EMPLOYMENT AGREEMENT
Exhibit
10.01
EMPLOYMENT
AGREEMENT, made and entered into as of the 1st day of August, 2008 by and
between CONCURRENT COMPUTER CORPORATION, a Delaware corporation ("Concurrent" or
the "Company"), and Xxxxx X. Xxxxx (the "Employee").
W I T N E
S S E T H :
- - - - -
- - - - - -
WHEREAS,
the Company desires to employ the Employee and the Employee desires to accept
such employment with the Company;
NOW,
THEREFORE, in consideration of the premises and mutual covenants contained
herein and for other good and valuable consideration, the parties agree as
follows:
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1.
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Employment
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The
Company hereby employs the Employee and the Employee hereby accepts employment
with the Company for the term set forth in Section 2 below, in the position and
with the duties and responsibilities set forth in Section 3 below, and upon
other terms and conditions hereinafter stated.
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2.
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Term
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The term
of employment hereunder shall commence on August 1, 2008 and shall
continue for a period of four (4) years ending on the fourth anniversary of the
commencement date (the “Term”). The initial four-year Term
automatically shall extend for one additional year on such fourth anniversary
date and on each subsequent annual anniversary of such date unless the Company
or the Employee notifies the other at least 120 days before such anniversary
date that no such extension will be effected.
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3.
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Position;
Duties; Responsibilities
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3.1 It
is intended that at all times during the Term of employment hereunder, the
Employee shall serve as the Chief Financial Officer and Executive Vice President
of Operations of the Company. The Employee agrees to perform such
senior executive officer and managerial services customary to such position as
are necessary to the operations of the Company and as may be assigned to him
from time to time by the Company's Board of Directors (the "Board of
Directors").
3.2 Throughout
the Term of employment hereunder, the Employee shall devote his full time and
undivided attention during normal business hours to the business and affairs of
the Company, as appropriate to his responsibilities and duties hereunder, except
for reasonable vacations and illness or other disability, but nothing in this
Agreement shall preclude the Employee from devoting reasonable periods required
for serving as a director or member of any advisory committee of not more than
two (at any time) "for profit" organizations involving no conflict of interest
with the interests of the Company (subject to approval by the Board of
Directors, which approval shall not be unreasonably withheld), or from engaging
in charitable and community activities, or from managing his personal
investments, provided such activities do not materially interfere with the
performance of his duties and responsibilities under this
Agreement.
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4.
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Compensation
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4.1 Salary
For
services rendered by the Employee during the Term of employment hereunder, the
Employee shall be paid a salary, payable in accordance with the then existing
applicable payroll policy of the Company, at an annualized rate of $295,000, for
2008, such salary to be reviewed annually.
4.2 Annual
Bonus Opportunity
During
the Term of employment hereunder, the Employee will be eligible for a bonus
opportunity under the Company’s Annual Incentive Plan, which currently provides
an annual bonus opportunity in a target amount of fifty percent (50%) of the
then current base salary (pro-rated based on the Employee's start date, as
applicable) with a maximum bonus of 150% of the target bonus. The
targets and objectives for each year and other terms and conditions of the bonus
opportunity shall be established in advance of each year by the Compensation
Committee of the Board of Directors with the input of the Chief Executive
Officer.
4.3 Employee
Benefit Plans
During
the Term of employment hereunder, the Employee will be eligible to participate
in all employee benefit programs of the Company now or hereafter made available
to senior executives, in accordance with the provisions thereof as in effect
from time to time. In any event, the Employee shall be entitled to
vacation days at the rate of four weeks per calendar year or such greater amount
as may be provided by Company policies in effect from time to time.
4.4 Restricted
Stock; Stock Options; Long Term Incentive Plans
The
Compensation Committee of the Board of Directors will grant to the Employee an
award of 10,000 shares of Restricted Stock as soon as practicable after the
Employee joins the Company based upon the market value of the stock the date the
agreement is executed. The terms of the award shall provide for the
lapse of restrictions as follows: restrictions on 2,500 shares shall
lapse on the first anniversary of the grant date; restrictions on 2,500 shares
shall lapse on the second anniversary of the grant date; restrictions on 2,500
shares shall lapse on the third anniversary of the grant date; and restrictions
on 2,500 shares shall lapse on the fourth anniversary of the grant date. In
addition, the award will provide that all restrictions shall lapse in the event
of a Termination Without Due Cause as described in Section 5.4, a change in
control as described in Section 5.5 or constructive termination of employment by
the Company as described in Section 5.6. The Restricted Stock
award shall be subject to and governed by the terms and conditions of the terms
of the Concurrent Computer Corporation Second Amended and Restated 2001 Stock
Option Plan (“2001 Stock Option Plan”) and the award
document. “Change in control” shall have the same meaning as in the
2001 Stock Option Plan, as amended from time to time. A copy of the
current definition of “change in control” is attached as Exhibit A.
The
Compensation Committee of the Board of Directors will grant to the Employee an
option to purchase an aggregate 20,000 shares of the Company’s common stock as
soon as practicable after the Employee joins the Company based upon the market
value of the stock the date the agreement is executed. The per share
exercise price of the option will be the fair market value of the Company's
common stock on the grant date. The terms of the award shall provide
for vesting over a 4 year term at the rate of 25% on each anniversary of the
grant date. In addition, the award will provide for full vesting in the event of
a Termination Without Due Cause as described in Section 5.4, a change in control
as described in Section 5.5 or constructive termination of employment by the
Company as described in Section 5.6. The options shall be subject to
and governed by the terms and conditions of the terms of the 2001 Stock Option
Plan and the option award document.
Beginning
with fiscal year 2009 and during the Term of employment hereunder, the Employee
will be eligible to participate in long term incentive programs of the Company
now or hereafter made available to senior executives, in accordance with the
provisions thereof as in effect from time to time, and as deemed appropriate by
the Compensation Committee to be applicable to this position.
4.5 Business
Expense Reimbursements
During
the Term of employment hereunder, the Employee will be entitled to receive
reimbursement by the Company for all reasonable out-of-pocket expenses incurred
by him (in accordance with the policies and procedures established by the
Company for its senior executives), in connection with his performing services
hereunder. Reimbursements shall be made in accordance with Employer’s
normal expense reimbursement policies and procedures for its senior executives
(including timing), and such reimbursement will be made no later than the last
day of the Employee’s taxable year following the taxable year in which the
expense was incurred. The expenses paid by
Employer during any taxable year of the Employee will not affect the expenses
paid by Employer in another taxable year. This right to reimbursement
is not subject to liquidation or exchange for another benefit.
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5.
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Consequences
of Termination of Employment
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5.1 Death
In the
event of the death of the Employee during the Term of employment hereunder, the
estate or other legal representatives of the Employee shall be entitled to
continuation of the Employee’s salary in effect under Section 4.1 as of his date
of death for a period of six months. Payment will be made in
substantially equal installments on the first and fifteenth day of each calendar
month or if such date is not a business day, on the next following business day
(each a “Pay Date”) beginning with the first Pay Date after the date of the
Employee’s death and continuing until payments equal six months’
salary.
5.2 Continuing
Disability
Notwithstanding
anything in this Agreement to the contrary, the Company is hereby given the
option to terminate the Employee's employment in the event of the Employee's
Continuing Disability. Such option shall be exercised by the Company
by giving notice to the Employee of the Company's intention to terminate his
employment due to Continuing Disability not earlier than 15 days from the
receipt of such notice.
In the
event of the termination of the Employee's employment due to Continuing
Disability, the Employee shall be entitled to salary and bonus accrued and due
through the period ending on the date of his termination and any other rights
and benefits he may have under the employee benefit plans and programs of the
Company, generally, will be determined in accordance with the terms and
provisions of such plans and programs.
For
purposes hereof, "Continuing Disability" shall mean the inability to perform the
essential functions connected with the Employee's duties hereunder, with or
without reasonable accommodation, which inability shall have existed or shall
reasonably be expected to exist for a period of 180 days, even though not
consecutive, in any 24 month period. In the event the Employee does
not agree with the Company that his inability may reasonably be expected to
exist for such period, the opinion of a qualified medical doctor selected by the
Employee and reasonably satisfactory to the Company shall be
determinative.
5.3 Termination
by the Company for Due Cause
Nothing
herein shall prevent the Company from terminating the employment of the Employee
for Due Cause. The Employee shall be entitled to salary and bonus
accrued and due through the period ending on the date of his termination, the
bonus, if any, earned but not paid for the fiscal year ending prior to his
termination and any other rights and benefits he may have under the employee
benefit plans and programs of the Company, generally, shall be determined in
accordance with the terms of such plans and programs. The term "Due
Cause", as used herein, shall mean that (a) the Employee has committed a willful
serious act, such as embezzlement, against the Company intended to enrich
himself at the expense of the Company or has been convicted of a felony
involving moral turpitude; (b) the Employee has (i) willfully and grossly
neglected his duties hereunder or (ii) intentionally failed to observe specific
lawful directives or policies of the Board of Directors, which directives or
policies were consistent with his positions, duties and responsibilities
hereunder, and which failure had, or continuing failure will have, a material
adverse effect on the Company; (c) the Employee's undertaking to provide any
chief financial officer certification required under the Xxxxxxxx-Xxxxx Act of
2002 ("Xxxxxxxx-Xxxxx Act") without taking reasonable and appropriate steps as
outlined by the Company’s audit committee to determine whether the certification
was accurate; or (d) the Employee's failure to fulfill any of his duties under,
or violation of any provision of, the Xxxxxxxx-Xxxxx Act, including, but not
limited to, failure to establish and administer effectively systems and controls
as outlined by the Company’s audit committee necessary for compliance with the
Xxxxxxxx-Xxxxx Act. Prior to any such termination, the Employee shall
be given written notice by the Board of Directors that the Company intends to
terminate his employment for Due Cause under this Section 5.3, which written
notice shall specify the particular acts or omissions on the basis of which the
Company intends to so terminate the Employee's employment, and the Employee
(with his counsel, if he so chooses) shall be given the opportunity, within 15
days of his receipt of such notice, to have a meeting with the Board of
Directors to discuss such acts or omissions and given reasonable time to remedy
the situation, if it is deemed by the Board of Directors, in their good faith
business judgment, to be remediable. In the event of such
termination, the Employee shall be promptly furnished written specification of
the basis therefor in reasonable detail.
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5.4 Termination
by the Company other than for Due Cause
The
foregoing notwithstanding, the Company may terminate the Employee's employment
for whatever reason it deems appropriate; provided, however, that in the event
such termination is not based on death or disability as provided in Sections 5.1
or 5.2, above, or on Due Cause as provided in Section 5.3 above, or on either
party’s election not to renew the Term for an additional period pursuant to
Section 2 above, the Employee will be entitled to receive Severance Compensation
(as defined below); provided Employee executes a release in a form acceptable to
the Company.
For
purposes of the foregoing, "Severance Compensation" shall consist of (a) salary
continuation for a period of 12 months from the date of such termination (the
"Salary Continuation Period"), at the rate in effect, pursuant to Section 4.1
above, immediately prior to such termination, (b) an immediate lump sum payment
equal to the amount, if any, paid as an annual bonus in the year preceding the
Employee’s termination of employment. and (c) Employee shall be
entitled to continue coverage under the Company’s hospitalization and medical
plan (the “Health Plan”) for himself and his eligible dependents who were
covered under the Health Plan at the time of his termination as required by
Section 4980B of the Internal Revenue Code of 1986, as amended (the “Code”), but
during the Salary Continuation Period, Employee shall be eligible to continue
such coverage at the same premium charged to active employees during such
period. The salary continuation payments shall be made in
substantially equal installments on the first and fifteenth day of each calendar
month or if such date is not a business day, on the next following business day
(each a “Pay Date”) beginning with the first Pay Date after the date of the
Employee’s “separation from service” (within the meaning of section 409A of the
Internal Revenue Code of 1986, as amended, and the regulations, rulings and
other guidance issued thereunder (collectively, “Section 409A”). and ending when
twelve months’ salary has been paid to Employee. The lump sum payment
shall be paid on the first Pay Date after the Employee’s separation from
service.
Notwithstanding
the foregoing, if the Company reasonably determines that the amounts payable
under this Section 5.4 are on account of an “involuntary separation from
service” (as defined in Treasury Regulation section 1.409A-1(n)), then the
Company shall make the salary continuation payments and the lump sum payment as
called for to the extent that the total amount of such payments in first 6
months after separation from service does not exceed the “separation pay
allowance” described below. To the extent that the payments called
for in the first 6 months after separation from service exceed the separation
pay allowance, such excess amount shall be accumulated and distributed in a
single sum on the first business day that is 6 months and one day after the date
of the Employee’s separation from service (or if earlier, upon the date of death
of the Employee). If Company reasonably determines that the amounts
payable under this Section 5.4 are not on account of an
“involuntary separation from service” (as defined in Treasury Regulation section
1.409A-1(n)), no amount shall be distributed to the Employee before the date
that is 6 months after the date of the Employee’s separation from service (or,
if earlier, the date of death of the Employee) and any amounts that
would have been distributed during the 6 months after Executive’s separation
from service (or prior to death) will be accumulated and distributed in a single
sum on the first business day that is 6 months and one day after the date of the
Employee’s separation from service (or, if earlier, upon the date of death of
the Employee). The “separation pay allowance” means an amount that is
two times the lesser of (x) Employee’s annualized compensation based on
Employee’s annual rate of pay for the calendar year preceding the calendar year
in which Employee’s separation from service occurs or (y) the compensation limit
in effect under Code section 401(a)(17) for the calendar year in which such
separation from service occurs.
Except as
specifically set forth in this Section 5.4, the Employee shall not be entitled
to any other compensation or benefits following a termination of employment by
the Company as provided in this Section 5.4.
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5.5 Termination
Following Change of Control
If there
is a "change of control" (defined below) and within one year after such "change
of control", the Employee's employment is terminated by the Company (other than
for Due Cause, disability or non-renewal of the Term), or within three months
after a “change in control” Employee resigns for any reason (other than death),
disability or non renewal of the Term) the Employee will be entitled to receive
Severance Compensation as described in Section 5.4.
"Change
of control" shall have the same meaning as in the 2001 Stock Option Plan, as
amended from time to time. (A copy of the current definition is
attached as Exhibit A.)
5.6 Constructive
Termination of Employment by the Company without Due Cause
Anything
herein to the contrary notwithstanding, if the Company:
(A) demotes
or otherwise elects or appoints the Employee to a lesser office than set forth
in Section 3.1 or fails to elect or appoint him to such position;
or
(B)
causes a material change in the nature or scope of the authorities,
powers, functions, duties or responsibilities attached to the Employee's
position as described in Section 3.1; or
(C)
materially decreases the Employee's salary or annual bonus
opportunity below the most recent levels provided for by the terms of Sections
4.1 and 4.2; or
(D) materially
reduces the Employee's benefits under any employee benefit plan, program, or
arrangement of the Company (other than a change that affects all employees
similarly situated) from the level in effect upon the Employee's commencement of
participation; or
(E)
commits any other material breach of this Agreement, then such
action (or inaction) by the Company, unless consented to in writing by the
Employee, shall constitute a termination of the Employee's employment by the
Company other than for Due Cause pursuant to Section 5.4 above. If,
within thirty (30) days of learning of the action (or inaction) described herein
as a basis for a constructive termination of employment, the Employee (unless he
has given written consent thereto) notifies the Company in writing that he
wishes to effect a constructive termination of his employment pursuant to this
Section 5.6, and such action (or inaction) is not reversed or otherwise remedied
by the Company within 30 days following receipt by the Company of such written
notice, then effective at the end of such second 30 day period, the employment
of the Employee hereunder shall be deemed to have terminated pursuant to Section
5.4 above.
5.7 Voluntary
Termination by the Employee
In the
event the Employee terminates his employment of his own volition (other than as
provided in Section 5.5 above), or the Term of employment terminates due to an
election by either party not to renew the Term pursuant to Section 2 above, such
termination shall constitute a voluntary termination and in such event the
Employee shall be limited to the same rights and benefits as provided in
connection with termination for Due Cause under the second sentence of Section
5.3 above. For the purposes hereof, a decision by the Employee to
voluntarily retire shall constitute a voluntary termination.
5.8 Other
Resignations
In the
event the Employee's employment with the Company is terminated (either by the
Company or by the Employee), the Employee acknowledges and agrees that he will
resign from any and all other positions that the Employee then holds as an
employee, officer or director of (a) the Company and (b) the Company's
subsidiaries and affiliates.
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5.9 Payment
Date
The
Company may choose to make salary continuation payments called for under this
Agreement on its regular payroll closest to the Pay Date called for under this
Agreement; provided that payment on such regular payroll date is in compliance
with Section 409.
6.
Protective Agreement
Concurrently
with entering into this Agreement, the Employee will enter into a Protective
Agreement in favor of the Company substantially in the form attached as Exhibit
B hereto (the "Protective Agreement").
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6.
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Successors
and Assigns
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7.1 Assignment
by the Company
This
Agreement shall be binding upon and inure to the benefit of the Company or any
corporation or other entity to which the Company may transfer all or
substantially all its assets and business and to which the Company may assign
this Agreement, in which case "Company" as used herein shall mean such
corporation or other entity.
7.2 Assignment
by the Employee
The
Employee may not assign this Agreement or any part thereof without the prior
written consent of the Company, which consent may be withheld by the Company for
any reason it deems appropriate.
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7.
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Arbitration
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Except as
provided below, any disputes or claims of any kind or nature, including as to
arbitrability under this Agreement, between the Employee and the Company arising
out of, related to, or in connection with any aspect of the Employee’s
employment with the Company or its termination, including all claims arising out
of this Agreement and claims for alleged discrimination, harassment, or
retaliation in violation of Title VII of the Civil Rights Act of 1964, the Civil
Rights Act of 1991, 42 U.S.C. § 1981, the Age Discrimination in Employment Act
of 1967, the Americans with Disabilities Act of 1990, the Family and Medical
Leave Act of 1993, the Fair Labor Standards Act, the Employee Retirement Income
Security Act of 1974, or any other federal, state, or local law, shall be
settled by final and binding arbitration in Xxxxxx County,
Georgia. Either party may file a written demand for arbitration with
the American Arbitration Association pursuant to its National Rules for the
Resolution of Employment Disputes. The arbitration shall be conducted
by a single neutral arbitrator who is a member of the Bar of the State of
Georgia, has been actively engaged in the practice of law for at least fifteen
(15) years, and has substantial experience in connection with business
transactions and interpretation of contracts. In considering the
relevancy, materiality, discoverability, and admissibility of evidence, the
arbitrator shall take into account, among other things, applicable principles of
legal privilege, including the attorney-client privilege, the work product
doctrine, and appropriate protection of the Company’s Trade Secrets and
Confidential Information. Upon the request of either party, the
arbitrator’s award shall be written and include findings of fact and conclusions
of law. Judgment on the award rendered by the arbitrator may be
entered by any court having jurisdiction. Any arbitration of any
claim by the Employee may not be joined or consolidated with any other
arbitration(s) by or against the Company, including through class
arbitration. The prevailing party in any such arbitration, or in any
action to enforce this Section or any arbitration award hereunder, shall be
entitled to recover that party’s attendant attorneys’ fees and related expenses
from the other party to the maximum extent permitted by law. The
Company shall be responsible for payment of all mediation and arbitration filing
and administrative fees, and all fees and expenses of the mediator or
arbitrators, irrespective of the outcome, as to any federal statutory claims by
the Employee or as may otherwise be required by law for this Agreement to be
enforceable. Notwithstanding any other provision of this Agreement,
the Company may seek temporary, preliminary, or permanent injunctive relief
against the Employee at any time without resort to arbitration. The
parties agree that this Agreement involves interstate commerce and that this
arbitration provision is therefore subject to and governed by the Federal
Arbitration Act. The parties confirm their agreement by initialing
below:
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____________________
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____________________
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Company
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Employee
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8.
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Governing
Law
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This
Agreement shall be deemed a contract made under, and for all purposes shall be
construed in accordance with, the laws of the State of Georgia (without
reference to the principles of conflicts of law).
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9.
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Entire
Agreement
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This
Agreement, including the Protective Agreement, contains all the understandings
and representations between the parties hereto pertaining to the subject matter
hereof and supersedes all undertakings and agreements, whether oral or in
writing, if any there be, previously entered into by them with respect
thereto.
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10.
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Amendment
or Modification; Waiver
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No
provision in this Agreement may be amended or waived unless such amendment or
waiver is agreed to in writing, signed by the Employee and an officer of the
Company thereunto duly authorized. Except as otherwise specifically
provided in this Agreement, no waiver by any party hereto of any breach by
another party hereto of any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of a similar or
dissimilar provision or condition at the same or any prior or subsequent
time.
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11.
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Notices
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Any
notice to be given hereunder shall be in writing and delivered personally or
sent by certified mail, postage prepaid, return receipt requested, addressed to
the party concerned at the address indicated below or to such other address as
such party may subsequently give notice of hereunder in writing:
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COMPANY:
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Concurrent
Computer Corporation
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0000
Xxxxx Xxxxx Xxxxxxx
Xxxxx
000
Xxxxxx,
XX 00000
Attn:
Xxxxxxx Xxxxx
With a
copy to:
King
& Spalding LLP
0000
Xxxxxxxxx Xxxxxx
Xxxxxxx,
XX 00000
Attn:
Xxxx Xxxxxx
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EMPLOYEE:
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Xxxxx
X. Xxxxx
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0000
Xxxxxxxx Xxxx Xxxxx
Xxxxxxxx
Xxxx, XX 00000
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12.
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Severability
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In the event that any provision or
portion of this Agreement shall be determined to be invalid or unenforceable for
any reason, the remaining provisions or portions of this Agreement shall be
unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by law.
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13.
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Withholding
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Anything
to the contrary notwithstanding, all payments required to be made by the Company
hereunder to the Employee or his estate or beneficiaries, shall be subject to
withholding of such amounts relating to taxes as the Company may reasonably
determine it should withhold pursuant to any applicable law or
regulation. In lieu of withholding such amounts, in whole or in part,
the Company may, in its sole discretion, accept other provision for payment of
taxes as required by law, provided it is satisfied that all requirements of law
affecting its responsibilities to withhold such taxes have been
satisfied.
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14.
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Survivorship
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The
respective rights and obligations of the parties hereunder shall survive any
termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations.
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15.
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References
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References
in this Agreement to the Employee shall be deemed, where appropriate, to refer
to his legal representatives.
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16.
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Titles
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Titles to
the sections in this Agreement are intended solely for convenience and no
provision of this Agreement is to be construed by reference to the title of any
section.
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17.
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Counterparts
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This
Agreement may be executed in several counterparts, each of which shall be deemed
to be an original but all of which together shall constitute one and the same
instrument.
[SIGNATURE
PAGE TO FOLLOW]
8
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the date first above written.
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CONCURRENT
COMPUTER CORPORATION
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By:
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/s/ Xxxx X. Xxxxxx
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Xxxx
X. Xxxxxx
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Executive
Vice President
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and
General Counsel
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EMPLOYEE
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/s/ Xxxxx X. Xxxxx
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Xxxxx
X. Xxxxx
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9
Exhibit
A
DEFINITION
OF CHANGE IN CONTROL FROM
CONCURRENT
COMPUTER CORPORATION SECOND AMENDED AND RESTATED 2001 STOCK OPTION
PLAN
(As in
Effect July 1, 2008)
NOTE: The
following definition is included for informational purposes only and will change
if, and to the extent that, the Concurrent Computer Corporation Second Amended
and Restated 2001 Stock Option Plan (“2001 Stock Option Plan”) is
amended. All capitalized terms in this Exhibit A are defined in the
2001 Stock Option Plan.
“Change
of Control” means the occurrence of any of the following events:
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(a)
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the
acquisition, directly or indirectly, by any “person” or “group” (as those
terms are defined in Sections 3(a)(9), 13(d), and 14(d) of the Exchange
Act and the rules thereunder, including, without limitation, Rule
13d-5(b)) of “beneficial ownership” (as determined pursuant to Rule 13d-3
under the Exchange Act) of securities entitled to vote generally in the
election of directors (“voting securities”) of the Company that represent
35% or more of the combined voting power of the Company’s then outstanding
voting securities, other than
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(i)
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an
acquisition by a trustee or other fiduciary holding securities under any
employee benefit plan (or related trust) sponsored or maintained by the
Company or any person controlled by the Company or by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any
person controlled by the Company,
or
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(ii)
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an
acquisition of voting securities by the Company or a corporation owned,
directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of the stock of the
Company, or
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(iii)
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an
acquisition of voting securities pursuant to a transaction described in
clause (c) below that would not be a Change of Control under clause
(c);
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(b)
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a
change in the composition of the Board that causes less than a majority of
the directors of the Company to be directors that meet one or more of the
following descriptions:
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(i)
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a
director who has been a director of the Company for a continuous period of
at least 24 months, or
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(ii)
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a
director whose election or nomination as director was approved by a vote
of at least two-thirds of the then directors described in clauses (b)(i),
(ii), or (iii) by prior nomination or election, but excluding, for the
purpose of this subclause (ii), any director whose initial assumption of
office occurred as a result of an actual or threatened (y) 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 or group other than the Board or (z) tender offer, merger,
sale of substantially all of the Company’s assets, consolidation,
reorganization, or business combination that would be a Change of Control
under clause (c) on consummation thereof,
or
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(iii)
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who
were serving on the Board as a result of the consummation of a transaction
described in clause (c) that would not be a Change of Control under clause
(c);
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(c)
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the
consummation by the Company (whether directly involving the Company or
indirectly involving the Company through one or more intermediaries) of
(x) a merger, consolidation, reorganization, or business combination or
(y) a sale or other disposition of all or substantially all of the
Company’s assets or (z) the acquisition of assets or stock of another
entity, in each case, other than in a
transaction
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10
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(i)
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that
results in the Company’s voting securities outstanding immediately before
the transaction continuing to represent (either by remaining outstanding
or by being converted into voting securities of the Company or the person
that, as a result of the transaction, controls, directly or indirectly,
the Company or owns, directly or indirectly, all or substantially all of
the Company’s assets or otherwise succeeds to the business of the Company
(the Company or such person, the “Successor Entity”)) directly or
indirectly, at least 50% of the combined voting power of the Successor
Entity’s outstanding voting securities immediately after the transaction,
and
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(ii)
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after
which more than 50% of the members of the board of directors of the
Successor Entity were members of the Board at the time of the Board’s
approval of the agreement providing for the transaction or other action of
the Board approving the transaction (or whose election or nomination was
approved by a vote of at least two-thirds of the members who were members
of the Board at that time), and
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(iii)
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after
which no person or group beneficially owns voting securities representing
35% or more of the combined voting power of the Successor Entity, unless
the Board determines in its discretion that beneficial ownership by a
person or group of voting securities representing 35% or more of the
combined voting power of the Successor Entity shall not be deemed a Change
of Control; or
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(d)
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a
liquidation or dissolution of the
Company.
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For
purposes of clarification, an acquisition of Company securities by the Company
that causes the Company’s voting securities beneficially owned by a person or
group to represent 35% or more of the combined voting power of the Company’s
then outstanding voting securities is not to be treated as an “acquisition” by
any person or group for purposes of clause (a) above. For purposes of clause (a)
above, the Company makes the calculation of voting power as if the date of the
acquisition were a record date for a vote of the Company’s shareholders, and for
purposes of clause (c) above, the Company makes the calculation of voting power
as if the date of the consummation of the transaction were a record date for a
vote of the Company’s shareholders.
11
Exhibit
B
PROTECTIVE
AGREEMENT
I, the
undersigned, in consideration of and as a condition to my employment by
Concurrent Computer Corporation (the "Company"), do hereby agree with the
Company as follows:
1.
Noncompete
and Nonsolicitation of Customers or Employees. During my employment
by the Company, I will devote my full time and best efforts to the business of
the Company and I will not, directly or indirectly, alone or as a partner,
officer, director, employee or holder of more than 5% of the common stock of any
other organization, engage in any business activity which competes directly or
indirectly with the products or services being developed, manufactured or sold
by the Company. I also agree that, following any termination of such
employment, I will not, directly or indirectly, for any period in which I
receive severance payments from the Company, plus one (1) year, (a) engage in or
provide any services substantially similar to the services that I provided to
the Company at any time during the last twelve (12) months of my employment to
or on behalf of any person or entity that competes with the Company in the "real
time" or "video-on-demand" businesses anywhere in the continental United States,
which I acknowledge and agree is the primary geographic area in which the
Company competes in these businesses and thus, by virtue of my senior executive
position and responsibilities with the Company, also the primary geographic area
of my employment with the Company, (b) solicit or attempt to solicit, for the
purpose of competing with the Company in its "real time" or "video-on-demand"
businesses, any customers or active prospects of the Company with which I had
any material business contact for or on behalf of the Company at any time during
the last twelve (12) months of my employment, or (c) recruit or otherwise seek
to induce any employees of the Company to terminate their employment or violate
any agreement with the Company.
2.
Trade Secrets and Other Confidential
Information. Except as may be required in the performance of my
duties with the Company, or as may be required by law, I will not, whether
during or after termination of my employment with the Company, reveal to any
person or entity or use any of the trade secrets of the Company for as long as
they remain trade secrets. I also agree to these same restrictions,
during my employment with the Company and for a period of three (3) years
thereafter, with respect to all other confidential information of the Company,
including its technical, financial and business information, unless such
confidential information becomes publicly available through no fault of mine or
unless it is disclosed by the Company to third parties without similar
restrictions.
Further,
I agree that any and all documents, disks, databases, notes, or memoranda
prepared by me or others and containing trade secrets or confidential
information of the Company shall be and remain the sole and exclusive property
of the Company, and that upon termination of my employment or prior request of
the Company I will immediately deliver all of such documents, disks, databases,
notes or memoranda, including all copies, to the Company at its main
office.
Further,
I agree that all Company property, such as, but not limited to cell phone(s),
personal computer, software, PDAs, etc., shall be and remain the sole and
exclusive property of the Company, and that upon termination of my employment or
prior request of the Company I will immediately return all such property, to the
Company.
3.
Inventions and Copyrights. If at any time or
times during my employment (or within six (6) months thereafter if based on
trade secrets or confidential information within the meaning of Paragraph 2
above), I make or discover, either alone or with others, any invention,
modification, development, improvement, process or secret, whether or not
patented or patentable (collectively, "inventions") in the field of computer
science or instrumentation, I will disclose in reasonable detail the nature of
such invention to the Company in writing, and if it relates to the business of
the Company or any of the products or services being developed, manufactured or
sold by the Company, such invention and the benefits thereof shall immediately
become the sole and absolute property of the Company provided the Company
notifies me in reasonable detail within ninety (90) days after receipt of my
disclosure of such invention that it believes such invention relates to the
business of the Company or any of the products or services being developed,
manufactured or sold by the Company. I also agree to transfer such
inventions and benefits and rights resulting from such inventions to the Company
without compensation and will communicate without cost, delay or prior
publications all available information relating to the inventions to the
Company. At the Company's expense I will also, whether before or
after termination of my employment, sign all documents (including patent
applications) and do all acts and things that the Company may deem necessary or
desirable to effect the full assignment to the Company of my right and title to
the inventions or necessary to defend any opposition thereto. I also
agree to assign to the Company all copyrights and reproduction rights to any
materials prepared by me in connection with my employment.
12
4.
Conflicting Agreements. I represent that I have attached to
this Agreement a copy of any written agreement, or a summary of any oral
agreement, which presently affects my ability to comply with the terms of this
Agreement, and that to the best of my knowledge my employment with the Company
will not conflict with any agreement to which I am subject. I have
returned all documents and materials belonging to any of my former
employers. I will not disclose to the Company or induce any of the
Company's employees to use trade secrets or confidential information of any of
my former employers.
5.
Miscellaneous.
(a)
I hereby give the Company permission to use photographs of me,
during my employment, with or without using my name, for any reasonable business
purposes the Company deems necessary or desirable.
(b)
The Company shall have, in addition to any and all
remedies of law, the right to an injunction, specific performance and other
equitable relief as may be appropriate to prevent the violation of my
obligations hereunder.
(c)
I understand that this Agreement does not create an
obligation on the Company or any other person to continue my employment for any
period of time.
(d)
This Agreement shall be construed in accordance with the laws
of the State of Georgia. I agree that each provision of this
Agreement shall be treated as a separate and independent clause, and the
unenforceability of any clause shall in no way impair the enforceability of any
of the other clauses. Moreover, if one or more of the provisions contained in
this Agreement shall for any reason be held to be extensively broad as to scope,
activity, time, geographical area or subject so as to be unenforceable at law,
such provision or provisions shall be construed by the appropriate judicial body
by limiting and reducing it or them so as to be enforceable to the maximum
extent compatible with applicable law as it shall then appear.
(e)
My obligations under this Agreement shall survive the
termination of my employment regardless of the manner of such termination for
the time periods set forth in this Agreement, and shall be binding upon my
heirs, executors and administrators.
(f)
The term "Company" as used in this Agreement includes Concurrent
Computer Corporation and any of its subdivisions or affiliates. The
Company shall have the right to assign this Agreement to its successors and
assigns.
(g)
The foregoing is the entire agreement between the
Company and me with regard to its subject matter, and may not be amended or
supplemented except by a written instrument signed by both the Company and
me. The section headings are inserted for convenience only, and are
not intended to affect the meaning of this Agreement.
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/s/ Xxxxx X. Xxxxx
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Xxxxx
X. Xxxxx
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13
