exv10w23



 




Exhibit
10.23



SEVERANCE AGREEMENT




     THIS
SEVERANCE AGREEMENT (this “Agreement”), dated as of
November 28, 2005, is made and
entered by and between Novell, Inc., a Delaware corporation (the “Company”), and Jeffrey M. Jaffe
(the “Executive”).



WITNESSETH:




     WHEREAS, the Executive is a senior executive of the Company and is expected to make major
contributions to the short- and long-term profitability, growth and financial strength of the
Company;



     WHEREAS, the Board has determined that appropriate arrangements should be taken to encourage
the continued attention and dedication of Executive to his assigned duties without distraction;



     WHEREAS, in consideration of the Executive’s employment with the Company, the Company desires
to provide Executive with certain compensation and benefits set forth in this Agreement in order to
ameliorate the financial and career impact on Executive in the event the Executive’s employment
with the Company is terminated for a reason related to, or unrelated to, a Change in Control (as
defined below) of the Company;



     NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
hereinafter set forth and intending to be legally bound hereby, the Company and the Executive agree
as follows:


1. Certain Defined Terms. In addition to terms defined elsewhere herein, the following
terms have the following meanings when used in this Agreement with initial capital letters:




     (a) “Base Pay” means the greater of (i) Executive’s annual base salary rate, exclusive of
bonuses, commissions and other Incentive Pay, as in effect immediately preceding Executive’s
Termination Date, or (ii) Executive’s highest annual base salary rate, exclusive of bonuses,
commissions and other Incentive Pay, as in effect in any of the three (3) full calendar years
preceding Executive’s Termination Date.



     (b) “Board” means the Board of Directors of the Company.



     (c) “Cause”:



          (i) For purposes of Involuntary Termination Prior to a Change in Control, means a
determination by the Company’s Chief Executive Officer or Senior Vice President-People, in either
case with legal advice and consultation of the



 









 





Company’s
Senior Vice President — General Counsel, acting in his authority as the Company’s
general counsel, that Executive has committed any of the following acts:




               (A) continued violations of the Executive’s obligations which are demonstrably willful or
deliberate on the Executive’s part after there has been delivered to the Executive a written demand
for performance from the Company which describes the basis for the Company’s belief that the
Executive has willfully or deliberately violated his obligations to the Company;



               (B) engaging in willful misconduct which is injurious to the Company or any Subsidiary;



               (C) committing a felony, an act of fraud against or the misappropriation of property belonging
to the Company or any Subsidiary;



               (D) breaching, in any material respect, terms of any confidentiality or proprietary
information agreement between the Executive and the Company; or



               (E) committing a material violation of the Company’s Code of Business Ethics or Employee
Conduct and Standards Policy, as either or both are in effect from time to time by the Company.



          (ii) For purposes of Involuntary Termination Associated With a Change in Control, means a
determination by the Board that Executive has committed any of the following acts:




               (A) the Executive has been convicted of a criminal violation involving fraud, embezzlement or
theft in connection with his duties or in the course of her employment with the Company or any
Subsidiary; or



               (B) the Executive has committed intentional wrongful disclosure of secret processes or
confidential information of the Company or any Subsidiary; and any such act has been demonstrably
and materially harmful to the Company. For purposes of this subparagraph (B), no act on the part
of the Executive will be deemed “intentional” if it was due primarily to an error in judgment or
negligence, but will be deemed “intentional” if done by the Executive not in good faith and without
reasonable belief that the Executive’s action was in the best interest of the Company.


Notwithstanding the foregoing, the Executive will not be deemed to have been terminated for
“Cause” under this subsection (ii) unless and until there has been delivered to the Executive a
copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the
members of the Board then in office at a meeting of the Board, finding that, in the good faith
opinion of the Board, the Executive has committed an act constituting “Cause,” as herein defined,
and specifying the particulars thereof in detail. Prior to any such determination, Executive shall
be provided with reasonable notice of such pending determination and Executive, together with his
counsel (if the Executive chooses to have counsel present at such meeting), shall be provided with
the opportunity


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 to be heard before the Board makes any such determination. Nothing herein will limit the
right of the Executive or his beneficiaries to contest the validity or propriety of any such
determination.




     (d) “Change in Control” means the occurrence of any of the following events:



          (i) the acquisition by any individual, entity or group (within the meaning of section 13(d)(3)
or 14(d)(2) of the Exchange Act) (a “Person”) of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 25% or more of the combined voting power of the then
outstanding Voting Stock of the Company; provided, however, that for purposes of this Section
1(d)(i), the following acquisitions will not constitute a Change in Control: (A) any issuance of
Voting Stock of the Company directly from the Company that is approved by the Incumbent Board (as
defined in Section 1(d)(ii), below), (B) any acquisition by the Company of Voting Stock of the
Company, (C) any acquisition of Voting Stock of the Company by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any Subsidiary, or (D) any acquisition of
Voting Stock of the Company by any Person pursuant to a Business Combination that complies with
clauses (A), (B) and (C) of Section 1(d)(iii), below; and provided, further, that a Change in
Control will not occur if any Person becomes the beneficial owner of 25% or more of the combined
voting power of the Voting Stock of the Company solely as a result of an issuance of Voting Stock
described in clause (A) of this Section 1(d)(i) or an acquisition of Voting Stock described in
clause (B) of this Section 1(d)(i) unless and until such Person thereafter acquires beneficial
ownership of Voting Stock of the Company that causes the aggregate percent of the combined voting
power of the Voting Stock of the Company then owned beneficially by such Person to exceed the
percent of the combined voting power of Voting Stock of the Company owned beneficially by such
Person immediately after such issuance or acquisition described in clause (A) or (B) of this
Section 1(d)(i);




          (ii) individuals who, as of the date hereof, constitute the Board (the “Incumbent Board,” as
modified by this Section 1(d)(ii)), cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a Director subsequent to the date hereof
whose election, or nomination for election by the Company’s stockholders, was approved by a vote of
at least two-thirds of the Directors then comprising the Incumbent Board (either by a specific vote
or by approval of the proxy statement of the Company in which such person is named as a nominee for
director, without objection to such nomination) will be deemed to have then been a member of the
Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest (within the meaning of Rule
14a-11 of the Exchange Act) with respect to the election or removal of Directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other than the Board;




          (iii) consummation of a reorganization, merger or consolidation, a sale or other disposition
of all or substantially all of the assets of the Company, or other transaction (each, a “Business
Combination”), unless, in each case, immediately following such Business Combination, (A) all or
substantially all of the individuals and

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entities who were the beneficial owners of Voting Stock of the Company immediately prior to
such Business Combination beneficially own, directly or indirectly, more than 50% of the combined
voting power of the then outstanding shares of Voting Stock of the entity resulting from such
Business Combination (including, without limitation, an entity which as a result of such
transaction owns the Company or all or substantially all of the Company’s assets either directly or
through one or more subsidiaries), (B) no Person (other than the Company; such entity resulting
from such Business Combination; any employee benefit plan (or related trust) sponsored or
maintained by the Company, any Subsidiary or such entity resulting from such Business Combination;
or any Person who immediately prior to such Business Combination beneficially owned directly or
indirectly 25% or more of the combined voting power of the voting stock of the Company and whose
ownership of such Voting Stock did not result in a Change in Control under Section 1(d)(i))
beneficially owns, directly or indirectly, 25% or more of the combined voting power of the then
outstanding shares of Voting Stock of the entity resulting from such Business Combination, and (C)
at least a majority of the members of the Board of Directors of the entity resulting from such
Business Combination were members of the Incumbent Board at the time of the execution of the
initial agreement or of the action of the Board providing for such Business Combination; or




          (iv) approval by the stockholders of the Company of a complete liquidation or dissolution of
the Company, except pursuant to a Business Combination that complies with clauses (A), (B) and (C)
of Section 1(d)(iii).




     (e) “COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1986, as amended.



     (f) “Code” means the Internal Revenue Code of 1986, as amended.



     (g) “Constructive Termination Associated With a Change in Control” means the termination of
the Executive’s employment with the Company by Executive as a result of the occurrence of one of
the following events as a result of a Change in Control:



          (i) without the Executive’s express written consent, the failure to elect or reelect or
otherwise to maintain the Executive in the office or the position, or an equivalent office or
position, of or with the Company and/or a Subsidiary (or any successor thereto by operation of law
of or otherwise), as the case may be, which the Executive held immediately prior to a Change in
Control, or the removal of the Executive as a Director of the Company and/or a Subsidiary (or any
successor thereto) if the Executive has been a Director of the Company and/or a Subsidiary
immediately prior to the Change in Control;




          (ii) without the Executive’s express written consent, the failure of the Company to remedy any
of the following within ten (10) business days after receipt by the Company of written notice
thereof from the Executive: (A) an adverse change in the nature or scope of the authorities,
powers, functions, responsibilities or duties attached to the position with the Company and any
Subsidiary which the Executive held immediately prior to the Change in Control, (B) a reduction in
the aggregate of the Executive’s Base

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Pay and Incentive Pay, or (C) the termination or denial of the Executive’s rights to Employee
Benefits or a reduction in the scope or value thereof;




          (iii) without the Executive’s express written consent, a determination by the Executive (which
determination will be conclusive and binding upon the parties hereto provided it has been made in
good faith and in all events will be presumed to have been made in good faith unless otherwise
shown by the Company by clear and convincing evidence) that a change in circumstances has occurred
following a Change in Control, including, without limitation, a change in the scope of the business
or other activities for which the Executive was responsible immediately prior to the Change in
Control, which has rendered the Executive unable to carry out, has hindered the Executive’s
performance of, or has caused the Executive to suffer a reduction in, any of the authorities,
powers, functions, responsibilities or duties attached to the position held by the Executive
immediately prior to the Change in Control, which situation is not remedied within ten (10)
business days after written notice to the Company from the Executive of such determination;




          (iv) without the Executive’s express written consent, the liquidation, dissolution, merger,
consolidation or reorganization of the Company or transfer of all or substantially all of its
business and/or assets, unless the successor or successors (by liquidation, merger, consolidation,
reorganization, transfer or otherwise) to which all or substantially all of its business and/or
assets have been transferred (by operation of law or otherwise) assumes all duties and obligations
of the Company under this Agreement pursuant to Section 15(a);




          (v) without the Executive’s express written consent, a requirement by the Company that the
Executive have his principal location of work changed to any location that is in excess of
thirty-five (35) miles from the location thereof immediately prior to the Change in Control, or
that the Executive travel away from his office in the course of discharging his responsibilities or
duties hereunder at least 20% more (in terms of aggregate days in any calendar year or in any
calendar quarter when annualized for purposes of comparison to any prior year) than was required of
the Executive in any of the three (3) full years immediately prior to the Change in Control; or




          (vi) without limiting the generality or effect of the foregoing, without the Executive’s
express written consent, any material breach of this Agreement by the Company or any successor
thereto which is not remedied by the Company within ten (10) business days after receipt by the
Company of written notice from the Executive of such breach.



In no event shall the termination of Executive’s employment with the Company on account of the
Executive’s death or Disability or because the Executive engaged in conduct constituting Cause be
deemed to be a Constructive Termination Associated With a Change in Control.




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     (h) “Constructive Termination Prior to a Change in Control” means the termination of
Executive’s employment with the Company by the Executive as a result of:



          (i) without the Executive’s express written consent, a comprehensive and substantial reduction
in all or most of the Executive’s primary duties, authority and responsibilities compared to the
Executive’s duties, authority and responsibilities immediately prior to such reduction;




          (ii) without the Executive’s express written consent, a significant reduction in the
Executive’s Base Pay compared to the Executive’s Base Pay in effect immediately prior to such
reduction; provided, however, that a reduction in the Executive’s Base Pay of less than twenty
percent (20%) or a reduction in the Executive’s Base Pay that is part of an overall reduction in
compensation also applied to other senior executives of the Company as a result of decreased
business performance by the Company or one of its business units, shall not constitute a
Constructive Termination Prior to a Change in Control; or




          (iii) without the Executive’s express written consent, the failure of the Company to obtain
the assumption of this Agreement by any successors.



In no event shall the termination of Executive’s employment with the Company on account of the
Executive’s death or Disability or because the Executive engaged in conduct constituting Cause be
deemed to be a Constructive Termination Prior to a Change in Control.




     (i) “Disability” means the Executive becomes permanently disabled within the meaning of, and
begins actually to receive disability benefits pursuant to, the long-term disability plan in effect
for, or applicable to, the Executive.



     (j) “Employee Benefits” means the perquisites, benefits and service credit for benefits as
provided under any and all employee retirement income and welfare benefit policies, plans, programs
or arrangements in which the Executive is entitled to participate, including, without limitation,
any stock option, performance share, performance unit, stock purchase, stock appreciation, savings,
pension, supplemental executive retirement, or other retirement income or welfare benefit, deferred
compensation, incentive compensation, group or other life, health, medical/hospital or other
insurance (whether funded by actual insurance or self-insured by the Company or a Subsidiary),
disability, salary continuation, expense reimbursement and other employee benefit policies, plans,
programs or arrangements that may now exist or any equivalent successor policies, plans, programs
or arrangements that may be adopted hereafter by the Company or a Subsidiary, providing
perquisites, benefits and service credit for benefits at least as great in the aggregate as are
payable thereunder.



     (k) “Exchange Act” means the Securities Exchange Act of 1934, as amended.



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     (l) “Incentive Pay” means the greater of: (i) Executive’s maximum Target Bonus for which
Executive was eligible during the period that includes the Termination Date, or (ii) the highest
aggregate bonus or incentive payment paid to Executive during any of the three (3) full calendar
years prior to his Termination Date. For purposes of this definition, “Target Bonus” means the
annual bonus, incentive, commission or other sales incentive compensation, or comparable incentive
payment opportunity which, in the sole discretion of the Company, is deemed to constitute a Target
Bonus, in addition to Base Pay, for which Executive was eligible to receive, but did not receive
prior to his Termination Date, in regard to services rendered in the year covered by Executive’s
Termination Date and is to be made pursuant to any bonus, incentive, profit-sharing, performance,
discretionary pay or similar agreement, policy, plan, program or arrangement (whether or not
funded) of the Company or a Subsidiary, or any successor thereto. For purposes of this definition,
“Incentive Pay” does not include any stock option, stock appreciation, stock purchase, restricted
stock or similar plan, program, arrangement or grant, one time bonus or payment (including, but not
limited to, any sign-on bonus), any amounts contributed by the Company for the benefit of Executive
to any qualified or nonqualified deferred compensation plan, whether or not provided under an
arrangement described in the prior sentence, or any amounts designated by the parties as amounts
other than Incentive Pay.



     (m) “Involuntary Termination Associated With a Change in Control” means the termination of
Executive’s employment related to a Change in Control: (i) by the Company for any reason other than
Cause, the Executive’s death or the Executive’s Disability, or (ii) on account of a Constructive
Termination Associated with a Change in Control.



     (n) “Involuntary Termination Prior to a Change in Control” means the termination of
Executive’s employment unrelated to a Change in Control: (i) by the Company for any reason other
than Cause, the Executive’s death or the Executive’s Disability, or (ii) on account of a
Constructive Termination Prior to a Change in Control.



     (o) “Key Employee” shall mean any employee or former employee of the Company who is considered
a key employee under section 409A(2)(B)(i) of the Code, having an identification date for purposes
of section 409A of December 31, or any other party deemed a key Employee under applicable
regulations issued pursuant to sections 409A.



     (p) “Restricted Business” means,



          (i) if the Executive is entitled to severance benefits under this Agreement on account of an
Involuntary Termination Prior to a Change in Control, (A) the design, development, manufacture,
marketing or support of local or wide area network products, computer operating systems,
applications products, software products or services that enable organizations to more effectively
conduct business using the Web, or any other software products of the type designed, developed,
manufactured, sold or supported by the Company or as proposed to be designed, developed,
manufactured, sold or supported by the Company pursuant to a development project that is actually
being

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pursued during the term of this Agreement; (B) any business that performs technology and
consulting services that help businesses develop and accelerate their transition to Internet-based
e-business solutions and processes, or management services that assist businesses in improving
their operating processes; or (C) any business that competes directly or indirectly with the
hardware, software or consulting businesses of the Company.




          (ii) if the Executive is entitled to severance benefits under this Agreement on account of an
Involuntary Termination Associated With a Change in Control, any business function with a direct
competitor of the Company that is substantially similar to the business function performed by the
Executive with the Company immediately prior to his Termination Date.




     (q) “Restricted Territory” means the counties, towns, cities or states of any country in which
the Company operates or does business.



     (r) “Severance Period” means the twelve (12) month period after the Executive’s Termination
Date.



     (s) “Subsidiary” means any Company controlled affiliate.



     (t) “Termination Date” means the last day of Executive’s employment with the Company.



     (u) “Termination of Employment” means, except as provided in the following sentence, the
termination of Executive’s active employment relationship with the Company on account of an
Involuntary Termination Prior to a Change in Control or an Involuntary Termination Associated With
a Change in Control. For purposes of the non-solicitation provision of Section 11 of the
Agreement, the term “Termination of Employment” shall mean the termination of Executive’s
employment relationship with the Company for any reason, including, but not limited to, the
Executive’s Involuntary Termination Prior to a Change in Control, Involuntary Termination
Associated With a Change in Control, voluntary termination, termination on account of Disability,
or termination by the Company for Cause.



     (v) “Voting Stock” means securities entitled to vote generally in the election of directors.



2. Termination Prior to a Change in Control. 




     (a) Involuntary Termination Prior to a Change in Control. In the event Executive’s
employment is terminated on account of an Involuntary Termination Prior to a Change in Control,
Executive shall be entitled to the benefits provided in subsection (b) of this Section 2.



     (b) Compensation and Benefits Upon Involuntary Termination Prior to a Change in
Control. Subject to the provisions of Section 5 hereof, in the event a



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termination described in subsection (a) of this Section 2 occurs, the Company shall pay and
provide to the Executive after his Termination Date:




          (i) 150% of his Base Pay, payable in equal installments over the Severance Period, consistent
with the Company’s past payroll practices, commencing with the first payroll period that occurs
after the period during which Executive’s right to revoke his acceptance to the terms of the
Release has expired. Notwithstanding the foregoing, the Company may determine, in its sole
discretion and at any time, to provide that the amounts payable under this subsection (i) shall be
paid to Executive in a lump sum, as opposed to installments over the Severance Period; provided,
however, that such discretion shall not be exercised in a manner which will cause adverse income
tax results to Executive.




          (ii) Executive shall receive his pro rated Incentive Pay for the year in which his Termination
of Employment occurs. The pro rated Incentive Pay shall be based on the Executive’s Incentive Pay
for the year in which Executive’s Termination Date occurs, multiplied by a fraction, the numerator
of which is the number of days during which Executive was employed by the Company in the year of
his termination and the denominator of which is 365. Such pro rated Incentive Pay shall be paid to
Executive in equal installments over the Severance Period, consistent with the Company’s past
payroll practices, commencing with the first payroll period that occurs after the period during
which Executive’s right to revoke his acceptance to the terms of the Release has expired.
Notwithstanding the foregoing, the Company may determine, in its sole discretion and at any time,
to provide that the amounts payable under this subsection (ii) shall be paid to Executive in a lump
sum, as opposed to installments over the Severance Period.




          (iii) For the Severance Period commencing the month immediately following the month in which
his Termination Date occurs, Executive shall continue to receive the medical and dental coverage in
effect on his Termination Date (or generally comparable coverage) for himself and, where
applicable, his spouse and dependents, as the same may be changed from time to time for employees
generally, as if Executive had continued in employment during such period; provided, however, that
in the event that such continuation coverage violates applicable law or results in a material
adverse tax effect to the Company or the Executive, the Company shall pay Executive cash in lieu of
such coverage in an amount equal to Executive’s after-tax cost of continuing comparable coverage,
where such coverage may not be continued by the Company (or where such continuation would adversely
affect the tax status of the plan pursuant to which the coverage is provided). If the Executive
does not receive the cash payment described in the preceding sentence, the Company shall take all
commercially reasonable efforts to provide that the COBRA health care continuation coverage period
under section 4980B of the Code, shall commence immediately after the foregoing twelve (12) month
benefit period, with such continuation coverage continuing until the earlier of (i) the end of the
applicable COBRA health care continuation coverage period or (ii) the date on which Executive is
covered by the medical and dental coverage of his successor employer, if any.




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          (iv) With respect to any Company stock options held by the Executive as of the date of such
Involuntary Termination Prior to a Change in Control, the Company shall accelerate the vesting of
that portion of the Executive’s stock options, if any, which would have vested and become
exercisable within the one (1) year period after the Executive’s Termination Date, such options,
plus any other options that previously became exercisable and have not expired or been exercised,
to remain exercisable, notwithstanding anything in any other agreement governing such options, for
the longer of (A) a period of six (6) months after the Executive’s Termination Date, or (B) the
period set forth in the award agreement covering the option (the “Option Expiration Date”);
provided, however, that in no event will the option be exercisable beyond its original term or, if
not addressed in the grant agreement, then not later than the latest date that will avoid adverse
tax consequences to the Executive (if such date is earlier than the Option Expiration Date).




          (v) With respect to any shares of Company common stock held by the Executive that are, at the
time of such Involuntary Termination Prior to a Change in Control, subject to the Company’s
repurchase right upon termination of the Executive’s employment (“Restricted Stock”), the Company
shall waive such repurchase right as to the number of shares of Restricted Stock that would have
vested within the one (1) year period after the Executive’s Termination Date.




          (vi) To cover the cost of outplacement assistance services for Executive that are actually
provided by an outplacement agency selected by Executive, for which the Company provides prior
approval, with such approval not to be unreasonably withheld, in an amount not to exceed twenty
percent (20%) of the Executive’s Base Pay.




          (vii) Executive shall receive any amounts earned, accrued or owing but not yet paid to
Executive as of his Termination Date, payable in a lump sum, and any benefits accrued or earned in
accordance with the terms of any applicable benefit plans and programs of the Company.




3. Termination Associated With a Change in Control.




     (a) Involuntary Termination Associated With a Change in Control. In the event
Executive’s employment is terminated after, or in connection with, a Change in Control, on account
of (i) an Involuntary Termination Associated With a Change in Control within the two year period
after the Change in Control, or (ii) an Involuntary Termination Associated With a Change in Control
that occurs (A) not more than six (6) months prior to the date on which a Change in Control occurs
or (B) following the commencement of any discussion with a third person that ultimately results in
a Change in Control, Executive shall be entitled to the benefits provided in subsection (b) of this
Section 3. If Executive is entitled to benefits described in this Section 3 by reason of clause
(a)(ii) above, Executive shall receive the compensation and benefits described in Section 2(b)
above after his Termination of Employment, in accordance with the provisions of Section 2(b),
regardless of whether the Change in Control actually occurs, and Executive shall receive the
additional compensation and benefits described in Section



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3(b) below only if the Change in Control is consummated and shall receive such additional
amounts after the consummation of the Change in Control, in accordance with the provisions of
Section 3(b) below. For purposes of subsection 3(a)(ii)(B) above, to be eligible to receive
amounts described in Section 3(b) below, the Change in Control must be consummated within the
twelve (12) month period following Executive’s Termination Date, except in circumstances pursuant
to which the consummation of the Change in Control is delayed, through no failure of the Company or
the third person, by a governmental or regulatory authority or agency with jurisdiction over the
matter, or as a result of other similar circumstances. In such a circumstance, the remaining of
the twelve (12) month period shall be tolled and shall recommence upon termination of the delaying
event.




     (b) Compensation and Benefits Upon Involuntary Termination Associated With a Change in
Control. Subject to the provisions of Section 5 hereof, in the event a termination described
in subsection (a) of this Section 3 occurs, the Company shall pay and provide to the Executive
after his Termination Date:



          (i) Lump sum payment equal to (A) 2 times Base Pay, plus (B) 2 times Incentive Pay. Payment
shall be made in accordance with the Company’s normal payroll practices but not later than the
thirtieth day after Executive’s Termination Date (or the end of the revocation period for the
Release, if later); provided, however, that if Executive is deemed by the Company to be a Key
Employee as of the Termination Date, such payment shall occur on the earlier of the following: (x)
six months following Executive’s Termination Date; or (y) the date on which the Company determines
payment may be made without causing adverse tax consequences to Executive.




          (ii) Executive shall receive his pro rated Incentive Pay for the year in which his Termination
of Employment occurs. The pro rated Incentive Pay shall be based on the Executive’s Incentive Pay
for the year in which Executive’s Termination Date occurs, multiplied by a fraction, the numerator
of which is the number of days during which Executive was employed by the Company in the year of
his termination and the denominator of which is 365. Such pro rated Incentive Pay shall be paid to
Executive in a lump sum in accordance with the Company’s normal payroll practices but not later
than the thirtieth day after Executive’s Termination Date (or the end of the revocation period for
the Release, if later).




          (iii) For the Severance Period commencing the month immediately following the month in which
his Termination Date occurs, Executive shall continue to receive the medical and dental coverage in
effect on his Termination Date (or generally comparable coverage) for himself and, where
applicable, his spouse and dependents, as the same may be changed from time to time for employees
generally, as if Executive had continued in employment during such period; provided, however, that
in the event that such continuation coverage violates applicable law or results in a material
adverse tax effect to the Company or the Executive, the Company shall pay Executive cash in lieu of
such coverage in an amount equal to Executive’s after-tax cost of continuing comparable coverage,
where such coverage may not be continued by the Company (or where such continuation would adversely
affect the tax status of the plan pursuant to which the

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coverage is provided). If the Executive does not receive the cash payment described in the
preceding sentence, the Company shall take all commercially reasonable efforts to provide that the
COBRA health care continuation coverage period under section 4980B of the Code, shall commence
immediately after the foregoing twenty-four (24) month benefit period, with such continuation
coverage continuing until the earlier of (i) the end of the applicable COBRA health care
continuation coverage period or (ii) the date on which Executive is covered by the medical and
dental coverage of his successor employer, if any.




          (iv) Lump sum payment equal to the total amount that Executive would have received under the
Company’s 401(k) plan as a Company match if Executive was eligible to participate in the Company’s
401(k) plan for the twenty-four (24) month period after his Termination Date and he contributed the
maximum amount to the plan for the match. Payment shall be made in accordance with the Company’s
normal payroll practices but not later than the thirtieth day after Executive’s Termination Date
(or the end of the revocation period for the Release, if later).




          (v) Lump sum payment equal to the total premiums that the Company would have paid under
Executive’s split-dollar life insurance policy, if any, that is in effect immediately prior to his
Termination Date, if Executive was employed by the Company for the twenty-four (24) month period
following Executive’s Termination Date; provided, however, that if the remaining length of the term
of the split-dollar arrangement pursuant to which the Company must make premium payments is less
than the foregoing twenty-four (24) month period, Executive shall only receive a lump sum payment
equal to the remaining Company premiums for the term of the arrangement. Payment shall be made in
accordance with the Company’s normal payroll practices but not later than the thirtieth day after
Executive’s Termination Date (or the end of the revocation period for the Release, if later).
Notwithstanding the foregoing, no payment shall be made to Executive pursuant to this subsection
(v) if on the Executive’s Termination Date, either Executive does not have a split-dollar life
insurance policy with the Company or the Company has no obligations to make premium contributions
to Executive’s split-dollar life insurance policy.




          (vi) Lump sum payment equal to twenty percent (20%) of the Executive’s Base Pay in order to
cover the cost of outplacement assistance services for Executive. Payment shall be made in
accordance with the Company’s normal payroll practices but not later than the thirtieth day after
Executive’s Termination Date (or the end of the revocation period for the Release, if later).




          (vii) Executive shall receive any amounts earned, accrued or owing but not yet paid to
Executive as of his Termination Date, payable in a lump sum, and any benefits accrued or earned in
accordance with the terms of any applicable benefit plans and programs of the Company.




     (c) Notwithstanding any provision to the contrary in any applicable plan, program or
agreement, upon the occurrence of a Change in Control, all stock options, Restricted Stock and
other equity rights held by the Executive will become fully vested



-12-









 




and/or exercisable, as the case may be, on the date on which the Change in Control occurs, and
all stock options held by the Executive shall remain exercisable, notwithstanding anything in any
other agreement governing such options, for the longer of (i) a period of twenty-four (24) months
after the Executive’s Termination Date, or (ii) the period set forth in the award agreement
covering the option (the “Option Expiration Date”); provided, however, that in no event will the
option be exercisable beyond its original term or, if not addressed in the grant agreement, then
not later than the latest date that will avoid adverse tax consequences to the Executive (if such
date is earlier than the Option Expiration Date).



4. Termination of Employment on Account of Disability, Cause or Death. Notwithstanding
anything in this Agreement to the contrary, if Executive’s employment terminates on account of
Disability, Executive shall be entitled to receive disability benefits under any disability program
maintained by the Company that covers Executive, and Executive shall not be considered to have
terminated employment under this Agreement and shall not receive benefits pursuant to Sections 2
and 3 hereof. If Executive’s employment terminates on account of Cause or because of his death,
Executive shall not be considered to have terminated employment under this Agreement and shall not
receive benefits pursuant to Sections 2 and 3 hereof.



5. Release. Notwithstanding the foregoing, no such payments shall be made or benefits
provided unless Executive executes, and does not revoke, the Company’s standard written release,
substantially in the form as attached hereto as Annex A, (the “Release”), of any and all claims
against the Company and all related parties with respect to all matters arising out of Executive’s
employment by the Company (other than entitlements under the terms of this Agreement or under any
other plans or programs of the Company in which Executive participated and under which Executive
has accrued or become entitled to a benefit) or a termination thereof.



6. Enforcement. Without limiting the rights of the Executive at law or in equity, if the
Company fails to make any payment or provide any benefit required to be made or provided hereunder
on a timely basis, the Company will pay interest on the amount or value thereof at an annualized
rate of interest equal to the so-called composite “prime rate” as quoted from time to time during
the relevant period in the Eastern Edition of The Wall Street Journal. Such interest will
be payable as it accrues on demand. Any change in such prime rate will be effective on and as of
the date of such change.



7. Certain Additional Payments by the Company.




     (a) The provisions of this Section 7 shall apply notwithstanding anything in this Agreement to
the contrary. Subject to subsection (b) below, in the event that it shall be determined that any
payment, benefit provided or distribution by the Company to or for the benefit of Executive,
whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or
otherwise (a “Payment”), would constitute an “excess parachute payment” within the meaning of
section 280G of the Code, the Company shall pay Executive an additional amount (the “Gross-Up
Payment”) such that the net amount retained by Executive after deduction of any excise tax imposed
under



-13-









 




section 4999 of the Code, and any federal, state and local income tax, employment tax, excise
tax and other tax imposed upon the Gross-Up Payment, shall be equal to the Payment. The right to
each payment of such amount shall vest as of the day on which the payment determination is made,
and each such payment shall be made on the thirtieth day following the vesting date.




     (b) Notwithstanding subsection (a), and notwithstanding any other provisions of this Agreement
to the contrary, if the net after-tax benefit to Executive of receiving the Gross-Up Payment does
not exceed the Safe Harbor Amount (as defined below) by more than 10% (as compared to the net-after
tax benefit to Executive resulting from elimination of the Gross-Up Payment and reduction of the
Payments to the Safe Harbor Amount), then (i) the Company shall not pay Executive the Gross-Up
Payment and (ii) the provisions of subsection (c) below shall apply. The term “Safe Harbor Amount”
means the maximum dollar amount of parachute payments that may be paid under section 280G of the
Code without imposition of an excise tax under section 4999 of the Code.



     (c) The provisions of this subsection (c) shall apply only if the Company is not required to
pay Executive a Gross-Up Payment as a result of subsection (b) above. If the Company is not
required to pay Executive a Gross-Up Payment as a result of the provisions of subsection (b), the
Company will apply a limitation on the Payment amount as set forth in subsection (i) below (a
“Parachute Cap”) if the application of the Parachute Cap is beneficial to Executive, according to
the following provisions:



          (i) If subsection (ii) does not apply, the aggregate present value of the Payments under
Section 3 of this Agreement (“Agreement Payments”) shall be reduced (but not below zero) to the
Reduced Amount. The “Reduced Amount” shall be an amount expressed in present value which maximizes
the aggregate present value of Agreement Payments without causing any Payment to be subject to the
limitation of deduction under section 280G of the Code. For purposes of this Section 7, “present
value” shall be determined in accordance with section 280G(d)(4) of the Code.




          (ii) It is the intention of the parties that the Parachute Cap apply only if application of
the Parachute Cap is beneficial to Executive. Therefore, if the net amount that would be retained
by Executive under this Agreement without the Parachute Cap, after payment of any excise tax under
section 4999 of the Code, exceeds the net amount that would be retained by Executive with the
Parachute Cap, then the Company shall not apply the Parachute Cap to Executive’s payments. In that
event, neither the Parachute Cap nor the Gross-Up Payment will apply to Executive.




     (d) All determinations to be made under this Section 7 shall be made by the nationally
recognized independent public accounting firm used by the Company immediately prior to the Change
in Control (“Accounting Firm”), which Accounting Firm shall provide its determinations and any
supporting calculations to the Company and Executive within ten days of Executive’s termination
date. If any Gross-Up Payment is required to be made, the Company shall make the Gross-Up Payment
within ten days after receiving the Accounting Firm’s calculations. Any such determination by the
Accounting Firm shall be binding upon the Company and Executive.



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     (e) All of the fees and expenses of the Accounting Firm in performing the determinations
referred to in this Section 7 shall be borne solely by the Company.


8. No Mitigation Obligation. The Company hereby acknowledges that it will be difficult and
may be impossible for the Executive to find reasonably comparable employment following the
Termination Date. Accordingly, the payment of the severance compensation by the Company to the
Executive in accordance with the terms of this Agreement is hereby acknowledged by the Company to
be reasonable, and the Executive will not be required to mitigate the amount of any payment
provided for in this Agreement by seeking other employment or otherwise, nor will any profits,
income, earnings or other benefits from any source whatsoever create any mitigation, offset,
reduction or any other obligation on the part of the Executive hereunder or otherwise.



9. Legal Fees and Expenses. In the event of a Change in Control, it is the intent of the
Company that the Executive not be required to incur legal fees and the related expenses associated
with the interpretation, enforcement or defense of the Executive’s rights under this Agreement by
litigation or otherwise because the cost and expense thereof would detract from the benefits
intended to be extended to the Executive hereunder. Accordingly, if a Change in Control occurs and
it should appear to the Executive that the Company has failed to comply with any of its obligations
under this Agreement or in the event that the Company or any other person takes or threatens to
take any action to declare this Agreement void or unenforceable, or institutes any litigation or
other action or proceeding designed to deny, or to recover from, the Executive the benefits
provided or intended to be provided to the Executive under Section 3(b) of the Agreement, the
Company irrevocably authorizes the Executive from time to time to retain counsel of the Executive’s
choice, at the expense of the Company as hereafter provided, to advise and represent the Executive
in connection with any such interpretation, enforcement or defense, including without limitation
the initiation or defense of any litigation or other legal action, whether by or against the
Company or any Director, officer, stockholder or other person affiliated with the Company, in any
jurisdiction. Notwithstanding any existing or prior attorney-client relationship between the
Company and such counsel, the Company irrevocably consents to the Executive’s entering into an
attorney-client relationship with such counsel, and in that connection the Company and the
Executive agree that a confidential relationship will exist between the Executive and such counsel.
Without respect to whether the Executive prevails, in whole or in part, in connection with any of
the foregoing, the Company will pay and be solely financially responsible for any and all
attorneys’ and related fees and expenses incurred by the Executive in connection with any of the
foregoing; provided that, in regard to such matters, the Executive has not acted frivolously, in
bad faith or with no colorable claim of success. Such expenses will be paid by the Company on the
thirtieth day following its receipt of adequate substantiation to support payment of the expense
amount.



10. Confidentiality. The Executive hereby covenants and agrees that he will not disclose
to any person not employed by the Company, or use in connection with engaging in competition with
the Company, any confidential or proprietary information (as defined below) of the Company. For
purposes of this Agreement, the term “confidential or proprietary information” will include all
information of any nature and in any form that is


-15-









 






owned by the Company and that is not publicly available (other than by the Executive’s breach of
this Section 10) or generally known to persons engaged in businesses similar or related to those of
the Company. Confidential or proprietary information will include, without limitation, the
Company’s financial matters, customers, employees, industry contracts, strategic business plans,
product development (or other proprietary product data), marketing plans, consulting solutions and
processes, and all other secrets and all other information of a confidential or proprietary nature
which is protected by the Uniform Trade Secrets Act. For purposes of the preceding two sentences,
the term “Company” will also include any Subsidiary (collectively, the “Restricted Group”). The
foregoing obligations imposed by this Section 10 will not apply (i) in the course of the business
of and for the benefit of the Company, (ii) if such confidential or proprietary information has
become, through no fault of the Executive, generally known to the public, or (iii) if the Executive
is required by law to make disclosure (after giving the Company notice and an opportunity to
contest such requirement).



11. Covenants Not to Compete and Not to Solicit. In the event of Executive’s Termination
of Employment, the Company’s obligations to provide severance pay as provided in Sections 2 and 3
shall be expressly conditioned upon the Executive’s covenants not to compete and not to solicit as
provided herein. In the event the Executive breaches his obligations to the Company as provided
herein, the Company’s obligations to make severance payments to Executive pursuant to Sections 2
and 3 shall cease, without prejudice to any other remedies that may be available to the Company.




     (a) Covenant Not to Compete.



          (i) If Executive is receiving compensation and benefits under Section 2(b) above, then for a
period of nine (9) months following Executive’s Termination Date, the Executive shall not directly
or indirectly, engage in (whether as employee, consultant, proprietor, partner, director or
otherwise), or have any ownership interest in, or participate in a financing, operation, management
or control of, any person, firm, corporation or business that is a Restricted Business in a
Restricted Territory without the prior written consent of the Board. For this purpose, ownership
of no more than 5% of the outstanding Voting Stock of a publicly traded corporation shall not
constitute a violation of this provision.




          (ii) If Executive is receiving compensation and benefits under Section 3(b) above (or
subsequently becomes entitled to severance under Section 3(b) above because of a termination
described in Section 3(a)(ii)), then for a period of one (1) year following Executive’s Termination
Date, the Executive shall not directly or indirectly, engage in (whether as employee, consultant,
proprietor, partner, director or otherwise), or have any ownership interest in, or participate in a
financing, operation, management or control of, any person, firm, corporation or business that is a
Restricted Business in a Restricted Territory without the prior written consent of the Board. For
this purpose, ownership of no more than 5% of the outstanding Voting Stock of a publicly traded
corporation shall not constitute a violation of this provision.




-16-









 








     (b) Covenant Not to Solicit. The Executive shall not, for a period of two (2) years
after the Executive’s Termination Date for any reason: (i) solicit, encourage or take any other
action which is intended to induce any other employee of the Company to terminate his employment
with the Company; or (ii) interfere in any manner with the contractual or employment relationship
between the Company and any such employee of the Company. The foregoing shall not prohibit
Executive or any entity with which Executive may be affiliated from hiring a former employee of the
Company, provided that such hiring results exclusively from such former employee’s affirmative
response to a general recruitment effort.



     (c) Interpretation. The covenants contained herein are intended to be construed as a
series of separate covenants, one for each county, town, city and state or other political
subdivision of a Restricted Territory. Except for geographic coverage, each such separate covenant
shall be deemed identical in terms to the covenant contained in the preceding subsections. If, in
any judicial proceeding, the court shall refuse to enforce any of the separate covenants (or any
part thereof) deemed included in such subsections, then such unenforceable covenant (or such part)
shall be deemed to be eliminated from this Agreement for the purpose of those proceedings to the
extent necessary to permit the remaining separate covenants (or portions thereof) to be enforced.



     (d) Reasonableness. In the event that the provisions of this Section 11 shall ever be
deemed to exceed the time, scope or geographic limitations permitted by applicable laws, then such
provisions shall be reformed to the maximum time, scope or geographic limitations, as the case may
be, permitted by applicable laws.


12. Employment Rights. Nothing expressed or implied in this Agreement will create any
right or duty on the part of the Company or the Executive to have the Executive remain in the
employment of the Company or any Subsidiary prior to or following any Change in Control.



13. Certain Tax Matters.




     (a) Withholding. The Company may withhold from any amounts payable under this
Agreement all federal, state, city or other taxes as the Company is required to withhold pursuant
to any applicable law, regulation or ruling.



     (b) Effect of Section 409A of the Code. The parties intend that the provisions of
this Agreement will operate in a manner that will avoid adverse federal income tax consequences
under Section 409A of the Code. Executive hereby acknowledges and agrees that the Company may take
any actions deemed necessary in its sole discretion to avoid adverse federal income tax
consequences under section 409A of the Code and that such action may be taken without the consent
of Executive.



     (c) Time of Payment. If a payment is not made by the designated payment date under
this Agreement, the payment will be made in any event by the later of (i) the end of the calendar
year in which the designated payment date occurs or (ii) the 15th day



-17-









 




of the third calendar month following the designated payment date, or such other date as may
be permitted by section 409A of the Code and the regulations thereunder.



14. Term of Agreement. This Agreement shall continue in full force and effect for the
duration of Executive’s employment with the Company; provided, however, that after the termination
of Executive’s employment during the term of this Agreement, this Agreement shall remain in effect
until all of the obligations of the parties hereunder are satisfied or have expired.



15. Successors and Binding Agreement.




     (a) The Company will require any successor (whether direct or indirect, by purchase, merger,
consolidation, reorganization or otherwise) to all or substantially all of the business or assets
of the Company, by agreement in form and substance reasonably satisfactory to the Executive,
expressly to assume and agree to perform this Agreement in the same manner and to the same extent
the Company would be required to perform if no such succession had taken place. This Agreement
will be binding upon and inure to the benefit of the Company and any successor to the Company,
including without limitation any persons acquiring directly or indirectly all or substantially all
of the business or assets of the Company whether by purchase, merger, consolidation, reorganization
or otherwise (and such successor will thereafter be deemed the “Company” for the purposes of this
Agreement), but will not otherwise be assignable, transferable or delegable by the Company.



     (b) This Agreement will inure to the benefit of and be enforceable by the Executive’s personal
or legal representatives, executors, administrators, successors, heirs, distributees and legatees.
This Agreement will supersede the provisions of any employment or other agreement between the
Executive and the Company that relate to any matter that is also the subject of this Agreement, and
such provisions in such other agreements will be null and void.



     (c) This Agreement is personal in nature and neither of the parties hereto will, without the
consent of the other, assign, transfer or delegate this Agreement or any rights or obligations
hereunder except as expressly provided in Sections 15(a) and 15(b). Without limiting the
generality or effect of the foregoing, the Executive’s right to receive payments hereunder will not
be assignable, transferable or delegable, whether by pledge, creation of a security interest, or
otherwise, other than by a transfer by the Executive’s will or by the laws of descent and
distribution and, in the event of any attempted assignment or transfer contrary to this Section
15(c), the Company will have no liability to pay any amount so attempted to be assigned,
transferred or delegated.


16. Notices. For all purposes of this Agreement, all communications, including without
limitation notices, consents, requests or approvals, required or permitted to be given hereunder
will be in writing and will be deemed to have been duly given when hand delivered or dispatched by
electronic facsimile transmission (with receipt thereof orally confirmed by the recipient), or five
(5) business days after having been mailed by United States registered or certified mail, return
receipt requested, postage prepaid, or


-18-









 






three (3) business days after having been sent by a nationally recognized courier service for
overnight/next-day delivery, such as FedEx, UPS, or the United States Postal Service, addressed to
the Company (to the attention of the Secretary of the Company) at its principal executive office
and to the Executive at his principal residence, or to such other address as any party may have
furnished to the other in writing and in accordance herewith, except that notices of changes of
address will be effective only upon receipt.



17. Governing Law. The validity, interpretation, construction and performance of this
Agreement will be governed by and construed in accordance with the substantive laws of the
Commonwealth of Massachusetts, without giving effect to the principles of conflict of laws of such
Commonwealth.



18. Validity. If any provision of this Agreement or the application of any provision
hereof to any person or circumstances is held invalid, unenforceable or otherwise illegal, the
remainder of this Agreement and the application of such provision to any other person or
circumstances will not be affected, and the provision so held to be invalid, unenforceable or
otherwise illegal will be reformed to the extent (and only to the extent) necessary to make it
enforceable, valid or legal.



19. Miscellaneous.




     (a) Except as provided in subparagraph (b) below, no provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is agreed to in
writing signed by the Executive and the Company. No waiver by either party hereto at any time of
any breach by the other party hereto or compliance with any condition or provision of this
Agreement to be performed by such other party will be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, expressed or implied with respect to the subject matter hereof
have been made by either party that are not set forth expressly in this Agreement. References to
Sections are to references to Sections of this Agreement. Any reference in this Agreement to a
provision of a statute, rule or regulation will also include any successor provision thereto.
Whenever used herein, the masculine includes the feminine.



     (b) Notwithstanding any contrary provision of this Agreement, the Company may modify benefits
otherwise payable or to be provided under this Agreement without obtaining the Executive’s consent
to such modification to the extent that the Company determines in its sole discretion that such
modification is necessary or appropriate in order to effect compliance with applicable law or
regulatory requirements. In particular, the Executive acknowledges and agrees that the provisions
of Section 409A of the Code may require delay in payment or provision of benefits otherwise due
under the terms of this Agreement until a date that is at least six (6) months following the date
of the Executive’s separation from service with the Company, and may limit the permissible forms or
timing of severance benefits that may be provided under this Agreement.


20. Survival. Notwithstanding any provision of this Agreement to the contrary, the
parties’ respective rights and obligations under Sections 2, 3, 7, 9, 10, and 11 will survive


-19-









 






any termination or expiration of this Agreement or the termination of the Executive’s employment
for any reason whatsoever.



21. Counterparts. This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original but all of which together will constitute one and the same
agreement.




[SIGNATURE PAGE FOLLOWS]




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     IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered
as of the date first above written.



	 	 	 	 	 
	NOVELL, INC.
	 	 	 	 
	 
	 	 	 	 
	By:

	 	 	 	 
	/s/ Jack L. Messman
	 	 	 	 
	 

Name: Jack L. Messman

	 	 	 	 
	Title: Chairman and Chief Executive Officer
	 	 	 	 
	 
	 	 	 	 
	EXECUTIVE
	 	 	 	 
	/s/
Jeffrey M. Jaffe
	 	 	 	 
	 


	 	 	 	 






-21-









 






Annex A 




SEPARATION OF EMPLOYMENT AGREEMENT AND GENERAL RELEASE




     THIS SEPARATION OF EMPLOYMENT AGREEMENT AND GENERAL RELEASE (the “Agreement”) is made as of
this
                    
 day of                     ,                     , by and between Novell, Inc. (the “Company”) and                     
(“Executive”).



     WHEREAS, Executive formerly was employed by the Company as                     ;




     WHEREAS, Executive and Company entered into the Severance Agreement, dated                                          , 200_,
(the “Severance Agreement”) which provides for certain benefits in the event that Executive’s
employment is terminated on account of a reason set forth in the Severance Agreement;



     WHEREAS, Executive and the Company mutually desire to terminate Executive’s employment on an
amicable basis, such termination to be effective
                    
                    ,                       (“Date of Resignation”); and



     WHEREAS, in connection with the termination of Executive’s employment, the parties have agreed
to a separation package and the resolution of any and all disputes between them.



     NOW, THEREFORE, IT IS HEREBY AGREED by and between Executive and the Company as follows:



     1. (a) Executive, for and in consideration of the commitments of the Company as set forth in
paragraph 6 of this Agreement, and intending to be legally bound, does hereby REMISE, RELEASE AND
FOREVER DISCHARGE the Company, its affiliates, subsidiaries and parents, and its officers,
directors, employees, and agents, and its and their respective successors and assigns, heirs,
executors, and administrators (collectively, “Releasees”) from all causes of action, suits, debts,
claims and demands whatsoever in law or in equity, which Executive ever had, now has, or hereafter
may have, whether known or unknown, or which Executive’s heirs, executors, or administrators may
have, by reason of any matter, cause or thing whatsoever, from the beginning of Executive’s
employment to the date of this Agreement, and particularly, but without limitation of the foregoing
general terms, any claims arising from or relating in any way to Executive’s employment
relationship with the Company, the terms and conditions of that employment relationship, and the
termination of that employment relationship, including, but not limited to, any claims arising
under the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, Title VII
of The Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave
Act of 1993, the Employee Retirement Income Security Act of 1974, [State Fair Employment Practice
Law], and any other claims under any federal, state or local common law, statutory, or regulatory
provision, now or hereafter recognized, and



A-1









 




any claims for attorneys’ fees and costs. This Agreement is effective without regard to the
legal nature of the claims raised and without regard to whether any such claims are based upon
tort, equity, implied or express contract or discrimination of any sort.




          (b) To the fullest extent permitted by law, and subject to the provisions of paragraph 11
below, Executive represents and affirms that (i) [other than                     ,] Executive has not filed or
caused to be filed on Executive’s behalf any claim for relief against the Company or any Releasee
and, to the best of Executive’s knowledge and belief, no outstanding claims for relief have been
filed or asserted against the Company or any Releasee on Executive’s behalf; (ii) [other than
                    ,] Executive has not reported any improper, unethical or illegal conduct or activities to
any supervisor, manager, department head, human resources representative, agent or other
representative of the Company, to any member of the Company’s legal or compliance departments, or
to the ethics hotline, and has no knowledge of any such improper, unethical or illegal conduct or
activities; and (iii) Executive will not file, commence, prosecute or participate in any judicial
or arbitral action or proceeding against the Company or any Releasee based upon or arising out of
any act, omission, transaction, occurrence, contract, claim or event existing or occurring on or
before the date of this Agreement.




     2. [The Company, for and in consideration of the commitments of the Executive as set forth in
this Agreement, and intending to be legally bound, does hereby REMISE, RELEASE AND FOREVER
DISCHARGE the Executive from all claims, demands or causes of action arising out of facts or
occurrences prior to the date of this Agreement, but only to the extent the Company knows or
reasonably should know of such facts or occurrence and only to the extent such claim, demand or
cause of action relates to a violation of applicable law or the performance of Executive’s duties
with the Company; provided, however, that this release of claims shall not in any case be effective
with respect to any claim by the Company alleging a breach of the Executive’s obligations under
this Agreement.]



[Note: Paragraph 2 only applies if Executive is receiving severance benefits on account of an
Involuntary Termination Associated With a Change in Control.]



     3. In consideration of the Company’s agreements as set forth in paragraph 6 herein, Executive
agrees to be comply with the limitations described in Sections 10 and 11 of the Severance
Agreement.



     4. Executive further agrees and recognizes that Executive has permanently and irrevocably
severed Executive’s employment relationship with the Company, that Executive shall not seek
employment with the Company or any affiliated entity at any time in the future, and that the
Company has no obligation to employ him in the future.



     5. Executive further agrees that Executive will not disparage or subvert the Company, or make
any statement reflecting negatively on the Company, its affiliated corporations or entities, or any
of their officers, directors, employees, agents or representatives, including, but not limited to,
any matters relating to the operation or



A-2









 




management of the Company, Executive’s employment and the termination of Executive’s
employment, irrespective of the truthfulness or falsity of such statement.




     6. In consideration for Executive’s agreement as set forth herein, the Company agrees:



[Note: The following severance benefits would apply if the Executive has an Involuntary
Termination Prior to a Change in Control.]



          (i) [to pay Executive 150% of Executive’s Base Pay (as defined in the Severance Agreement)
[for the Severance Period (as defined in the Severance Agreement), payable in equal installments,
consistent with the Company’s past payroll practices, commencing with the first payroll period that
occurs after the period during which Executive’s right to revoke Executive’s acceptance to the
terms of this Agreement have expired.] or [, payable in a lump sum, within thirty (30) days
after Executive’s Date of Resignation (or the end of the revocation period set forth in this
Agreement, if later).]




          (ii) to pay Executive Executive’s pro rated Incentive Pay (as defined in the Severance
Agreement) for the year in which Executive’s Date of Resignation occurs. Such pro rated Incentive
Pay shall be paid to Executive [for the Severance Period payable in equal installments, consistent
with the Company’s past payroll practices, commencing with the first payroll period that occurs
after the period during which Executive’s right to revoke Executive’s acceptance to the terms of
the Release has expired.] or [paid in a lump sum, within thirty (30) days after Executive’s
Date of Resignation (or the end of the revocation period set forth in this Agreement, if later).]




          (iii) [for a period of twelve (12) months following Executive’s Date of Resignation, Executive
shall continue to receive the medical and dental coverage in effect on Executive’s Date of
Resignation (or generally comparable coverage) for Executive and, where applicable, Executive’s
spouse and dependents, as the same may be changed from time to time for employees generally, as if
Executive had continued in employment during such period.] or [pay Executive cash in a lump
sum payment equal to Executive’s after-tax cost of continuing comparable medical and dental
coverage for the twelve (12) month period following Executive’s Date of Resignation]. [The Company
shall take all commercially reasonable efforts to provide that the COBRA health care continuation
coverage period under section 4980B of the Code, shall commence immediately after the foregoing
twelve (12) month benefit period, with such continuation coverage continuing until the earlier of
(i) the end of the applicable COBRA health care continuation coverage period or (ii) the date on
which Executive is covered by the medical and dental coverage of Executive’s successor employer, if
any.]




          (iv) with respect to any Company stock options held by the Executive as of Executive’s Date of
Resignation, the portion of Executive’s stock options, if any, which would have vested and become
exercisable within the one (1) year period after the Executive’s Date of Resignation shall become
vested and



A-3









 








exercisable as of Executive’s Date of Resignation, such options, plus any other options that
previously became exercisable and have not expired or been exercised, to remain exercisable,
notwithstanding anything in any other agreement governing such options, for the longer of (A) a
period of six (6) months after the Executive’s Date of Resignation, or (B) the period set forth in
the award agreement covering the option, subject in either case only to the original term of the
option. Any stock options held by Executive that are not exercisable as of the Executive’s Date of
Resignation shall terminate as of the Executive’s Date of Resignation.




          (v) with respect to any shares of Company common stock that are held by the Executive that
are, at the time of Executive’s Date of Resignation, subject to the Company’s repurchase right upon
termination of the Executive’s employment (“Restricted Stock”), to waive such repurchase right as
to the number of shares of Restricted Stock that would have become no longer subject to the
Company’s repurchase right within the one (1) year period after the Executive’s Date of
Resignation.




          (vi) pay the cost of outplacement assistance services for Executive that are actually provided
by an outplacement agency selected by Executive, which the Company provides prior approval, with
such approval not to be unreasonably withheld, in an amount not to exceed twenty percent (20%) of
the Executive’s Base Pay.




          (vii) Executive shall receive any amounts earned, accrued or owing but not yet paid to
Executive as of Executive’s Date of Resignation, payable in a lump sum, and any benefits accrued or
earned in accordance with the terms of any applicable benefit plans and programs of the Company.



Except as set forth in this Agreement, it is expressly agreed and understood that Releasees do
not have, and will not have, any obligations to provide Executive at any time in the future with
any payments, benefits or considerations other than those recited in this paragraph, or those
required by law, other than under the terms of any benefit plans which provide benefits or payments
to former employees according to their terms.]



[Note: The following severance benefits would apply if the Executive has an Involuntary
Termination Associated With a Change in Control.]




          (i) [to pay to Executive a lump sum payment equal to (A) 2 times Base Pay (as defined in the
Severance Agreement), plus (B) 2 times Incentive Pay (as defined in the Severance Agreement).
Payment shall be made within thirty (30) days after the effective date of Executive’s Date of
Resignation (or the end of the revocation period set forth in this Agreement, if later).




          (ii) to pay Executive Executive’s pro rated Incentive Pay (as defined in the Severance
Agreement) for the year in which Executive’s Date of

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Resignation occurs. Such pro rated Incentive Pay shall be paid to Executive in a lump sum
within thirty (30) days after the effective date of the termination (or the end of the revocation
period set forth in this Agreement, if later).




          (iii) [for a period of twenty-four (24) months following Executive’s Date of Resignation,
Executive shall continue to receive the medical and dental coverage in effect on Executive’s Date
of Resignation (or generally comparable coverage) for Executive and, where applicable, Executive’s
spouse and dependents, as the same may be changed from time to time for employees generally, as if
Executive had continued in employment during such period] or [pay Executive cash in a lump
sum payment equal to Executive’s after-tax cost of continuing comparable medical and dental
coverage for the twenty-four (24) month period following Executive’s Date of Resignation.] [The
Company shall take all commercially reasonable efforts to provide that the COBRA health care
continuation coverage period under section 4980B of the Code, shall commence immediately after the
foregoing twenty-four (24) month benefit period, with such continuation coverage continuing until
the earlier of (i) the end of the applicable COBRA health care continuation coverage period or (ii)
the date on which Executive is covered by the medical and dental coverage of Executive’s successor
employer, if any.]




          (iv) to pay to Executive a lump sum payment equal to the total amount that Executive would
have received under the Company’s 401(k) plan as a Company match if Executive was eligible to
participate in the Company’s 401(k) plan for the twenty-four (24) month period after Executive’s
Date of Resignation and Executive contributed the maximum amount to the plan for the match.
Payment shall be made within thirty (30) days after the Executive’s Date of Resignation (or the end
of the revocation period set forth in this Agreement, if later).




          (v) [to pay to Executive a lump sum payment equal to the total premiums that the Company would
have paid under Executive’s split-dollar life insurance policy, if any, that is in effect
immediately prior to Executive’s Date of Resignation, if Executive was employed by the Company for
the twenty-four (24) month period following Executive’s Date of Resignation. Payment shall be made
within thirty (30) days after the effective date of Executive’s Date of Resignation (or the end of
the revocation period set forth in this Agreement, if later)]. [Note: The foregoing only applies
if Executive has a split-dollar arrangement with the Company and the Company is required to make
premium contributions on Executive’s Date of Resignation. The total months covered by the premiums
will be reduced if the term of the policy is shorter than that provided for Executive.]




          (vi) to pay to Executive a lump sum payment equal to twenty percent (20%) of the Executive’s
Base Pay in order to cover the cost of outplacement assistance services for Executive. Payment
shall be made within thirty (30) days after the effective date of Executive’s Date of Resignation
(or the end of the revocation period set forth in this Agreement, if later).




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          (vii) Executive shall receive any amounts earned, accrued or owing but not yet paid to
Executive as of Executive’s Date of Resignation, payable in a lump sum, and any benefits accrued or
earned in accordance with the terms of any applicable benefit plans and programs of the Company.



Except as set forth in this Agreement, it is expressly agreed and understood that Releasees do
not have, and will not have, any obligations to provide Executive at any time in the future with
any payments, benefits or considerations other than those recited in this paragraph, or those
required by law, other than under the terms of any benefit plans which provide benefits or payments
to former employees according to their terms.]




     7. Executive understands and agrees that the payments, benefits and agreements provided in
this Agreement are being provided to him in consideration for Executive’s acceptance and execution
of, and in reliance upon Executive’s representations in, this Agreement. Executive acknowledges
that if Executive had not executed this Agreement containing a release of all claims against the
Company, Executive would only have been entitled to the payments provided in the Company’s standard
severance pay plan for employees.



     8. Executive acknowledges and agrees that the Company previously has satisfied any and all
obligations owed to him under any employment agreement or offer letter Executive has with the
Company and, further, that this Agreement supersedes any employment agreement or offer letter
Executive has with the Company, and any and all prior agreements or understandings, whether written
or oral, between the parties shall remain in full force and effect to the extent not inconsistent
with this Agreement, and further, that, except as set forth expressly herein, no promises or
representations have been made to him in connection with the termination of Executive’s employment
agreement, if any, or offer letter, if any, with the Company, or the terms of this Agreement.



     9. Executive agrees not to disclose the terms of this Agreement to anyone, except Executive’s
spouse, attorney and, as necessary, tax/financial advisor. Likewise, the Company agrees that the
terms of this Agreement will not be disclosed except as may be necessary to obtain approval or
authorization to fulfill its obligations hereunder or as required by law. It is expressly
understood that any violation of the confidentiality obligation imposed hereunder constitutes a
material breach of this Agreement.



     10. Executive represents that Executive does not presently have in Executive’s possession any
records and business documents, whether on computer or hard copy, and other materials (including
but not limited to computer disks and tapes, computer programs and software, office keys,
correspondence, files, customer lists, technical information, customer information, pricing
information, business strategies and plans, sales records and all copies thereof) (collectively,
the “Corporate Records”) provided by the Company and/or its predecessors, subsidiaries or
affiliates or obtained as a result of Executive’s prior employment with the Company and/or its
predecessors, subsidiaries or affiliates, or created by Executive while employed by or rendering
services to the



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Company and/or its predecessors, subsidiaries or affiliates. Executive acknowledges that all
such Corporate Records are the property of the Company. In addition, Executive shall promptly
return in good condition any and all Company owned equipment or property, including, but not
limited to, automobiles, personal data assistants, facsimile machines, copy machines, pagers,
credit cards, cellular telephone equipment, business cards, laptops and computers. As of the Date
of Resignation, the Company will make arrangements to remove, terminate or transfer any and all
business communication lines including network access, cellular phone, fax line and other business
numbers.




     11. Nothing in this Agreement shall prohibit or restrict Executive from: (i) making any
disclosure of information required by law; (ii) providing information to, or testifying or
otherwise assisting in any investigation or proceeding brought by, any federal regulatory or law
enforcement agency or legislative body, any self-regulatory organization, or the Company’s
[designated legal, compliance or human resources officers]; or (iii) filing, testifying,
participating in or otherwise assisting in a proceeding relating to an alleged violation of any
federal, state or municipal law relating to fraud, or any rule or regulation of the Securities and
Exchange Commission or any self-regulatory organization.



     12. The parties agree and acknowledge that the agreement by the Company described herein, and
the settlement and termination of any asserted or unasserted claims against the Releasees, are not
and shall not be construed to be an admission of any violation of any federal, state or local
statute or regulation, or of any duty owed by any of the Releasees to Executive.



     13. Executive agrees and recognizes that should Executive breach any of the obligations or
covenants set forth in this Agreement, the Company will have no further obligation to provide
Executive with the consideration set forth herein, and will have the right to seek repayment of all
consideration paid up to the time of any such breach. Further, Executive acknowledges in the event
of a breach of this Agreement, Releasees may seek any and all appropriate relief for any such
breach, including equitable relief and/or money damages, attorney’s fees and costs.



     14. Executive further agrees that the Company shall be entitled to preliminary and permanent
injunctive relief, without the necessity of proving actual damages, as well as to an equitable
accounting of all earnings, profits and other benefits arising from any violations of this
Agreement, which rights shall be cumulative and in addition to any other rights or remedies to
which the Company may be entitled.



     15. This Agreement and the obligations of the parties hereunder shall be construed,
interpreted and enforced in accordance with the laws of the Commonwealth of Massachusetts.



     16. Executive certifies and acknowledges as follows:



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          (a) That Executive has read the terms of this Agreement, and that Executive understands its
terms and effects, including the fact that Executive has agreed to RELEASE AND FOREVER DISCHARGE
the Company and each and everyone of its affiliated entities from any legal action arising out of
Executive’s employment relationship with the Company and the termination of that employment
relationship;




          (b) That Executive has signed this Agreement voluntarily and knowingly in exchange for the
consideration described herein, which Executive acknowledges is adequate and satisfactory to him
and which Executive acknowledges is in addition to any other benefits to which Executive is
otherwise entitled;




          (c) That Executive has been and is hereby advised in writing to consult with an attorney prior
to signing this Agreement;




          (d) That Executive does not waive rights or claims that may arise after the date this
Agreement is executed;




          (e) That the Company has provided him with a period of [twenty-one (21)] or
[forty-five (45)] days within which to consider this Agreement, and that Executive has signed on
the date indicated below after concluding that this Separation of Employment Agreement and General
Release is satisfactory to him; and




          (f) Executive acknowledges that this Agreement may be revoked by him within seven (7) days
after execution, and it shall not become effective until the expiration of such seven (7) day
revocation period. In the event of a timely revocation by Executive, this Agreement will be deemed
null and void and the Company will have no obligations hereunder.




[SIGNATURE PAGE FOLLOWS]




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     Intending to be legally bound hereby, Executive and the Company executed the foregoing
Separation of Employment Agreement and General Release this
                    
day of                     ,                     .



	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Witness:
	 	 	 	 
	 	 	 	 	 	 	 	 	 
	[Executive]	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	NOVELL, INC.	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	Witness:	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	Name:	 	 	 	 	 	 	 	 
	Title:	 	 	 	 	 	 	 	 







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