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EXHIBIT 10.6
SPYGLASS, INC.
Senior Management Retention Agreement
Xxxx Xxxxxxx
Spyglass, Inc.
Naperville Corporate Center
0000 Xxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Dear Xx. Xxxxxxx:
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 individuals and entities who were the beneficial owners of the
Outstanding Company Common Stock and
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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
(b) your willful engagement in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the
Company.
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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 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
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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.
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.
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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, 1998; provided, however, that commencing on January
l, 1999 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.
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
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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 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,
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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 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.
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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 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
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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 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
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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.
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
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hereto; and any prior agreement of the parties hereto in respect of the subject
matter contained herein is hereby terminated and canceled.
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/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
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(Print Name)
President and CEO
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(Print Title)
Agreed to this 1st day of November, 1996
/s/ Xxxxxxx Xxxxxxx
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(Signature)
Xxxx Xxxxxxx
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(Print Name)
President and Chief Executive Officer
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(Print Title)
