EXHIBIT 10.20
Pure Atria Corporation
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August 26, 1996
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Termination of Employment Relationship
Dear ▇▇. ▇▇▇▇▇▇▇▇,
This letter will constitute an agreement between you and Pure Atria Corporation
("Pure Atria") regarding your resignation from Pure Atria in connection with the
recent merger involving Atria Software, Inc.
During the course of your employment as the Vice President of Pure Atria, you
have been involved with all aspects of the business of Pure Atria and have had
direct access to information, much of which is confidential and the disclosure
of which could be extremely damaging to the business of Pure Atria. You have
also been uniquely instrumental in developing Pure Atria's research and
development and marketing plans and policies.
Accordingly, for good and valuable consideration, the adequacy of which is
acknowledged, the parties agree as follows:
1. Employment Termination Date. Effective as of the date of this letter (the
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"Termination Date") you have resigned as Vice President, of Pure Atria.
2. Compensation and Benefits. In connection with the termination of your
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employment with the company, you will receive the following payments and
benefits:
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(i) You will be paid your base salary, variable compensation, and any
accrued but unused vacation or other paid time off, owed to you
through to the Termination Date.
(ii) You will be paid a lump sum severance payment of equal to salary and
variable compensation at 100% of target for the period from the
Termination Date until January 7, 1998 (the "Transition Period").
(iii) Pure Atria shall, at its expense, continue your coverage on Pure
Atria's medical and dental insurance plans until November 25, 1997,
pursuant to provisions of the Consolidated Omnibus Budget
Reconciliation Act (COBRA) of 1985, and subject to the completion of
the appropriate form by you. Thereafter you may continue, at your own
expense, medical insurance coverage to the extent permitted by COBRA.
(iv) You will receive accelerated vesting of your stock options that would
have vested during the Transition Period, notwithstanding any terms
in your applicable stock option agreement. All such options must be
exercised in accordance with the terms and conditions of the stock
option agreements and plans pursuant to which such options were
granted. As you may be aware, the terms of the Pure Software Inc.
1992 and 1995 Stock Option Plans allow optionees to continue to
exercise their options while in service to the company as a director,
and for a period of ninety days after ceasing to be a director.
3. Required Deductions. The payments and benefits under Section 2 shall be
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paid or credited net of any applicable withholding taxes which Pure Atria
is required to deduct under any applicable federal, state or local law.
4. Non-Solicitation Provisions. You agree that, during the Transition Period,
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you will not, directly or indirectly recruit, or solicit to hire or
otherwise to retain the services of any person who is then or has within
the past six months been an employee of Pure Atria.
5. Non-Competition Provisions. You agree that, during the Transition Period,
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you will not, directly or indirectly, as an employee, consultant, agent,
director, officer, joint venturer, stockholder, investor, or in any other
capacity (other than as the holder of not more than one percent of the
combined voting power of the outstanding stock), without the prior written
consent of an officer of Pure Atria:
(i) provide any services of any kind to Continuus Software Corp.,
Rational Software Corporation, Segue Software, Inc., SQA Inc.,
Platinum Technology Inc., Intersolv, Inc., Mercury Interactive,
Parasoft Corporation, Centerline Software, Inc. NuMega Technologies,
Inc., StratosWare Corporation, Abraxas Software, Inc., SQL Software
Ltd., MainSoft
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Corporation, Microsoft Corporation, or any other business engaged in
the development, marketing, distribution or re-sale of software
configuration management, software development process, software
change request management, software defect detection, or software
testing products, in any state within the United States, or in any
state or province within any other country (or, if any such country
is not divided into states or provinces, within the country itself)
in which Pure Atria develops, supports, markets, distributes or re-
sells its products during the Transition Period;
(ii) develop, design, produce, market or sell (or assist any other person
in developing, designing, producing, marketing or selling of) any
software configuration management, software development process,
software change request management, software defect detection, or
software testing products; or
(iii) engage in or render services that would result in your use or
disclosure of "Proprietary Information," as defined in the
Proprietary Information and Inventions Agreement signed by you (the
"Employee Agreement"), or result in your use of the good will of Pure
Atria.
The foregoing shall not prohibit you from using the phrase "Quality on
Time" or using the materials contained in the "Quality on Time"
presentation you have prepared, including using these materials in a book,
which may be entitled "Quality on Time", that you are planning to write.
6. Proprietary Information and Inventions Agreement. This letter agreement
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does not effect your obligations under, and you continue to be subject to
and obligated to comply with, the Proprietary Information and Inventions
Agreement you entered into with Pure Atria (the "Inventions Agreement"),
and any other agreement entered into with Pure Atria regarding the
assignment or other transfer of intellectual property, or any undertaking
on your part to hold information confidential.
7. Restrictions Reasonable. You acknowledge that the area of business Pure
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Atria engages in is highly competitive, that the confidential information
and the goodwill of Pure Atria in the marketplace are among their most
valuable assets, which you have uniquely helped to develop and maintain in
the course of your service to Pure Atria, and that Pure Atria has relied on
your willingness to restrict your ability to compete with Pure Atria or to
disclose confidential information in agreeing to the provisions of Sections
4 and 5 above. You represent and warrant that your skills and abilities
and your financial resources are and will be sufficient to permit you to
maintain a satisfactory livelihood during the Transition Period
notwithstanding the restrictions set forth herein. Accordingly, you agree
that the
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restrictions contained in this letter agreement are reasonable and that
such restrictions will not cause you undue hardship.
8. Confidentiality and Related Terms. In addition to and without limiting
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your obligations of confidentiality set forth in the Inventions Agreement,
you agree that all terms and conditions of this letter agreement shall be
held confidential by you and shall not be publicized or disclosed to any
person (other than an immediate family member, legal counsel or financial
advisor, provided that any such individual to whom disclosure is made
agrees to be bound by these confidentiality obligations), business entity
or government agency (except as mandated by state or federal law). The
foregoing restrictions will not apply to information that has been publicly
released by Pure Atria.
9. Remedies. It is specifically understood and agreed that (i) the
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restrictions imposed on you under this letter agreement are necessary for
the protection of the business and goodwill of Pure Atria, and are
reasonable for such purpose, (ii) any breach of the provisions of this
letter agreement is likely to result in irreparable injury and substantial
and irrevocable damage to Pure Atria, and (iii) any remedy at law alone
will be an inadequate remedy for such breach. Accordingly, you agree that,
in addition to any other remedy it may have, Pure Atria, shall be entitled
to enforce the specific performance of this letter agreement by you and to
obtain both temporary and permanent injunctive relief (to the extent
permitted by law), without the necessity of proving actual damages.
10. WAIVERS AND RELEASES. In consideration of the amounts to be paid to you
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pursuant to this letter agreement, you waive and release and promise never
to assert any claims or causes of action of any kind or nature, whether or
not presently known, against Pure Atria, or its predecessors , successors,
subsidiaries, affiliates, officers, directors, agents, employees or assigns
(including, without limitation, any claims for any payments, notice periods
or other benefits under the Retention Policy enacted by Pure Atria, any
claims for discrimination under Title VII of the Civil Rights Act of 1964,
as amended, the California Fair Employment and Housing Act, the California
Constitution, the Equal Pay Act of 1963, the Age Discrimination in
Employment Act of 1967, the Civil Rights Act of 1964, or the Employee
Retirement Income Security Act; any claims for wrongful discharge, breach
of express or implied contract, breach of a covenant of good faith and fair
dealing, violation of public policy, defamation, interference with
contractual relations, intentional or negligent infliction of emotional
distress, misrepresentation, deceit, fraud, negligence; or any other
statutory or common law claim relating to or arising under any state or
federal law or regulation relating to employment).
You expressly waive and release any and all rights and benefits under
section 1542 of the Civil Code of the State of California, or any analogous
law of any other state, which reads as follows: "A general release does not
extend to claims
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which the creditor does not know or suspect to exist in her favor at the
time of executing the release, which, if known by her must have materially
affected her settlement with the debtor."
The foregoing provisions of this Section 10 shall not apply to any claim or
action by you (i) to enforce your right to receive any of the payments or
benefits set forth in Section 2 of this Agreement, or (ii) arising from any
act, omission or other occurrence or event that occurs after termination of
your employment with the company.
11. Severability and Interpretation. The provisions of this letter agreement
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are severable, and the invalidity of any provision hereof shall not affect
the validity of any other provisions hereof. Not withstanding any other
provision of this letter agreement, in the event that any court of
competent jurisdiction shall determine that any provision of this letter
agreement or the application thereof is unenforceable because of the
duration of such provision or the scope thereof, the parties hereto agree
that said court in making such determination shall have the power to reduce
the duration and scope of such provision to the extent necessary to make it
enforceable, and that letter agreement in its reduced form shall then be
valid and enforceable to the full extent permitted by law. If any
restriction set forth in Section 4 or 5 is found by any court of competent
jurisdiction to be unenforceable because it extends for too long a period
of time or over too great a range of activities or in too broad a
geographic area, it shall be interpreted to extend only over the maximum
period of time, range of activities or geographic area as to which it may
be enforceable.
12. Successors and Assigns. This letter agreement shall bind and inure to the
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benefit of the parties hereto and any and all successors and assigns of
Pure Atria; your obligations under this letter agreement are personal,
unassignable and may be performed only by you.
13. Captions and Headings. Captions and headings in this letter agreement are
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for convenience of reference and do not define or limit any term in this
letter agreement.
14. Limited Services Contract. Except as specified in Section 2 above, (A)
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neither Pure Atria shall not have any obligation or liability to pay any
salary, bonus, commission or other compensation to you (other than any
compensation payable to directors generally, and to which you are entitled
in compensation for your service as a member of the Board of Directors of
Pure Atria), and (B) Pure Atria shall not have any obligation or liability
to provide any employee benefits of any kind or nature. You acknowledge
that, except as specified in Section 2 above, you do not have any rights in
any stock compensation plan or agreement (other than any compensation
payable to directors generally, and to which you are entitled in
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compensation for your service as a member of the Board of Directors of Pure
Atria).
15. Waiver of Rights; Amendment. No delay or omission by a party to this
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letter agreement in exercising any right under this letter agreement will
operate as a waiver of that or any other right. A waiver or consent given
by any party to this letter agreement on any one occasion is effective only
in that instance and will not be construed as a bar to or waiver of any
right on any other occasion. This letter agreement may not be modified or
amended except in writing, signed by both parties.
16. Effect of Agreement. Except as specifically modified by this letter
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agreement, the Retention Policy and the Inventions Agreement, and each of
their respective terms and conditions shall continue in full force and
effect.
17. Notices. Notices under this letter agreement shall be sent to the parties
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at respective addresses above by certified mail, return receipt requested,
by overnight courier service, or by personal delivery, and will be deemed
effective upon receipt. Notices to Atria and Pure Atria, shall be sent to
the attention of the General Counsel. Postage, delivery and other charges
must be paid by the sender. A party may change its address for notice by
written notice complying with the requirements of this section.
Pure Atria Corporation
By:_______________________
Name:
Title:
My agreement with the above terms is signified by my signature below.
Furthermore, I acknowledge that neither Pure Atria, nor any of its respective
agents or representatives have made any representations inconsistent with the
terms or effects of this letter agreement, and that I have read this letter
agreement carefully, understand its terms and effects, and am voluntarily
executing it with full appreciation that I am forever foreclosed from pursuing
any of the rights I have waived.
Signed _________________________________ Dated _________________, 1996.
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