EXHIBIT 10.68
FORM OF RETENTION AGREEMENT BETWEEN THE
COMPANY AND EACH OF ITS OFFICERS
This Retention Agreement is dated as of __________,1998 and is between
Vertel Corporation (the "Company"), a California corporation, and the
undersigned executive officer of the Company ("Executive").
Executive and the Company desire to set forth certain of the terms and
conditions governing Executive's employment by the Company following a Change of
Control (as defined below). Accordingly, Executive and the Company hereby agree
as follows:
1. Definitions. For purposes of this Agreement, the following terms shall
have the meanings set forth below:
(a) "Base Salary" shall mean Executive's annual base salary, exclusive
of any bonus or incentive compensation, benefits (whether standard or special),
automobile allowances, relocation or tax equalization payments, pension payments
or reimbursements for professional services. "Biweekly Base Salary" shall mean
one-twenty-sixth (1/26) of the Base Salary at the time in question.
(b) "Company" shall mean Vertel Corporation, a California corporation,
and each of its successor enterprises that result from any merger,
consolidation, reorganization, sale of assets or otherwise.
(c) A "Change of Control" shall have occurred if (i) any person,
corporation, partnership, trust, association, enterprise or group shall become
the beneficial owner, directly or indirectly, of outstanding capital stock of
the Company possessing at least 50% of the voting power of the outstanding
capital stock of the Company, (ii) there shall be a sale of all or substantially
all of the Company's assets or (iii) the Company shall merge or consolidate with
another corporation and the stockholders of the Company immediately prior to
such transaction do not own, immediately after such transaction, stock of the
purchasing or surviving corporation in the transaction (or of the parent
corporation of the purchasing or surviving corporation) possessing more than 50%
of the voting power of the outstanding capital stock of that corporation, which
ownership shall be measured without regard to any stock of the purchasing,
surviving or parent corporation owned by the stockholders of the Company before
the transaction.
(d) "Covered Termination" shall mean any cessation of the Executive's
employment by the Company that occurs within one (1) year after a Change of
Control other than as a result of (i) Termination for Cause, (ii) Executive's
death or permanent disability, or (iii) Executive's resignation without Good
Reason (as hereinafter defined).
(e) A resignation by Executive shall be with "Good Reason" if after a
Change of Control (i) there has been a material reduction in Executive's job
responsibilities from those that existed immediately prior to the Change of
Control, it being understood that a mere change
in title alone shall not constitute a material reduction in Executive's job
responsibilities, (ii) without Executive's prior written approval, the Company
requires Executive to be based anywhere other than the Executive's then current
location, it being understood that required travel on the Company's business to
an extent consistent with Executive's business travel obligation prior to the
Change of Control does not constitute "Good Reason", (iii) there is a reduction
in Executive's Base Salary from that in effect on the date hereof or as the same
may be increased from time to time, except that an across-the-board reduction in
the salary level of all of the Company's executive officers in the same
percentage amount as part of a general salary level reduction shall not
constitute "Good Reason," or (iv) a successor to all or substantially all of the
business and assets of the Company fails to furnish Executive with the
assumption agreement required by Section 7 hereof; provided, however, that if
following a Change of Control the Company elects to take one of the actions
described in the foregoing clauses (i), (ii), or (iii) in lieu of Termination of
the Executive for Cause, then if the Executive subsequently resigns as result of
such action being taken, such resignation shall not be for "Good Reason."
(f) "Termination for Cause" shall mean if the Company terminates
Executive's employment for any of the following reasons: the willful failure of
Executive substantially to perform his duties hereunder (other than any such
failure due to Executive's physical or mental illness), Executive's engaging in
willful and serious misconduct that has caused or is reasonably expected to
result in material injury to the Company or any of its affiliates, Executive's
conviction of or entering a plea of guilty or nolo contender to a crime that
constitutes a felony, or the willful breach by Executive of any of his
obligations hereunder or under any other written agreement or covenant with the
Company or any of its affiliates.
(g) "Benefit Period" shall mean a period of one (1) year commencing
with the day next following the effectiveness of a Covered Termination.
(h) "Expiration Date" shall mean the earlier of (i) the date on which
Executive ceases to be employed as an executive officer of the Company other
than as a result of an involuntary termination by the Company without cause;
(ii) the date that all obligations of the parties hereunder have been satisfied;
or (iii) one (1) year after a Change of Control. The expiration of the terms of
this Agreement pursuant to the preceding sentence shall be effective for all
purposes, except that such expiration shall not affect the payment or provision
of compensation or benefits on account of a Covered Termination occurring prior
to the expiration of the terms of this Agreement.
2. Executive's Commitment Upon A Change of Control. If a Covered
Termination shall occur on or before the Expiration Date, Executive agrees to
remain in the employ of the Company for a period of 180 days from the
effectiveness of the Change of Control. Subject to the express provisions of
this Agreement, the Company shall have no obligation to retain or continue
Executive as an employee and executive's employment status as an "at-will"
employee of Company is not affected by this Agreement.
3. Change of Control Covered Termination. If a Covered Termination shall
occur on or before the Expiration Date:
(a) During the Benefit Period, the Company shall pay to Executive,
every two weeks in accordance with Company's standard payroll practices,
Executive's Biweekly Base Salary immediately prior to the effective date of such
Covered Termination. In the event that Executive dies during such Benefit
Period, Company agrees that it shall pay any payments remaining unpaid under
this Section 3(b) as a death benefit to Executive's estate on the same terms;
(b) The Company shall make a lump sum payment to Executive within two
weeks of the effective date of the Covered Termination equal to one-half (1/2)
times the average of the annual performance bonus received by the Executive over
the three year period preceding the effective date of the Covered Termination;
and
(c) The following modification shall apply to the vesting provisions
of all outstanding options to purchase the Company's Common Stock held by
Executive (the "Outstanding Options") as follows: 1) upon Executive completing
one year of service following a Change of Control, vesting of Outstanding
Options will accelerate by 12 months; and 2) should Executive's employment
terminate pursuant to a Covered Termination within 12 months following a Change
in Control, vesting of Executive's Outstanding Options will accelerate by two
years from the date of the Change in Control. Should Executive's employment
voluntarily terminate within one (1) year following a Change in Control, vesting
of Outstanding Options will be subject to no additional acceleration beyond
those terms contained in the Executive's option agreement,
4. Withholding. The Company shall deduct from all payments paid to
Executive under this Agreement any required amounts for social security, federal
and state income tax withholding, federal or state unemployment insurance
contributions and state disability insurance or any other required taxes;
provided, however, that the Company shall reimburse and pay to Executive an
amount equal to any excise taxes required to be paid by Executive under Section
4999 of the Internal Revenue Code of 1986, as amended on any amounts paid or
benefits provided to Executive hereunder.
5. Mitigation. Executive shall have no obligation to mitigate the amount
of any payment provided for in this Agreement by seeking employment or
otherwise, [unless the Company in its sole discretion determines that
Executive's choice of new employer following the Covered Termination is
detrimental to the Company, in which case all obligations of the Company to
compensate Executive hereunder shall terminate].
6. Executive's Obligations. In exchange for the Company providing the
above-described benefits to Executive, Executive agrees to the following:
(a) During the Benefit Period, Executive will not directly or
indirectly (a) engage in; (b) own or control any debt equity or other interest
in (except as a passive investor of less than 5% of the capital stock or
publicly traded notes or debentures of a publicly held company); or (c) (1) act
as director, officer, manager, employee, participant or consultant to or (2) be
obligated to or connected in any advisory business enterprise or ownership
capacity with any person whose business is competitive with that of the Company.
(b) During the term of this Agreement, or if longer, the Benefit
Period, Executive will not, on behalf of any business enterprise other than the
Company and its subsidiaries, solicit the employment of any person that is or
was employed by the Company or any of its subsidiaries at any time on or after
January 1, 1998;
(c) Within two weeks of the effective date of a Covered Termination
and prior to receiving any severance compensation from the Company in respect of
such Covered Termination, whether under this Agreement or otherwise, Executive
will execute and deliver to the Company a Release and a Confidentiality
Agreement, in the form provided to Executive by the Company; and
(d) In the event of any breach by Executive of the restrictions
contained in this Agreement, the Company shall have no further obligation to
compensate Executive hereunder and Executive acknowledges that the harm to
Company cannot be reasonably or adequately compensated in damages in any action
at law. Accordingly, Executive agrees that, upon any violation of such
restrictions, Company shall be entitled to preliminary and permanent injunctive
relief in addition to any other remedy under applicable law, without the
necessity of proving actual damages.
7. Assumption Agreement. The Company will require any successor (whether
direct or indirect, by purchase, merger consolidation or otherwise) to all or
substantially all of the business and assets of the Company, expressly to assume
and agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it whether or not such succession
had taken place.
8. Miscellaneous. This agreement shall be binding upon and inure to the
benefit of Company and Executive; provided that Executive shall not assign any
of Executive's rights or duties under this Agreement without the express prior
written consent of the Company. This Agreement sets forth the parties' entire
agreement with regard to the subject matter hereof. No other agreements,
representations or warranties have been made by either party to the other with
respect to the subject matter of this Agreement. This Agreement may be amended
only by a written Agreement signed by both parties. This Agreement shall be
governed by and construed in accordance with the laws of the State of
California. Any waiver by either party of any breach of any provision of this
Agreement shall not operate as or be construed as a waiver of any subsequent
breach. If any legal action is necessary to enforce the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorney's fees
in addition to any other relief to which that party may be entitled.
This agreement shall continue in effect until the Expiration Date provided,
however, that if on the Expiration Date monies are then owed by the Company
hereunder, then this Agreement shall continue in effect until the Benefit Period
shall have expired.
In witness thereof, the parties hereto have executed this Agreement, as of
the day and year first written above.
VERTEL CORPORATION "EXECUTIVE"
By:________________________ By:_______________________________
