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Exhibit 10.4
[Inprise Letterhead]
000 Xxxxxxxxxx Xxx
Xxxxxx Xxxxxx, XX 00000
May 17, 2000
Xxxx Xxxxx
[ADDRESS INTENTIONALLY OMITTED]
RE: EMPLOYMENT AGREEMENT
Dear Xxxx:
On behalf of INPRISE Corporation ("INPRISE"), I am pleased to confirm
our verbal offer of employment to you for the position of Chief Operations
Officer, reporting to Xxxx Xxxxxx. This letter sets out the terms of your
employment with INPRISE, which will start on a date mutually agreed upon.
You will be paid a base salary of $13,461.54 every two weeks (which
equals $350,000 per year), less applicable tax and other withholdings. You will
be eligible to participate in the 2000 Executive Incentive Program with an
annual target of $120,000.00 (40% of base salary). This bonus is paid quarterly
and is conditional upon the company achieving certain targets. You will also be
eligible to participate in various INPRISE fringe benefit plans, including:
Group Health Insurance, Flexible Spending Accounts, 401(k), Employee Stock
Purchase Plan, Tuition Reimbursement and the vacation program. These benefits
will be explained to you during your Employee Orientation. Please refer to the
attached document, which explains the new employee orientation process.
Subject to the approval of INPRISE's Board of Directors, you will be
granted an option to purchase 375,000 shares of INPRISE common stock under
INPRISE's stock option plans at an exercise price equal to the fair market value
of that stock on your option grant date. The options are subject to the standard
terms and conditions of INPRISE's stock option plans. Your option will vest over
a period of four years, and will be subject to the terms and conditions of
INPRISE's stock option plan and standard form of stock option agreement, which
you will be required to sign as a condition of receiving the option.
Notwithstanding the foregoing, in the event that the company is acquired or is
subject to a change in control, the vesting of the option will be accelerated
and the option shall be exercisable in full. For these purposes, an "acquisition
of the company" shall mean a merger or other transaction in which the company or
substantially all of its assets is sold or merged and as a result of such
transaction, the holders of the Company's common stock prior to such transaction
do not own or control a majority of the outstanding shares of the successor
corporation and a "change of control" shall mean the election of nominees
constituting a majority of the Company's Board of Directors which nominees were
not approved by a majority of the Company's Board of Directors prior to such
election or the acquisition by a third party of twenty percent (20%) or more of
the
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company's outstanding shares which acquisition was without the approval of a
majority of the Board of Directors of the company in office prior to such
acquisition.
Forgivable Loan. Subject to the approval of the members of INPRISE'S
Organization and Compensation Committee, you will receive a $1,000,000
forgivable home loan. The terms and conditions of the forgivable loan will be
addressed under a separate agreement.
Confidentiality. INPRISE is very impressed with the skills and
experience that you will bring to us and we hope that you will consider this
offer carefully. Should you accept this offer, I would like to remind you that
it is INPRISE's policy to avoid situations where information or materials might
come into our hands that are considered proprietary by individuals or companies
other than INPRISE. Indeed, as a condition of employment, you will be required
to sign an agreement not to expose either you or us to legal liability by
divulging trade secrets or confidential information of any employer. We are
interested in employing you because or your skills and abilities, not because of
any trade secrets you may have learned elsewhere. Thus, it is important that you
take care not to bring, even inadvertently, any books, drawings, notes,
materials, etc., except your personal effects as you leave your current
employer.
Termination. As with all employment at INPRISE, your employment is
considered "at will." That means that both you and INPRISE have the right to
terminate employment at any time with or without advance notice, and with or
without cause. Notwithstanding the foregoing, if the company terminates your
employment for other than cause or there is a constructive termination, and in
contingent upon your signing of a general release by you of known and unknown
claims in a form satisfactory to INPRISE, the Company agrees that you will be
entitled to a severance payment equal to six (6) months of base salary and six
(6) months accelerated vesting of any unvested stock options.
For purposes of this Agreement, termination for "cause" shall mean
termination of your employment relationship with INPRISE for any of the
following reasons: (i) your engaging in an act of theft, embezzlement,
misappropriation of funds or property, or fraud against, or with respect to the
business of INPRISE; (ii) a willful breach by you of any material term of this
Agreement and, if such breach is capable of being cured, the failure by you to
cure such breach within thirty (30) days of written notice of such breach; (iii)
if you are convicted of a felony that materially impairs your performance of
duties for INPRISE; or (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.
"Constructive termination" shall mean any one or more of the following:
(i) without your express written consent, the relocation of the principal place
of your employment to a location that is more than fifty (50) miles from the
company's current headquarters; (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,
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organizational level and title comparable to yours) or (iii) a material
diminution of your responsibilities.
Section 16 Reporting. On a mutually agreed upon date you will become an
Executive Officer for INPRISE. Under the Securities and Exchange Commission
("SEC") regulations you will be required to file reports of ownership and
changes of ownership with the SEC and the Nasdaq National Market.
In the event of any dispute or claim relating to or arising out of your
employment relationship with INPRISE, this agreement, or the termination of your
employment with INPRISE for any reason (including, but not limited to, any
claims of breach of contract, wrongful termination or age, sex, race, national
origin, disability or other discrimination or harassment), you and INPRISE agree
that all such disputes shall be fully, finally and exclusively resolved by
binding arbitration conducted by the American Arbitration Association in Santa
Xxxxx County, California. You and INPRISE hereby waive your respective rights to
have such disputes tried by a judge or jury. This arbitration provision shall
not apply to any claims for injunctive relief by you or INPRISE.
This agreement, the employee confidentiality agreement and if
applicable, stock option agreement[s] referred to above constitute the entire
agreement between you and INPRISE regarding the terms and conditions of your
employment, and they supersede all prior negotiations, representations or
agreements between you and INPRISE. This agreement may only be modified by a
document signed by you and the President of INPRISE.
We are very pleased to confirm these terms with you. Please take the
time to review this letter and, if appropriate, sign and return a copy to me. We
all look forward to a mutually beneficial relationship and in the meantime,
should you have any questions, please do not hesitate to contact me at any time.
Sincerely,
INPRISE Corporation
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
President/Chief Executive Officer
I agree to and accept employment with INPRISE Corporation on the terms
and conditions set forth in this agreement.
Date: May 19, 2000 /s/ Xxxx Xxxxx
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Xxxx Xxxxx
