Exhibit 10.33
October 16, 2000
Xxxxx Xxxxxxxx
[Address intentionally omitted]
Dear Xxxxx,
In connection with the Employment Agreement (the "Agreement") dated July
14, 2000 between you and Inprise Corporation ("INPRISE"), subject to the
approval of the Compensation Committee of the INPRISE Board of Directors, the
Agreement is hereby amended as set forth below:
Paragraph (3) is hereby amended to add the following language: In the event
that INPRISE is acquired or is subject to a change in control and, within twelve
(12) months following such acquisition or change in control, you are terminated
other than for cause or you are constructively terminated, fifty percent (50%)
of the shares not yet vested which are subject to the option granted hereby will
be vested and the option covering such shares shall be accelerated and deemed
exercisable in full.
Paragraph (4) is hereby amended to add the following language:
Notwithstanding the foregoing, in the event that INPRISE is acquired or is
subject to a change in control and within twelve (12) months following such
acquisition or change in control, you are terminated other than for cause or you
are constructively terminated, and contingent upon the signing of a general
release by you of known and unknown claims, in a form satisfactory to INPRISE,
INPRISE will provide you with a lump sum severance payment equal to your then
current base salary for four (4) months, less applicable taxes and other
withholdings.
For purposes of this Agreement, (i) an "acquisition of the company" shall mean a
merger or other transaction in which INPRISE is merged or substantially all of
its assets is sold and as a result of such transaction, the holders of INPRISE'S
common stock prior to such transaction do not own or control a majority of the
outstanding shares of the successor corporation and (ii) a "change of control"
shall mean the election of nominees constituting a majority of INPRISE'S Board
of Directors which nominees were not approved by a majority of INPRISE'S Board
of Directors prior to such election or the acquisition by a third party of
twenty percent (20%) or more of INPRISE'S outstanding shares which acquisition
was without the approval of a majority of the Board of Directors of INPRISE in
office prior to such acquisition.
For purposes of this Agreement, termination for "cause" shall mean termination
of your employment relationship with INPRISE for any of the following reasons:
(i) theft, embezzlement, misconduct, misappropriation of funds or property, or
fraud against, or with respect to the business of INPRISE; (ii) breach by you of
any material term of this Agreement or any other agreement between you and
INPRISE, if such breach is capable of being cured, the failure by you to cure
such breach within ten (10) business days of written notice of such breach;
(iii) your conviction of any crime that impairs your performance of duties for
INPRISE; (iv) as a result of your reckless or willful misconduct, you commit any
act that causes, or knowingly fails to take reasonable and appropriate action to
prevent, any material injury to the financial condition or business reputation
of INPRISE or (v) after written notice to you, and a reasonable opportunity to
correct, your failure or inability to perform any of your assigned duties for
INPRISE. "Constructive termination" shall mean any one or more of the following
without your express written consent: (i) the relocation of the principal place
of your employment to a location that is more than (50) miles from both Xxxxxx
Xxxxxx, XX xxx Xxx Xxxxx, XX; (ii) any failure by INPRISE to pay, or any
material reduction by INPRISE of, your base salary or benefits (unless
reductions comparable in amount and duration are concurrently made for all other
employees of INPRISE with responsibilities, organizational
level and title comparable to yours); or (iii) any material diminution of your
responsibilities from that which you have been delegated as of the date hereof.
Other than as expressly modified above, all of the other terms and
conditions of the Agreement dated July 14, 2000 shall remain in full force and
effect without modification.
Sincerely,
INPRISE CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Senior Vice President, Corporate Services and
Chief Administrative Officer
AGREED AND ACCEPTED ON
THIS 22/ND/ DAY OF NOVEMBER 2000
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
