Exhibit 10.1
FORM OF RETENTION AGREEMENT
Internet Security Systems, Inc. has entered into the following form of Retention
Agreement with each of the "named executive officers" (as defined in Item
402(a)(3) of Regulation S-K) of the Company (its CEO and its four Senior Vice
Presidents). The individual Retention Agreements are identical to the form of
the Retention Agreement, except that, in the case of Xxxxxx X. Xxxxxx, Chairman,
Chief Executive Officer and President of the Company, the second line of Section
5(b)(2) and the entirety of Section 6 are different as indicated in brackets
"[CEO-...]". These Retention Agreements were entered into during the third
quarter of 2003.
RETENTION AGREEMENT
RETENTION AGREEMENT by and between Internet Security Systems, Inc., a
Delaware corporation, (the "Company") and _______________ ("Executive").
Recitals
A. Executive is a key management executive employed by the Company.
B. The Company considers the establishment and maintenance of a sound and
vital management team to be essential to protecting and enhancing the interests
of the Company and its shareowners.
C. The Company wishes to have the benefits of Executive's full time and
attention to the affairs of the Company, particularly during any period or
circumstance that may otherwise cause diversion.
D. The Company wishes to position itself to retain able managers by
adopting compensation practices competitive with peer companies by providing
similar severance benefits consistent with its compensation practices.
Terms and Conditions
In consideration of the mutual covenants herein contained, and other
good and valuable consideration, the Company and Executive agree as follows:
1. Definitions. The terms defined in this Section shall have the meanings
specified below:
(a) "Cause" means (i) a material breach by Executive of the terms of
this Agreement or any other agreement between Executive and the Company
(including, but not limited to, any disclosure in violation of Section 18
hereof), (ii) Executive's willful and gross failure or refusal to perform the
normal duties of Executive's position, as determined by the Board acting
reasonably and in good faith; provided, however, that in the case of (ii) above,
such conduct shall not constitute Cause unless the Board shall have delivered to
Executive notice setting forth with specificity (x) the willful and gross
failure or refusal by Executive it considers to qualify as Cause, (y) reasonable
action that would remedy such objection, and (z) a reasonable time (not less
than thirty (30) days) within which Executive may take such remedial action, and
Executive shall not have taken such specified remedial action within such
specified reasonable time, (iii) the conviction of Executive of any criminal act
that the Board shall, in its sole and absolute discretion, deem to constitute
Cause
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for purposes of this Agreement, or (iv) conduct by Executive in his office with
the Company that is grossly inappropriate and demonstrably likely to lead to
material injury to the Company, as determined by the Board acting reasonably and
in good faith; provided, however, that in the case of (iv) above, such conduct
shall not constitute Cause unless the Board shall have delivered to Executive
notice setting forth with specificity (x) the conduct deemed to qualify as
Cause, (y) reasonable action that would remedy such objection, and (z) a
reasonable time (not less than thirty (30) days) within which Executive may take
such remedial action, and Executive shall not have taken such specified remedial
action within such specified reasonable time.
(b) "Change of Control" means (i) any Person becoming the beneficial
owner, directly or indirectly, of securities of the Company representing forty
percent (40%) of the total voting power of all its then outstanding voting
securities, (ii) a merger or consolidation of the Company in which its voting
securities immediately prior to the merger or consolidation do not represent, or
are not converted into securities that represent, a majority of the voting power
of all voting securities of the surviving entity immediately after the merger or
consolidation, (iii) a sale of substantially all of the assets of the Company or
a liquidation or dissolution of the Company, or (iv) individuals who, as of the
date of this Agreement, constitute the Board of Directors (the "Incumbent
Board") cease for any reason to constitute at least a majority of such Board;
provided that any individual who becomes a director of the Company subsequent to
the date of this Agreement, whose election, or nomination for election by the
Company stockholders, was approved by the vote of at least a majority of the
directors then in office shall be deemed a member of the Incumbent Board.
(c) "Date of Termination" means (i) if employment is terminated by the
Company for Cause or by Executive for Good Reason, the date specified in the
Notice of Termination or (ii) if employment is terminated by the Company for any
reason other than Cause, the date specified in the Notice of Termination, unless
an earlier date has been expressly agreed to in writing by Executive either in
advance of, or after, receiving such Notice of Termination. In the case of
termination by the Company of Executive's employment for Cause, if Executive has
not previously expressly agreed in writing to such termination, then within
thirty (30) days after receipt by Executive of the Notice of Termination with
respect thereto, which Notice shall provide a reasonably detailed explanation of
the reasons therefor, Executive may notify the Company that a dispute exists
concerning the termination, in which event the Date of Termination shall be the
date set either by mutual written agreement of the parties or by the arbitrators
in a proceeding as provided in Section 17 hereof. Subject to repayment to the
Company by Executive pursuant to Section 8, during the pendency of any such
dispute, the Company will continue to pay Executive his full compensation in
effect immediately prior to the time the Notice of Termination is given and
until the dispute is resolved in accordance with Section 17.
(d) "Disability" has the meaning assigned such term in the Company's
long-term disability plan, from time to time in effect.
(e) "Good Reason" means (i) any reduction by the Company in the rate or
frequency of payment of Executive's annual base salary from the rate or
frequency thereof in effect at any time between the time immediately prior to
the Potential Change in Control or the Change in Control (as applicable in the
circumstances) through the Date of Termination in the Notice of Termination
relating to Executive, or (ii) any reduction by the Company in Executive's Pay
from the highest level in effect at any time between the time immediately prior
to the Potential Change in Control and consummation of the Change in Control, or
(iii) the Company's requiring Executive to be based at an office that is greater
than fifty (50) miles from where Executive's office is located immediately prior
to the Potential Change in Control or the Change in Control (as applicable in
the circumstances), except for required travel on the Company's business to an
extent substantially
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consistent with the business travel obligations that Executive undertook on
behalf of the Company immediately prior to the Potential Change in Control or
the Change in Control (as applicable in the circumstances), or (iv) the
exclusion of Executive from participation in any new compensation or benefit
arrangement offered to similarly situated employees of the Company, or (v) a
reduction in Executive's level of responsibility, position (including status,
office, title, reporting relationships or working conditions), authority or
duties (including changes resulting from the assignment to Executive of any
duties inconsistent with his positions, duties or responsibilities as in effect
immediately prior to the Potential Change in Control or the Change in Control,
as applicable in the circumstances). Good Reason does not include death or
Disability of Executive.
(f) "Notice of Termination" means a notice which shall indicate the
specific termination provision in this Agreement relied upon and shall provide
in reasonable detail the basis therefor.
(g) "Pay" means Executive's total target cash compensation, including
base annual salary and target quarterly and annual bonus compensation for the
year in question.
(h) "Person" means any individual, corporation, partnership, group,
association or other person, as such term is used in Section 14(d) of the
Exchange Act.
(i) "Potential Change in Control" shall be deemed to have occurred if
(a) the Company enters into an agreement, the consummation of which would result
in the occurrence of a Change in Control, (b) any person (including the Company)
publicly announces an intention to take or to consider taking actions which if
consummated would constitute a Change in Control, (c) after the date of this
Agreement, any person (other than (i) the Company or any or its subsidiaries,
(ii) a trustee or other fiduciary holding securities under an employee benefit
plan of the Company or any of its subsidiaries, (iii) an underwriter temporarily
holding securities pursuant to an offering of such securities, or (iv) a
corporation owned, directly or indirectly, by the shareowners of the Company in
substantially the same proportions as their ownership of stock of the Company)
becomes the beneficial owner, directly or indirectly, of securities of the
Company representing 20% or more of the combined voting power of the Company's
then-outstanding securities; or (d) the Board adopts a resolution to the effect
that, for purposes of this Agreement, a Potential Change in Control has
occurred.
(j) "Specified Period" means two (2) years following consummation of
the transaction(s) triggering the Change in Control.
2. Agreement to Provide Services; Right to Terminate.
(a) Executive agrees to continue in employment with the Company.
Notwithstanding anything contained herein to the contrary, this Agreement shall
not be deemed to confer on Executive any right to continued employment with the
Company or to impose on the Company any obligation with respect to the continued
employment of Executive.
(b) Any purported termination by the Company or by Executive following
the Change in Control or prior to or following a Potential Change in Control, as
the case may be, shall be communicated by written Notice of Termination to the
other party hereto.
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(c) Upon a Change in Control, the terms and conditions of the Company's
long-term incentive plans and any applicable award agreements thereunder shall
control with respect to the vesting of any options or other awards thereunder
then held by Executive.
3. Term of Agreement. Unless sooner terminated in accordance with the
following sentence, the term of this Agreement shall be for an initial two (2)
year period commencing on the date hereof, and shall be automatically renewed at
the end of the initial two-year period and annually thereafter, for an
additional one (1) year period unless the Company gives notice of non-renewal at
least ninety (90) days before expiration; provided, however, if a Change in
Control or a Potential Change in Control occurs prior to the expiration of the
term hereof, this Agreement shall be extended to the date two (2) years
following the date of the Change in Control or Potential Change in Control. If,
at any time during the term of this Agreement and before the occurrence of a
Change in Control or a Potential Change in Control, there occurs a reduction in
Executive's level of responsibility, position, authority or duties, the Company
may in its sole discretion, by written notice to Executive, terminate this
Agreement.
4. Entitlement upon Termination of Employment. Executive shall be entitled
to the benefits provided in Section 5 hereof upon termination of employment with
the Company following the occurrence of a Change in Control while this Agreement
is in effect; provided, however, that if:
(a) during the term of this Agreement a Potential Change in Control
occurs, and
(b) Executive's employment is terminated within a period of one-hundred
twenty (120) days before or after the occurrence of such Potential Change in
Control (i) by the Company other than for Cause, death or Disability, or (ii) by
Executive for Good Reason,
then, for the purposes of this Agreement, a Change in Control shall be
deemed to have occurred during the term of this Agreement and the termination of
Executive's employment shall be deemed to have occurred following the Change in
Control.
5. Compensation upon Termination; Other Agreements.
(a) If, within the Specified Period following a Change in Control and
during the term of this Agreement, (i) Executive's employment is terminated by
reason of death, retirement or Disability, (ii) the Company terminates
Executive's employment for Cause, or (iii) Executive voluntarily terminates his
employment without Good Reason, the Company shall pay Executive his salary and
variable compensation through the Date of Termination at the rate in effect
immediately prior to the time a Notice of Termination is given (if applicable),
plus any benefits or awards (including cash and stock components) which pursuant
to the terms of any compensation plans of the Company have been earned or become
payable, but which have not yet been paid (including amounts which previously
had been deferred at Executive's election and including any applicable death,
disability or retirement benefits arising outside the scope of this Agreement).
Such benefits or awards shall be paid under the terms and conditions of the
applicable compensation plans as then in effect, including any applicable
penalty or forfeiture provisions therein. Thereupon, the Company shall have no
further obligations to Executive or Executive's estate under this Agreement.
(b) If during the term of this Agreement Executive's employment by the
Company is terminated following a Change in Control (i) by the Company other
than for Cause, death or Disability, or (ii) by Executive
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for Good Reason, then, in addition to any other benefits accruing to Executive
outside the scope of this Agreement, the Company shall pay to Executive the
following:
(1) Executive's salary through the Date of Termination at the
rate in effect immediately prior to the time a Notice of Termination is given,
plus any benefits or awards (including cash and stock components) which pursuant
to the terms of any compensation plans of the Company have been earned or become
payable through the Date of Termination, but which have not yet been paid
(including amounts which previously had been deferred at Executive's election)
and such payment shall be no later than the fifth day following the Date of
Termination; and
(2) as severance pay and in lieu of any further salary or
other compensation for periods subsequent to the Date of Termination, an amount
equal to one and one-half (1.5) times Pay [CEO - "two (2) times Pay"] and such
payment shall be no later than the fifth day following the Date of Termination
unless the Company reasonably and in good faith believes that the limitation set
forth in Section 6 hereof may be applicable in which case payment shall be made
as soon as practicable and in no event later than sixty (60) days from Date of
Termination.
(3) the Company may condition the payment provided under this
subsection 5(b) upon the delivery by Executive of a signed, mutual release of
claims, arising prior to the Change in Control, in a form reasonably
satisfactory to the Company and Executive.
(c) The amount of any payment provided for in this Section 5 shall not
be reduced, offset or subject to recovery by the Company by reason of any
compensation earned by Executive as the result of employment by another employer
after the Date of Termination or otherwise.
6. Limitation on Compensation. If (a) benefits that accrue to Executive
under this Agreement are characterized as excess parachute payments pursuant to
Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), and
(b) Executive thereby would be subject to any United States federal excise tax
due to that characterization, then (c) Executive may elect, in the Executive's
sole discretion, to reduce the benefits that accrue under this Agreement in
order to avoid any "excess parachute payment" under Section 28OG(b)(1) of the
Code.
[CEO - "6. Additional Amount.
(a) The Company shall pay to Executive an amount, up to Two Million
Dollars ($2,000,000) (the "Additional Amount") equal to the excise tax under
Section 4999 of the Code, if any, incurred by Executive by reason of the
payments under this Agreement and any other plan, agreement or understanding
between Executive and the Company or its parent, subsidiaries or affiliates (the
"Separation Payments") constituting excess parachute payments pursuant to Code
Section 280G, plus all excise taxes and federal, state and local income or
employment taxes incurred by Executive with respect to receipt of the Additional
Amount. It is the intent of the parties that payment of the Additional Amount
will compensate Executive such that after payment by Executive of all taxes
(including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income and employment taxes (and any interest
and penalties imposed with respect thereto) and excise tax imposed upon the
Additional Amount, Executive retains an amount of the Additional Amount equal to
the excise tax (and any interest and penalties thereon) imposed upon the
Separation Payments.
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(b) All determinations required to be made under this Section 6,
including whether an Additional Payment is required and the amount of any
Additional Amount, shall be made by the Company's accounting firm or tax
advisor, which shall provide detailed supporting calculations to the Company and
Executive. In computing taxes, the accounting firm or tax advisor shall use the
highest marginal federal, state and local income tax rates applicable to
Executive and shall assume the full deductibility of state and local income
taxes for purposes of computing federal income tax liability, unless Executive
demonstrates that he will not in fact be entitled to such a deduction for the
year of payment.
(c) The Additional Amount shall be paid as soon as practicable after
determination, but in any event prior to the date Executive is required to remit
such taxes."]
7. Successors and Assigns. This Agreement shall inure to the benefit of
and be enforceable by Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees, and legatees. If
Executive should die while any amount would still be payable hereunder if
Executive had continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to
Executive's devisee, legatee or other designee or, if there be no such designee,
to Executive's estate. This Agreement shall also be binding upon and inure to
the benefit of any successor to the Company by reason of any merger,
consolidation, sale of assets, dissolution or other reorganization of the
Company.
8. Fees and Expenses. The Company shall reimburse Executive, on a current
basis, for all reasonable legal fees and related expenses incurred by Executive
in connection with this Agreement, including without limitation, (i) all such
fees and expenses, if any, incurred in contesting or disputing any termination
of Executive's employment after the Change in Control or (ii) Executive's
seeking to obtain or enforce any right or benefit provided by this Agreement, in
each case, regardless of whether or not Executive's claim is upheld by an
arbitral panel or a court of competent jurisdiction; provided, however,
Executive shall be required to repay to the Company any such amounts, plus
compensation payments required to be continued by the Company pursuant to
Section 1(c), to the extent that an arbitral panel or a court issues a final and
non-appealable order, judgment, decree or award setting forth the determination
that the position taken by Executive was frivolous or advanced by Executive in
bad faith.
9. Taxes. All payments to be made to Executive under this Agreement will
be subject to required withholding of federal, state and local income and
employment taxes.
10. Set-off. The right of Executive to receive benefits under this
Agreement shall be absolute and, except as provided below, shall not be subject
to any set-off, counter-claim, recoupment, defense, duty to mitigate or other
rights the Company may have against him or anyone else.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to principles
of choice of laws.
12. Notice. For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid and
addressed, in the case of the Company, to Internet Security Systems, Inc., 0000
Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000 (until changed by the Company as provided
below) or, in the case of Executive, to the address set forth below Executive's
signature,
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provided that all notices to the Company shall be directed to the Chairman of
the Board of the Company, with a copy to the Secretary of the Company, or to
such other address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon receipt.
13. Survival. The respective obligations of, and benefits afforded to, the
Company and Executive as provided in Sections 5, 6, 7, 8, 9, 10, 17 and 18 of
this Agreement shall survive termination of this Agreement, as well as such
other provisions as may relate to the enforcement thereof.
14. Severability. The invalidity and unenforceability of any particular
provision of this Agreement shall not affect any other provision of this
Agreement, and the Agreement shall be construed in all respects as if the
invalid or unenforceable provision were omitted.
15. Related Agreements. This Agreement constitutes the entire agreement
between the parties respecting severance compensation upon a Change in Control
and supercedes prior agreements and understandings respecting severance
compensation upon a Change in Control. Notwithstanding the foregoing sentence,
each existing agreement between the Company and Executive regarding indemnity,
confidentiality, work product, nondisclosure and non-solicitation shall remain
in full force and effect.
16. Miscellaneous. No provision of this Agreement may be modified, waived
or discharged unless such modification, waiver or discharge is agreed to in a
writing signed by Executive and a duly authorized officer of the Company. No
waiver by a party hereto at any time of any breach by the other party hereto of,
or of compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement.
17. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in the State of
Georgia by three arbitrators in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrators' award in any court having jurisdiction; provided, however, that
Executive shall be entitled to seek specific performance of Executive's right to
be paid until the Date of Termination during the pendency of any dispute or
controversy arising under or in connection with this Agreement. Except as
provided in Section 8, the Company shall bear all costs and expenses arising in
connection with any arbitration proceeding pursuant to this Section.
18. Confidentiality. Executive agrees that Executive will not at any time
communicate or disclose to any unauthorized person, without the written consent
of the Company, any proprietary processes of the Company or any of its
subsidiaries or other confidential information concerning their business,
affairs, products, suppliers or customers which, if disclosed, would have a
material adverse effect upon the business or operations of the Company and its
subsidiaries, taken as a whole. It is understood, however, that the obligations
of this Section 18 shall not apply to the extent that the aforesaid matters (i)
are disclosed in circumstances where Executive is legally required to do so or
(ii) become generally known to and available for use by the public otherwise
than by Executive's wrongful act or omission.
19. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Internet Security Systems, Inc.
By: __________________________
Name: ________________________
Title:_________________________
Date: _________________________
EXECUTIVE
_______________________________
Name: _________________________
Address: ______________________
_______________________________
Date: _________________________
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