Exhibit 10.16
XXXXX CORPORATION
EXECUTIVE RETENTION AGREEMENT
This EXECUTIVE RETENTION AGREEMENT (the "AGREEMENT") is made and
entered into effective as of February 21, 2003 (the "EFFECTIVE DATE"), by and
between Xxxxxx Xxxxx (the "EXECUTIVE") and Xxxxx Corporation, a Delaware
corporation (together with its subsidiaries and successors, the "COMPANY").
WHEREAS, Executive is currently a valued employee of the Company;
WHEREAS, the Board of Directors of the Company (the "BOARD") believes
that it is in the best interests of the Company and its stockholders to provide
Executive with certain severance benefits in the event that Executive is
terminated under certain circumstances;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and the continued employment of Executive by the Company, the parties
agree as follows:
1. Severance Benefits.
(a) In the event that (x) Executive's employment is terminated (A) by
the Company without Cause (as defined below) at any time after the Effective
Date or (B) by Executive for any reason within 12 months after a Change in
Control (as defined below) or within 12 months after the filing of a plan of
liquidation which has been approved by the Company's stockholders, or (y)
Executive's employment is terminated for any other reason and the Compensation
Committee of the Board expressly consents in writing to Executive receiving the
benefits under this Agreement, Executive will be entitled to receive the
following benefits:
(i) The Company shall pay to Executive a lump sum payment
equal to the base salary Executive would have received had Executive
continued to be employed by the Company for ten additional months after
the date of termination, less applicable payroll deductions and
withholdings.
(ii) Executive's outstanding unvested options to purchase the
Company's common stock shall become immediately vested to the extent
such options would have become vested over the year following the date
of Executive's termination, and all vested options will remain
exercisable until one year from the date of Executive's termination or
the date on which such options would otherwise expire under the terms
of the applicable option plan and related option agreement.
(iii) Except as set forth in clause (c) below, Executive shall
receive any other benefits under the applicable benefits plans of the
Company in accordance with their terms.
(b) The receipt of all benefits hereunder shall be subject to Executive
signing a general release of claims against the Company in a form acceptable to
the Company.
(c) All amounts payable by the Company under this Agreement shall be
reduced by any amounts required to be paid or notice required to be given to
Executive as a result of the termination of employment under any applicable
federal, state or local law, including but not limited to the Workers Adjustment
and Retaining Notification Act (the "WARN ACT") and any similar state law, and
will be in lieu of any other severance benefits or payments pursuant to the
Company's severance plans or policies or any other agreement between the Company
and Executive.
(d) For purposes hereof, the following terms have the meanings set
forth below:
(i) "CAUSE" means (i) the continued failure by Executive to
devote substantially all of his business time and energies to the
performance of his duties to the Company (other than as a result of
total or partial incapacity due to physical or mental illness) after a
written demand for substantial performance is delivered to Executive
and Executive shall have failed during the 30-day period following such
written demand to have corrected such failure; (ii) any willful act or
omission by Executive constituting dishonesty, fraud or other
malfeasance against the Company; (iii) Executive's conviction of a
felony, plea of nolo contendre or guilty plea to a felony; or (iv) the
breach by Executive of the Confidentiality Agreement (as defined
below).
(ii) "CHANGE IN CONTROL" means:
(A) the acquisition by any person, entity or "group",
within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities and Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), (excluding, for this purpose, the Company or its
subsidiaries, or any employee benefit plan of the Company or
its subsidiaries which acquires beneficial ownership of voting
securities of the Company) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of
50% or more of either the then outstanding shares of common
stock or the combined voting power of the Company's then
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outstanding voting securities entitled to vote generally in
the election of directors;
(B) individuals who, as of the date hereof,
constitute the Board (the "INCUMBENT BOARD") cease for any
reason to constitute at least a majority of the Board,
provided that any person becoming a director subsequent to the
date hereof whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board
(other than an election or nomination of an individual whose
initial assumption of the office is in connection with an
actual or threatened election contest relating to the election
of the directors of the Company, as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act) shall be, for the purposes of this Agreement, considered
as though such person were a member of the Incumbent Board;
(C) consummation of a reorganization, merger or
consolidation, in each case, with respect to which persons who
were the stockholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately
thereafter, own more than 50% of the combined voting power
entitled to vote generally in the election of directors of the
reorganized, merged or consolidated company's then outstanding
voting securities; or
(D) the sale of all or substantially all of the
assets of the Company.
(e) In the event Executive's employment is terminated other than as
provided under clause (a) above, then Executive shall not be entitled to receive
any severance benefits under this Agreement; provided that in such event
Executive shall be entitled to receive his accrued unpaid base salary through
the date of such termination and any applicable benefits under the plans and
policies of the Company in accordance with their terms, and the Company will
have no further obligations under this Agreement with respect to Executive.
2. Restrictive Covenants. Executive agrees and understands that during
and after his employment with the Company, he will continue to bound by the
provisions of the Confidentiality, Inventions and Arbitration Agreement (the
"CONFIDENTIALITY AGREEMENT") between Executive and the Company, including but
not limited to the agreement for one year after termination of your employment
not to encourage or solicit any employee or consultant of the Company to
terminate their relationship with the Company, and that such obligations shall
survive the termination of this Agreement.
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3. Limited Benefits. Notwithstanding anything contained in this
Agreement to the contrary, to the extent that the payments and benefits provided
under this Agreement and benefits provided to, or for the benefit of, Executive
under any other employer plan or agreement (such payments or benefits are
collectively referred to as the "BENEFITS") would be subject to the excise tax
(the "EXCISE TAX") imposed under Section 4999 of the Internal Revenue Code of
1986, as amended (the "CODE"), the Benefits shall either be (i) paid in full or
(ii) reduced to such lesser amount which would result in no portion of such
Benefits being subject to the Excise Tax, whichever of the foregoing amounts,
taking into account the applicable federal, state and local income taxes and the
Excise Tax, results in the receipt by Executive on an after-tax basis, of the
greatest amount of benefits. A determination as to whether the Benefits shall be
so reduced shall be made by the Company's independent public accountants and
shall be binding on Executive and the Company.
4. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement may be settled at the option of either party by
binding arbitration in the County of Santa Clara, California, in accordance with
the rules of the American Arbitration Association then in effect. Judgment may
be entered on the arbitrator's award in any court having jurisdiction. The costs
of such arbitration will be borne by the Company. In the arbitration, the
parties will be entitled to all remedies that would have been available if the
matter were litigated in a court of law.
5. Term. This Agreement shall expire on the later of (i) the date that
is one year following a Change of Control that has occurred prior to February
21, 2005 or (ii) February 21, 2005, except to the extent necessary to give
effect to the provisions hereof.
6. Miscellaneous.
(a) Attorneys Fees. If a legal action or other proceeding,
including arbitration pursuant to Section 4, is brought for enforcement
of this Agreement, each party shall be responsible for the payment of
its own attorneys' fees, except that the Company shall reimburse
Executive for all legal fees and expenses incurred by him in connection
therewith to the extent Executive prevails in such dispute to a
material extent.
(b) At-will Employment. The Company and Executive acknowledge
that the Executive's employment is and shall continue to be at-will, as
defined under applicable law.
(c) No Mitigation. Executive shall not be required to mitigate
the amount of any payment provided for under this Agreement by seeking
employment or otherwise, not will any such payments be reduced by any
earnings that Executive may receive from any other employer.
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(d) Successors and Assignments. This Agreement is binding on
and may be enforced by the Company and its successors and assigns and
is binding on and may be enforced by Executive and Executive's heirs
and legal representatives. Notwithstanding the foregoing, this
Agreement shall not be assignable by Executive and may be assigned by
the Company only to an affiliate or a successor to the Company of
substantially all of its business (whether by purchase, merger,
consolidation or otherwise).
(e) Notices. Notices under this Agreement must be in writing
and will be deemed to have been given when personally delivered or two
days after mailed by U.S. registered or certified mail, return receipt
requested and postage prepaid. Mailed notices to Executive will be
addressed to Executive at the home address which Executive has most
recently communicated to the Company in writing. Notices to the Company
will be addressed to its General Counsel (or if the Company does not
have a General Counsel, to its Chief Financial Officer) at the
Company's corporate headquarters.
(f) Waiver. No provision of this Agreement may be modified or
waived except in writing signed by the parties hereto. No waiver by
either party of any breach of this Agreement by the other party will be
considered a waiver of any other breach of this Agreement.
(g) Entire Agreement. This Agreement represents the entire
agreement between Executive and the Company concerning the subject
matter herein and supercedes all other prior or contemporaneous
agreements concerning such subject matter, whether written or oral,
including but not limited to the letter agreement dated October 18,
2002 between the Company and Executive.
(h) Governing Law. This Agreement will be governed by the laws
of the State of California without reference to conflict of laws
provisions.
(i) 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.
(j) Taxes. All payments and benefits received pursuant to this
Agreement shall be subject to withholding of applicable taxes.
(k) 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 hereto has duly executed this
Agreement as of the day and year first above written.
XXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President and CFO
EXECUTIVE:
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
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