EXHIBIT 10.4
CAPTURA SOFTWARE, INC.
MANAGEMENT CONTINUITY AGREEMENT
1. Purpose of the Agreement. The purpose of this Agreement is to
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encourage long-term service of "Employee" with Captura Software, Inc. "Company"
and to retain Employee's services in the event of a Change of Control.
2. At-Will Employment. The Company and Employee acknowledge that the
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Employee's employment is and shall continue to be at-will, as defined under
applicable law. If the Employee's employment terminates for any reason, the
Employee shall not be entitled to any payments, benefits, damages, awards or
compensation other than as provided by this Agreement, or as may otherwise be
available in accordance with the Company's established employee plans and
policies at the time of termination.
3. Term of Agreement. This Agreement shall commence on March 1, 2000
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and shall continue through March 1, 2004, subject to the terms and conditions
set forth herein. Not withstanding the foregoing, this Agreement shall not
terminate until the date that all obligations of parties hereunder have been
satisfied. No termination of this Agreement shall affect the payment provision
of compensation or benefits on account of termination of employment occurring
prior to the termination of this Agreement.
4. Option Acceleration Upon a Change of Control. Upon a Change of
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Control, the vesting and exercisability of each option granted to the Employee
by the Company (the "Options") shall be automatically accelerated as to 50% of
the unvested shares subject thereto at the time of the Change of Control.
5. Option Acceleration Upon the Involuntary Termination Following a
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Change of Control. If the Employee's employment with the Company terminates as
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a result of an Involuntary Termination at any time within [twelve (12) months]
after a Change of Control, then the vesting and exercisability of each option
granted to the Employee by the Company (the "Options") shall be automatically
accelerated in full. If the Employee's employment with the Company terminates
for any reason other than an Involuntary Termination within twelve (12) months
after a Change of Control, then the Employee shall not be entitled to receive
severance or other benefits under this Agreement in connection with such
termination, but shall be eligible for those benefits (if any) as may then be
established under the Company's then-existing severance and benefits plans and
policies at the time of such termination.
6. Definition of Terms. The following terms referred to in this
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Agreement shall have the following meanings:
(a) Cause. "Cause" shall mean (i) any act of personal dishonesty
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taken by the Employee in connection with his/her responsibilities as an employee
and intended to result in substantial personal enrichment of the Employee, (ii)
the Employee's commission of a felony or an act of fraud against the Company or
its affiliates, (iii) a willful act by the Employee that constitutes gross
misconduct and that is injurious to the Company, and (iv) continued failure by
the Employee
to perform his/her duties commensurate with the position, after there has been
delivered to the Employee a written demand for performance from the Company that
describes the basis for the Company's belief that the Employee has not
substantially performed his/her duties.
(b) Change of Control. "Change of Control" shall mean the occurrence
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of any of the following events: (i) Any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended)
becomes the "beneficial owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing fifty percent
(50%) or more of the total voting power represented by the Company's then
outstanding voting securities; (ii) A merger or consolidation of the Company
with any other corporation, other than a merger or consolidation that would
result in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more than fifty
percent (50%) of the total voting power represented by the voting securities of
the Company or such surviving entity outstanding immediately after such merger
or consolidation; (iii) The approval by the shareholders of the Company of a
plan of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's assets;
or (iv) A change in the composition of the Board, as a result of which fewer
than a majority of the directors are Incumbent Directors. "Incumbent Directors"
shall mean directors who either (A) are directors of the Company as of the date
hereof, or (B) are elected, or nominated for election, to the Board with the
affirmative votes of at least a majority of those directors whose election or
nomination was not in connection with any transaction described in subsections
(i), (ii) or (iii) or in connection with an actual or threatened proxy contest
relating to the election of directors of the Company.
(c) Involuntary Termination. "Involuntary Termination" shall mean (i)
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without the Employee's express written consent, the assignment to the Employee
of any duties or the significant reduction of the Employee's duties, either of
which is inconsistent with the Employee's position with the Company and his/her
responsibilities in effect immediately prior to such assignment, or the removal
of the Employee from such position and responsibilities; provided, however, that
a reduction in duties, position or responsibilities solely by virtue of the
Company being acquired and made part of a larger entity (as, for example, when
the CEO of the Company remains as such following a Change of Control but is not
made the CEO of the acquiring corporation) shall not constitute an Involuntary
Termination; (ii) without the Employee's express written consent, a substantial
reduction, without good business reasons, of the facilities and perquisites
(including office space and location) available to the Employee immediately
prior to such reduction, (iii) a reduction by the Company in the Base
Compensation (salary) of the Employee as in effect immediately prior to such
reduction; (iv) a material reduction by the Company in the kind or level of
employee benefits to which the Employee is entitled immediately prior to such
reduction, with the result that the Employee's overall benefits package is
significantly reduced; (v) the relocation of the Employee to a facility or a
location more than 30 miles from the Employee's then present location, without
the Employee's express written consent; (vi) any purported termination of the
Employee by the Company that is not effected for Disability or for Cause, or any
purported termination for which the grounds relied upon are not valid; or (vii)
the failure of the Company to obtain the assumption of this Agreement by any
successors contemplated in Section 9 below; provided, however, that no
Involuntary Termination shall be deemed to have occurred if any such
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successor substitutes an agreement for this Agreement providing comparable
severance benefits to those provided for in this Agreement.
7. Limitation on Payments. In the event that the severance and other
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benefits provided for in this Agreement or otherwise payable to the Employee (i)
constitute "parachute payments" within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code") and (ii) but for this
Section, would be subject to the excise tax imposed by Section 4999 of the Code,
then the Employee's severance benefits under this Agreement shall be payable to
such lesser amount which would result in no portion of such severance benefits
being subject to the excise tax under Section 4999 of the Code. Unless the
Company and the Employee otherwise agree in writing, any determination required
under this Section shall be made in writing by the Company's independent public
accountants (the "Accountants"), whose determination shall be conclusive and
binding upon the Employee and the Company for all purposes. For the purpose of
making the calculations required by this Section, the Accountants may make
reasonable assumptions and approximations concerning applicable taxes and may
rely on reasonable, good faith interpretations concerning the application of
Section 280G and 4999 of the Code. The Company and the Employee shall furnish
to the Accountants such information and documents as the Accountants may
reasonably request in order to make a determination under this Section. The
Company shall bear all costs the Accountants may reasonably incur in connection
with any calculations contemplated by this Section.
8. Successors.
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(a) Company's Successors. Any successor to the Company (whether
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direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company's business
and assets shall assume the obligations under this Agreement and agree expressly
to perform the obligations under this Agreement in the same manner and to the
same extent as the Company would be required to perform such obligations in the
absence of a succession. For all purposes under this Agreement, the term
"Company" shall include any successor to the Company's business and assets that
executes and delivers the assumption agreement described in this subsection (a)
or which becomes bound by the terms of this Agreement by operation of law.
(b) Employee's Successors. The terms of this Agreement and all
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rights of the Employee hereunder shall inure to the benefit of, and be
enforceable by, the Employee's personal or legal representatives, executors,
administrators, successors, heirs, devisees and legatees.
9. Miscellaneous Provisions.
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(a) No Duty to Mitigate. The Employee shall not be required to
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mitigate the amount of any payment or benefit contemplated by this Agreement
(whether by seeking new employment or in any manner), nor (except as otherwise
provided in this Agreement) shall any such payment or benefit be reduced by the
Employee obtaining new employment or by any earnings that the Employee may
receive from any other source.
(b) Waiver. No provision of this Agreement shall be modified,
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waived or discharged unless the modification, waiver or discharge is agreed to
in writing and signed b the
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Employee and by an authorized officer of the Company (other than the Employee).
No waiver by either party of any breach of, or compliance with, any condition or
provision of this Agreement by the other party shall be considered a waiver of
any other condition or provision or of the same condition or provision at
another time.
(c) Whole Agreement. No agreements, representations or understandings
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(whether oral or written or whether express or implied) that are not expressly
set forth or referred to in this Agreement have been made or entered into by
either party with respect to the subject matter hereof.
(d) Choice of Law. The validity and interpretation of this Agreement
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shall be governed by the laws of the State of Washington without reference to
rules of conflicts of law. Employee hereby consents to the personal
jurisdiction of the state and federal courts located in Washington for any
action or proceeding arising from or relating to this Agreement or relating to
any arbitration in which the parties are participants.
(e) Severability. If any portion of this Agreement is held by a court
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of competent jurisdiction to conflict with any federal, state or local law, or
to be otherwise invalid or unenforceable, such portion of the Agreement shall be
of no force or effect and the remaining provisions of this Agreement shall
otherwise remain in full force and effect and be construed as if such portion
had not been included in this Agreement.
(f) No Assignment of Benefits. The rights of any person to payments
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or benefits under this Agreement shall not be made subject to option or
assignment, either by voluntary or involuntary assignment or by operation of the
law, including (without limitation) bankruptcy, garnishment, attachment or other
creditors process, and any action in violation of this subsection (f) shall be
void.
(g) Withholding Taxes. All payments made pursuant to this Agreement
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will be subject to withholding of applicable income and employment taxes.
(h) Assignment by Company. The Company may assign its rights under
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this Agreement to an affiliate, and an affiliate may assign its rights under
this Agreement to another affiliate of the Company or to the Company; provided,
however, that no assignment shall be made if the net worth of the assignee is
less than the net worth of the Company at the time of the assignment. In the
case of any such assignment, the term "Company" when used in a Section of this
Agreement shall mean the corporation that actually employs the Employee.
(i) Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
1st day of March, 2000.
Captura Software, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Its: HR Manager
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EMPLOYEE
/s/ Xxxx Xxxx
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Xxxx Xxxx
