Exhibit 10.32
E-STAMP CORPORATION
CHANGE OF CONTROL SEVERANCE AGREEMENT
This Change of Control Severance Agreement (the "Agreement") is made and
entered into effective as of November 17, 2000 (the "Effective Date"), by and
between Xxxxxx X. Xxxxx (the "Employee") and E-Stamp Corporation, a Delaware
corporation (the "Company"). Certain capitalized terms used in this Agreement
are defined in Section 1 below.
R E C I T A L S
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A. The Company may from time to time consider the possibility of a Change
of Control. The Board of Directors of the Company (the "Board") recognizes that
such consideration can be a distraction to the Employee and can cause the
Employee to consider alternative employment opportunities.
B. The Board believes that it is in the best interests of the Company and
its shareholders to provide the Employee with an incentive to continue his or
her employment and to maximize the value of the Company upon a Change of Control
for the benefit of its shareholders.
C. In order to provide the Employee with enhanced financial security and
sufficient encouragement to remain with the Company notwithstanding the
possibility of a Change of Control, the Board believes that it is imperative to
provide the Employee with certain severance benefits upon the Employee's
termination of employment following a Change of Control.
AGREEMENT
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In consideration of the mutual covenants herein contained and the continued
employment of Employee by the Company, the parties agree as follows:
1. Definition of Terms. The following terms referred to in this Agreement
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shall have the following meanings:
(a) Cause. "Cause" shall mean (i) any commission of an act of fraud,
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dishonesty, misappropriation, embezzlement, or other willful or reckless
misconduct with respect to the business or property of the Company which is
intended to result in substantial personal enrichment of the Employee or causes
material harm to the Company, (ii) Employee's conviction of, or plea of guilty
or nolo contendere to, a felony, and (iii) Employee's willful and continued
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failure to substantially perform his or her duties of employment after there has
been delivered to the Employee a written demand for performance from the Company
which describes the basis for the Company's belief that the Employee has not
substantially performed his or her duties.
(b) Change of Control. "Change of Control" shall mean the
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occurrence of any of the following events:
(i) the approval by shareholders of the Company of a merger
or consolidation of the Company with any other corporation, other than a merger
or consolidation which 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;
(ii) 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;
(iii) any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended) becoming the
"beneficial owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing 50% or more of the total
voting power represented by the Company's then outstanding voting securities; 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 transactions 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) Termination Date. "Termination Date" shall mean the effective
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date of any notice of termination delivered by one party to the other hereunder
within twelve (12) months after a Change of Control.
2. Term of Agreement. This Agreement shall terminate upon the earlier of
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(i) the date that all obligations of the parties hereto under this Agreement
have been satisfied or (ii) if Employee's employment with the Company terminates
for any reason prior to a Change of Control, the date that Employee is no longer
employed by the Company.
3. At-Will Employment. The Company and the 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
established under the Company's then existing employee benefit plans or policies
at the time of termination.
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4. Severance Benefits.
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(a) Termination Without Cause Following A Change of Control. If the
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Employee's employment with the Company is terminated by the Company without
Cause at any time within twelve (12) months after a Change of Control and
Employee signs and does not revoke a release of claims with the Company in the
form provided to Employee by the Company, Employee shall be entitled to the
following severance benefits:
(i) Employee shall be entitled to severance pay equal to 100%
of Employee's annual base salary, as in effect immediately prior to the
Termination Date, less applicable withholding, payable in a lump sum within
thirty (30) days of the Termination Date.
(ii) The Company shall pay the group health plan continuation
coverage premiums for Employee under Title X of the Consolidated Budget
Reconciliation Act of 1985, as amended, ("COBRA") through the lesser of (x)
twelve (12) months from the date of Employee's termination of employment, or (y)
the date upon which Employee is covered by a substantially similar plan of
Employee's new employer. Employee shall notify the Company when coverage under a
new employer's plan begins.
(iii) The Company shall immediately forgive any unpaid
principal and accrued interest on any promissory note that was used by Employee
to purchase Common Stock of the Company. The foregoing shall not apply to the
payment of any accrued interest that is then past due under such promissory
note, and shall not affect in any manner the obligations of Employee under any
other loan provided by the Company to the Employee.
(iv) The Company will offer Employee Company-paid outplacement
services for twelve (12) months following the Termination Date, up to a maximum
cost of $1,000 dollars.
(b) Other Termination. If the Employee's employment with the Company
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terminates for any other reason other than as provided in Section 4(a) above,
then the Employee shall not be entitled to receive severance or other benefits
hereunder, but may 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.
(c) Accrued Wages and Vacation; Expenses. Without regard to the
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reason for, or the timing of, Employee's termination of employment: (i) the
Company shall pay the Employee any unpaid base salary due for periods prior to
the Termination Date; (ii) the Company shall pay the Employee all of the
Employee's accrued and unused paid time off through the Termination Date; and
(iii) following submission of proper expense reports by the Employee, the
Company shall reimburse the Employee for all expenses reasonably and necessarily
incurred by the Employee in connection with the business of the Company prior to
the Termination Date to the extent reimbursable under the Company's travel and
expense reimbursement policies. These payments shall be made promptly upon
termination and within the period of time mandated by law.
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5. 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, liquidation or
otherwise) to all or substantially all of the Company's business and/or assets
shall assume the Company's obligations under this Agreement and agree expressly
to perform the Company's 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/or assets
which 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. Without the written consent of the
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Company, Employee shall not assign or transfer this Agreement or any right or
obligation under this Agreement to any other person or entity. Notwithstanding
the foregoing, the terms of this Agreement and all rights of Employee hereunder
shall inure to the benefit of, and be enforceable by, Employee's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
6. Notices.
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(a) General. Notices and all other communications contemplated by
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this Agreement shall be in writing and shall be deemed to have been duly given
when personally delivered or when mailed by U.S. registered or certified mail,
return receipt requested and postage prepaid. In the case of the Employee,
mailed notices shall be addressed to him at the home address which he most
recently communicated to the Company in writing. In the case of the Company,
mailed notices shall be addressed to its corporate headquarters, and all notices
shall be directed to the attention of its Secretary.
(b) Notice of Termination. Any termination by the Company or by the
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Employee shall be communicated by a notice of termination to the other party
hereto given in accordance with this Section.
7. Arbitration.
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(a) Any dispute or controversy arising out of, relating to, or in
connection with this Agreement, or the interpretation, validity, construction,
performance, breach, or termination thereof, shall be settled by binding
arbitration to be held in Santa Xxxxx County, California, in accordance with the
National Rules for the Resolution of Employment Disputes then in effect of the
American Arbitration Association (the "Rules"). The arbitrator may grant
injunctions or other relief in such dispute or controversy. The decision of the
arbitrator shall be final, conclusive and binding on the parties to the
arbitration. Judgment may be entered on the arbitrator's decision in any court
having jurisdiction.
(b) The arbitrator(s) shall apply California law to the merits of
any dispute or claim, without reference to conflicts of law rules. The
arbitration proceedings shall be governed by federal
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arbitration law and by the Rules, without reference to state arbitration law.
Employee hereby consents to the personal jurisdiction of the state and federal
courts located in California for any action or proceeding arising from or
relating to this Agreement or relating to any arbitration in which the parties
are participants.
(c) Employee understands that nothing in this Section modifies
Employee's at-will employment status. Either Employee or the Company can
terminate the employment relationship at any time, with or without Cause.
(d) EMPLOYEE HAS READ AND UNDERSTANDS THIS SECTION, WHICH DISCUSSES
ARBITRATION. EMPLOYEE UNDERSTANDS THAT SUBMITTING ANY CLAIMS ARISING OUT OF,
RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION,
VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION THEREOF TO BINDING
ARBITRATION, CONSTITUTES A WAIVER OF EMPLOYEE'S RIGHT TO A JURY TRIAL AND
RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE
EMPLOYER/EMPLOYEE RELATIONSHIP, INCLUDING BUT NOT LIMITED TO, THE FOLLOWING
CLAIMS:
(i) ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF EMPLOYMENT;
BREACH OF CONTRACT, BOTH EXPRESS AND IMPLIED; BREACH OF THE COVENANT OF GOOD
FAITH AND FAIR DEALING, BOTH EXPRESS AND IMPLIED; NEGLIGENT OR INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT OR INTENTIONAL MISREPRESENTATION;
NEGLIGENT OR INTENTIONAL INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC
ADVANTAGE; AND DEFAMATION.
(ii) ANY AND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL STATE OR
MUNICIPAL STATUTE, INCLUDING, BUT NOT LIMITED TO, TITLE VII OF THE CIVIL RIGHTS
ACT OF 1964, THE CIVIL RIGHTS ACT OF 1991, THE AGE DISCRIMINATION IN EMPLOYMENT
ACT OF 1967, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE FAIR LABOR
STANDARDS ACT, THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, AND LABOR CODE
SECTION 201, et seq;
(iii) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND
REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.
8. 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 contemplated by this Agreement, nor shall any
such payment be reduced by any earnings that the Employee may receive from any
other source.
(b) Waiver. No provision of this Agreement may be modified, waived
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or discharged unless the modification, waiver or discharge is agreed to in
writing and signed by the Employee and
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by an authorized officer of the Company (other than the Employee). No waiver by
either party of any breach of, or of 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) Integration. This Agreement represents the entire agreement and
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understanding between the parties as to the subject matter herein and supersedes
all prior or contemporaneous agreements, whether written or oral, with respect
to this Agreement.
(d) Choice of Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by the internal substantive
laws, but not the conflicts of law rules, of the State of California.
(e) Severability. The invalidity or unenforceability of any
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provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.
(f) Employment Taxes. All payments made pursuant to this Agreement
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shall be subject to withholding of applicable income and employment taxes.
Employee shall be responsible for all applicable income and employment taxes in
connection with the forgiveness of any debt pursuant to this Agreement.
(g) 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.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case
of the Company by its duly authorized officer, as of the day and year first
above written.
COMPANY: E-STAMP CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Title: Vice President, General Counsel
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EMPLOYEE: /s/ Xxxxxx X. Xxxxx
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Signature
Xxxxxx X. Xxxxx
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Printed Name
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