EX-10.37 2 dex1037.htm FORM OF RETENTION AGREEMENT RETENTION AGREEMENT
EXHIBIT 10.37
THIS RETENTION AGREEMENT (the “Agreement”), effective as of the day of , 2008, is made and entered into by and between Blackbaud, Inc., a Delaware corporation (the “Company”), and , an individual residing in County, South Carolina (“Employee”).
WHEREAS, the Company presently employs Employee as its ; and
a. “Effective Date.” For the purposes of this Agreement, the “Effective Date” shall mean the date first written hereinabove.
b. “Change In Control.” For the purposes of this Agreement, a “Change in Control” shall be deemed to have occurred upon the consummation of (i) a merger or consolidation in which the shareholders of the Company immediately prior to the merger or consolidation cease to own at least 50% of the combined entity immediately following the merger or consolidation; (ii) a sale of all or substantially all of the assets of the Company; (iii) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities and Exchange Act of 1934, as amended) of beneficial ownership of any capital stock of the Company, if, after such acquisition, such individual, entity or group owns more than 50% of either (A) the then-outstanding common stock of the Company or (B) the combined voting power of the then-outstanding securities of the Company entitled to vote in the election of directors; or (iv) the liquidation or dissolution of the Company.
c. “Cause.” For purposes of this Agreement, “Cause” shall mean:
i. Employee’s conviction of, or plea of no contest to, any crime (whether or not involving the Company) that constitutes a felony in the jurisdiction in which
Employee is charged, other than unintentional motor vehicle felonies, routine traffic citations or a felony predicated exclusively on Employee’s Vicarious Liability. “Vicarious Liability” for purposes of this Agreement shall mean any act for which Employee is constructively liable, including, but not limited to, any liability that is based on acts of the Company for which Employee is charged solely as a result of his or her offices with the Company and in which he or she was not directly involved or did not have prior knowledge of such actions or intended actions;
ii. Any act of theft, fraud or embezzlement, or any other willful misconduct or willfully dishonest behavior by Employee;
iii. Employee’s failure or refusal to perform his or her reasonably-assigned duties (consistent with past practice of the Company and other than due to a Disability), provided that such failure or refusal is not corrected as promptly as practicable, and in any event within thirty (30) calendar days after Employee shall have received written notice from the Company stating the nature of such failure or refusal; and/or
iv. Employee’s willful violation of any of his or her obligations contained in that certain Blackbaud Employment Agreement between Employee and the Company and attached as Exhibit A hereto, which violation is of a character that is likely to materially injure the Company, as determined by the Company in good faith.
For purposes of this Agreement, no act or omission by Employee shall be considered “willful” if reasonably believed by Employee to be in, or not contrary to, the best interests of the Company.
d. “Good Reason.” For purposes of this Agreement, “Good Reason” shall mean:
i. Any materially adverse change or diminution in the office, title, duties, powers, authority or responsibilities of Employee, provided such change or diminution continues uncorrected for a period of thirty (30) calendar days after the Company shall have received written notice from Employee stating the nature of such change or diminution;
ii. A reduction in Employee’s then Base Salary or target Bonus Compensation or a material reduction of any material employee benefit or perquisite enjoyed by him or her (other than as consented to by Employee);
iii. Failure of the Company to obtain the assumption in writing of its obligation to perform this Agreement by any purchaser of all or substantially all of the assets of the Company within thirty (30) calendar days after a sale or transfer of such assets; and/or
iv. A relocation of the Employee’s own office location as assigned to him or her by the Company, to a location more than forty (40) miles from his or her existing office location, or a materially adverse change, without Employee’s consent, in the business travel requirements of Employee’s position.
e. “Disability.” For purposes of this Agreement, “Disability” shall mean Employee’s inability due to a physical or mental impairment to perform the essential functions of his or her job, with or without reasonable accommodation, for a period of at least ninety (90) consecutive or non-consecutive days in any twelve (12) month period.
f. “Term.” For purposes of this Agreement, the “Term” of this Agreement shall mean an initial period of three (3) years following the Effective Date, plus successive one (1) year renewal periods thereafter so long as the Company does not provide Employee with written notice of its intention not to renew this Agreement at least ninety (90) days prior to the expiration of the initial three (3) year period or any additional one (1) year renewal period.
g. “Termination Date.” For the purposes of this Agreement, “Termination Date” shall mean the effective date of Employee’s termination of employment with the Company.
h. “Termination Compensation.” For the purposes of this Agreement, “Termination Compensation” shall have the meaning ascribed to it in Section 2(a) of this Agreement.
i. “Effective Release.” An “Effective Release” is defined as a general release of claims in favor of the Company in a form reasonably acceptable to the Company’s counsel that is executed by Employee after the Termination Date and within any consideration period required by applicable law and that is not revoked by Employee within any legally-prescribed revocation period.
a. Payment of an amount equal to times his/her base salary at the rate in effect on the Termination Date, minus applicable withholdings required by law or authorized by Employee (the “Termination Compensation”);
b. Conditioned on Employee’s proper and timely election to continue his/her health insurance benefits under COBRA after the Termination Date, reimbursement of Employee’s applicable COBRA premiums for the lesser of: (i) months following the Termination Date; or (ii) until Employee becomes eligible for insurance benefits from another employer;
c. percent ( %) of all then outstanding and unvested stock options and other equity awards held by Employee shall become vested and immediately and fully exercisable, notwithstanding any provision in any award agreement.
Upon termination of employment for (i) death, (ii) Disability, (iii) Cause by the Company, (iv) without Good Reason by Employee, or (v) following the Term of this Agreement, Employee shall not be entitled to additional compensation under this Agreement beyond that accrued as of the Termination Date.
If to Employee: |
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If to the Company: | Blackbaud, Inc. | |||
0000 Xxxxxx Xxxxxx Xxxxx | ||||
Xxxxxxxxxx, XX 00000-0000 | ||||
(fax) 0.000.000.0000 | ||||
Attn: Xxxx Xxxxxxxxx |
The notice shall be deemed to be received, if sent per subsection (a), on the date of its actual receipt by the party entitled thereto and, if sent per subsection (b), on the third day after the date of its mailing.
9. Governing Law. This Agreement and all questions arising in connection herewith shall be governed by the laws of the State of South Carolina.
IN WITNESS WHEREOF, the parties have executed this Retention Agreement effective as of the day and year first above written.
BLACKBAUD, INC. | ||
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By: | Xxxx Xxxxxxx | |
Title: | President and Chief Executive Officer | |
EMPLOYEE: | ||
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