JUNIPER NETWORKS, INC. CHANGE OF CONTROL AGREEMENT
EXHIBIT 10.3
JUNIPER NETWORKS, INC.
This Change of Control Agreement (the “Agreement”) is made and entered into by and between
_________ (the “Employee”) and Juniper Networks, Inc., a Delaware Corporation (the “Company”),
effective as of _________, 2007 (the “Effective Date”).
RECITALS
1. It is expected that the Company from time to time will consider the possibility of an
acquisition by another company or other change of control. The Board of Directors of the Company
(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 herein) of the Company.
2. 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 and to motivate the
Employee to maximize the value of the Company upon a Change of Control for the benefit of its
stockholders.
3. The Board believes that it is imperative to provide the Employee with certain severance
benefits upon certain terminations of employment following a Change of Control. These benefits
will provide the Employee with enhanced financial security and incentive and encouragement to
remain with the Company notwithstanding the possibility of a Change of Control.
4. Certain capitalized terms used in the Agreement are defined in Section 6 below.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto
agree as follows:
1. Term of Agreement. This Agreement shall terminate upon the later of (i) January 1,
2009 or (ii) if a Change of Control has occurred on or before January 1, 2009 (or if a definitive
agreement relating to a Change in Control has been signed by the Company on or before Janaury 1,
2009 and the closing of that transaction occurs on or before April 1, 2009), the date that all of
the obligations of the parties hereto with respect to this Agreement have been satisfied.
2. 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, except
as may otherwise be specifically provided under the terms of any written formal employment
agreement or offer letter between the Company and the Employee (an “Employment Agreement”). If the
Employee’s employment terminates for any reason, including (without limitation) any termination
prior to a Change of Control, the Employee shall not be entitled to any payments, benefits,
damages, awards or compensation other than as provided by this Agreement or under his or her
Employment Agreement, or as may otherwise be available in accordance with the Company’s established
employee plans.
3. Severance Benefits.
(a) Involuntary Termination Other than for Cause or Voluntary Termination for
Good Reason Following a Change of Control Period. If the Employee signs and does not
revoke a standard release of claims with the Company in a form acceptable to the Company
(the “Release”) and either (i) between the date that is four (4) months following a Change
of Control and the date that is twelve (12) months following a Change of Control the
Employee terminates his or her employment with the Company (or any parent or subsidiary of
the Company) for “Good Reason” (as defined herein), provided however, that the grounds for
Good Reason may arise at anytime within the twelve (12) months following the Change of
Control, or (ii) within twelve (12) months following a Change of Control the Company (or
any parent or subsidiary of the Company) terminates the Employee’s employment for other
than “Cause” (as defined herein), then the Employee shall receive the following severance
from the Company:
(i) Severance Payment. The Employee shall be entitled to receive a lump-sum severance
payment (less applicable withholding taxes) equal to 100% of the Employee’s annual base salary (as
in effect immediately prior to (A) the Change of Control, or (B) the Employee’s termination,
whichever is greater) plus 100% of the Employee’s target bonus for the fiscal year in which the
Change of Control or the Employee’s termination occurs, whichever is greater.
(ii) Equity Compensation Acceleration. One hundred percent (100%) of the then
unvested Employee’s outstanding stock options, stock appreciation rights, restricted stock units
and other Company equity compensation awards (the “Equity Compensation Awards”) that vest based on
time (such as an option that vests 25% on the first anniversary of grant and 1/48th
monthly thereafter) shall immediately vest and became exercisable (and any rights of repurchase by
the Company or restriction on sale shall lapse). With respect to Equity Compensation Awards that
vest wholly or in part based on factors other than time, such as performance (whether individual or
based on external measures such as Company performance, market share, stock price, etc.), (i) any
portion for which the measurement or performance period or performance measures have been completed
and the resulting quantities have been determined or calculated, shall immediately vest and become
exercisable (and any rights of repurchase by the Company or restriction on sale shall lapse) and
(ii) the remaining portions shall immediately vest and become exercisable (and any rights of
repurchase by the Company or restriction on sale shall lapse) in an amount equal to the number that
would be calculated if the performance measures were achieved at the target level (for example, if
the employee were granted 300 three year performance shares, where (a) the amount that can be
earned is determined each year based on performance against annual performance targets but the
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entire amount vests at the end of the three years and (b) at target performance levels the
employee could earn 1/3 of the amount each year and (c) the first year had been completed and the
performance resulted in a calculation that 85 shares were earned and (d) the employee is terminated
prior to the completion of year 2, then the amount that would vest and become immediately
exercisable would be 285 shares — representing the 85 shares calculated for year 1 and the target
amount of 100 shares for each of year 2 and year 3); provided however, that if there is no “target”
number, then the number that vest shall be 100% of the amounts that could vest with respect to that
measurement period. Any Company stock options and stock appreciation rights shall thereafter remain
exercisable following the Employee’s employment termination for the period prescribed in the
respective option and stock appreciation right agreements.
(iii) Continued Employee Benefits. To the extent permitted to be continued under
COBRA coverage, Company-paid health, dental and vision insurance coverage at the same level of
coverage as was provided to such Employee immediately prior to the Change of Control and at the
same ratio of Company premium payment to Employee premium payment as was in effect immediately
prior to the Change of Control (the “Company-Paid Coverage”). If such coverage included the
Employee’s dependents immediately prior to the Change of Control, such dependents shall also be
covered at Company expense. Company-Paid Coverage shall continue until the earlier of (i) twelve
(12) months from the date of termination, or (ii) the date upon which the Employee and his
dependents become covered under another employer’s group health, dental and vision insurance plans
that provide Employee and his dependents with comparable benefits and levels of coverage. For
purposes of Title X of the Consolidated Budget Reconciliation Act of 1985 (“COBRA”), the date of
the “qualifying event” for Employee and his or her dependents shall be the date upon which the
Company-Paid Coverage terminates.
(b) Timing of Severance Payments. One half of the severance payment to which
Employee is entitled shall be paid by the Company to Employee in cash not later than 30
calendar days after the effective date of the Release. The other half of the severance
payment to which Employee is entitled shall be paid by the Company to Employee in cash not
later than six months after the effective date of the Release. If the Employee should die
before all amounts have been paid, such unpaid amounts shall be paid in a lump-sum payment
(less any withholding taxes) to the Employee’s designated beneficiary, if living, or
otherwise to the personal representative of the Employee’s estate.
(c) Voluntary Resignation; Termination for Cause. If the Employee’s
employment with the Company terminates (i) voluntarily by the Employee other than for Good
Reason, or (ii) for Cause by the Company, then the Employee shall not be entitled to
receive severance or other benefits except for those (if any) as may then be established
under the Company’s then existing severance and benefits plans and practices or pursuant
to other written agreements with the Company.
(d) Termination Outside of Change of Control Period. In the event the
Employee’s employment is terminated for any reason, either prior to the occurrence of a
Change of Control or after the twelve (12) month period following a Change of Control, or
if the Employee terminates for Good Reason within four months after a Change in Control,
then the Employee shall be entitled to receive severance and any other benefits only as
may
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then be established under the Company’s existing written severance and benefits plans
and practices or pursuant to other written agreements with the Company.
(e) Internal Revenue Code Section 409A. Notwithstanding any other provision
of this Agreement, if the Employee is a “specified employee” under Code Section 409A and a
delay in making any payment or providing any benefit under this Plan is required to avoid
imposition of additional taxes under Code Section 409A, such payments shall not be made
until after six (6) months following the date of the Employee’s separation from service as
required by Code Section 409A.
4. Conditional Nature of Severance Payments and Benefits.
(a) Noncompete. Employee acknowledges that the nature of the Company’s
business is such that if Employee were to become employed by, or substantially involved
in, the business of a competitor of the Company during the twelve (12) months following
the termination of Employee’s employment with the Company, it would be very difficult for
Employee not to rely on or use the Company’s trade secrets and confidential information.
Thus, to avoid the inevitable disclosure of the Company’s trade secrets and confidential
information, Employee agrees and acknowledges that Employee’s right to receive the
severance benefits set forth in Section 3(a) (to the extent Employee is otherwise entitled
to such payments) shall be conditioned upon Employee not directly or indirectly engaging
in (whether as an employee, consultant, agent, proprietor, principal, partner,
stockholder, corporate officer, director or otherwise), nor having any ownership
interested in or participating in the financing, operation, management or control of, any
person, firm, corporation or business in Competition (as defined herein) with Company.
Notwithstanding the foregoing, Employee may, without violating this Section 4, own, as a
passive investment, shares of capital stock of a corporation or other entity that engages
in Competition where the number of shares of such corporation’s capital stock that are
owned by Employee represent less than three percent of the total number of shares of such
entity’s capital stock outstanding.
(b) Non-Solicitation. Until the date twelve (12) months after the
termination of Employee’s employment with the Company for any reason, Employee agrees and
acknowledges that Employee’s right to receive the severance payments set forth in Section
3(a) (to the extent Employee is otherwise entitled to such payments) shall be conditioned
upon Employee neither directly nor indirectly soliciting, inducing, recruiting or
encouraging an employee to leave his or her employment either for Employee or for any
other entity or person with which or whom Employee has a business relationship.
(c) Understanding of Covenants. Employee represents that he (i) is familiar
with the foregoing covenants not to compete and not to solicit, and (ii) is fully aware of
his obligations hereunder, including, without limitation, the reasonableness of the length
of time, scope and geographic coverage of these covenants.
(d) Remedy for Breach. Upon any breach of this section by Employee, all
severance payments and benefits pursuant to this Agreement shall immediately cease
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and any stock options or stock appreciation rights then held by Employee shall
immediately terminate and be without further force and effect, and Employee shall return
all of the consideration paid by the Company under this Section 3 and remit any shares of
Restricted Stock or shares purchased under stock options to the extent vesting accelerated
under Section 3 above (or the profits from the sale of such shares if they are or have
been sold).
5. Golden Parachute Excise Tax Best Results. In the event that the severance and
other benefits provided for in this agreement or otherwise payable to Employee (a) constitute
“parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as
amended (the “Code”) and (b) would be subject to the excise tax imposed by Section 4999 of the
Code, then such benefits shall be either be:
| (i) | delivered in full, or | ||
| (ii) | delivered as to such lesser extent 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 and employment taxes and the excise tax imposed by Section 4999, results in the receipt by
Employee, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or
some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company
and the Employee otherwise agree in writing, the determination of Employee’s excise tax liability
and the amount required to be paid under this Section 5 shall be made in writing by the Company’s
independent auditors who are primarily used by the Company immediately prior to the Change of
Control (the “Accountants”). 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. Definition of Terms. The following terms referred to in this Agreement shall have
the following meanings:
(a) Cause. “Cause” shall mean (i) an act of personal dishonesty taken by the
Employee in connection with his responsibilities as an employee and intended to result in
substantial personal enrichment of the Employee, (ii) Employee being convicted of, or
pleading nolo contendere to a felony, (iii) a willful act by the Employee
which constitutes gross misconduct and which is injurious to the Company, (iv) following
delivery to the Employee of a written demand for performance from the Company which
describes the basis for the Company’s reasonable belief that the Employee has not
substantially performed his duties, continued violations by the Employee of the Employee’s
obligations to the Company which are demonstrably willful and deliberate on the Employee’s
part.
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(b) Change of Control. “Change of Control” means the occurrence of any of
the following:
(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; or
(ii) Any action or event occurring within a two-year 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); or
(iii) The consummation of a merger or consolidation of the Company with any other corporation,
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) 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
(iv) The consummation of the sale, lease or other disposition by the Company of all or
substantially all the Company’s assets.
(c) Competition. means the development, marketing or sale of networking
equipment or network security software or products in the United. For the avoidance of
doubt, Competition includes, but is not limited to, Cisco Systems, Huawei, Alcatel,
Checkpoint, and Foundry.
(d) Disability. “Disability” shall mean that the Employee has been unable to
perform his or her Company duties as the result of his incapacity due to physical or
mental illness, and such inability, at least twenty-six (26) weeks after its commencement,
is determined to be total and permanent by a physician selected by the Company or its
insurers and acceptable to the Employee or the Employee’s legal representative (such
Agreement as to acceptability not to be unreasonably withheld). Termination resulting
from Disability may only be effected after at least thirty (30) days’ written notice by
the Company of its intention to terminate the Employee’s employment. In the event that
the Employee resumes the performance of substantially all of his or her duties hereunder
before the termination of his or her employment becomes effective, the notice of intent to
terminate shall automatically be deemed to have been revoked.
(e) Good Reason. “Good Reason” means without the Employee’s express written
consent (i) a material reduction of the Employee’s duties, title, authority or
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responsibilities, relative to the Employee’s duties, title, authority or
responsibilities as in effect immediately prior to such reduction; provided,
however, that a reduction in duties, title, authority or responsibilities solely
by virtue of the Company being acquired and made part of a larger entity (as, for example,
when the Chief Financial Officer of the Company remains the Chief Financial Officer of the
subsidiary or business unit substantially containing the Company’s business following a
Change of Control) shall not by itself constitute grounds for a “Voluntary Termination for
Good Reason”; (ii) a substantial reduction of the facilities and perquisites (including
office space and location) available to the Employee immediately prior to such reduction;
(iii) a reduction by the Company in the base compensation or total target cash
compensation of the Employee as in effect immediately prior to such reduction; (iv) a
material reduction by the Company in the kind or level of benefits to which the Employee
was entitled immediately prior to such reduction with the result that such Employee’s
overall benefits package is significantly reduced; (v) the relocation of the Employee to a
facility or a location more than forty (40) miles from such Employee‘s then present
location.
7. Successors.
(a) The 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
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. 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 the assumption agreement described in this Section 7(a)
or which becomes bound by the terms of this Agreement by operation of law.
(b) The 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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8. Notice.
(a) General. All notices and other communications required or permitted
hereunder shall be in writing, shall be effective when given, and shall in any event be
deemed to be given upon receipt or, if earlier, (a) five (5) days after deposit with the
U.S. Postal Service or other applicable postal service, if delivered by first class mail,
postage prepaid, (b) upon delivery, if delivered by hand, (c) one (1) business day after
the business day of deposit with Federal Express or similar overnight courier, freight
prepaid or (d) one (1) business day after the business day of facsimile transmission, if
delivered by facsimile transmission with copy by first class mail, postage prepaid, and
shall be addressed (i) if to Employee, at his or her last known residential address and
(ii) if to the Company, at the address of its principal corporate offices (attention:
Secretary), or in any such case at such other address as a party may designate by ten (10)
days’ advance written notice to the other party pursuant to the provisions above.
(b) Notice of Termination. Any termination by the Company for Cause or by
the Employee for Good Reason or Disability or as a result of a voluntary resignation shall
be communicated by a notice of termination to the other party hereto given in accordance
with Section 8(a) of this Agreement. 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 thirty
(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 Good Reason or
Disability shall not waive any right of the Employee hereunder or preclude the Employee
from asserting such fact or circumstance in enforcing his or her rights hereunder.
9. Miscellaneous Provisions.
(a) No Duty to Mitigate. The Employee shall not be required to mitigate the
amount of any payment contemplated by this Agreement, nor 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) Headings. All captions and section headings used in this Agreement are
for convenient reference only and do not form a part of this Agreement.
(d) Entire Agreement. This Agreement constitutes the entire agreement of the
parties hereto and supersedes in their entirety all prior representations, understandings,
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undertakings or agreements (whether oral or written and whether expressed or implied)
of the parties with respect to the subject matter hereof.
(e) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of California.
The Superior Court of Santa Xxxxx County and/or the United States District Court for the
Northern District of California shall have exclusive jurisdiction and venue over all
controversies in connection with this Agreement.
(f) 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.
(g) Withholding. All payments made pursuant to this Agreement will be
subject to withholding of applicable income and employment taxes.
(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.
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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 set forth below.
| COMPANY | JUNIPER NETWORKS, INC. |
|||
| By: | ||||
| Title: | ||||
| EMPLOYEE | By: | |||
| Title: | ||||
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