exv10w1






Exhibit 10.1




SEPARATION AGREEMENT AND RELEASE




     THIS SEPARATION AND RELEASE AGREEMENT (this “Agreement”) is made as of the 31st day
of March, 2010, between Progress Software Corporation, a Massachusetts corporation (the “Company”),
and Jeffrey Stamen (the “Executive”).



R E C I T A L S




     A. The Executive previously served as an executive officer of the Company.



     B. The Company and the Executive have agreed that the employment of the Executive with the
Company shall terminate as of March 31, 2010.



     C. The Company has agreed to provide the Executive with certain severance benefits in
connection with the Executive’s termination of employment, as described herein.



     D. The Executive accepts the terms of the Agreement.



     In consideration of the mutual covenants herein contained and in consideration of the
continuing employment of the Executive by the Company, the parties agree as follows.



     1. Termination Date. The employment of the Executive with the Company shall terminate
on March 31, 2010 (the “Termination Date”).



     2. Accrued Salary. The Company will issue a payment to the Executive on the
Termination Date equal to the total amount of the Executive’s outstanding wages and unused vacation
and floating holidays accrued through such date, less applicable deductions and withholdings, in
accordance with the Company’s regular payroll practices.



     3. Medical and Dental Benefits: Prior to the Termination Date, as a result of the
Executive’s change to part-time status, the Executive elected to continue medical and dental
coverage by electing COBRA, with the Company paying the COBRA premiums (less the amount the
Executive would have otherwise been required to contribute if he had continued on the Company’s
medical and dental plans as an employee with his current coverage elections).



     4. FY10 Bonus. The Executive shall remain eligible to receive a pro-rata portion
(based on the number of days employed with the Company during FY10) of the Executive’s bonus for
the fiscal year ended November 30, 2010 pursuant to the Company’s Executive and Key Contributor
Bonus Program (together, the “Program”), such payment, if any, to be made in accordance with the
terms of, and at the time provided in, the Program.



     5. Expense Reimbursement: The Company will reimburse the Executive for all actual
reasonable and customary business expenses incurred by the Executive (in the furtherance of Company
business) on or prior to the Termination Date in accordance with the



 









 




Company’s regular expense reimbursement policies. In order to qualify for reimbursement,
reimbursement requests for all such expenses must be submitted by April 15, 2010.




     6. Severance Benefits. Upon the Termination Date, the Executive will be entitled to
the following, subject to the other terms and conditions of this Agreement:



          (a) Salary Continuation. For a period of twelve (12) months after the Termination
Date, the Company will continue to pay the Executive’s Target Compensation as in effect as of
December 10, 2009 in accordance with the Company’s normal payroll practices and procedures and
subject to all applicable deductions and withholdings. Such payment shall commence on the first
payroll date after the Termination Date. Solely for purposes of Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”), each installment payment is considered a separate
payment. For purposes of this Paragraph 6(a)(i), the term “Target Compensation” shall mean the
total of all fixed (which for this purpose shall mean $250,000) and variable (which for this
purpose shall mean $180,000) cash compensation due the Executive based upon one hundred percent
(100%) attainment of performance levels.




          (b) Medical and Dental Benefits. The Company will continue to pay the COBRA premiums
in effect as of the Termination Date (less the amount Executive would have otherwise been required
to contribute for health benefits if Executive had continued on the Company’s medical and dental
plans as an employee with Executive’s current coverage elections (the “Employee COBRA Payment”)
until the earlier of (i) twelve (12) months after the Termination Date, or (ii) the date when
Executive become eligible for substantially equivalent health insurance coverage in connection with
new employment or self-employment (the “COBRA Premium Payment Period”). If Executive continues to
be eligible (under Federal law) and chooses to continue COBRA continuation coverage after the COBRA
Premium Payment Period ends, Executive will be required to pay the full monthly COBRA Premium in a
timely fashion. Although Executive’s eligibility for COBRA (as described in the Benefits
Information Attachment) is not contingent on Executive’s execution of this Agreement, the Company’s
obligation to pay the COBRA premiums in accordance with this paragraph is contingent upon
Executive’s execution of this Agreement. Note that all cost allocations and calculations required
by this paragraph will be made in accordance with the American Recovery and Reinvestment Act of
2009.




          (c) Stock Options. All unvested stock options held by the Executive which were
granted prior to the Termination Date under the Company’s stock option plans which would otherwise
vest and become fully exercisable during the one year period following the Termination Date shall
instead accelerate and become fully exercisable as of the Termination Date. The vesting of all
other outstanding stock options shall cease immediately as of the Termination Date. Unvested
options will be cancelled on the Termination Date. Vested options must be exercised on or before
December 31, 2010. Vested but unexercised options will be cancelled on January 1, 2011.




          (d) Restricted Stock Units. All shares of restricted equity held by the Executive
which were granted prior to the Termination Date under the Company’s stock option plans which would
otherwise become nonforfeitable and not subject to any restrictions






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during the one year period following the Termination Date shall instead become nonforfeitable
and not subject to any restrictions as of the Termination Date




          (e) Outplacement. Executive is entitled to outplacement services, at the Company’s
expense, as further described in the Keystone materials to be provided you on the Termination Date.
The Keystone program for which the Executive qualifies is entitled “Career Transition.”




          (f) Other Benefits: Except as otherwise expressly stated in this Agreement or the
Benefits Information Attachment to be provided you on the Termination Date, all of Executive’s
benefits as an employee of the Company will terminate as of the Termination Date.




     7. Covenants of the Executive. In consideration for, among other things, the
severance and other payments provided in this Agreement, Executive agrees to the following
covenants.



          (a) Return and Protection of Company Property. Executive agrees to return to the
Company all Company documents and property (except as set forth above) no later than five (5) days
after the Termination Date and to abide by the terms of his Employee Proprietary Information and
Confidentiality Agreement signed as of September 8, 2004 (the “Proprietary Information Agreement”).




          (b) Cooperation. Executive agrees to make himself available to the Company after the
Termination Date either by telephone or in person upon reasonable notice and with reasonable
accommodation to the Executive’s personal and business affairs, to assist the Company in connection
with any matter relating to services performed by Executive on behalf of the Company prior to the
Termination Date. The Executive, also upon reasonable notice and with reasonable accommodation to
his personal and business affairs, further agrees to cooperate with the Company in the defense or
prosecution of any claims or actions now in existence or which may be brought or threatened in the
future against or on behalf of the Company, its directors, shareholders, officers, or employees and
which relates to the aforesaid services, including without limitation, by meeting with the
Company’s counsel and appearing to testify truthfully in any proceeding without the necessity of a
subpoena. The Company shall reimburse the Executive for his reasonable documented travel expenses
incurred in connection with such cooperation. Notwithstanding the aforesaid, the Executive’s
obligations set forth above shall not apply to any matter in which the Executive’s interests are
materially adverse to those of the Company. Reimbursements of expenses shall be paid within thirty
(30) days of the Company’s receipt of an invoice from the Executive or his designee for the same.
Any reimbursement in one calendar year shall not affect the amount that may be reimbursed in any
other calendar year and a reimbursement (or right thereto) may not be exchanged or liquidated for
another benefit or payment. Any business expense reimbursements subject to Section 409A of the
Code shall be made no later than the end of the calendar year following the calendar year in which
such business expense is incurred by Executive. The Executive shall submit any such expense
requests in a sufficiently timely manner so as to permit the Company to comply with the previous
sentence.








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          (c) Non-Competition.




               (i) Executive recognizes the highly competitive nature of the Company’s business and that
Executive’s position with the Company and access to and use of the Company’s confidential records
and proprietary information renders the Executive special and unique. Executive hereby agrees that
for a period of one (1) year from the Termination Date (the “Restricted Period”), he shall not,
directly or indirectly, own, manage, operate, join, control, participate in, invest in or otherwise
be connected or associated with, in any manner, including as an officer, director, employee,
independent contractor, stockholder, member, partner, consultant, advisor, agent, proprietor,
trustee or investor, any Competing Business (as defined below); provided, however, that (i)
ownership of two percent (2%) or less of the stock or other securities of a publicly traded
corporation and (ii) passive ownership of less than a five percent (5%) interest as a limited
partner of a venture capital fund, private equity fund or similar investment vehicle or ownership
of shares in a mutual fund shall not constitute a breach of this Section, in each case under this
clause (ii), with respect to which the Executive has no role in the review, selection or management
of any investments. For purposes hereof, the term, “Competing Business,” shall mean IBM/WebSphere
Unit, Tibco, Informatica, Software AG and Oracle and, in each case, their respective subsidiaries.



               (ii) Notwithstanding the foregoing, if the Executive seeks employment with any subsidiary,
division, affiliate or unit of a Competing Business (a “Related Unit”) and if that Related Unit
does not compete with the Company or any subsidiary or other affiliate (a “Noncompeting Related
Unit”), the Executive may request a waiver of this Section 7(c) with respect to employment with
such Noncompeting Related Unit. The Company shall not unreasonably withhold its agreement to such
a waiver; provided that in no event may the Executive, engage in or assist in the activities of any
Related Unit that competes with the Company or any subsidiary or other affiliate at any time during
the Restricted Period.



               (iii) Executive acknowledges that the business of the Company is worldwide in scope and
therefore understands and agrees that there is no geographic limitation on the scope of this
Section 7(c). Executive further agrees that the nature of the Company’s confidential information
and the goodwill relationship that were developed for the Company during the Executive’s employment
support the continuation of the restrictions pursuant to this Section for one (1) year.
Notwithstanding the foregoing, if a court determines that the geographic scope of this Section or
the length of the Restricted Period is excessive, the parties agree that this Section should be
enforced to the maximum extent that the court determines to be permissible.



               (iv) The parties agree that, throughout his employment with the Company, the Executive has
been obligated to render personal services of a special, unique, unusual, extraordinary and
intellectual character, thereby giving this Agreement special value, and, in the event of a breach
or threatened breach of the covenants of the Executive in this Section 7, the injury or imminent
injury to the value and the goodwill of the Company’s business could not be reasonably or
adequately compensated in damages in an action at law. Accordingly, the Executive acknowledges
that, in addition to any other remedies that may be



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awarded, the Company shall be entitled to specific performance, injunctive relief or any other
equitable remedy against the Executive, without the posting of a bond, in the event of any breach
or threatened breach of any provision of this Agreement by the Executive. In addition, in the
event the Executive breaches or threatens to breach this Section 7 of this Agreement, such breach
or threatened breach will entitle the Company, without posting of a bond, to an injunction
prohibiting the Executive from violating the terms of this Section 7.




          (d) Non-Disparagement. Executive agrees that during the Restricted Period, except as
required by law or to enforce the terms of this Agreement, Executive shall not make any disparaging
statements about the Company (including for these purposes any subsidiary or affiliate), its
officers, directors, employees, products or services. For purposes of this Agreement, statements
in the course of testimony in a legal or regulatory proceeding or in response to an inquiry by a
governmental or other regulatory entity shall be considered to be “required by law.”




          (e) Release.




               (i) In consideration of the severance and other benefits provided hereunder, Executive, on
behalf of himself and his heirs, administrators, executors, successors and assigns, hereby
voluntarily releases and forever discharges the Company, its past, present and future subsidiaries
and affiliates, and its and their respective past, present and future directors, officers, agents,
shareholders, attorneys and employees and all of their respective heirs, successors, predecessors,
and assigns, (collectively the “Releasees”) of and from any and all claims, suits, liabilities,
demands, debts, damages, costs, obligations, agreements and causes of action of any kind
whatsoever, at law, in equity or otherwise known or unknown, or on any other basis which Executive
has or may have, either now or at any time before now, against the Company, including but not
limited to any claims based on Executive’s employment with the Company or the termination of
Executive’s employment with the Company or any other relation with the Company, any claims of
wrongful discharge, any claims of intentional or negligent misrepresentation, any claims of
discrimination, any claims under the Worker Adjustment and Retraining Notification Act (WARN) of
1988, the Equal Pay Act, the Fair Labor Standards Act, the Employee Retirement Income Security Act
of 1974, federal Family and Medical Leave Act; the federal Sarbanes-Oxley Act; and any claims under
the common law or any statute including, without implication of limitation, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Americans with Disabilities Act, the
Rehabilitation Act of 1973, the Massachusetts Fair Employment Practices Act, Mass. Gen. Laws ch.
151B, § 1 et seq., the Massachusetts Civil Rights Act, Mass. Gen. Laws ch.12, § 11H et seq., the
Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 102 and Mass. Gen. Laws ch. 214, § 1C,
the Massachusetts Labor and Industries Act, Mass. Gen. Laws ch. 149, § 1 et seq., the Massachusetts
Privacy Act, Mass. Gen. Laws ch. 214, § 1B et seq., and the Massachusetts Family and Medical Leave
Act, Mass. Gen. Laws ch. 149, § 52D et seq., as these statutes have been from time to time amended,
and any and all other federal, state, county or local ordinances, statutes or regulations, all as
may be amended, and any other claim relating to or arising out of Executive’s employment with or
separation from the Company. Executive also hereby waives any claim for attorneys’ fees or costs
and any claim for reinstatement. Further, except for benefits under any Company benefit plans
that have



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vested or will vest according to the terms of those plans, the Company does not have, and
shall not have, any obligation to provide Executive with any payments, benefits, or consideration
other than the payments set forth in this Agreement. This release, however, does not apply to
Executive’s right to seek enforcement of the terms of this Agreement.




               (ii) Notwithstanding the generality of the preceding paragraph, the above release and waiver
of claims applies only to the extent permitted by law and, in the event any charge or claim is
permitted by law, Executive expressly waives his right to recover any relief, damages, and/or
monetary benefit as a result of any such charge or claim.



               (iii) Nothing in this Agreement shall prohibit or restrict Executive from (a) providing
information to, or otherwise assisting in, an investigation by the Massachusetts Commission Against
Discrimination (“MCAD”), the United States Congress, the Securities and Exchange Commission
(“SEC”), the Equal Employment Opportunity Commission (“EEOC”), the National Labor Relations Board
(“NLRB”) or any other federal regulatory or law enforcement agency or self-regulatory organization
(“SRO”) and/or (b) testifying, participating, or otherwise assisting in a proceeding relating to an
alleged violation of any federal law relating to fraud or any rule or regulation of the MCAD, SEC,
EEOC, NLRB or any SRO.



               (iv) Executive represents and warrants that he has received all leave (paid or unpaid),
compensation, wages, bonuses, commissions, and/or benefits to which he may be entitled and that no
other leave (paid or unpaid), compensation, wages, bonuses, commissions, and/or benefits are due to
Executive, except as provided in this Agreement. Executive furthermore affirms that he has no
known workplace injuries or occupational diseases and have not been denied any leave requested
under the Family and Medical Leave Act.



               (v) Executive hereby acknowledges that he has been given a reasonable time to consider this
Agreement before executing it. If this Agreement is not signed by Executive and returned to the
Company so that the Company receives it no later than the close of business on April 21, 2010, then
the severance benefits provided in this Agreement will not be provided to Executive by the Company.
In the event that Executive executes and returns this Agreement by April 21, 2010, acknowledges
that such decision was entirely voluntary and that he had the opportunity to consider the terms and
conditions set forth in this Agreement for the entire period, then the severance benefits provided
in this Agreement will be provided to Executive by the Company.



               (vi) Except as expressly set forth in this Agreement, no representations of any kind or
character have been made to Executive by the Company, or by any of their respective directors,
officers, employees, representatives, or attorneys, to induce the execution of this release.
Executive further acknowledges that the only representations made to Executive in order to obtain
my consent to this Agreement are set forth in this Agreement, and that Executive is signing this
Agreement voluntarily and without coercion, intimidation or threat of retaliation. Executive
further acknowledges that he has been advised to consult with an attorney before signing this
Agreement and that he has had



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an opportunity to seek the advice of legal counsel and that the terms of this release have
been completely read by Executive and that those terms are fully understood by Executive.




     8. Successors



          (a) Company’s Successors. Any successor to the Company (whether direct or indirect
and whether by purchase, lease, merger, consolidation, liquidation or otherwise) or to all or
substantially all of the Company’s business and/or assets shall assume the obligations under this
Agreement and agree expressly to perform the obligations under this Agreement in the same manner
and to the same extent as the Company would be required to perform such obligations in the absence
of a succession. For all purposes under this Agreement, the term “Company” shall include any
successor to the Company’s business and/or assets which executes and delivers the assumption
agreement described in this subsection (a) which becomes bound by the terms of this Agreement by
operation of law.




          (b) Executive’s Successors. The terms of this Agreement and all rights of the
Executive’s hereunder shall inure to the benefit of, and be enforceable by, the Executive’s
personal or legal representatives, executors, administrators, successors, heirs, distributes,
devisees and legatees.




     9. Notice. Notices and all other communications contemplated by this Agreement shall
be in writing and shall be deemed to have been duly given when personally delivered or when mailed
by U.S. registered or certified mail, return receipt requested and postage prepaid. In the case of
the Executive, mailed notices shall be addressed to him or her at the home address which he or she
most recently communicated to the Company in writing. In the case of the Company, mailed notices
shall be addressed to its corporate headquarters, and all notices shall be directed to the
attention of its General Counsel.



     10. Miscellaneous Provisions



          (a) No Duty to Mitigate. The Executive shall not be required to mitigate the amount
of any payment contemplated by this Agreement (whether by seeking new employment or in any other
manner), nor shall any such payment be reduced by any earnings that the Executive may receive from
any other source.




          (b) Waiver. No provision of this Agreement shall be modified, waived or discharged
unless the modification, waiver or discharge is agreed in writing and signed by the Executive and
by an authorized officer of the Company (other than the Executive). No waiver by either party of
any breach of, or compliance with, any condition or provision of this Agreement by the other party
shall be considered a waiver of any other condition or provision of the same condition or provision
at another time.




          (c) Entire Agreement. Except with respect to the terms of any written employment
agreement, if any, by and between the Company and the Executive that is signed on behalf of the
Company, no agreements, representations or understandings (whether oral or






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written and whether express or implied) which are not expressly set forth in this Agreement
have been made or entered into by either party with respect to the subject matter hereof.




          (d) Choice of Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the Commonwealth of Massachusetts.




          (e) Severability. The invalidity or enforceability of any provisions or provisions of
this Agreement shall not affect the validity or enforceability of any other provision hereof, which
shall remain in full force and effect.




          (f) Arbitration. Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by final and binding arbitration in Massachusetts, in
accordance with the rules of the American Arbitration Association then in effect. Judgment may be
entered on the arbitrator’s award in any court having jurisdiction. In the event the Executive
prevails in an action or proceeding brought to enforce the terms of this Agreement or to enforce
and collect on any non-de minimis judgment entered pursuant to this Agreement, the Executive shall
be entitled to recover all costs and reasonable attorney’s fees.




          (g) No Assignment of Benefits. The rights of any person to payments or benefits under
this Agreement shall not be made subject to option or assignment, either by voluntary or
involuntary assignment or by operation of law, including (without limitation) bankruptcy,
garnishment, attachment or other creditor’s process, and any action in violation of this subsection
(g) shall be void.




          (h) Employment Taxes. All payments made pursuant to this Agreement will be subject to
withholding of applicable income and employment taxes.




          (i) Assignment by Company. The Company may assign its rights under this Agreement to
an affiliate and an affiliate may assign its rights under this Agreement to another affiliate of
the Company or to the Company; provided, however, that no assignment shall be made if the net worth
of the assignee is less than the net worth of the Company at the time of the assignment. In the
case of any such assignment, the term “Company” when used in a section of the Agreement shall mean
the corporation that actually employs the Executive.




          (j) Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which together will constitute one and the same instrument.




[SIGNATURE PAGE TO FOLLOW]







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     IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the
Company by its duly authorized officer, as of the date first above written.



	 	 	 	 	 
	PROGRESS SOFTWARE CORPORATION	 	 
	 
	 	 	 	 
	By:

	 	/s/Richard D. Reidy
 

Richard D. Reidy
	 	 
	 

	 	President and Chief Executive Officer	 	 
	 
	 	 	 	 
	JEFFREY STAMEN	 	 
	 
	 	 	 	 
	 

	 	/s/Jeffrey Stamen	 	 
	 

	 	 	 	 






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