VA SOFTWARE CORP
EXHIBIT 10.1
<DOCUMENT>
<TYPE>EX-10
<SEQUENCE>2
<FILENAME>p19008-ex10_1.htm
<DESCRIPTION>EXHIBIT 10.1
<TEXT>
<HTML><head>
<title>VA Software 8-K dated 11-19-04</title>
</head>
<BODY>

<H1 ALIGN="RIGHT"><font size="2" face="Times New Roman, Times, serif">EXHIBIT 10.1</font></H1>

<H1 ALIGN="CENTER"><font size="2" face="Times New Roman, Times, serif"><U>SEPARATION AGREEMENT AND RELEASE</U></font></H1>

<P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;This Separation Agreement and
  Release (&#147;Agreement&#148;) is made by and between Patrick Ferrell
  (&#147;Employee&#148;) and VA Software Corporation (the &#147;Company&#148;),
collectively referred to as the (&#147;Parties&#148;): </font></P>
     <H1 ALIGN="CENTER"><font size="2" face="Times New Roman, Times, serif"><U>RECITALS</U></font></H1>
     <!-- MARKER FORMAT-SHEET="Para" -->
     <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;WHEREAS, Employee&#146;s
  employment with the Company was terminated, effective close of business November
19, 2004 (the &#147;Termination Date&#148;); </font></P>
     <!-- MARKER FORMAT-SHEET="Para" -->
     <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;WHEREAS, the Company and Employee
  have entered into a Confidential and Proprietary Information Agreement (the
&#147;Confidentiality Agreement&#148;); </font></P>
     <!-- MARKER FORMAT-SHEET="Para" -->
     <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;WHEREAS, the Parties, and each of
  them, wish to resolve any and all disputes, claims, complaints, grievances,
  charges, actions, petitions and demands that the Employee may have against the
  Company as defined herein, including, but not limited to, any and all claims
  arising or in any way related to Employee&#146;s employment with, or separation
from, the Company; </font></P>
     <!-- MARKER FORMAT-SHEET="Para" -->
     <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;NOW THEREFORE, in consideration
  of the promises made herein, the Parties hereby agree as follows: </font></P>
     <!-- MARKER FORMAT-SHEET="Head Major" -->
     <A NAME="A003"></A>
     <H1 ALIGN="CENTER"><font size="2" face="Times New Roman, Times, serif"><U>COVENANTS</U></FONT></H1>

     <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;1.&nbsp;&nbsp;<U>Consideration.</U></FONT></P>

     <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(a) The Company agrees to pay Employee a separation payment in the amount of Twenty-Five Thousand Three Hundred Eighty-Four Dollars and Fifty-Nine Cents
       ($25,384.59), less applicable withholding and other usual deductions. </font></p>
     <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(b) <U>Payment</U>.&nbsp;&nbsp;The Company will tender the lump sum settlement amount to          Employee by delivering a check for Twenty-Five Thousand Three Hundred
          Eighty-Four Dollars and Fifty-Nine Cents ($25,384.59), less applicable
          withholding and other usual deductions, made payable to Employee, within seven
          (7) business days from the Effective Date of this Agreement. </font></P>
     <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(c) <U>Vesting of Stock</U>.&nbsp;&nbsp; As of Employee&#146;s Termination Date, all unvested
          stock options are cancelled, and Employee shall cease vesting under the
          Company&#146;s Stock Option Plan and any Stock Option Agreement between Employee
          and Company. The exercise of any stock option shall continue to be subject to
          the terms and conditions of the Company&#146;s Stock Option Plan and
          the applicable Stock Option Agreement between Employee and Company. </font></P>
     <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(d) <U>Benefits</U>.&nbsp;&nbsp;Health insurance benefits will remain in effect through
          November 30, 2004. To the extent permitted by law and by the Company&#146;s
          current group health insurance policies, Employee will be eligible
          to continue <B>his </B>health insurance policies after <B>November 30, 2004</B> under the
          federal COBRA law at <B>his </B>own expense. The Company will, however, make the
          premium payments on behalf of Employee for one (1) month (December 2004)
          following termination of benefits. Employee will be provided with a separate
          notice of <B>his</B> COBRA rights. </font></P>

<P ALIGN=CENTER><FONT FACE="Times New Roman, Times, Serif" SIZE=2> </FONT></P>
<!-- MARKER PAGE="sheet: 7; page: 7" -->

<P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;2. <U>Confidential
  Information</U>.&nbsp;&nbsp;Employee shall continue to maintain the confidentiality of
  all confidential and proprietary information of the Company and shall continue
  to
  comply with the terms and conditions of the Confidentiality Agreement between
  Employee and the Company. By signing this agreement, Employee represents and
  declares under penalty of perjury under the laws of the State of California
  that Employee has returned all of the Company&#146;s property and confidential
  and proprietary information in <B>his </B>possession to the Company on the Effective
  Date of this Agreement. </font></P>

<P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;3.&nbsp;&nbsp;<U>Payment of Salary.</U>&nbsp;&nbsp;Employee  acknowledges  and represents that the Company has paid all salary,  wages,  bonuses,  accrued
vacation, commissions and any and all other benefits due to Employee once the above noted payments and benefits are received.
</FONT></P>
<P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;4. <U>Release of Claims</U>.&nbsp;&nbsp;Employee agrees that the foregoing consideration represents settlement in full
  of all outstanding obligations owed to Employee by the Company and its officers,
  managers, supervisors, agents and employees. Employee, on <B>his</B> own behalf,
  and on behalf <B>his</B> respective heirs, family members, executors, and
  assigns, hereby fully and forever releases the Company and its officers,
  directors, employees, investors, stockholders, administrators, affiliates,
  divisions, subsidiaries, predecessor and successor corporations, and assigns
  (the &#147;Releasees&#148;), from, and agree not to sue concerning, any claim,
  duty, obligation or cause of action relating to any matters of any kind, whether
  presently known or unknown, suspected or unsuspected, that Employee may possess
  arising from any omissions, acts or facts that have occurred up until and
  including the Effective Date of this Agreement including, without limitation: </font></P>

<P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(a) any and all claims  relating to or arising from  Employee's  employment  relationship  with the Company and the
termination of that relationship;</font></p>

<P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(b) any and all claims relating
  to, or arising from, Employee&#146;s right to purchase, or actual purchase
  of shares of stock of the Company, including, without limitation, any claims
  for
  fraud, misrepresentation, breach of fiduciary duty, breach of duty under
  applicable state corporate law, and securities fraud under any state or federal
  law; </font></P>

<P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(c) any and all claims
            under the law of any jurisdiction including, but not limited to,
            wrongful discharge of
  employment; constructive discharge from employment; termination in violation
            of public policy; discrimination; breach of contract, both express
            and implied;
  breach of a covenant of good faith and fair dealing, both express and implied;
  promissory estoppel; negligent or intentional infliction of emotional distress;
  negligent or intentional misrepresentation; negligent or intentional
  interference with contract or prospective economic advantage; unfair business
  practices; defamation; libel; slander; negligence; personal injury; assault;
  battery; invasion of privacy; false imprisonment; and conversion; </font></P>
<P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(d) any and all claims for violation of any federal,  state or municipal statute,  including,  but not limited to,
 Title VII of the Civil Rights Act of 1964, the Civil Rights Act
  of 1991, the Age Discrimination in Employment Act of 1967, the Americans with
  Disabilities Act of 1990, the Fair Labor Standards Act, the Employee Retirement
  Income Security Act of 1974, The Worker Adjustment and Retraining Notification
  Act, Older Workers Benefit Protection Act; the California Fair Employment and
  Housing Act, and California Labor Code; </font></P>
<P ALIGN=CENTER><FONT FACE="Times New Roman, Times, Serif" SIZE=2>-2-</FONT></P>
<!-- MARKER PAGE="sheet: 7; page: 7" -->


<TABLE WIDTH=100%>
<TR>
<TD WIDTH=10%>&nbsp;</TD>
<TD><font size="2" face="Times New Roman, Times, serif">
          any and all claims for violation of the federal, or any state, constitution;
</FONT></TD></TR>
<TR>
<TD>&nbsp;</TD>
<TD><font size="2" face="Times New Roman, Times, serif">


any  and  all  claims  arising  out of  any  other  laws  and  regulations  relating  to  employment  or  employment
                  discrimination;
</FONT></TD></TR>
<TR>
<TD>&nbsp;</TD>
<TD><font size="2" face="Times New Roman, Times, serif">
any claim for any loss,
            cost, damage, or expense arising out of any dispute over the non-withholding
            or other
  tax treatment of any of the proceeds received by Employee as a result of this
  Agreement; and
</FONT></TD></TR>
<TR>
<TD>&nbsp;</TD>
<TD><font size="2" face="Times New Roman, Times, serif">
          any and all claims for attorneys' fees and costs.
</FONT></TD></TR>
</TABLE>


<P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The Company and Employee
            agree that the release set forth in this section shall be and remain
            in effect in all
  respects as a complete general release as to the matters released. This release
  does not extend to any obligations incurred under this Agreement. </FONT></P>

<P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;5. <U>Acknowledgment of Waiver of
  Claims Under ADEA</U>.&nbsp;&nbsp;Employee acknowledges that he is waiving and releasing
  any rights he may have under the Age Discrimination in Employment Act of 1967
  (&#147;ADEA&#148;) and that this waiver and release is knowing and voluntary.
  Employee and the Company agree that this waiver and release does not apply
  to any rights or claims that may arise under ADEA after the Effective Date
  of this
  Agreement. Employee acknowledges that the consideration given for this waiver
  and release Agreement is in addition to anything of value to which Employee
  was already entitled. Employee further acknowledges that he has been advised
  by this
  writing that; </FONT></P>
<P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(a) he should consult with an attorney prior to executing this
  Agreement;
  </FONT></P>
<P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(b) he has up to twenty-one (21) days within to consider this
  Agreement;
    </FONT></P>
<P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(c) he has seven (7) days following his execution of this Agreement
  to revoke the Agreement;   </FONT></P>
<P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(d) this Agreement shall not be effective until the
  revocation period has expired; and   </FONT></P>
<P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(e) nothing in this Agreement prevents or
  precludes Employee from challenging or seeking a determination of good faith
  of the  validity of this waiver
            under ADEA, nor does it impose any condition precedent, penalties
            or costs for doing
  so, unless specifically authorized by federal law.
  </FONT></P>
<P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;6. <U>Civil Code Section 1542</U>.&nbsp;&nbsp;The Parties represent that they are not aware of any claim by either of them
  other than the claims that are released by this Agreement. Employee and the
  Company acknowledge that they have been advised by legal counsel and are
  familiar with the provisions of California Civil Code Section 1542, which
  provides as follows: </FONT></P>


<TABLE WIDTH=100%>
<TR>
<TD WIDTH=10%>&nbsp;</TD>
<TD><font size="2" face="Times New Roman, Times, serif">
A GENERAL RELEASE DOES
            NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
            TO EXIST IN <B>HIS</B>
  FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY <B>HIM</B> MUST
  HAVE MATERIALLY AFFECTED <B>HIS</B> SETTLEMENT WITH THE DEBTOR. </FONT></TD></TR></TABLE>

<P ALIGN=CENTER><FONT FACE="Times New Roman, Times, Serif" SIZE=2>-3-</FONT></P>
<!-- MARKER PAGE="sheet: 7; page: 7" -->



          <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Employee and the Company,
            being aware of said code section, agree to expressly waive any rights
            they may have
  thereunder, as well as under any other statute or common law principles of
  similar effect. </FONT></P>


          <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;7. <U>No Pending or Future
  Lawsuits</U>.&nbsp;&nbsp;Employee represents that <B>he</B> has no lawsuits, claims, or
  actions pending in <B>his</B> name, or on behalf of any other person or entity,
  against the Company or any other person or entity referred to herein. Employee
  also represents that <B>he</B> does not intend to bring any claims on <B>his</B>
  own behalf or on behalf of any other person or entity against the Company or any
  other person or entity referred to herein. </font></P>

          <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;8. <U>Confidentiality</U>.&nbsp;&nbsp;The Parties acknowledge that Employee&#146;s agreement to keep the
            terms and conditions of this Agreement confidential was a material
            factor on which all
  parties relied in entering into this Agreement. Employee hereto agrees to use <B>his </B>best efforts to maintain in confidence the existence of this
  Agreement, the contents and terms of this Agreement, the consideration for this
  Agreement, and any allegations relating to the Company or <B>his</B> employment
  with the Company except as otherwise provided for in this Agreement (hereinafter
  collectively referred to as &#147;Settlement Information&#148;). Employee agrees
  to take every reasonable precaution to prevent disclosure of any Settlement
  Information to third parties, and agrees that there will be no publicity,
  directly or indirectly, concerning any Settlement Information. Employee agrees
  to take every precaution to disclose Settlement Information only to those
  attorneys, accountants, governmental entities, and family members who have
  a reasonable need to know of such Settlement Information. </font></P>

          <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;9. <U>No Cooperation</U>.&nbsp;&nbsp;Employee
  agrees <B>he</B> will not act in any manner that might damage the business of
  the Company. Employee agrees that <B>he</B> will not counsel or assist any
  attorneys or their clients in the presentation or prosecution of any disputes,
  differences, grievances, claims, charges, or complaints by any third party
  against the Releasees, unless under a subpoena or other court order to do so.
  Employee further agrees both to immediately notify the Company in writing upon
  receipt of any court order, subpoena, or any legal discovery device that seeks
  or might require the disclosure or production of the existence or terms of this
  Agreement, and to furnish, within three (3) business days of its receipt, a copy
  of such subpoena or legal discovery device to the Company. </font></P>

          <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;10. <U>Non-Disparagement</U>.&nbsp;&nbsp;Each
  Party agrees to refrain from any defamation, libel or slander of the other Party
  or tortious interference with the contracts and relationships of the other
  Party. </font></P>
          <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;11. <U>Non-Solicitation</U>.&nbsp;&nbsp;
Employee agrees that for a period of twelve (12) months immediately following
  the Effective Date of this Agreement, Employee shall not either directly or
  indirectly solicit, induce, recruit or encourage any of the Company&#146;s
  employees to leave their employment, or take away such employees, or attempt
  to solicit, induce, recruit, encourage, take away or hire employees of the
  Company,
  either for <B>himself</B> or any other person or entity. </font></P>

          <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;12. <U>No Admission of
  Liability</U>.&nbsp;&nbsp;The Parties understand and acknowledge that this Agreement
  constitutes a compromise and settlement of any and all actual and potential
  disputed claims. No action taken by the Parties hereto, or either of them,
  either previously or in connection with this Agreement shall be deemed or
  construed to be: </font></P>

<P ALIGN=CENTER><FONT FACE="Times New Roman, Times, Serif" SIZE=2>-4-</FONT></P>
<!-- MARKER PAGE="sheet: 7; page: 7" -->
<P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(a)  an admission of the truth or falsity of any claims heretofore made or any potential claims; or
</font></p>
<P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(b) an  acknowledgment  or admission by either  party of any fault or liability  whatsoever  to the other party or
to any third party.
</font></p>
         <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;13. <U>Costs.</U>&nbsp;&nbsp;The Parties shall each bear their own costs,  expert fees,  attorneys'  fees and other fees incurred in connection
with this Agreement, Except as explicitly provided herein.</font></p>

          <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;14. <U>Indemnification</U>.&nbsp;&nbsp;
Employee agrees to indemnify and hold harmless the Company from and against
            any and all loss, costs, damages or expenses, including, without
            limitation,
  attorneys&#146; fees or expenses incurred by the Company arising out of the
  breach of this Agreement by Employee, or from any false representation made
  herein by Employee, or from any action or proceeding which may be commenced,
  prosecuted or threatened by Employee or for Employee&#146;s benefit, upon
  Employee&#146;s initiative, or with Employee&#146;s aid or approval, contrary
  to the provisions of this Agreement. Employee further agrees that in any such
  action or proceeding, this Agreement may be pled by the Company as a complete
  defense, or may be asserted by way of counterclaim or cross-claim. </font></P>
          <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;15. <U>Arbitration</U>.
&nbsp;&nbsp;The Parties agree that any and all disputes arising out of the terms
            of this
  Agreement, their interpretation, and any of the matters herein released, shall
  be subject to binding arbitration in Alameda County, California before the
  American Arbitration Association under its National Rules for the Resolution
            of Employment Disputes, supplemented by the California Code of Civil
            Procedure. The
  Parties agree that the prevailing party in any arbitration shall be entitled
            to injunctive relief in any court of competent jurisdiction to enforce
            the
  arbitration award. The Parties agree that the prevailing party in any
  arbitration shall be awarded its reasonable attorneys&#146; fees and costs. <B>The Parties hereby agree to waive their right to have any dispute between
  them resolved in a court of law by a judge or jury. </B>This paragraph will
  not prevent either party from seeking injunctive relief (or any other provisional
  remedy) from any court having jurisdiction over the Parties and the subject
  matter of their dispute relating to Employee&#146;s obligations under this
  Agreement and the Confidentiality Agreement. </font></P>
          <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;16. <U>Authority</U>.&nbsp;&nbsp;The Company
  represents and warrants that the undersigned has the authority to act on behalf
  of the Company and to bind the Company and all who may claim through it to the
  terms and conditions of this Agreement. Employee represents and warrants that
              <B>he</B> has the capacity to act on <B>his</B> own behalf and on behalf of all
  who might claim through <B>him</B> to bind them to the terms and conditions of
  this Agreement. Each party warrants and represents that there are no liens or
  claims of lien or assignments in law or equity or otherwise of or against any of
  the claims or causes of action released herein. </font></P>
          <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;17. <U>No Representations</U>.&nbsp;&nbsp;Each party represents that such Party has had the opportunity to consult with an
  attorney, and has carefully read and understands the scope and effect of the
  provisions of this Agreement. In entering into this Agreement, neither party has
  relied upon any representations or statements made by the other party hereto
  which are not specifically set forth in this Agreement. </font></P>

 <P ALIGN=CENTER><FONT FACE="Times New Roman, Times, Serif" SIZE=2>-5-</FONT></P>
<!-- MARKER PAGE="sheet: 7; page: 7" -->
          <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;18. <U>Severability</U>.&nbsp;&nbsp;In the
  event that any provision, or any portion thereof, becomes or is declared by a
  court of competent jurisdiction to be illegal, unenforceable or void, this
  Agreement shall continue in full force and effect without said provision, or
  portion thereof, so long as the remaining provisions remain intelligible and
  continue to reflect the original intent of the Parties. </font></P>
          <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;19. <U>Entire Agreement</U>.&nbsp;&nbsp;This
  Agreement, and the Confidentiality Agreement, constitute the entire agreement
  and understanding between the Parties concerning the subject matter of this
  Agreement and all prior representations, understandings, and agreements
  concerning the subject matter of this Agreement have been superseded by the
  terms of this Agreement. </font></P>
          <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;20. <U>No Waiver</U>.&nbsp;&nbsp;The failure
  of any party to insist upon the performance of any of the terms and conditions
  in this Agreement, or the failure to prosecute any breach of any of the terms
  and conditions of this Agreement, shall not be construed thereafter as a waiver
  of any such terms or conditions. This entire Agreement shall remain in full
  force and effect as if no such forbearance or failure of performance had
  occurred. </font></P>
          <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;21. <U>No Oral Modification</U>.
&nbsp;&nbsp;Any modification or amendment of this Agreement, or additional obligation
  assumed by either party in connection with this Agreement, shall be effective
  only if placed in writing and signed by both Parties or by authorized
  representatives of each party. No provision of this Agreement can be changed,
  altered, modified, or waived except by an executed writing by the Parties. </font></P>

          <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;22.  <U>Governing Law.</U>&nbsp;&nbsp;This  Agreement  shall be deemed to have been executed and delivered  within the State of California,  and
it shall be construed, interpreted, governed, and enforced in accordance with the laws of the State of California.</font></p>

<P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;23. <U>Attorneys&#146; Fees</U>.&nbsp;&nbsp;In the event that either Party brings an action to enforce or affect its rights
  under this Agreement, the prevailing party shall be entitled to recover its
  costs and expenses, including the costs of mediation, arbitration, litigation,
  court fees, plus reasonable attorneys&#146; fees, incurred in connection with
  such an action. </font></P>
          <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;24.  <U>Effective Date.</U>&nbsp;&nbsp;This Agreement is effective seven (7) days following execution of this Agreement by both Parties.</font></p>

          <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;25.  <U>Counterparts.</U>&nbsp;&nbsp;This  Agreement  may be  executed  in  counterparts,  and each  counterpart  shall have the same force and
 effect as an original and shall constitute an effective, binding agreement on the part of each of the undersigned.</font></p>
          <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;26.  <U>Voluntary  Execution of Agreement.</U>&nbsp;&nbsp;This Agreement is executed  voluntarily  and without any duress or undue influence on
the part or behalf of the Parties hereto, with the full intent of releasing all claims.  The Parties acknowledge that:</font></p>

          <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(a)  They have read this Agreement;
</font></P>
                               <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(b) They have been represented in the preparation,  negotiation,  and execution of this Agreement by legal counsel
of their own choice or that they have voluntarily declined to seek such counsel;</font></p>

<P ALIGN=CENTER><FONT FACE="Times New Roman, Times, Serif" SIZE=2>-6-</FONT></P>
<!-- MARKER PAGE="sheet: 7; page: 7" -->
          <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(c) They understand the terms and consequences of this Agreement and of the releases it contains; and
</font></p>
                               <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(d)  They are fully aware of the legal and binding effect of this Agreement.
</font></P>

          <P ALIGN="LEFT"><font size="2" face="Times New Roman, Times, serif">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;IN WITNESS WHEREOF, the
            Parties have executed this Agreement on the respective dates set
          forth below. </FONT></P>

<TABLE width="100%" border=0 cellPadding=0 cellSpacing=0 style="FONT-SIZE: 10pt">
  <TR>
    <TD width="48%" height="17">&nbsp;</TD>
    <TD width="1%">&nbsp;</TD>
    <TD width="1%">&nbsp;</TD>
    <TD width="35%">&nbsp;</TD>
    <TD width="15%">&nbsp;</TD>
  </TR>
  <TR>
    <TD vAlign=top>&nbsp;</TD>
    <TD colSpan=3><strong>VA SOFTWARE CORPORATION,</strong><BR>      <BR>
</TD>
    <TD>&nbsp;</TD>
  </TR>
  <TR>
    <TD>Dated: November 19, 2004</TD>
    <TD vAlign=top>By:&nbsp;&nbsp;</TD>
    <TD style="BORDER-BOTTOM: #000000 1px solid" colSpan=2>/s/ Kathleen R. McElwee &nbsp;</TD>
    <TD>&nbsp;</TD>
  </TR>
  <TR>
    <TD>&nbsp;</TD>
    <TD>&nbsp;</TD>
    <TD colSpan=2>Kathleen R. McElwee</TD>
    <TD>&nbsp;</TD>
  </TR>
  <TR>
    <TD>&nbsp;</TD>
    <TD>&nbsp;</TD>
    <TD colSpan=2>Senior Vice President and Chief Financial Officer</TD>
    <TD>&nbsp;</TD>
  </TR>
  <TR>
    <TD colSpan=5>&nbsp;</TD>
  </TR>
  <TR>
    <TD>&nbsp;</TD>
    <TD colspan="3">Pat Ferrell, an individual</TD>
    <TD>&nbsp;</TD>
  </TR>
  <TR>
    <TD colSpan=5>&nbsp;</TD>
  </TR>
  <TR>
    <TD>Dated: November 19, 2004</TD>
    <TD vAlign=top>&nbsp;&nbsp;</TD>
    <TD style="BORDER-BOTTOM: #000000 1px solid" colSpan=2>/s/ Pat Ferrell</TD>
    <TD>&nbsp;</TD>
  </TR>
  <TR>
    <TD>&nbsp;</TD>
    <TD>&nbsp;</TD>
    <TD colSpan=2>Pat Ferrell</TD>
    <TD>&nbsp;</TD>
  </TR>
  <TR>
    <TD>&nbsp;</TD>
    <TD>&nbsp;</TD>
    <TD colSpan=2>&nbsp;</TD>
    <TD>&nbsp;</TD>
  </TR>
  <TR>
    <TD colSpan=5>&nbsp;</TD>
  </TR>
  <TR>
    <TD colSpan=5>&nbsp;</TD>
  </TR>
</TABLE>
<p>&nbsp;</p>
<P ALIGN=CENTER><FONT FACE="Times New Roman, Times, Serif" SIZE=2>-7-</FONT></P>

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