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EXHIBIT 10.21
VISIONEER, INC.
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into
effective as of ____________, by and between ___________ (the "Employee") and
Visioneer, Inc., a Delaware corporation (the "Company").
R E C I T A L S
A. It is expected that another company or other entity may from
time to time consider the possibility of acquiring the Company or that a change
in control may otherwise occur, without the approval of the Company's Board of
Directors (the "Board"). The Board recognizes that such consideration can be a
distraction to the Employee and can cause the Employee to consider alternative
employment opportunities. The Board has determined that it is in the best
interests of the Company and its stockholders to assure that the Company will
have the continued dedication and objectivity of the Employee, notwithstanding
the possibility, threat or occurrence of a Change of Control (as defined below)
of the Company.
B. The Board believes that it is in the best interests of the
Company and its stockholders to provide the Employee with an incentive to
continue his or her employment with the Company.
C. The Board believes that it is imperative to provide the
Employee with certain benefits, upon termination of the Employee's employment
in connection with a Change of Control, which benefits are intended to provide
the Employee with financial security and provide sufficient income and
encouragement to the Employee to remain with the Company notwithstanding the
possibility of a Change of Control.
D. To accomplish the foregoing objectives, the Board of Directors
has directed the Company, upon execution of this Agreement by the Employee, to
agree to the terms provided in this Agreement.
E. Certain capitalized terms used in the Agreement are defined in
Section 3 below.
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In consideration of the mutual covenants herein contained, and in
consideration of the continuing employment of Employee by the Company from the
date hereof, the parties agree as follows:
1. At-Will Employment. The Company and the Employee
acknowledge that the 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, including (without limitation) any termination prior to a Change of
Control (other than as provided herein), 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 written policies at the time of
termination. The terms of this Agreement shall terminate upon the earlier of
(i) the date that all obligations of the parties hereunder have been satisfied,
or (ii) twelve (12) months after a Change of Control. A termination of the
terms of this Agreement pursuant to the preceding sentence shall be effective
for all purposes, except that such termination shall not affect the payment or
provision of compensation or benefits on account of a termination of employment
occurring prior to the termination of the terms of this Agreement.
2. Change of Control.
(a) Termination Following A Change of Control.
Subject to Section 4 below, if the Employee's employment with the Company is
terminated at any time prior to, but in contemplation of, or within twelve (12)
months after, a Change of Control, then the Employee shall be entitled to
receive or shall not be entitled to receive severance benefits as follows:
(i) Voluntary Resignation. If the
Employee voluntarily resigns from the Company (other than as an Involuntary
Termination (as defined below)) or if the Company terminates the Employee's
employment for Cause (as defined below), then the Employee shall not be
entitled to receive severance payments. The Employee's benefits will be
terminated under the Company's then existing benefit plans and policies in
accordance with such plans and policies in effect on the date of termination or
as otherwise determined by the Board of Directors of the Company.
(ii) Involuntary Termination. If the
Employee's employment is terminated as a result of an Involuntary Termination
other than for Cause, the Employee shall be entitled to receive a lump sum
severance payment equal to 6 months of the salary which the Employee was
receiving immediately prior to the Change of Control. In addition, each stock
option or stock grant granted for the Company's securities held by the Employee
shall become vested on the termination date as to the greater of: (i) one-half
of the
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shares subject to such stock option or stock grant that have not otherwise
vested as of such date; or (ii) that number of the shares subject to such stock
option or stock grant that would have vested if the Employee remained an
employee of the Company for one year after the date of termination and shall be
exercisable to the extent so vested in accordance with the provisions of the
agreement and/or the Plan pursuant to which such stock option or stock grant
was granted. All other benefits will be terminated under the Company's then
existing benefit plans and policies in accordance with such plans and policies
in effect on the date of termination or as otherwise determined by the Board of
Directors of the Company.
(iii) Involuntary Termination for Cause.
If the Employee's employment is terminated for Cause, then the Employee shall
not be entitled to receive severance payments. The Employee's benefits will be
terminated under the Company's then existing benefit plans and policies in
accordance with such plans and policies in effect on the date of termination.
(b) Termination Apart from Change of Control. In
the event the Employee's employment terminates for any reason, either prior,
but in contemplation of, to the occurrence of a Change of Control (except as
otherwise provided in Section 2(a) herein) or after the twelve (12) month
period following the effective date of a Change of Control, then the Employee
shall not be entitled to receive any severance payments pursuant to the terms
of this Agreement. The Employee's benefits will be terminated under the
Company's then existing benefit plans and policies in accordance with such
plans and policies in effect on the date of termination or as otherwise
determined by the Board of Directors of the Company.
3. Definition of Terms. The following terms referred to
in this Agreement shall have the following meanings:
(a) Change of Control. "Change of Control" shall
mean the occurrence of any of the following events:
(i) Ownership. Any "Person" (as such
term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended) is or becomes the "Beneficial Owner" (as defined in Rule
13d-3 under said Act), directly or indirectly, of securities of the Company
representing twenty percent (20%) or more of the total voting power represented
by the Company's then outstanding voting securities without the approval of the
Board of Directors of the Company; or
(ii) Merger/Sale of Assets. A merger or
consolidation of the Company not approved by the Board of Directors of the
Company. A "Change of Control" shall not include a merger or consolidation
which would result in the voting
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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) at least 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, or
the approval by the stockholders 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) Change in Board Composition. A
change in the composition of the Board of Directors of the Company, 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 October 22, 1996 or (B) are elected, or nominated for election,
to the Board of Directors of the Company with the affirmative votes of at least
a majority of the Incumbent Directors at the time of such election or
nomination (but shall not include an individual whose election or nomination is
in connection with an actual or threatened proxy contest relating to the
election of directors to the Company).
(b) Cause. "Cause" shall mean (i) gross
negligence or willful misconduct in the performance of the Employee's duties to
the Company where such gross negligence or willful misconduct has resulted or
is likely to result in substantial and material damage to the Company or its
subsidiaries (ii) repeated unexplained or unjustified absence from the Company,
(iii) a material and willful violation of any federal or state law; (iv)
commission of any act of fraud with respect to the Company; (v) conviction of a
felony or a crime involving moral turpitude causing material harm to the
standing and reputation of the Company; or (vi) a material and willful
violation of any of the provisions of the Company's Propriety Information
Agreement, in each case as determined in good faith by the Board of Directors
of the Company.
(c) Involuntary Termination. "Involuntary
Termination" shall include any termination by the Company other than for Cause;
or the Employee's voluntary termination, upon 30 days prior written notice to
the Company, within three (3) months following (i) a material reduction or
change in job duties, responsibilities and requirements inconsistent with the
Employee's position with the Company and the Employee's prior duties,
responsibilities and requirements, (ii) a greater than 20% reduction in the
Employee's annual base compensation, or (iii) the Employee's refusal to
relocate to a facility or location outside of the San Francisco Bay Area.
4. Excise Tax Payments. In the event that any payments
or benefits to be received by Employee pursuant to this Agreement would result
in the imposition of an excise tax pursuant to Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Code")
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or any corresponding provisions of state income tax law, Employee shall receive
the entire amount of the payments or benefits to which Employee is entitled
under this Agreement, in which event Employee shall be responsible for the
payment of all excise taxes imposed under the Code with respect to such
payments or benefits.
5. Successors. Any successor to the Company (whether
direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company's business
and/or 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. The terms of this Agreement and
all of the Employee's rights hereunder shall inure to the benefit of, and be
enforceable by, the Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
6. Notice. Notices and all other communications
contemplated by 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. Mailed notices
to the Employee shall be addressed to the Employee at the home address which
the Employee 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.
7. Miscellaneous Provisions.
(a) No Duty to Mitigate. The Employee shall not
be required to mitigate the amount of any payment contemplated by this
Agreement (whether by seeking new employment or in any other manner), nor,
except as otherwise provided in this Agreement, 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 shall
be modified, waived or discharged unless the modification, waiver or discharge
is agreed to in writing and signed by the Employee and 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) Whole Agreement. No agreements,
representations or understandings (whether oral or written and whether express
or implied) which are not expressly set forth in this Agreement have been made
or entered into by either party with
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respect to the subject matter hereof. This Agreement supersedes any agreement
of the same title and concerning similar subject matter dated prior to the date
of this Agreement, and by execution of this Agreement both parties agree that
any such predecessor agreement shall be deemed null and void.
(d) Choice of Law. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of California without reference to conflict of laws provisions. The
parties agree that all disputes arising among them related to this Agreement,
whether arising in contract, tort, equity or otherwise, shall be resolved only
in the United States federal courts in the Northern District of California or
California state courts located in Alameda County, California. Each party
hereby waives any disputes it may have with respect to the location of any
court.
(e) Severability. If any term or provision of
this Agreement or the application thereof to any circumstance shall, in any
jurisdiction and to any extent, be invalid or unenforceable, such term or
provision shall be ineffective as to such jurisdiction to the extent of such
invalidity or unenforceability without invalidating or rendering unenforceable
the remaining terms and provisions of this Agreement or the application of such
terms and provisions to circumstances other than those as to which it is held
invalid or unenforceable, and a suitable and equitable term or provision shall
be substituted therefor to carry out, insofar as may be valid and enforceable,
the intent and purpose of the invalid or unenforceable term or provision.
(f) Arbitration. Any dispute or controversy
arising under or in connection with this Agreement may be settled at the option
of either party by binding arbitration in the County of Alameda, California, in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction. Punitive damages shall not be awarded.
(g) Legal Fees and Expenses. The parties shall
each bear their own expenses, legal fees and other fees incurred in connection
with this Agreement. The parties agree, however, that the prevailing party in
any arbitration proceeding brought under or in connection with this Agreement
shall be awarded reasonable attorneys' fees and costs.
(h) No Assignment of Benefits. The rights of any
person to payments or benefits under this Agreement shall not be made subject
to option or assignment, either by voluntary or involuntary assignment or by
operation of law, including (without limitation) bankruptcy, garnishment,
attachment or other creditor's process, and any action in violation of this
subsection (h) shall be void.
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(i) Employment Taxes. All payments made pursuant
to this Agreement will be subject to withholding of applicable income and
employment taxes.
(j) Assignment by Company. The Company may
assign its rights under 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
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.
(k) Counterparts. This Agreement may be executed
in counterparts, 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.
VISIONEER, INC. [EMPLOYEE]
By:
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Title:
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