Exhibit 10.18
CUSEEME NETWORKS, INC.
Executive Retention Agreement
THIS EXECUTIVE RETENTION AGREEMENT by and between CUseeMe Networks, Inc.,
a Delaware corporation (the "Company"), and Xxxxxxxxx X. Xxx (the "Executive")
is made as of December 1, 2000 (the "Effective Date").
WHEREAS, 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 that
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, and
WHEREAS, 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 Executive without distraction from
the possibility of a change in control of the Company and related events and
circumstances.
NOW, THEREFORE, as an inducement for and in consideration of the Executive
remaining in its employ, the Company agrees that the Executive shall receive the
severance benefits set forth in this Agreement in the event the Executive's
employment with the Company is terminated under the circumstances described
below subsequent to a Change in Control (as defined in Section 1.1).
1. Key Definitions.
As used herein, the following terms shall have the following respective
meanings:
1.1. "Change in Control" means an event or occurrence set forth in any one
or more of subsections (a) through (d) below (including an event or occurrence
that constitutes a Change in Control under one of such subsections but is
specifically exempted from another such subsection):
(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) (a "Person") of beneficial
ownership of any capital stock of the Company if, after such
acquisition, such Person beneficially owns (within the meaning
of Rule 13d-3 promulgated under the Securities Exchange Act of
1934, as amended) 30% 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 securities of the Company
entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however,
that the following acquisitions shall be excluded from this
subsection (a): (1) any acquisition directly from the Company
(excluding an acquisition pursuant to the exercise, conversion
or exchange of any security exercisable for, convertible into
or exchangeable for common stock or voting securities of the
Company, unless the Person exercising, converting or
exchanging such security acquired such security directly from
the Company or an underwriter or agent of the Company), (2)
any acquisition by the Company, or (3) any acquisition by any
employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the
Company;
(b) such time as the Continuing Directors do not constitute a
majority of the Board (including, if applicable, the board of
directors of a successor corporation to the
Company), where the term "Continuing Director" means at any
date a member of the Board (i) who was a member of the Board
on the date of the execution of this Agreement or (ii) who was
nominated or elected subsequent to such date by at least a
majority of the directors who were Continuing Directors at the
time of such nomination or election or whose election to the
Board was recommended or endorsed by at least a majority of
the directors who were Continuing Directors at the time of
such nomination or election, provided, however, that there
shall be excluded from this clause (ii) any individual whose
initial assumption of office occurred 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 merger, consolidation, reorganization,
recapitalization or statutory share exchange 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, each
of the following two conditions is satisfied: (i) all or
substantially all of the 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 50% of the then-outstanding shares of
common stock and the combined voting power of the
then-outstanding securities entitled to vote generally in the
election of directors, respectively, of the resulting or
acquiring corporation in such Business Combination (which
shall include a corporation that as a result of such
transaction owns the Company or substantially all of the
Company's assets either directly or through one or more
subsidiaries) (such resulting or acquiring corporation is
referred to herein as the "Acquiring Corporation") 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; and (ii) no Person (excluding
the Acquiring Corporation or any employee benefit plan (or
related trust) maintained or sponsored by the Company or by
the Acquiring Corporation) beneficially owns, directly or
indirectly, 30% or more of the then-outstanding shares of
common stock of the Acquiring Corporation, or of the combined
voting power of the then-outstanding securities of such
corporation entitled to vote generally in the election of
directors (except to the extent that such ownership existed
prior to the Business Combination).
1.2. "Change in Control Date" means the first date during the Term (as
defined in Section 2) on which a Change in Control occurs. Anything in this
Agreement to the contrary notwithstanding, if (a) a Change in Control occurs,
(b) the Executive's employment with the Company is terminated prior to the date
on which the Change in Control occurs, and (c) it is reasonably demonstrated by
the Executive that such termination of employment (i) was at the request of a
third party who has taken steps reasonably calculated to effect a Change in
Control or (ii) otherwise arose in connection with or in anticipation of a
Change in Control, then for all purposes of this Agreement the "Change in
Control Date" shall mean the date immediately prior to the date of such
termination of employment.
1.3. "Cause" means:
(a) the Executive's willful and continued failure to substantially
perform her reasonable assigned duties as an officer of the
Company (other than any such failure resulting from incapacity
due to physical or mental illness or any failure after the
Executive gives notice of termination for Good Reason), which
failure is not cured within 30 days after a written demand for
substantial performance is received by the Executive from the
Board that
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specifically identifies the manner in which the Board believes
the Executive has not substantially performed the Executive's
duties; or
(b) the Executive's willful engagement in illegal conduct or gross
misconduct that is materially and demonstrably injurious to
the Company.
For purposes of this Section 1.3, no act or failure to act by the Executive
shall be considered "willful" unless it is done, or omitted to be done, in bad
faith and without reasonable belief that the Executive's action or omission was
in the best interests of the Company.
1.4. "Good Reason" means the occurrence, without the Executive's written
consent, of any of the events or circumstances set forth in clauses (a) through
(d) below. Notwithstanding the occurrence of any such event or circumstance,
such occurrence shall not be deemed to constitute Good Reason if, prior to the
Date of Termination specified in the Notice of Termination (each as defined in
Section 3.2(a)) given by the Executive in respect thereof, such event or
circumstance has been fully corrected and the Executive has been reasonably
compensated for any losses or damages resulting therefrom (provided that such
right of correction by the Company shall only apply to the first Notice of
Termination for Good Reason given by the Executive):
(a) a reduction in the Executive's annual base salary as in effect
immediately prior to the earliest to occur of (i) the Change
in Control Date, (ii) the date of the execution by the Company
of the initial written agreement or instrument providing for
the Change in Control and (iii) the date of the adoption by
the Board of a resolution providing for the Change in Control
(with the earliest to occur of such dates referred to herein
as the "Measurement Date");
(b) the failure by the Company to (i) continue in effect any
material compensation or benefit plan or program (including
any life insurance, medical, health and accident or disability
plan and any vacation program or policy) (a "Benefit Plan") in
which the Executive participates or that is applicable to the
Executive immediately prior to the Measurement Date, unless an
equitable arrangement (embodied in an ongoing substitute or
alternative plan) has been made with respect to such plan or
program, (ii) continue the Executive's 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 of the Executive's
participation relative to other participants, than the basis
existing immediately prior to the Measurement Date or (iii)
award cash bonuses to the Executive in amounts and in a manner
substantially consistent with past practice in light of the
Company's financial performance;
(c) the failure of the Company to obtain the agreement, in a form
reasonably satisfactory to the Executive, from any successor
to the Company to assume and agree to perform this Agreement,
as required by Section 6.1; or
(d) any failure of the Company to pay or provide to the Executive
any portion of the Executive's compensation or benefits due
under any Benefit Plan within seven days of the date such
compensation or benefits are due, or any material breach by
the Company of any employment agreement with the Executive.
The Executive's right to terminate her employment for Good Reason shall not be
affected by her incapacity due to physical or mental illness.
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2. Term of Agreement.
This Agreement, and all rights and obligations of the parties hereunder,
shall take effect upon the Effective Date and shall expire upon (a) the
expiration of the Term (as defined below) if a Change in Control has not
occurred during the Term or (b) the date 12 months after the Change in Control
Date, if the Executive is still employed by the Company as of such date (c) the
fulfillment by the Company of all of its obligations under Sections 4 and 5.2 if
a Change in Control has occurred during the Term. "Term" shall mean the period
commencing as of the Effective Date and continuing in effect through December
31, 2003; provided, however, that commencing on January 1, 2004 and each January
1 thereafter, the Term shall be automatically extended for one additional year
unless, not later than 180 days prior to the scheduled expiration of the Term
(or any extension thereof), the Company shall have given the Executive written
notice that the Term will not be extended.
3. Employment Status; Termination Following Change in Control.
3.1. Not an Employment Contract. The Executive acknowledges that this
Agreement does not constitute a contract of employment or impose on the Company
any obligation to retain the Executive as an employee. The Company acknowledges
that this Agreement does not prevent the Executive from terminating employment
at any time. If the Executive's employment with the Company terminates for any
reason and subsequently a Change in Control shall occur, the Executive shall not
be entitled to any benefits hereunder except as otherwise provided pursuant to
Section 1.2.
3.2. Termination of Employment.
(a) If the Change in Control Date occurs during the Term, any
termination of the Executive's employment by the Company or by the
Executive within 12 months following the Change in Control Date (other
than due to the death of the Executive) shall be communicated by a written
notice to the other party hereto (the "Notice of Termination"), given in
accordance with Section 6.1. Any Notice of Termination shall: (i) indicate
the specific termination provision (if any) of this Agreement relied upon
by the party giving such notice; (ii) to the extent applicable, set forth
in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated; and (iii) specify the Date of Termination (as defined below).
The effective date of an employment termination (the "Date of
Termination") shall be the close of business on the date specified in the
Notice of Termination (which date may not be less than 15 days or more
than 120 days after the date of delivery of such Notice of Termination),
in the case of a termination other than one due to the Executive's death,
or the date of the Executive's death, as the case may be.
(b) The failure by the Executive or the Company to set forth in the
Notice of Termination any fact or circumstance that contributes to a
showing of Good Reason or Cause shall not waive any right of the Executive
or the Company, respectively, hereunder or preclude the Executive or the
Company, respectively, from asserting any such fact or circumstance in
enforcing any right of the Executive or the Company, respectively,
hereunder.
(c) Any Notice of Termination for Cause given by the Company must be
given within 90 days of the occurrence of the event(s) or circumstance(s)
that constitute(s) Cause. Prior to any Notice of Termination for Cause
being given (and prior to any termination for Cause being effective), the
Executive shall be entitled to a hearing before the Board at which she
may, at her election, be represented by counsel and at which she shall
have a reasonable opportunity to be heard. Such hearing shall be held on
not less than 15 days' prior written notice to the Executive stating the
Board's intention to terminate the Executive for Cause and stating in
detail the particular event(s) or circumstance(s) that the Board believes
constitutes Cause for termination.
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(d) Any Notice of Termination for Good Reason given by the Executive
must be given within 90 days of the occurrence of the event(s) or
circumstance(s) that constitute(s) Good Reason.
4. Benefits to Executive.
4.1. Acceleration of Options. If the Change in Control Date occurs during
the Term, then, effective upon the Change in Control Date, (a) each option to
purchase shares of Common Stock of the Company held by the Executive as of the
Change in Control Date shall become immediately exercisable in full and (b)
notwithstanding any provision in any applicable option agreement to the
contrary, each such option shall continue to be exercisable by the Executive (to
the extent such option was exercisable on the Date of Termination) for a period
of six months following the Date of Termination. Notwithstanding the foregoing
provisions of this Section 4(1), if the Change in Control is intended to be
accounted for as a "pooling of interests" for financial accounting purposes, and
if any change or changes to be effected by clause (a) or (b) of the preceding
sentence would preclude accounting for the Change in Control as a "pooling of
interests" for financial accounting purposes, then such change or changes shall
not occur upon the Change in Control.
4.2. Severance Payment. If the Change in Control Date occurs during the
Term and the Executive's employment with the Company terminates within 12 months
following the Change in Control Date, the Executive shall be entitled to the
following benefits:
(a) If the Executive's employment with the Company is terminated by
the Company (other than for Cause, Disability or Death) or by the
Executive for Good Reason following the Change in Control Date, then the
Executive shall be entitled to the following benefits:
(i) the Company shall pay to the Executive in a lump sum in
cash within 30 days after the Date of Termination the
aggregate of the following amounts:
(A) the sum of (1) the Executive's base salary through
the Date of Termination, (2) 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 numerator 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 (3) the amount of
any compensation previously deferred by the
Executive (together with any accrued interest or
earnings thereon) and any accrued vacation pay, in
each case to the extent not previously paid (the
sum of the amounts described in clauses (1), (2)
and (3) being referred to as the "Accrued
Obligations"); and
(B) the Executive's highest annual base salary during
the five-year period prior to the Change in
Control Date;
(ii) for one year after the 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 the
Executive and the Executive's family at least equal to
those which would have been provided to them if the
Executive's employment had not been terminated, in
accordance with the applicable Benefit Plans in effect
on the Measurement Date or, if more favorable to the
Executive and her family, in effect generally at any
time thereafter with respect to other peer executives of
the Company and its affiliated companies; provided that
if the Executive becomes re-employed with another
employer and is eligible to receive a particular type of
benefits (e.g., health insurance benefits) from such
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employer on terms at least as favorable to the Executive
and her family as those being provided by the Company,
then the Company shall no longer be required to provide
those particular benefits to the Executive and her
family;
(iii) to the extent not previously paid or provided, the
Company shall timely pay or provide to the Executive any
other amounts or benefits required to be paid or
provided or which the Executive is eligible to receive
following the Executive's termination of employment
under any plan, program, policy, practice, contract or
agreement of the Company and its affiliated companies
(such other amounts and benefits being referred to as
the "Other Benefits"); and
(iv) for purposes of determining eligibility (but not the
time of commencement of benefits) of the Executive for
retiree benefits to which the Executive is entitled, the
Executive shall be considered to have remained employed
by the Company until one year after the Date of
Termination.
(b) If the Executive voluntarily terminates her employment with the
Company following the Change in Control Date, excluding a termination for
Good Reason, or if the Executive's employment with the Company is
terminated by reason of the Executive's death or Disability following the
Change in Control Date, then the Company shall (i) pay the Executive (or
her estate, if applicable), the Accrued Obligations in a lump sum in cash
within 30 days after the Date of Termination and (ii) timely pay or
provide to the Executive the Other Benefits.
(c) If the Company terminates the Executive's employment with the
Company for Cause following the Change in Control Date, then the Company
shall (i) pay the Executive, in a lump sum in cash within 30 days after
the Date of Termination, the sum of (A) the Executive's annual base salary
through the Date of Termination and (B) the amount of any compensation
previously deferred by the Executive, in each case to the extent not
previously paid, and (ii) timely pay or provide to the Executive the Other
Benefits.
4.3. Taxes.
(a) Notwithstanding any other provision of this Agreement, in the
event that the Company undergoes a Change in Ownership or Control (as
defined below), the Company shall not be obligated to provide to the
Executive a portion of any "Contingent Compensation Payments" (as defined
below) that the Executive would otherwise be entitled to receive to the
extent necessary to eliminate any "excess parachute payments" (as defined
in Section 280G(b)(1) of the Internal Revenue Code of 1986, as amended
(the "Code")) for the Executive. For purposes of this Section 4.3, the
Contingent Compensation Payments so eliminated shall be referred to as the
"Eliminated Payments" and the aggregate amount (determined in accordance
with applicable Treasury Regulations) of the Contingent Compensation
Payments so eliminated shall be referred to as the "Eliminated Amount."
(b) For purposes of this Section 4.3, the following terms shall have
the following respective meanings:
(i) "Change in Ownership or Control" shall mean a change in
the ownership or effective control of the Company or in
the ownership of a substantial portion of the assets of
the Company determined in accordance with Section
280G(b)(2) of the Code; and
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(ii) "Contingent Compensation Payment" shall mean any payment
(or benefit) in the nature of compensation that is made
or made available (under this Agreement or otherwise) to
a "disqualified individual" (as defined in Section
280G(c) of the Code) and that is contingent (within the
meaning of Section 280G(b)(2)(A)(i) of the Code) on a
Change in Ownership or Control of the Company.
(c) Any payments or other benefits otherwise due to the Executive
following a Change in Ownership or Control that could reasonably be
characterized (as determined by the Company) as Contingent Compensation
Payments shall not be made until the determination, pursuant to this
Section 4.3(c), of which Contingent Compensation Payments shall be treated
as Eliminated Payments. Within 30 days after each date on which the
Executive first becomes entitled to receive (whether or not then due) a
Contingent Compensation Payment relating to such Change in Ownership or
Control, the Company shall determine and notify the Executive (with
reasonable detail regarding the basis for its determinations) (i) which of
such payments and benefits constitute Contingent Compensation Payments and
(ii) the Eliminated Amount. Within 30 days after delivery of such notice
to the Executive, the Executive shall notify the Company which Contingent
Compensation Payments, or portions thereof (the aggregate amount of which,
determined in accordance with applicable Treasury Regulations, shall be
equal to the Eliminated Amount), shall be treated as Eliminated Payments.
In the event that the Executive fails to notify the Company pursuant to
the preceding sentence on or before the required date, the Contingent
Compensation Payments (or portions thereof) that shall be treated as
Eliminated Payments shall be determined by the Company in its absolute
discretion. In no event shall the Company be liable to the Executive as a
result of any factual or legal determination made by it pursuant to this
subsection (c) or for any information supplied by it to the Executive or
her advisors.
(d) The provisions of this Section 4.3 are intended to apply to any
and all payments or benefits available to the Executive under this
Agreement or any other agreement or plan of the Company under which the
Executive receives Contingent Compensation Payments.
4.4. Mitigation. The Executive shall not be required to mitigate the
amount of any payment or benefits provided for in this Section 4 by seeking
other employment or otherwise. Further, except as provided in Section
4.2(a)(ii), the amount of any payment or benefits provided for in this Section 4
shall not be reduced by any compensation earned by the Executive as a result of
employment by another employer, by retirement benefits, by offset against any
amount claimed to be owed by the Executive to the Company or otherwise.
5. Disputes.
All claims by the Executive for benefits under this Agreement shall be
directed to and determined by the Board and shall be in writing. Any denial by
the Board of a claim for benefits under this Agreement shall be delivered to the
Executive in writing and shall set forth the specific reasons for the denial and
the specific provisions of this Agreement relied upon. The Board shall afford a
reasonable opportunity to the Executive for a review of the decision denying a
claim.
6. Successors.
6.1. Successor to Company. The Company shall 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 the Executive elects to terminate employment, except
that
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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.
6.2. Successor to Executive. This Agreement shall inure to the benefit of
and be enforceable by the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees.
7. Miscellaneous.
7.1. 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 (a) by registered or certified
mail, return receipt requested, postage prepaid, or (b) prepaid via a reputable
nationwide overnight courier service, in each case addressed to the Company at
000 Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxxxxx 00000, and to the Executive at
_____________ (or to such other address as either the Company or the Executive
may have furnished to the other in writing in accordance herewith). Any such
notice, instruction or communication shall be deemed to have been delivered five
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. Either party may give any notice,
instruction or other communication hereunder using any other means, but no such
notice, instruction or other communication shall be deemed to have been duly
delivered unless and until it actually is received by the party for whom it is
intended.
7.2. Settlement of Disputes. All claims by the Executive for benefits
under this Agreement shall be directed to and determined by the Board and shall
be in writing. Any denial by the Board of a claim for benefits under this
Agreement shall be delivered to the Executive in writing and shall set forth the
specific reasons for the denial and the specific provisions of this Agreement
relied upon. The Board shall afford a reasonable opportunity to the Executive
for a review of the decision denying a claim.
7.3. Severability. 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.
7.4. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the internal laws of the
State of New Hampshire, without regard to conflicts of law principles.
7.5. Waivers. No waiver by the Executive 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.
7.6. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original but both of which together shall
constitute one and the same instrument.
7.7. Amendments. This Agreement may be amended or modified only by a
written instrument executed by both the Company and the Executive.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
CUSEEME NETWORKS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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President and Chief Executive Officer
XXXXXXXXX X. XXX
/s/ Xxxxxxxxx X. XxX
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