Exhibit (e)(5)
CHANGE OF CONTROL AGREEMENT
This Change of Control Agreement (the "Agreement") is made and entered
into by and between Xxxx Xxxxxxxx Xxxxxx (the "Employee") and Rogue Wave
Software, Inc. (the "Company"), effective as of the latest date set forth by the
signatures of the parties hereto below.
RECITAL
There currently exists considerable volatility and consolidation in the
software industry as well as the technology sector generally. These
circumstances may create conditions whereby a significant merger or acquisition
transaction may occur, resulting, in turn, in a change in control of the
Company. To guard against the inherently destabilizing effect on current
management of such a potential transaction, and to induce current management to
continue their employment with the Company up to and including the time that
such a transaction occurs, the parties agree as follows:
1. CHANGE OF CONTROL
(a) TERMINATION IN CONNECTION WITH A CHANGE OF CONTROL. See attached
Separation and Release Agreement.
(b) ACCELERATED VESTING OF STOCK OPTIONS. Upon change of control, the
vesting of Xx. Xxxxxx'x stock options shall be accelerated such that she shall
have the option to purchase all granted shares of Rogue Wave's Common Stock
shares pursuant to Rogue Wave's 1996 and 1997 Stock Option Plans. Except for the
vesting acceleration, number of shares and price per share specified in the
initial grant along with the terms, limitations, prerequisites, requirements,
mechanics and conditions of Rogue Wave's 1996 and 1997 Stock
Option Plans shall apply in full to any and all other aspects of the options and
the exercise thereof, including (without limitation) the time limitations for
the exercise of any options by Xx. Xxxxxx.
2. DEFINITION OF TERMS. The following terms referred to in this Agreement shall
have the following meanings:
(a) CHANGE OF CONTROL. "Change of Control" means the occurrence 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 change in the composition of the Board occurring within
a twelve-month period, 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 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);
(iii) The consummation of 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
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remaining outstanding or by being converted into voting securities of the
surviving entity or such surviving entity's parent) at least fifty percent (50%)
of the total voting power represented by the voting securities of the Company or
such surviving entity or such surviving entity's parent outstanding immediately
after such merger or consolidation;
(iv) The consummation of the sale or disposition by the
Company of all, or seventy-five percent (75%) or more of the Company's assets.
3. SUCCESSORS
(a) COMPANY'S SUCCESSORS. Any successor to the Company (whether direct
or indirect and whether by purchase, merger, consolidation, liquidation or
otherwise) to all or substantially all of the Company's business and/or assets
shall assume the obligation 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/or assets which executes and
delivers an assumption agreement described in this Section 3(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 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, distributees, devisees and legatees.
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4. MISCELLANEOUS PROVISIONS
(a) AT-WILL EMPLOYMENT. Employee understands and acknowledges that her
employment at the Company has always been and remains "at will." This means that
the Employee is free to resign at will, at any time, with or without notice, and
with or without cause. Similarly, the Company may terminate the employment
relationship at will, at any time, with or without notice, and with or without
cause. The Employee further understands and acknowledges that no individual
other than by an authorized officer of the Company (other than the Employee) has
the authority to enter into any other agreement that modifies the Employee's
"at-will" status. Any such modification must be in a single writing signed by
both the Employee and by an authorized officer of the Company. If the Employee's
employment terminates for any reason (without limitation) prior to a Change of
Control (as defined in paragraph 2(a), above), the Employee shall not be
entitled to any of the compensation (or any portion thereof), described in
paragraph 1(a) of this Agreement.
(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) CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be construed and enforced in accordance
with, and the rights of the parties
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shall be governed by, the laws of the State of Colorado without regard to
principles of conflicts of laws.
(d) SEVERABILITY. The invalidity or unenforceability of any 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.
(e) WITHHOLDING. All payments made pursuant to this Agreement will be
subject to withholding of applicable payroll taxes.
(f) 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
set forth below.
ROGUE WAVE SOFTWARE, INC. XXXX XXXXXXXX XXXXXX
By: /s/ Xxxxxxxx X. Xxxxx /s/ Xxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxx Xxxx Xxxxxxxx Xxxxxx
Date: September 17, 2003 Date: September 17, 2003
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