\nforth 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) Following the Termination Date, the Company shall continue\nto pay as severance to Mr. Walker his regular base salary for a six-month period\n(the \"Severance Period\"). Each severance payment shall be reduced by applicable\ntax withholding and shall be paid in accordance with the Company's regular\npayroll schedule and practices. The first severance payment shall be made on the\nfirst regular payroll date following the Effective Date of this Agreement;\n\n                   (b) The Company shall retain Mr. Walker as a consultant for\nthe period from April 19, 2002 through October 19, 2002 (the \"CONSULTING\nPERIOD\"), to perform such services as may reasonably be requested in writing by\nthe Company (the \"Consulting Arrangement\"). The terms of the Consulting\nArrangement are more fully described in Exhibit A attached hereto;\n\n                  (c) If Mr. Walker accurately and timely elects to continue his\nhealth insurance benefits under COBRA, as described in Section 3(a) below, the\nCompany shall pay the applicable COBRA premiums through the end of the\nConsulting Period.\n\n\n\n\n         3. EMPLOYEE BENEFITS.\n\n                  (a) Mr. Walker shall continue to receive the Company's life,\nmedical, dental and vision insurance benefits at Company expense until April 30,\n2002, which date shall be the \"qualifying event\" date under the Consolidated\nOmnibus Budget Reconciliation Act of 1985, as amended (\"COBRA\"). If Mr. Walker\ntimely and accurately elects to continue his health insurance benefits under\nCOBRA following such date, the Company shall pay the applicable COBRA premiums\nthrough the end of the Consulting Period. Following such date, Mr. Walker has\nthe right to 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 Termination Date.\n\n         4. STOCK OPTION.\n\n                  (a) VESTING. Mr. Walker and the Company acknowledge and agree\nthat Mr. Walker holds a stock option granted to him by the Company on April 2,\n2001 to purchase 900,000 shares of the Company's Common Stock under the terms of\nthe Company's 1996 Stock Plan. Mr. Walker and the Company further acknowledge\nand agree that, in accordance with the terms of the Stock Option Agreement\nissued to Mr. Walker, the option shall continue to vest and be exercisable by\nMr. Walker 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\nAgreement.\n\n                  (b) CHANGE OF CONTROL. Mr. Walker acknowledges and agrees that\ntermination of his employment under this Agreement is not in connection with a\nChange of Control of the Company, as such term is defined in certain documents\nrelated to a Change of Control, including without limitation, the Offer Letter,\nand the Stock Option Agreement (collectively, the \"CHANGE OF CONTROL\nDOCUMENTS\"). Accordingly, in the event there is a Change of Control of the\nCompany following the Termination Date, Mr. Walker shall not be entitled to any\nof the benefits described in the Change of Control Documents.\n\n                  Except as set forth in this Section 4, the Stock Option\nAgreement 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 Agreement, the Change of Control\nDocuments or any other agreement (oral or written) with the Company.\n\n         5. NO OTHER PAYMENTS DUE. Mr. Walker and the Company agree that the\nCompany shall pay to Mr. Walker on or before the Termination Date all salary,\naccrued vacation and other sums as are then due to Mr. Walker. By executing this\nAgreement, Mr. Walker hereby acknowledges receipt of all such payments as\nreceived and acknowledges that, in light of the payment by the Company of all\nwages due to Mr. Walker, California Labor Code Section 206.5 is not applicable\nto the Parties hereto. That section provided in pertinent part as follows:\n\n\n\n                                      -2-\n\n            No employer shall require the execution of any release of any claim\n            or right on account of wages due, or to become due, or made as an\n            advance on wages to be earned, unless payment of such wages has been\n            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         Excepted from the above release are Mr. Walker's rights of indemnity,\nstatutory and contractual, as a former executive of the Company. The Company and\nMr. Walker agree that the release set forth in this Section 6 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 or specified\nunder this Agreement.\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 \n\n\n\n                                      -3-\n\n\n\nnot apply to any rights or claims that may arise under ADEA after the Effective\nDate of this Agreement. Mr. Walker acknowledges that the consideration given for\nthis waiver and release Agreement is in addition to anything of value to which\nMr. Walker was already entitled. Mr. Walker further acknowledges that he has\nbeen advised by this writing that (a) he should consult with an attorney prior\nto executing this Agreement; (b) he has at least twenty-one (21) days within\nwhich to consider this Agreement; (c) he has seven (7) days following his\nexecution of this Agreement to revoke the Agreement (the \"Revocation Period\").\nThis Agreement shall not be effective until the Revocation Period has expired.\nNothing in this Agreement prevents or precludes Mr. Walker from challenging or\nseeking a determination in good faith of the validity of this waiver under the\nADEA, nor does it impose any condition precedent, penalties or costs for doing\nso, 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\n                  MATERIALLY 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 1, 2001 (the \"PROPRIETARY AGREEMENT\"), a copy of which is\nattached hereto as Exhibit B. 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                  (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 \n\n\n                                      -4-\n\n\n\ndisclosed in a press release and except for disclosures required by law or\nnecessary to effectuate the terms of this Agreement. Mr. Walker understands and\nacknowledges that Company may be required to file a copy of this Agreement with\nthe Securities and Exchange Commission and to disclose its terms in Company's\nnext proxy statement. The Parties agree to take every precaution to disclose\nSeparation Information only to those employees, officers, directors, attorneys,\naccountants, governmental entities, and family members who have a reasonable\nneed to know of such Separation Information.\n\n                  (d) SEC REPORTING\/INSIDER TRADING COMPLIANCE. Mr. Walker will\ncooperate with the Company in providing information with respect to all reports\nrequired to be filed by the Company with the Securities and Exchange Commission\nas they relate to required information with respect to Mr. Walker. Further, Mr.\nWalker will remain in compliance with the terms of the Company's insider trading\nprogram with respect to purchases and sales of the Company's stock.\n\n         10. AUTHORITY. The Company represents and warrants that the undersigned\nhas the authority to act on behalf of the Company and to bind the Company and\nall who may claim through it to the terms and conditions of this Agreement. Mr.\nWalker represents and warrants that he has the capacity to act on his own behalf\nand on behalf of all who might claim through his to bind them to the terms and\nconditions of this Agreement. Each Party warrants and represents that there are\nno liens or claims of lien or assignments in law or equity or otherwise of or\nagainst 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 is\ndeclared by a court or other tribunal of competent jurisdiction to be illegal,\nunenforceable or void, this Agreement shall continue in full force and effect\nwithout 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. The arbitration decision shall be final, conclusive and\nbinding on both Parties and any arbitration award or decision may be entered in\nany court having jurisdiction. The Parties agree that the prevailing party in\nany arbitration shall be entitled to injunctive relief in any court of competent\njurisdiction to enforce the arbitration award. The Parties further agree that\nthe prevailing Party in any such proceeding shall be awarded reasonable\nattorneys' fees and costs. This Section 13 shall not apply to the Proprietary\nAgreement. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN\nREGARD TO ARBITRABLE CLAIMS.\n\n\n\n                                      -5-\n\n\n\n         14. INDEMNIFICATION. The Indemnification Agreement entered into by Mr.\nWalker and the Company on March 9, 2001, a copy of which is attached hereto as\nExhibit C, shall remain in effect following the Termination Date in accordance\nwith 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 writing\nsigned by Mr. Walker and the Company.\n\n         17. GOVERNING LAW. This Agreement shall be governed by the laws of the\nState of California, without regard to its conflicts of law provisions.\n\n         18. EFFECTIVE DATE. This Agreement is effective upon the expiration of\nthe Revocation Period described in Section 7 and such date is referred to herein\nas 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 the\nCompany without the prior written consent of the other party. Notwithstanding\nthe foregoing, this Agreement may be assigned by the Company to a corporation\ncontrolling, controlled by or under common control with the Company without the\nconsent 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                  (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                                      -6-\n\n\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 ________, 2002              By: ____________________________________\n\n                                        Title: _________________________________\n\n\n                                        Jeffrey Walker, an individual\n\nDated as of ________, 2002              ________________________________________\n                                        Jeffrey Walker\n\n\n\n\n\n\n                                      -7-\n\n\n\n\n                                    EXHIBIT A\n\n                         TERMS OF CONSULTING ARRANGEMENT\n\n         SCOPE OF SERVICES: Consulting services on issues or projects that the\nCompany may request. The scope, timing and cash compensation, if any, will be\ndefined in writing for specific projects. Mr. Walker also agrees to make himself\navailable for general consultations and advice on general corporate matters to\nthe Company.\n\n         AVAILABILITY AND COMPENSATION: Mr. Walker agrees to make his services\navailable to the Company on an as requested\/as available basis for the term of\nthis Consulting arrangement. Compensation for services to Mr. Walker includes\ncontinued vesting of Mr.Walker's outstanding stock options as defined in this\nagreement, and cash compensation as may be agreed between the parties.\n\n         TERM: April 22, 2002 - October 19, 2002, subject to extension by mutual\nwritten agreement of the Company and Mr. Walker.\n\n\n\n\n\n\n                                    EXHIBIT B\n\n                            CONFIDENTIALITY AGREEMENT\n\n\n\n\n\n\n\n\n                                    EXHIBIT C\n\n                            INDEMNIFICATION AGREEMENT\n\n\n\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-40454","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\/40454","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=40454"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40454"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40454"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40454"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}