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EXHIBIT 10.11
SPYGLASS, INC.
Senior Management Retention Agreement
Xx. Xxxx X. Xxxxxx
c/o Spyglass, Inc.
0000 X Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Dear Xx. Xxxxxx:
Spyglass, Inc. (the "Company") recognizes that, as is the case with
many publicly-held corporations, the possibility of a change in control of the
Company exists and that such possibility, and the uncertainty and questions
which it may raise among key personnel, may result in the departure or
distraction of key personnel to the detriment of the Company and its
stockholders.
The Board of Directors of the Company (the "Board") has determined that
appropriate steps should be taken to reinforce and encourage the continued
employment and dedication of the Company's key personnel, including yourself,
without distraction from the possibility of a change in control of the Company
and related events and circumstances.
As inducement for and in consideration of your remaining in its employ,
the Company agrees that you shall receive the severance benefits set forth in
this letter agreement (the "Agreement") in the event your employment with the
Company is terminated under the circumstances described below subsequent to a
Change in Control of the Company (as defined below).
1. Certain Definitions. As used herein, the following terms shall have
the following respective meanings:
1.1 "Change in Control" shall mean:
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(a) the acquisition by an individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or
more of either (i) the then-outstanding shares of common stock of the Company
(the "Outstanding Company Common Stock") or (ii) the combined voting power of
the then-outstanding voting securities of the Company entitled to vote generally
in the election of directors (the "Outstanding Company Voting Securities");
provided, however, that for purposes of this subsection (a), the following
acquisitions shall not constitute a Change in Control: (i) any acquisition
directly from the Company, (ii) any acquisition by the Company, (iii) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company, or (iv)
any acquisition by any corporation pursuant to a transaction which complies with
clauses (i), (ii) and (iii) of subsection (c) of this Section 1.1; or
(b) individuals who, as of the date hereof, constitute the
members of the Board (the "Incumbent Directors") cease for any reason to
constitute at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose election, or
nomination for election by the Company's stockholders, was approved by a vote of
at least a majority of the Incumbent Directors shall be deemed to be an
Incumbent Director (except that this proviso clause shall not apply to any
individual whose initial election as a director occurs as a result of an actual
or threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board); or
(c) the consummation of a reorganization, merger or
consolidation involving the Company or a sale or other disposition of all or
substantially all of the assets of the Company (a "Business Combination"),
unless, immediately following such Business Combination, (i) all or
substantially all of the
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individuals and entities who were the beneficial owners of the Outstanding
Company Common Stock and Outstanding Company Voting Securities immediately prior
to such Business Combination beneficially own, directly or indirectly, more than
60% of the then-outstanding shares of common stock and the combined voting power
of the then-outstanding voting securities entitled to vote generally in the
election of directors, respectively, of the resulting or acquiring corporation
in such Business Combination in substantially the same proportions as their
ownership, immediately prior to such Business Combination, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities, respectively,
(ii) no Person (excluding any resulting or acquiring corporation in such
Business Combination or any employee benefit plan (or related trust) of the
Company or of such resulting or acquiring corporation in such Business
Combination) beneficially owns, directly or indirectly, 30% or more of the then
outstanding shares of common stock of such resulting or acquiring corporation in
such Business Combination, or of the combined voting power of the
then-outstanding voting securities of such corporation (except to the extent
that such ownership existed prior to the Business Combination) and (iii) at
least half of the members of the board of directors of the resulting or
acquiring corporation in such Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement, or of the action of
the Board, providing for such Business Combination; or
(d) approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
1.2 "Cause" shall mean:
(a) your willful failure to substantially perform your
reasonable assigned duties as an officer of the Company (other than any such
failure resulting from incapacity due to physical or mental illness), which
failure is not cured within 30 days after a written demand for substantial
performance is delivered to you by the Board which specifically identifies the
manner in which the Board believes that you have not substantially performed
your duties; or
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(b) your willful engagement in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the Company. For
purposes of this Section 1.2, no act or failure to act, on your part shall be
considered "willful" unless it is done, or omitted to be done, by you in bad
faith and without reasonable belief that your action or omission was in the best
interests of the Company.
1.3 "Good Reason" shall mean the occurrence, without your written
consent, of any of the following circumstances unless such circumstance is fully
corrected prior to the Date of Termination specified in the Notice of
Termination (each as defined below) given in respect thereof (provided that such
right of correction by the Company shall only apply to the first Notice of
Termination for Good Reason given by you):
(a) the assignment to you (without your written consent) of any
duties inconsistent in any respect with your position (including status,
offices, titles and reporting requirements), authority or responsibilities in
effect as immediately prior to the Change in Control, or any other action by the
Company which results in a diminution in such position, authority or
responsibilities, excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and which is remedied by the Company
promptly after receipt of written notice thereof given by you;
(b) a reduction in your annual base salary as in effect on the
date hereof or as the same may be increased from time to time;
(c) the failure by the Company to (i) continue in effect any
material compensation or benefit plan in which you participate immediately prior
to the Change in Control, unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with respect to such plan,
(ii) continue your participation therein (or in such substitute or alternative
plan) on a basis not materially less favorable, both in terms of the amount of
benefits provided and the level
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of your participation relative to other participants, as existed at the time of
the Change in Control or (iii) award cash bonuses to you in amounts and in a
manner substantially consistent with past practice in light of the Company's
financial performance;
(d) the failure by the Company to continue to provide you with
benefits substantially similar to those enjoyed by you under any of the
Company's life insurance, medical, health and accident, or disability plans in
which you were participating at the time of the Change in Control, the taking of
any action by the Company which would directly or indirectly materially reduce
any of such benefits, or the failure by the Company to provide you with the
number of paid vacation days to which you are entitled on the basis of years of
service with the Company in accordance with the Company's normal vacation policy
in effect at the time of the Change in Control;
(e) a change by the Company in the location at which you perform
your principal duties for the Company to a new location that is both (i) outside
a radius of 35 miles from your principal residence at the time of the Change in
Control and (ii) more than 20 miles from the location at which you perform your
principal duties for the Company at the time of the Change in Control; or a
requirement by the Company that you travel on Company business to a
substantially greater extent than required immediately prior to the Change in
Control;
(f) the failure of the Company to obtain a reasonably
satisfactory agreement from any successor to assume and agree to perform this
Agreement, as required by Section 5; or
(g) a purported termination of your employment which is not
effected pursuant to a Notice of Termination satisfying the requirements of
Sections 3.2 and 6, which purported termination shall not be effective for
purposes of this Agreement.
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For purposes of this Agreement, any good faith determination of "Good
Reason" made by the Board shall be conclusive, provided that Incumbent Directors
then comprise a majority of the Board.
1.4 "Disability" shall mean your absence from the full-time
performance of your duties with the Company for six consecutive months as a
result of incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its insurers and
acceptable to you or your legal representative.
2. Term of the Agreement. The term of this Agreement (the "Term") shall
commence on as of the date hereof and shall continue in effect through December
31, 2000; provided, however, that commencing on January l, 2001 and each January
l thereafter, the Term shall be automatically extended for one additional year
unless, not later than October 31 of the preceding calendar year, the Company
shall have given you written notice that the Term will not be extended. This
Agreement, and all rights and obligations of the parties hereunder, shall expire
upon (a) the expiration of the Term if a Change in Control has not occurred
during the Term, (b) the date 24 months after the date of the Change in Control,
if you are still employed by the Company as of such date, or (c) the fulfillment
by the Company of all of its obligations under Section 4 if your employment with
the Company terminates within 24 months following a Change in Control.
3. Employment Status; Termination Following Change in Control.
3.1 Not Employment Contract. You acknowledge that this Agreement
does not constitute a contract of employment or impose on the Company any
obligation to retain you as an employee and that this Agreement does not prevent
you from terminating your employment at any time. If your employment with the
Company terminates for any reason and subsequently a Change in Control shall
occur, you shall not be entitled to any benefits hereunder.
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3.2 Termination of Employment. Any termination of your employment by
the Company or by you within 24 months following a Change in Control of the
Company during the Term shall be communicated by written notice of termination
("Notice of Termination") to the other party hereto in accordance with Section
6. If such employment termination is for Cause, Good Reason or Disability, the
Notice of Termination shall so state. The "Date of Termination" shall mean the
effective date of such termination as specified in the Notice of Termination
(provided that no such Notice of Termination shall specify an effective date
less than fifteen days or more than 120 days after the date such Notice of
Termination is delivered).
4. Rights Upon Termination.
4.1 Compensation. You shall be entitled to the following benefits if
a Change in Control occurs during the Term and your employment with the Company
terminates within 24 months following such Change in Control:
(a) Termination Without Cause or for Good Reason. If your
employment with the Company is terminated by the Company (other than for Cause,
Disability or your death) or by you for Good Reason within 24 months following a
Change in Control, then you shall be entitled to the following benefits:
(i) the Company shall pay to you in a lump sum in cash
within 30 days after the Date of Termination the aggregate of the following
amounts:
(1) the sum of (A) your annual base salary through the
Date of Termination, (B) the product of (x) the annual bonus paid or payable
(including any bonus or portion thereof which has been earned but deferred) for
the most recently completed fiscal year and (y) a fraction, the number of which
is the number of days in the current fiscal year through the Date of
Termination, and the denominator of which is 365 and (C) the amount of any
compensation previously deferred by you (together with any accrued interest or
earnings thereon) and any accrued vacation pay, in each case to the extent not
theretofore paid (the sum of the
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amounts described in clauses (A), (B), and (C) shall be hereinafter referred to
as the "Accrued Obligations"); and
(2) the amount equal to the sum of (A) your highest
annual base salary during the five-year period prior to the Change in Control
and (B) your highest annual bonus during the five-year period prior to the
Change in Control
(ii) for 12 months after your Date of Termination, or such
longer period as may be provided by the terms of the appropriate plan, program,
practice or policy, the Company shall continue to provide benefits to you and
your family at least equal to those which would have been provided to you and
them in accordance with the applicable plans, programs, practices and policies
in effect on the Date of Termination (excluding any savings and/or retirement
plans) if your employment had not been terminated; provided, however, that if
you become reemployed with another employer and are eligible to receive medical
or other welfare benefits under another employer-provided plan, the medical and
other welfare benefits described herein shall not be provided to the extent the
same are provided under such other plan during such applicable period of
eligibility; and
(iii) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to you any other amounts or benefits
required to be paid or provided or which you are eligible to receive following
your termination of employment under any plan, program, policy or practice or
contract or agreement of the Company and its affiliated companies (such other
amounts and benefits shall be hereinafter referred to as the "Other Benefits").
(b) Resignation without Good Reason; Termination for Death or
Disability. If you voluntarily terminate your employment within 24 months
following a Change in Control, excluding a termination for Good Reason, or if
your employment is terminated by reason of your death or Disability within 24
months following a Change in Control, the Company shall (i) pay you, in a lump
sum in cash within 30 days after
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the Date of Termination, the Accrued Obligations and (ii) timely pay or provide
to you the Other Benefits.
(c) Termination for Cause. If your employment is terminated by
the Company for Cause within 24 months following a Change in Control, the
Company shall (i) pay you, in a lump sum in cash within 30 days after the Date
of Termination, the sum of (A) your annual base salary through the Date of
Termination and (B) the amount of any compensation previously deferred by you,
in each case to the extent not theretofore paid, and (ii) timely pay or provide
to you the Other Benefits.
4.2 Taxes. Payments under this Agreement shall be made without
regard to whether the deductibility of such payments (or any other payments to
or for your benefit) would be limited or precluded by Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code") and without regard to
whether such payments (or any other payments) would subject you to the federal
excise tax levied on certain "excise parachute payments" under Section 4999 of
the Code; provided, that if the total of all payments to or for your benefit,
after deduction of all federal taxes (including the tax set forth in Section
4999 of the Code, if applicable) with respect to such payments (the "total
after-tax payments"), would be increased by the limitation or elimination of any
payment under this Agreement, amounts payable under this Agreement shall be
reduced to the extent, and only to the extent, necessary to maximize the total
after-tax payments. The determination as to whether and to what extent payments
under this agreement are required to be reduced in accordance with the preceding
sentence shall be made by agreement between you and the independent public
accounting firm of the Company (whose fees and expenses shall be borne solely by
the Company). To the extent that any elimination or reduction of payments is
made in accordance with this Section 4.2, the determination as to which payments
shall be eliminated or reduced shall be made by you.
4.3 Mitigation. Except as provided in Section 4.1(a)(ii) hereof, you
shall not be required to mitigate the amount of any payment or benefits provided
for in this
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Section 4 by seeking other employment or otherwise, nor shall the amount of any
payment or benefits provided for in this Section 4 be reduced by any
compensation earned by you as a result of employment by another employer, by
retirement benefits or by offset against any amount claimed to be owed by you to
the Company or otherwise.
4.4 Expenses. The Company agrees to pay as incurred, to the full
extent permitted by law, all legal fees and expenses which you may reasonably
incur as a result of any claim or contest by the Company, you or others
regarding the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by you regarding the amount of any payment or benefits pursuant
to this Agreement), plus in each case interest on any delayed payment at the
applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code.
5. Successors; Binding Agreement.
5.1 The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company expressly to assume
and agree to perform this Agreement to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure of the
Company to obtain an assumption of this Agreement at or prior to the
effectiveness of any succession shall be a breach of this Agreement and shall
constitute Good Reason if you elect to terminate your employment, except that
for purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of Termination. As used in
this Agreement, "Company" shall mean the Company as defined above and any
successor to its business or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
5.2 This Agreement shall inure to the benefit of and be enforceable
by your personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If you should die while
any amount would still be
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payable to you hereunder if you had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to your devisee, legatee or other designee or if there is no such
designee, to your estate.
6. Notice. All notices, instructions and other communications given
hereunder or in connection herewith shall be in writing. Any such notice,
instruction or communication shall be sent either (i) by registered or certified
mail, return receipt requested, postage prepaid, or (ii) via a reputable
nationwide overnight courier service, in each case addressed to the Chief
Executive Officer of the Company, at Naperville Corporate Center, 0000 Xxxx
Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and to you at the address shown above
(or to such other address as either the Company or you may have furnished to the
other in writing in accordance herewith). Any such notice, instruction or
communication shall be deemed to have been delivered two business days after it
is sent by registered or certified mail, return receipt requested, postage
prepaid, or one business day after it is sent via a reputable nationwide
overnight courier service.
7. Miscellaneous.
7.1 For purposes of this Agreement, your employment with the Company
shall not be deemed to have terminated if you continue to be employed by a
subsidiary of the Company.
7.2 The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
7.3 The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of Delaware.
7.4 No waiver by you at any time of any breach of, or compliance
with, any provision of this Agreement to be performed by the Company shall be
deemed a waiver of that or any other provision at any subsequent time.
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7.5 This Agreement may be executed in counterparts, each of which
shall be deemed to be an original but both of which together will constitute one
and the same instrument.
7.6 Any payments provided for hereunder shall be paid net of any
applicable withholding required under federal, state or local law.
7.7 This Agreement sets forth the entire agreement of the parties
hereto in respect of the subject matter contained herein and supersedes all
prior agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer, employee
or representative of any party hereto; and any prior agreement of the parties
hereto in respect of the subject matter contained herein is hereby terminated
and cancelled.
If this accurately reflects our agreement on the subject matter hereof,
kindly sign and return to the Company the enclosed copy of this letter, which
will then constitute our agreement on this subject.
Sincerely,
SPYGLASS, INC.
By: /s/ Xxxxxxx Xxxxxxx
Agreed to this 10th day of December, 1999
/s/ Xx. Xxxx X. Xxxxxx
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(Signature)
Xx. Xxxx X. Xxxxxx
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(Print Name)
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