EXHIBIT 10.34
INPRISE CORPORATION
CHANGE IN CONTROL AGREEMENT
This Change in Control Agreement (the "Agreement") is effective as of DATE,
by and between EMPLOYEE NAME (the "Employee") and Inprise Corporation, a
Delaware corporation (the "Company").
RECITALS
A. The Employee presently serves as POSITION TITLE of the Company and performs
significant strategic and management responsibilities necessary to the continued
conduct of the Company's business and operations.
B. The Board of Directors of the Company (the "Board") has determined that it
is in the best interests of the Company and its stockholders to assure that the
Company will have the continued dedication and objectivity of the Employee,
notwithstanding the possibility or occurrence of a Change in Control (as defined
below) of the Company.
C. The Board believes that it is imperative to provide the Employee with
certain severance benefits upon the Employee's termination of employment
following a Change in Control that will provide the Employee with enhanced
financial security and provide sufficient incentive and encouragement to the
Employee to remain with the Company following a Change in Control.
D. Certain capitalized terms used in the Agreement are defined in Section 6
below.
AGREEMENT
The Employee and the Company agree as set forth below:
(1) Terms of Employment. The Company and the Employee agree that the
Employee's employment is "at will" and that their employment relationship
may be terminated by either party at any time, with or without cause. If
the Employee's employment with the Company terminates for any reason
following a Change in Control, but on or before the first anniversary of
the Change in Control, the Employee shall not be entitled to any payments,
benefits, damages, awards or compensation other than as provided by this
Agreement. During his or her employment with the Company, the Employee
agrees to devote his or her full business time, energy and skill to his or
her duties with the Company. These duties shall include, but not be
limited to, any duties consistent with the Employee's position that may be
assigned to the Employee from time to time by the Company or the Board.
(2) Stock Option Vesting Upon Change in Control. Upon the occurrence
of a Change in Control, with respect to any unvested options to purchase
shares of the stock of the Company held by the Employee, the Employee shall
immediately become vested in full in such options pursuant to the Key
Executive Option Acceleration Program approved by the Board on January 22,
1997.
(3) Severance Benefits Upon Termination following a Change in
Control. Subject to the limitations set forth in Sections 4 and 5 below, if
the Employee's employment with the Company terminates following a Change in
Control but on or before the first anniversary of such Change in Control,
then the Employee shall be entitled to receive, in addition to the
compensation and benefits earned by the Employee through the date of his or
her termination, severance benefits as follows:
(a) Involuntary Termination. If the Employee's employment with the
Company is terminated as a result of Involuntary Termination,
then the Employee shall be entitled to receive the following
severance benefits:
(i) The Employee shall be entitled to receive severance pay in
an amount equal to one hundred percent (100%) of his or her
annual base salary as in effect at the time of such
termination. Any severance to which the Employee is entitled
pursuant to this section shall be paid in a lump sum, less
applicable withholding, within thirty (30) days following
the Employee's termination.
(ii) The Company shall, if permitted under the Company's existing
health insurance plans, continue the Employee's existing
group health insurance coverage. If not so permitted, the
Company shall reimburse the Employee for any COBRA premiums
paid by the Employee for continued group health insurance
coverage. Such health insurance coverage or reimbursement of
COBRA premiums shall continue until the earlier of (1)
twelve (12) months after the date of the Employee's
Involuntary Termination or (2) the date on which the
Employee commences New Employment.
(b) Voluntary Resignation; Termination For Cause. If the Employee's
employment terminates by reason of the Employee's voluntary resignation
(but not as a result of an Involuntary Termination) or as a result of the
Employee's termination for Cause, then the Employee shall not be entitled
to receive any severance pay or benefits under this Agreement.
(c) Disability; Death. If the Company terminates the Employee's
employment as a result of the Employee's Disability, or death, then the
Employee shall not be entitled to receive any severance pay or benefits
under this Agreement.
4. Release of Claims; Resignation. The Employee's entitlement to any severance
pay or benefits under Section 3(a) is conditioned upon the Employee's execution
and delivery to the Company of (a) a general release of known and unknown claims
in a form satisfactory to the Company and (b) a resignation from all of the
Employee's positions with the Company, including from the Board of Directors and
any committees thereof on which the Employee serves, in a form satisfactory to
the Company.
5. Parachute Payments. In the event that any payment or benefit received or to
be received by the Employee pursuant to this Agreement or otherwise
(collectively, the "Payments") would result in a "parachute payment" as
described in section 280G of the Internal Revenue Code of 1986, as amended,
notwithstanding the other provisions of this Agreement, the amount of such
Payments will not exceed the amount which produces the greatest after-tax
benefit to the Employee. For purposes of the foregoing, the greatest after-tax
benefit will be determined within
thirty (30) days of the occurrence of such payment to the Employee, in the
Employee's sole and absolute discretion. If no such determination is made by the
Employee within thirty (30) days of the occurrence of such payment, the Company
will promptly make such determination in a fair and equitable manner.
6. Consulting Services. During the twenty-four (24) months following any
Involuntary Termination for which the Employee receives the severance pay and
benefits described in Section 3(a), the Employee shall be retained by the
Company as an independent contractor to provide consulting services to the
Company at its request for up to eight (8) hours per week. These services shall
include any reasonable requests for information or assistance by the Company,
including, but not limited to, the transition of the Employee's duties. Such
services shall be provided as and when reasonably requested by the Company. For
the actual provision of such services, the Company shall pay to the Employee a
consulting fee of $1,000 per day.
7. Definition of Terms. The following terms referred to in this Agreement
shall have the following meanings:
(a) "Cause" shall mean any of the following:
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(i) the Employee's theft, dishonesty, misconduct or falsification
of any records of the Company, its successor, or any subsidiary of the
Company or its successor (collectively, the "Company Group");
(ii) the Employee's improper use or disclosure of confidential or
proprietary information of the Company Group;
(iii) any action by the Employee which has a material detrimental
effect on the reputation or business of the Company Group;
(iv) the Employee's failure or inability to perform any
reasonable assigned duties after written notice from the Company Group
of, and a reasonable opportunity to cure, such failure or inability;
(v) any material breach by the Employee of any employment
agreement between the Employee and the Company Group, which breach is
not cured pursuant to the terms of such agreement; or
(vi) the Employee's conviction of any criminal act which impairs
the Employee's ability to perform his or her duties for the Company
Group.
(b) "Change in Control" shall mean an acquisition of the Company as that
phrase is defined in the minutes of the Board meeting of January 22, 1997.
(c) "Constructive Termination" shall mean any one or more of the following:
(i) without the Employee's express written consent, the
assignment to the Employee of any title or duties, or any limitation of the
Employee's responsibilities, substantially inconsistent with the Employee's
title(s), duties, or responsibilities with the Company Group immediately
prior to the date of the Change in Control;
(ii) without the Employee's express written consent, the
relocation of the principal place of the Employee's employment to a
location that is more than fifty (50) miles from the Employee's principal
place of employment immediately prior to the date of the Change in Control,
or the imposition of travel requirements substantially more demanding of
the Employee than such travel requirements existing immediately prior to
the date of the Change in Control;
(iii) any failure by the Company Group to pay, or any material
reduction by the Company Group of, (1) the Employee's base salary in effect
immediately prior to the date of the Change in Control, or (2) the
Employee's bonus compensation, if any, in effect immediately prior to the
date of the Change in Control (subject to applicable performance
requirements with respect to the actual amount of bonus compensation earned
by the Employee), unless base salary and/or bonus reductions comparable in
amount and duration are concurrently made for a majority of the other
employees of the Company Group who have substantially similar titles and
responsibilities as the Employee;
(iv) any failure by the Company Group to (1) continue to provide
the Employee with the opportunity to participate, on terms no less
favorable than those in effect for the benefit of any employee group which
customarily includes a person holding the employment position or a
comparable position with the Company Group then held by the Employee, in
any benefit or compensation plans and programs, including, but not limited
to, the Company Group's life, disability, health, dental, medical, savings,
profit sharing, stock purchase and retirement plans, if any, in which the
Employee was participating immediately prior to the date of the Change in
Control, or in substantially similar plans or programs, or (2) provide the
Employee with all other fringe benefits (or substantially similar benefits)
provided to any employee group which customarily includes a person holding
the employment position or a comparable position with the Company Group
then held by the Employee, which the Employee was receiving immediately
prior to the date of the Change in Control; or
(v) the failure of the Company to obtain the assumption of the
terms of this Agreement by any successors as contemplated in Section 8(a)
below.
However, the foregoing conditions shall not constitute a Constructive
Termination unless the Employee has given written notice of any such
condition(s) to the Board and allowed the Company Group at least ten (10) days
thereafter to correct such condition(s). If such condition(s) are not corrected
within that ten (10) day period, the Employee may give written notice of his
Constructive Termination to the Board, which shall be an Involuntary
Termination.
(d) "Disability" means the inability of the Employee, in the opinion of a
qualified physician, to perform the essential functions of the Employee's
position with the Company Group, with or without reasonable accommodation,
because of the sickness or injury of the Employee.
(e) "Involuntary Termination" shall mean the occurrence of either of the
following events after a Change in Control, but on or before the first
anniversary of such Change in Control:
(i) termination by Company Group of the Employee's employment
without Cause; or
(ii) the Employee's Constructive Termination.
"Involuntary Termination" shall not include any termination of the Employee's
employment that is (1) for Cause, (2) a result of the Employee's death or
Disability, or (3) a result of the Employee's voluntary resignation.
(f) "New Employment" shall mean any employment obtained by the Employee
after the termination of the Employee's employment with the Company.
8. Nonsolicitation. During his or her employment with the Company, and for a
period of one (1) year following the termination of his or her employment for
any reason, the Employee shall not directly or indirectly recruit, solicit, or
induce any person who on the date hereof is, or who subsequently becomes, an
employee, sales representative or consultant of the Company, to terminate his or
her relationship with the Company.
9. Successors.
(a) Company's Successors. Any successor to the Company or to all or
substantially all of the Company's business and/or assets shall assume its
obligations under this Agreement and agree expressly in writing 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.
(b) Employee's Successors. All rights of the Employee hereunder shall
inure to the benefit of, and be enforceable by, the Employee's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. The Employee shall have no right to assign any of his
obligations or duties under this Agreement to any other person or entity.
10. Notice.
(a) General. 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 Employee, mailed
notices shall be addressed to the Employee 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 Secretary.
(b) Notice of Termination. Any termination by the Company Group or the
Employee of their employment relationship shall be communicated by a written
notice of termination to the other party.
11. Miscellaneous Provisions.
(a) No Duty to Mitigate. The Employee 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 Employee 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 to in writing
and signed by the Employee and by an authorized officer of the Company (other
than the Employee). No waiver by either party of any breach of, or of
compliance with, any condition or provision of this Agreement by the other party
shall be considered a waiver of any other condition or provision or of the same
condition or provision at another time.
(c) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California.
(d) Severability. The invalidity or unenforceability of any provision 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.
(e) Arbitration. In the event of any dispute or claim relating to or
arising out of the Employee's employment relationship with the Company, this
Agreement, or the termination of the Employee's employment with the Company for
any reason (including, but not limited to, any claims of breach of contract,
wrongful termination, fraud or age, race, sex, national origin, disability or
other discrimination or harassment), the Employee and the Company agree that all
such disputes shall be fully, finally and exclusively resolved by binding
arbitration conducted by the American Arbitration Association in Santa Xxxxx
County, California. The Employee and the Company knowingly and willingly waive
their respective rights to have any such disputes or claims tried to a judge or
jury. Provided, however, that this arbitration provision shall not apply to any
disputes or claims relating to or arising out of the actual or alleged misuse or
misappropriation of the Company's property, including, but not limited to, its
trade secrets or proprietary information.
(f) Prior Agreements. This Agreement supersedes all prior understandings
and agreements, whether written or oral, regarding the subject matter of this
Agreement.
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 day and year first
above written.
INPRISE CORPORATION
EMPLOYEE
