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Exhibit 10.33
GADZOOX NETWORKS, INC.
CHANGE OF CONTROL AGREEMENT
This Change of Control Agreement (the "AGREEMENT") is made and entered
into effective as of May 29, 2001 (the "EFFECTIVE DATE"), by and between Xxxxx
Xxxxxxx (the "EMPLOYEE") and Gadzoox Networks, Inc., a Delaware corporation (the
"COMPANY").
R E C I T A L S
A. The Board of Directors of the Company (the "BOARD") expects that the
Company may from time to time consider the possibility of an acquisition of the
Company by another company or other Change of Control of the Company. The Board
recognizes that such considerations 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 for the benefit of its shareholders to provide the Employee with an
incentive to continue his employment and to maximize the value of the Company
upon a Change of Control.
C. Certain capitalized terms used in the Agreement are defined in
SECTION 7 below.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and in consideration of the continuing employment of the Employee by
the Company, the parties agree as follows:
1. EMPLOYMENT.
(a) Position. The Company has and continues to employ the Employee in
the position of Chief Financial Officer with such duties, responsibilities and
compensation as are in effect as of the Effective Date; provided, however, that
this Agreement shall not in any manner restrict the Company in its employment
relationship with the Employee prior to the occurrence of a Change of Control,
including from revising such duties, responsibilities or compensation from time
to time.
(b) 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, this
Agreement shall not entitle the Employee to any payment, benefit, damage, award
or compensation other than as specifically provided by this Agreement.
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2. TERMINATION FOLLOWING A CHANGE OF CONTROL.
(a) If a Change of Control occurs while the Employee is employed by
the Company, then, subject to SECTIONS 4, 5 AND 6 hereof, then fifty percent
(50%) of the number of all stock options and restricted stock owned beneficially
by the Employee and which are, in the case of stock options, unvested and, in
the case of restricted stock, subject to a repurchase option, as of the
effective date of the Change of Control, shall on the effective date of the
Change of Control be fully vested (and immediately exercisable) and any such
repurchase option shall cease to apply to such restricted stock, regardless of
whether or not the Employee's employment with the Company continues following
the effective date of the Change of Control. The balance of any unvested stock
options or restricted stock subject to a repurchase option not so accelerated
shall continue to vest on the same schedule that existed prior to the Change of
Control with respect to such options or stock.
(b) If the Employee's employment with the Company terminates as a
result of the Involuntary Termination of the Employee within twelve (12) months
immediately following a Change of Control, then, subject to SECTIONS 4, 5 AND 6
hereof, twenty-five percent (25%) of the number of all stock options and
restricted stock owned beneficially by the Employee and which are, in the case
of stock options, unvested and, in the case of restricted stock, subject to a
repurchase option as of the Termination Date shall become vested (and
immediately exercisable) and any such repurchase option shall cease to apply to
such restricted stock.
3. VOLUNTARY RESIGNATION; TERMINATION FOR CAUSE. If the Employee's
employment terminates by reason of the Employee's voluntary resignation (and is
not an Involuntary Termination), or if the Employee is terminated for Cause,
then the Employee shall not be entitled to receive any accelerated vesting (as
may be provided by SECTION 2 hereof) or other benefit from the Company pursuant
to this Agreement.
4. DISABILITY; DEATH. If the Company terminates the Employee's
employment as a result of the Employee's Disability, or the Employee's
employment with the Company is terminated due to the death of the Employee, then
the Employee shall not be entitled to receive any accelerated vesting (as may be
provided by SECTION 2) or other benefit from the Company.
5. LIMITATION ON PAYMENTS. If the benefits provided for in this
Agreement to the Employee (i) constitute a "parachute payment(s)" 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 SECTION 2 shall be payable either:
(a) in full; or
(b) as to such lesser amount which would result in no portion of such
severance benefits being subject to excise tax under SECTION 4999 of the Code,
whichever of the foregoing amounts, taking into account the applicable federal,
state and local income taxes and the excise tax imposed by SECTION 4999, results
in the receipt by the Employee on an after-tax basis, of the greatest amount of
severance benefits under SECTION 2 hereof,
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notwithstanding that all or some portion of such severance benefits may be
taxable under SECTION 4999 of the Code. Unless the Company and the Employee
otherwise agree in writing, any determination required under this SECTION 5
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 purposes of making the
calculations required by this SECTION 5, the Accountants may make reasonable
assumptions and approximations concerning applicable taxes and may rely on
reasonable, good faith interpretations concerning the application of SECTIONS
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 5.
6. CERTAIN BUSINESS COMBINATIONS. If the Board determines, upon receipt
of a written opinion of the Company's independent public accountants, that the
enforcement of any provision of this Agreement would preclude accounting for any
proposed business combination of the Company involving a Change of Control as a
pooling of interests, and the Board otherwise determines to approve such a
proposed business transaction which requires as a condition to the closing of
such transaction that it be accounted for as a pooling of interests, then any
such provision of this Agreement shall be null and void.
7. DEFINITIONS. The following terms referred to in this Agreement shall
have the following meanings:
(a) "CAUSE" means (i) any act of personal dishonesty taken by the
Employee in connection with his responsibilities as an employee of the Company
and intended to result in substantial personal enrichment of the Employee, (ii)
the Employee being convicted of a felony, (iii) a willful act by the Employee
which constitutes gross misconduct and which is injurious to the Company, and
(iv) the repeated failure by the Employee to perform the Employee's assigned
duties or responsibilities as an employee of the Company 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 duties or responsibilities.
(b) "CHANGE OF CONTROL" means the occurrence of any of the following:
(A) When any "person," as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), other than the
Company, a subsidiary of the Company or a Company employee benefit plan,
including any trustee of such plan acting as trustee, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing fifty percent (50%) or
more of the combined voting power of the Company's then outstanding securities
entitled to vote generally in the election of directors; provided, however, that
sales by the Company of its equity securities shall not constitute a Change of
Control; or (B) the effective date of a merger or consolidation of the Company
with any other third party, 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 or the entity that
controls such surviving entity) at least fifty percent (50%) of the total voting
power represented by the voting securities of the Company, such surviving entity
or the entity that controls
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such surviving entity outstanding immediately after such merger or
consolidation, or the effective date of the sale or disposition by the Company
of all or substantially all the Company's assets.
(c) "DISABILITY" means that the Employee, at the time notice has been
given, has been unable to perform his assigned duties or responsibilities as an
employee of the Company for a period of 26 consecutive weeks as the result of
his incapacity due to physical or mental illness. If the Employee resumes the
performance of substantially all of his assigned duties or responsibilities
before the termination of his employment for the purposes of this Agreement
becomes effective, the notice of termination shall automatically be deemed to
have been revoked. This Agreement shall not confer any benefit to the Employee
and no compensation or benefits will be paid or provided to the Employee under
this Agreement on account of termination for Disability, or for periods
following the date when such a termination of employment is effective. The
Employee's rights under the benefit plans of the Company shall be determined
under the provisions of those plans.
(d) "INVOLUNTARY TERMINATION" means any of the following not
undertaken for Cause (i) without the Employee's express written consent, a
significant reduction of the Employee's duties, position or responsibilities, or
the removal of the Employee from such position and responsibilities, unless the
Employee is provided with a comparable position (i.e., a position of equal or
greater organizational level, duties, authority, compensation and status);
provided however, that (A) 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 Employee, if Chief Financial Officer of the Company
immediately prior to a Change of Control, remains as such following a Change of
Control and is not made the Chief Financial Officer of the acquiring corporation
or a division thereof) shall not constitute an "Involuntary Termination;" (ii)
without the Employee's express written consent, a substantial reduction, without
a good business reason, of the facilities and perquisites (including office
space and location) available to the Employee immediately prior to such
reduction; (iii) a significant reduction by the Company in the base 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; and (v)
without the Employee's express written consent, the relocation of the Employee
to a facility or a location more than 50 miles from the Employee's then present
location.
(e) "TERMINATION DATE" means the date on which either party delivers
to the other a notice of termination of the Employee's employment with the
Company.
8. SUCCESSORS AND ASSIGNS. The Company may assign any of its rights
under this Agreement to single or multiple assignees, and this Agreement shall
inure to the benefit of the successors and assigns of the Company. This
Agreement shall be binding upon the Employee and his heirs, executors,
administrators and assigns.
9. NOTICE.
(a) General. 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
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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 for Cause
or by the Employee as a result of a voluntary resignation or an Involuntary
Termination of the Employee shall be communicated by a notice of termination to
the other party hereto given in accordance with this SECTION 9. Such notice
shall indicate the specific termination provision in this Agreement relied upon,
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination under the provision so indicated, and shall
specify the termination date (which shall be not more than 30 days after the
giving of such notice). The failure by the Employee to include in the notice any
fact or circumstance which contributes to a showing of Involuntary Termination
of the Employee shall not waive any right of the Employee hereunder or preclude
the Employee from asserting such fact or circumstance in enforcing his rights
hereunder.
10. ARBITRATION.
(a) General. In consideration of Employee's service to the Company
and Employee's receipt of the compensation, pay raises and other benefits paid
to Employee by the Company, at present and in the future, Employee agrees that
any and all controversies, claims, or disputes with anyone (including the
Company and any employee, officer, director, shareholder or benefit plan of the
Company in their capacity as such or otherwise) arising out of, relating to, or
respecting this Agreement, shall be subject to binding arbitration under the
Arbitration Rules set forth in California Code of Civil Procedure SECTION 1280
through 1294.2, including SECTION 1283.05 (the "RULES") and pursuant to
California law.
(b) Procedure. Employee agrees that any arbitration will be
administered by the American Arbitration Association ("AAA") and that a neutral
arbitrator will be selected in a manner consistent with its National Rules for
the Resolution of Employment Disputes. The arbitration proceedings will allow
for discovery according to the rules set forth in the National Rules for the
Resolution of Employment Disputes or California Code of Civil Procedure.
Employee agrees that the arbitrator shall have the power to decide any motions
brought by any party to the arbitration, including motions for summary judgment
and/or adjudication and motions to dismiss and demurrers, prior to any
arbitration hearing. Employee agrees that the arbitrator shall issue a written
decision on the merits. Employee also agrees that the arbitrator shall have the
power to award any remedies, including attorneys' fees and costs, available
under applicable law. Employee understands the Company will pay for any
administrative or hearing fees charged by the arbitrator or AAA except that
Employee shall pay the first $200.00 of any filing fees associated with any
arbitration Employee initiates. Employee agrees that the arbitrator shall
administer and conduct any arbitration in a manner consistent with the Rules and
that to the extent that the AAA's National Rules for the Resolution of
Employment Disputes conflict with the Rules, the Rules shall take precedence.
(c) Remedy. Except as provided by the Rules, arbitration shall be
the sole, exclusive and final remedy for any dispute between Employee and the
Company. Accordingly, except as provided for by the Rules, neither Employee nor
the Company will be permitted to pursue
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court action regarding claims that are subject to arbitration. Notwithstanding,
the arbitrator will not have the authority to disregard or refuse to enforce any
lawful Company policy, and the arbitrator shall not order or require the Company
to adopt a policy not otherwise required by law which the Company has not
adopted.
(d) Administrative Relief. Employee understands that this Agreement
does not prohibit Employee from pursuing an administrative claim with a local,
state or federal administrative body such as the Department of Fair Employment
and Housing, the Equal Employment Opportunity Commission or the workers'
compensation board. This Agreement does, however, preclude Employee from
pursuing court action regarding any such claim.
(e) Voluntary Nature of Agreement. Employee acknowledges and agrees
that Employee is executing this Agreement voluntarily and without any duress or
undue influence by the Company or anyone else. Employee further acknowledges and
agrees that Employee has carefully read this Agreement and that Employee has
asked any questions needed for Employee to understand the terms, consequences
and binding effect of this Agreement and fully understand it, including that
Employee is waiving Employee's right to a jury trial. Finally, Employee agrees
that Employee has been provided an opportunity to seek the advice of an attorney
of Employee's choice before signing this Agreement.
11. MISCELLANEOUS PROVISIONS.
(a) 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.
(b) Entire 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 respect to the subject matter hereof.
(c) Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California.
(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) No Assignment of Benefits. The rights of any person to any
benefit 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 SECTION (E) shall be void.
(f) Taxes. All payments made pursuant to this Agreement will be
subject to withholding of applicable income and employment taxes.
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(g) 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. 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.
(h) 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.
[Signatures to follow.]
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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: GADZOOX NETWORKS, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Title: Chief Executive Officer
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EMPLOYEE: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
[Signature page to Change of Control Agreement]
