Separation and Mutual Release Agreement



 Exhibit 10.81 
  
 SEPARATION AND 
 MUTUAL RELEASE AGREEMENT 
  
 This Separation and Mutual Release Agreement (the “Agreement”) is
entered into as of December 2, 2005, by and between Borland Software Corporation, a Delaware corporation (the “Company”), and Scott J. Arnold (the “Executive”). 
  
 In consideration of the mutual covenants and agreements set forth below, the parties hereto, intending to be legally bound
hereby, agree as follows: 
  

	1.	Executive’s last day of employment with the Company will be December 2, 2005 (the “Separation Date”). This Agreement will become effective upon the expiration of
any revocation period required in connection with the release of claims set forth herein, or upon the Separation Date, whichever is later (the “Effective Date”). 

  

	2.	In exchange for the release of the claims provided for below, the Company will provide Executive with a total severance payment of $765,000, less applicable taxes and other
withholdings as determined by the Company’s payroll department to be paid as follows: (i) $450,000 shall be paid within five (5) business days following the Effective Date, and (ii) $315,000 shall be paid six (6) months
following the Effective Date. 

  

	3.	Upon the Effective Date of this Agreement, Executive shall also be entitled to the following: 

  

	 	(a)	Executive shall be entitled to payment of COBRA premiums necessary to continue the group health insurance coverages (medical, dental and vision, but not disability or life) for
Executive and his dependents through the earlier of (i) December 2, 2006, if Executive elects to continue such coverage under federal COBRA law (it being understood that such payments will be made to the Company’s health insurance
provider), or (ii) the date on which Executive and his eligible dependents first becomes enrolled in a new group health insurance program with another employer. Executive agrees to promptly notify the Borland Benefits Department, in the event
that he becomes enrolled in a new group health insurance program; 

  

	 	(b)	retain, for his personal use, the possession of, and the Company hereby transfers ownership of, the Company-issued laptop computer used by Executive prior to the Separation Date
together with the related loaded software, accessories and power cords, provided, however, that the Company shall image the laptop prior to such transfer and Executive shall remove all proprietary and confidential information that exists on such
computer; 

  

	 	(c)	retain, for his personal use, the possession of, and the Company hereby transfers ownership of, a Borland watch previously provided to Executive; 









	 	(d)	the Company agrees that it will pay Executive’s reasonable attorneys’ fees up to a maximum of $5,000, and will pay those amounts directly to Fenwick & West upon
presentation of its invoice for services rendered to Executive. 

  

	4.	Executive agrees that except for the amount described above, the Company has paid to Executive on the Separation Date all compensation, including, but not limited to, any and all
wages, commissions and bonuses that Employee earned during his employment with the Company until and including the Separation Date. Except as set forth in this Agreement, the Executive shall not be entitled to any further monetary payments or other
benefits of any kind, including, but not limited to, any equity-based compensation from the Company. 

  

	5.	Executive, on behalf of himself and his successors, assigns, heirs and any and all other persons claiming through the Executive, if any, and each of them, shall and does hereby
forever relieve, release, and discharge the Company and its affiliates and their respective predecessors, successors, assigns, representatives, affiliates, parent corporations, subsidiaries (whether or not wholly-owned), divisions, and their
officers, directors, agents and employees, and each of them, in any and all capacities, from any and all claims, debts, liabilities, demands, obligations, liens, promises, acts, agreements, costs and expenses (including, but not limited to,
attorneys’ fees), damages, actions and causes of action, of whatever kind or nature, including, without limitation, any statutory, civil or administrative claim, or any claim, arising out of acts or omissions occurring before the execution of
this Separation and Mutual Release Agreement, whether known or unknown, suspected or unsuspected, fixed or contingent, apparent or concealed (collectively referred to as “claims”), including, but not limited to, any claims based on,
arising out of, related to or connected with the Executive’s employment or the termination thereof, and any and all facts in any manner arising out of, related to or connected with the Executive’s employment with, or termination of
employment from, the Company and its subsidiaries and affiliates, including, but not limited to, any claims arising from rights under federal, state, and local laws prohibiting discrimination on the basis of race, national origin, sex, religion,
age, marital status, pregnancy, handicap, ancestry, sexual orientation, or any other form of discrimination, and any common law claims of any kind, including, but not limited to, contract, tort, and property rights including, but not limited to,
breach of contract, breach of the implied covenant of good faith and fair dealing, tortious interference with contract or current or prospective economic advantage, fraud, deceit, misrepresentation, defamation, wrongful termination, infliction of
emotional distress, breach of fiduciary duty, and any other common law claim of any kind whatever. 

  

	6.	 In addition to the release set forth above, the Executive hereby voluntarily and knowingly waives all rights or claims arising under the Federal Age Discrimination
in Employment Act. This waiver is given only in exchange for consideration in addition to anything of value to which the Executive would have been entitled absent this Separation and Mutual Release Agreement. Such waiver does not waive rights or
claims which may arise after 










 
the date of execution of this Separation and Mutual Release Agreement. The Executive acknowledges that: (i) this waiver is written in a manner
calculated to be understood by him; (ii) he has been advised to consult with an attorney before executing this release; (iii) he was given a period of twenty-one days within which to consider this release; and (iv) to the extent he
executes this release before the expiration of the twenty-one-day period, he does so knowingly and voluntarily and only after consulting his attorney. The Executive shall have the right to cancel and revoke this release during a period of seven days
following his execution of this release, and this release shall not become effective, and no money or other benefits shall be paid to the Executive pursuant to this Agreement or under his employment agreement with the Company dated as of
October 2, 2003 (the “Employment Agreement”), until the day after the expiration of such seven-day period (the “Revocation Date”). The seven-day period of revocation shall commence upon the date of execution of this
Separation and Mutual Release Agreement. In order to revoke this release, the Executive shall deliver to the Company, prior to the expiration of said seven-day period, a written notice of revocation. Upon such revocation, this release shall be null
and void and of no further force or effect. 
  

	7.	Nothing herein shall be deemed to release the Company in respect of (i) the Executive’s rights under his Employment Agreement or any other agreement with the Company
(including, but not limited to, any stock option agreements or stock purchase agreements), (ii) any rights of the Executive to indemnification or reimbursement under the Company’s by laws, articles of incorporation or directors and
officers liability insurance policies, or pursuant to applicable law, (iii) any rights the Executive may have to vested benefits under any Company employee benefit plan or program, and (iv) for the avoidance of doubt, the applicable
Director’s and Officers coverage (D&O Coverage) provided by the Company on behalf of the Executive shall continue in full force and effect to the fullest extent permitted by the terms and conditions of such D&O policy.


  

	8.	The Executive acknowledges that he has read section 1542 of the Civil Code of the State of California, which states in full: 

  
 A general release does not extend to claims which the creditor does not know
or suspects to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. 
  

	9.	The Executive waives any rights that he has or may have under section 1542 of the Civil Code of the State of California to the full extent that he may lawfully waive such rights
pertaining to this release, and affirms that he is releasing all known and unknown claims that he has or may have against any of the parties referred to herein. 

  

	10.	 The Company, on behalf of itself and its affiliates, their respective successors and assigns, and any and all other persons claiming through any and each of them,
shall and does hereby forever relieve, release, and discharge the Executive and his successors, assigns, and heirs, from any and all claims, debts, liabilities, demands, obligations, liens, 










 
promises, acts, agreements, costs and expenses (including, but not limited to, attorneys’ fees), damages, actions and causes of action, of whatever kind
or nature, including, without limitation, any statutory, civil or administrative claim, or any claim, arising out of acts or omissions occurring before the execution of this Separation and Mutual Release Agreement, whether known or unknown,
suspected or unsuspected, fixed or contingent, apparent or concealed (collectively referred to as “claims”), including, but not limited to, any claims based on, arising out of, related to or connected with the subject matter of the
Executive’s employment or the termination thereof, and any and all facts in any manner arising out of, related to or connected with the Executive’s employment with, or termination of employment from, the Company and its subsidiaries and
affiliates, including, but not limited to, statutory and common law claims of any kind, including, but not limited to, contract, tort, and property rights including, but not limited to, breach of contract, breach of the implied covenant of good
faith and fair dealing, tortious interference with contract or current or prospective economic advantage, fraud, deceit, misrepresentation, defamation, wrongful termination, infliction of emotional distress, breach of fiduciary duty, and any other
common law claim of any kind whatever. 
  

	11.	The Company waives any rights that it may have under section 1542 of the Civil Code of the State of California to the full extent that it may lawfully waive such rights pertaining
to this release, and affirms that it is releasing all known and unknown claims that it has or may have against the Executive and his successors, assigns and heirs. 

  

	12.	Nothing herein shall be deemed to release the Executive in respect of the Company’s rights under the Employee Confidentiality and Assignment of Inventions Agreement attached
hereto as Exhibit A and incorporated by reference therein, and any rights the Company has under the Employment Agreement. 

  

	13.	All materials that the Executive is required to turn over to the Company upon termination of his employment with the Company, pursuant to paragraph 7 of the Employee Confidentiality
and Assignment of Inventions Agreement shall be turned over to the Company not later than December 9, 2005. 

  

	14.	This Agreement is binding on and may be enforced by the Company and its successors and assigns and is binding on and may be enforced by the Executive and his heirs and legal
representatives. Any successor to the Company or any purchaser of substantially all of its business (whether by purchase, merger, consolidation or otherwise) will be bound by all of the Company’s obligations under this Agreement, including,
without limitation, the provision of the severance benefits payable pursuant to Section 2 hereof and the provision of COBRA premiums pursuant to Section 3(a) hereof. 









	15.	This Agreement represents the full and complete understanding and agreement between the Company and the Executive regarding his separation from the Company, and supersedes all other
agreements or understandings, including any provisions regarding separation contained in the Employment Agreement. This Agreement may only be waived or amended in writing, signed by both the Company and the Executive. 

  

					
	 Dated: December 2, 2005
	 	 /s/ Scott J. Arnold


	 	 	SCOTT J. ARNOLD
		
	 Dated: December 2, 2005
	 	BORLAND SOFTWARE CORPORATION
			
	 	 	By:	 	 /s/ Kenneth Hahn


	 	 	Its:	 	Chief Financial Officer








 Exhibit A 
  
 Employee Confidentiality and Assignment of Inventions Agreement 








			
	

	 	 Employee Confidentiality
 And Assignment of Inventions Agreement


  
  
 You are being hired and paid to perform services as an employee of Borland Software Corporation (“Borland”) in a capacity in which you may have access to, or
contribute to, the production of highly sensitive and valuable information and material. This information and material has been developed or obtained by Borland by the investment of significant time, effort, and expense, and provides Borland with a
significant competitive advantage in its business. Borland’s relationship with its employees is based on trust, and each individual who works for Borland is expected to maintain a high degree of loyalty to Borland and professionalism in
carrying out their responsibilities for the company. We are in a highly competitive business and we want to succeed by the rules, “fair and square.” For these reasons, we ask that you carefully read, initial where indicated, sign, and
adhere to the following agreement: 
  
 1. Please
read the attached definition of “Borland Confidential Information” in Exhibit A. 
  
 In consideration for your employment and the compensation to be paid to you for your services, you agree to keep Borland Confidential Information in strict confidence during the term of your employment and for
three (3) years after such term of employment. SJA (initial) 
  
 This
means that you agree not to reveal, report, publish, disclose, transfer or use, directly or indirectly, for any purposes whatsoever, any Borland Confidential Information, except in the course of your work for Borland. This obligation of
confidentiality commences on your first day of employment and continues for three years after your employment with Borland has ended. 
  
 2. Borland is interested in employing you because of your skills and abilities — not because of any trade secrets or confidential information you may have learned
elsewhere. Thus, it is Borland’s policy to avoid situations where information or materials might come into our hands that are considered proprietary by individuals or companies other than Borland. It is important that you take care not to
bring, even inadvertently, any books, drawings, notes, materials, etc., except your own personal effects, that you may have in your possession relating to any of your former employers. 
  
 You agree not to disclose to Borland any confidential or proprietary information belonging to any previous employer or others. SJA
(initial) 
  
 3. If you know of any
obligations or information that may conflict with your work for Borland, let us know. 
  
 You agree to inform Borland of any apparent conflict between your work for Borland and (i) any obligations you may have to preserve the confidentiality of another’s proprietary information or materials, (ii) any rights you
claim to any patent, copyrights, trade secrets, or other inventions or ideas, or (iii) any patent, copyrights, trade secrets, inventions or ideas of any person or company not connected with Borland before performing that work. SJA
(initial) 
  
 Without such notice, Borland may conclude that no such conflict
exists. To the extent the conflict relates to your personal rights and you fail to notify Borland thereof, you agree thereafter to make no claim against Borland with respect thereto. Borland shall receive all such disclosures in confidence.

  
 4. Borland Confidential Information, and whatever you create while working at
Borland, including all ideas, procedures, processes, designs, inventions, discoveries, technologies, know-how, show-how, documents and works of authorship, is owned by Borland. In part, that is what we’re paying you for. 







 You agree that, upon creation, all right, title, and interest in any such developments, including Borland Confidential
Information, is and shall remain the exclusive property of Borland. To the extent that it is required to ensure compliance with the foregoing sentence, you assign all right title and interest in and to any patents, copyrights, or trademarks or other
intellectual property rights in any such developments to Borland. An assignment of copyright hereunder shall include, but is not limited to, all rights of paternity, integrity, disclosure and withdrawal that may be known as or referred to as
“moral rights” (collectively “Moral Rights”). To the extent such Moral Rights cannot be assigned under applicable law and to the extent the following is allowed by the laws in the various countries where Moral Rights exist, I
hereby waive such Moral Rights and consent to any action of the Company that would violate such Moral Rights in the absence of such consent. I will confirm any such waivers and consents from time to time as requested by Borland. Any copyrightable
material created as a result of any work you do for Borland during the term of your employment shall be considered a “work made for hire” of Borland under the U.S. Copyright Act, 17 U.S.C. 101. You agree that you will sign any papers
necessary with respect to patents, copyrights, or trademarks to confirm and protect the interest of Borland in such developments and Confidential Information. Further you agree not to file for or obtain in your name any patent, copyright or
trademark registration covering any developments made during your employment with Borland, unless Borland approves such filing in writing in advance. You hereby irrevocably transfer all ownership of such developments (including any and all patent
rights, copyrights, trade secret rights, and other proprietary rights therein) to Borland. You agree immediately to disclose to Borland all protectable developments, including Borland Confidential Information, developed in whole or in part by you
during the term of your employment with Borland. If Borland is unable for any reason whatsoever, including your mental or physical incapacity, to secure your signature on a document to apply for or pursue patent, trademark or copyright registrations
or any document transferring ownership thereof, resulting from your work for Borland, you hereby irrevocably designate and appoint Borland and its duly authorized officers and agents, as your agents and attorneys-in-fact to act for and in behalf of
you, and instead of you, to execute and file any documents and to do all other lawful acts to further the above purposes with the same legal force and effect as if executed by you. This appointment is coupled with an interest in and to the relevant
inventions and works of authorship and shall survive your death or disability. SJA (initial) 
  
 5. But we do not own everything you do while you are employed by Borland. The foregoing shall not apply to any invention, work of authorship, protectable development or other thing or idea whatsoever for which no
equipment, supplies, facilities, or Borland Confidential Information was used, which was developed entirely on your own time, and which does not in any material way (i) relate to the business of Borland, (ii) relate to Borland’s
actual or demonstrable anticipated research or development, or (iii) result from any work performed by you for Borland. This confirms that we recognize your rights under Section 2870 of the California Labor Code (or similar rights if you
work for us in another state). 
  
 You agree that you have provided a complete
list in Exhibit B of all patents, patent applications or inventions that you believe to be patentable and which are owned by you or by others, conceived or made by you prior to your employment by Borland or during your employment with Borland which
meet the criteria set forth in the preceding paragraph. With respect to patent applications or inventions of others that you are required to maintain in confidence, the listing should be general, e.g., by title, so that no confidential information
of others is disclosed to Borland. If no such list is attached in Exhibit B, you represent that you have not made, conceived or reduced to practice any such patent rights or patentable ideas, and you agree that Borland shall have a royalty-free
license under such inventions and related patents or other rights to make, use and sell any product covered thereby. SJA (initial) 







 6. You and Borland’s other employees are extremely important to us. Because of the nature of our business and the
intangible nature of our trade secrets, it is necessary to afford Borland fair protection from the loss of our employees. 
  
 You agree, for a period ending one (1) year after the termination of your employment with Borland, not to solicit, or attempt to solicit, directly or indirectly,
any individual who is an employee of Borland, whether for or on behalf of you or for any entity in which you have a direct or indirect interest whether as a proprietor, partner, stockholder, employee, agent, representative, or otherwise. SJA
(initial) 
  
 7. Should you leave Borland, we would expect you, and any future
employer of yours, to demonstrate the same professionalism that we now expect from you and our own employees and we also agree to demonstrate a high degree of professionalism. 
  
 You agree, upon the termination of your employment with Borland, to turn over to Borland all notes, data, diskettes, tapes, reference
items, sketches, drawings, memoranda, records, and other materials in your possession or control which in any way relate to any of the Borland Confidential Information, and not to make any further use of such material. SJA (initial) 

 
 8. In view of the fact that the principal office of Borland is located in the State of
California, it is understood and agreed that the construction and interpretation of this agreement shall at all times and in all respects be governed by the substantive laws of the State of California without regard to conflicts or choice of law
rules thereof or of any other jurisdiction. Nothing contained in this Agreement shall restrict the right of Borland to terminate your employment or position at any time, with or without notice and with or without cause. By your execution of this
Agreement you acknowledge and agree that your employment is “at will.” The term “at will” means that both you and Borland have the right to terminate employment any time with or without advanced notice, and with or without cause.
This “at will” employment relationship can be varied only in a writing that is signed by the Senior Vice President of Corporate Services, or a similarly situated executive, of Borland. From time to time it may be necessary to have you
execute documents confirming Borland’s ownership of the results of your work for Borland and you agree to execute such documents as Borland may request from time to time whether during your employment or thereafter. 
  
 You agree that the breach or alleged breach by Borland of (i) any term or condition
contained in another agreement (if any) between you and Borland or (ii) any obligation owed to you by Borland, shall not affect the validity or enforceability of the terms of this Agreement. This Agreement, together with any accepted offer
letter for your employment and any other agreements referred to therein, constitutes the full and complete understanding between you and Borland with respect to the subject matter hereof and supersedes all prior and contemporaneous representations
and understandings, whether written or oral, relating to the subject matter hereof, all of which are hereby cancelled to the extent they are not specifically merged into this Agreement. There are no other promises, agreements, or representations,
oral or written, relating to the subject matter hereof, upon which you have relied in entering into employment with Borland. SJA (initial) 
  
 I have carefully read and considered the provisions of this agreement. I understand and acknowledge that the terms and conditions set forth herein are fair and appear
reasonably required for the protection of Borland and its business. SJA (initial) 







 I acknowledge receipt of a copy of this agreement. 
  

	
	 SCOTT J. ARNOLD


	 Print Name

	
	 11-07-03


	 Date Signed

	
	 /s/ Scott J. Arnold


	 Signature

	
	 [omitted]


	 Social Security Number

	
	 [omitted]


	 Mailing Address

	
	 [omitted]


	 City, State and Zip Code









 Exhibit A 
 Definition of Borland Confidential Information 
  
 For purposes of this Confidentiality Agreement, “Borland Confidential Information” shall mean and include the following types of information (whether or not reduced to writing or placed in any tangible medium of expression, and
whether or not patentable or protectable by copyright) owned or developed by Borland: 
  

	•	 	information or material proprietary to Borland or treated as confidential by Borland and not generally known by non-Borland personnel, which you develop or which you may obtain
knowledge of or access to, through or as a result of your relationship with Borland (including information conceived, originated, discovered, or developed in whole or in part by you); 

  

	•	 	discoveries, ideas, inventions, concepts, software in various stages of development, source code, object code, designs, drawings, specifications, techniques, models, data,
documentation, diagrams, flow charts, research, development, processes, procedures, “know-how;” 

  

	•	 	marketing techniques and materials, marketing and development plans; 

  

	•	 	product development and distribution; plans for future development and distribution; 

  

	•	 	operational methods, technical processes and other business affairs and methods; 

  

	•	 	customer names, licensing and royalty arrangements, and other information related to customers; 

  

	•	 	price lists, pricing policies, profits, sales, financial information; 

  

	•	 	and employee information. 

  
 Borland Confidential Information also includes any information or materials obtained by Borland from third parties in confidence (or subject to nondisclosure or similar agreements), whether or not owned or developed
by Borland. 
  
 Failure to mark any of the Borland Confidential Information as
confidential or proprietary shall not affect its status as being part of the Borland Confidential Information. Information that is publicly known or generally employed by the trade at or after the time you first learn of such information, or generic
information or knowledge which you would have learned in the course of similar employment or work elsewhere in the trade, shall not be deemed part of the Borland Confidential Information. 
  







 Exhibit B 
  

List of Prior Patents and Inventions