EX-10.2 3 dex102.htm AMENDED AND RESTATED EXECUTIVE RETENTION AGREEMENT AMENDED AND RESTATED EXECUTIVE RETENTION AGREEMENT
Exhibit 10.2
AMENDED AND RESTATED EXECUTIVE RETENTION AGREEMENT
This Amended and Restated Executive Retention Agreement is entered into by and between i2 Technologies, Inc. (the “Company”), and Xxxxxx Xxxxxxxxxx (the “Executive”), as of the 23rd day of May, 2008.
WHEREAS, the Executive is currently a party to an executive retention agreement with the Company dated February 25, 2008 (the “Prior Agreement”).
(a) A “Change in Control” shall mean a change in the ownership or control of the Company which occurs by reason of any of the following events:
(i) a merger or consolidation in which securities possessing more than fifty percent (50%) of the total combined voting power of the Corporation’s outstanding securities are transferred to a person or persons different from the persons holding those immediately prior to such transaction;
(ii) the sale, transfer or other disposition of all or substantially all of the Company’s assets in complete liquidation or dissolution of the Company; or
(iii) the acquisition, directly or indirectly, by any person or related group of persons (other than the Company or a person that directly or indirectly controls, is controlled by, or is under common control with, the Company), of beneficial ownership
(within the meaning of Rule 13d-3 of the Securities Exchange Act of 1934, as amended) of securities possessing more than fifty percent (50%) of the total combined voting power of the Company’s outstanding securities pursuant to a tender or exchange offer made directly to the Company’s stockholders which the Board recommends such stockholders to accept.
(b) “Code” shall mean the Internal Revenue Code.
(c) “Disability” shall mean the absence of the Executive from the Executive’s full-time duties with the Company for 180 consecutive calendar days as a result of incapacity due to mental or physical illness that is determined to be total and permanent by a physician selected by the Company or its insurers and acceptable to the Executive or the Executive’s legal representative (such agreement as to acceptability not to be withheld unreasonably).
(d) “Good Reason” shall mean the occurrence of one or more of the following conditions without the consent of the Executive: (A) a material reduction in the scope of the Executive’s duties and responsibilities, (B) a material reduction in the Executive’s base compensation, (C) a material change in the Executive’s principal place of employment or (D) a material breach by the Company of any of its obligations under this Agreement provided that the Executive must (i) provide written notice to the Company of the existence of the act or omission constituting Good Reason within sixty (60) days of the initial existence of such act or omission and (ii) provide the Company with at least thirty (30) days after receipt of such notice to correct such act or omission.
(e) “Separation from Service” means the Executive’s separation from service within the meaning of Section 409A(a)(2)(A)(i) of the Code and Treasury Regulation Section 1.409A-1(h).
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Company) after receipt of written notice from the Company specifying such breach of violation (“Notice of Breach”); or (ii) the conviction of the Executive of a felony.
If the Company delivers a Notice of Breach to the Executive describing the situation to be remedied and Executive fails to remedy such violation or breach within 60 days, then a Notice of Termination delivered to the Executive subsequent to the Notice of Breach shall become effective in accordance with the provisions specified below.
5. Date of Termination: “Date of Termination” means (i) if the Executive’s employment is terminated by the Company for Cause or by the Executive other than for Good Reason, the date of receipt of the Notice of Termination or any later date specified therein, as the case may be; (ii) if the Executive’s employment is terminated by the Company other than for Cause or Disability, the date on which the Company notifies the Executive of such termination; (iii) if the Executive’s employment is terminated by reason of death or Disability, the date of death of the Executive or the Disability Effective Date, as the case may be and (iv) if the Executive terminates employment for Good Reason, the date specified in the Notice of Termination in accordance with Section 3(d).
(a) The Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (1) the Executive’s annual base salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x)
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the annual target bonus (if any) for the year in which such Date of Termination occurs and (y) a fraction, the numerator or which is the number of days in the then current fiscal year through the Date of Termination, and the denominator of which is 365 and (3) any accrued vacation pay, to the extent not therefore paid.
(b) The Company shall pay to the Executive a severance payment in an amount equal to one (1) times the sum of (x) the Executive’s annual base salary in effect on the Date of Termination and (y) the annual target bonus (if any) for the year in which the Date of Termination occurs, subject to reduction as set forth in Section 9. Subject to Section 12, such benefit shall be paid in one lump sum within sixty (60) days after the Executive’s Separation from Service from the Company and such payment shall be subject to the Company’s collection of all applicable withholding taxes.
(c) The Corporation shall pay to the Executive an amount equal to the cost that would be incurred by the Executive if the Executive elected continued health care coverage for the Executive and his spouse and other eligible dependents under Section 4980B of the Code and the regulations thereunder for a period of twelve (12) months measured from the Date of Termination. Such payment shall be made in a lump sum within sixty (60) days after the Executive’s Separation from Service.
(a) In the event that any payments or benefits to which the Executive becomes entitled in accordance with the provisions of this Agreement (or any other agreement with the Company or other affiliated company) would otherwise constitute a parachute payment under Section 280G(b)(2) of the Code, then such payments and/or benefits will be subject to reduction to the extent necessary to assure that the Executive receives only the greater of (i) the amount of those payments which would not constitute such a parachute payment or (ii) the amount which yields the Executive the greatest after-tax amount of benefits after taking into account any excise tax imposed under Code Section 4999 on the payments and benefits provided the Executive under this Agreement (or on any other payments or benefits to which the Executive may become entitled in connection
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with any change in control or ownership of the Company or the subsequent termination of his employment with the Company). All calculations required under this Section 9 shall be performed by the Company’s independent registered public accounting firm.
(b) Should a reduction in benefits be required to satisfy the benefit limit of this Section 9, then the aggregate dollar amount of the salary and target bonus payments otherwise due to the Executive under Section 6, shall be reduced to the extent necessary to comply with such benefit limit. Should such benefit limit still be exceeded following such reduction, then the number of shares which would otherwise vest on an accelerated basis under each of the Executive’s equity awards pursuant to Section 7 shall be reduced to the extent necessary to eliminate such excess, with the actual awards to be so reduced to be agreed upon by the Committee and the Executive.
(a) The Executive shall not provide any services (whether as an employee, agent, consultant, advisor, or independent contractor or in any other capacity, directly or indirectly) to any competitor in a position that has substantially the same function and /or responsibilities as the position occupied by the Executive at the time of the Executive’s Date of Termination. Nor shall the Executive provide any services (whether as an employee, agent, consultant, advisor, or independent contractor or in any other capacity, directly or indirectly) to any competitor in a capacity in which the Employee would be required to use or disclose the Company’s confidential information (whether for the benefit of the Executive or the competitor, or to the detriment of the Company). For the purposes of this covenant a competitor shall mean one of the following businesses: (Oracle, SAP, Manhattan, JDA, or Red Prairie).
(b) The Executive shall not request, advise or suggest to any customer of the Company, nor shall the Employee directly or indirectly assist any other person or entity to request, advise or suggest to any customer of the Company, the customer curtail, cancel or withdraw its business from the Company or that the customer not expand its relationship with the Company.
(c) The Executive shall not directly or indirectly solicit or accept i2-related business or any customer or prospect of the Company with whom the Employee (i) had contact during the Executive’s last twelve (12) months of employment with the Company, or (ii) had access to the Company’s confidential information with respect to the customer or prospect during the last twelve (12) months of employment with the Company.
(d) The Executive shall not induce or solicit any employee of the Company to leave the employ of the Company.
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and restraining order to prevent such breach and/or threatened breach and/or continued breach by the Executive and/or any and all persons and/or entities action for and/or with the Executive, without having to prove damages, in addition to any other remedies to which the Company may be entitled at law or in equity. The terms of this Section 11 shall not prevent the Company from pursuing any other available remedies for any breach or threatened breach hereof, including but not limited to the recovery of damages from the Executive.
To the Company: | i2 Technologies, Inc. | |||
00000 Xxxx Xxxx | ||||
Xxxxxx, Xxxxx 00000 | ||||
Attention: General Counsel |
Any notice to the Executive shall be addressed to his home address as set forth at the time in the records of the Corporation.
15. Governing Law: This Agreement shall be governed and conformed in accordance with the laws of the State of Texas without regard to its conflict of laws provisions. The Executive agrees to appear before and submit exclusively to the jurisdiction of the state and federal courts located in Dallas County, Texas with respect to any controversy, dispute or claim arising out of or relating to the Agreement. Should any provision of this
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Agreement become or be deemed invalid, illegal or unenforceable in any jurisdiction by reason of the scope, extent or duration of its coverage, then such provision shall be deemed amended to the extent necessary to conform to applicable law so as to be valid and enforceable or, if such provision cannot be so amended without materially altering the intention of the parties, then such provision will be stricken, and the remainder of this Agreement shall continue in full force and effect.
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Executive | i2 Technologies, Inc. | |||||||
By: | /s/ Xxxxxx Xxxxxxxxxx | By: | /s/ Xxxx Xxxxxx | |||||
Xxxxxx Xxxxxxxxxx | Xxxx Xxxxxx | |||||||
Title: SVP and General Counsel |
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