EXHIBIT 10.9
CHANGE OF CONTROL AGREEMENT
THIS CHANGE OF CONTROL AGREEMENT (the "Agreement") is made and entered into
as of ______________, 1997, between Andromedia, Inc., a California corporation
(the "Company"), and ______________ ("Executive"). The parties to this Agreement
shall be referred to herein as each, a Party, and collectively, the Parties.
WHEREAS Executive is a key employee of the Company, and currently holds
(i) shares of the Company's capital stock and/or (ii) options, warrants or
rights to purchase shares of the Company's capital stock (collectively, the
"Securities") which are subject to certain vesting restrictions and rights of
repurchase in favor of the Company; and
WHEREAS in order to ensure Executive has an opportunity to acquire and/or
maintain an equity interest in the Company as an incentive for Executive to
participate in the affairs of the Company, the Company is willing to provide
Executive with an accelerated vesting schedule for those Securities currently
held or hereafter acquired by Executive according to the terms and conditions
contained herein.
NOW THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the Parties agree as follows:
1. Accelerated Vesting of the Securities.
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(a) In the event of a Change of Control (as defined in Section 1(b)(i)
below) of the Company and if the Executive's employment with the surviving
company is Involuntarily Terminated (as defined in Section 1(b)(ii) below)
within twelve (12) months following such Change of Control, (i) one hundred
percent (100%) of the unvested portion of the Securities held by the Executive,
if any, shall automatically be accelerated such that Executive shall have the
right to exercise all or any portion of such Securities immediately prior to
such Change of Control, and/or (ii) the Company's repurchase right shall
automatically lapse immediately prior to such Change of Control with respect to
one hundred percent (100%) of the Securities held by Executive which are subject
to such repurchase right; provided, however, that if the shares of capital stock
subject to the Company's repurchase right were purchased by Executive pursuant
to an early exercise provision under an option, warrant or other right to
purchase shares of the Company's capital stock (an "Early Exercise Option"),
then for the purpose of calculating the acceleration of the lapse of the
Company's repurchase right, such shares of capital stock shall be aggregated
with the shares of the Company's capital stock still subject to the Early
Exercise Option, if any.
(b) (i) A "Change of Control" shall, for the purposes of the foregoing,
mean a sale of all or substantially all of the assets or a stock tender or a
merger, consolidation or similar event pursuant to a transaction or series of
related transactions in which a third party acquires more than fifty percent
(50%) of the voting equity securities of the Company outstanding immediately
prior to such Change of Control.
(ii) An "Involuntary Termination" shall mean (1) a termination
initiated by the surviving company, other than a termination due to acts of
dishonesty, conviction of a felony or willful
misconduct by Executive or (2) a termination initiated by Executive as a result
of a material diminution in salary, a material change in responsibility or a
change in work location of more than 30 miles from the then current job
location.
(c) Notwithstanding the foregoing, in the event any acceleration of
unvested Shares would prevent an acquisition from being treated as a "pooling-
of-interests" for financial accounting purposes by the surviving entity, and
such treatment is a condition to the acquisition, the foregoing benefits shall
be equitably adjusted to the extent necessary to effectuate such treatment.
2. Adjustment for Changes in Capital Stock. All references to the number of
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Securities in this Agreement shall be appropriately adjusted to reflect any
stock split, stock dividend, stock combination or other change in the Shares
which may be made by the Company after the date of this Agreement.
3. General Provisions.
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(a) This Agreement shall be governed by the laws of the State of
California (without regard to principles of conflict of laws).
(b) Any notice, demand or request required or permitted to be given by
either the Company or Executive pursuant to the terms of this Agreement shall be
in writing and shall be deemed given when delivered personally or deposited in
the U.S. mail, First Class with postage prepaid, and addressed to the parties at
such addresses as have been previously furnished by the Parties or such other
address as a Party may request by notifying the other in writing.
(c) The rights and obligations of Executive under this Agreement may not
be transferred or assigned without the prior written consent of the Company.
(d) This Agreement is meant to supplement the terms of the restricted
stock purchase agreement, stock option agreement or other agreement pursuant to
which Executive acquired the Securities. To the extent that the terms and
conditions of this Agreement are inconsistent with those found in the restricted
stock purchase agreement, stock option agreement or other agreement, the terms
and conditions of this Agreement shall be controlling.
(e) Any Party's failure to enforce any provision or provisions of this
Agreement shall not in any way be construed as a waiver of any such provision or
provisions, nor prevent any Party from thereafter enforcing each and every other
provision of this Agreement. The rights granted the Parties herein are
cumulative and shall not constitute a waiver of any Party's right to assert all
other legal remedies available to it under the circumstances.
(f) Executive agrees upon request to execute any further documents or
instruments necessary or desirable to carry out the purposes or intent of this
Agreement.
(g) In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired.
(h) This Agreement, in whole or in part, may be modified, waived or amended
upon the written consent of (i) the Company and (ii) Executive.
(i) By Executive's signature below, Executive represents that he is
familiar with the terms and provisions of this Agreement, and hereby accepts
this Agreement subject to all of the terms and provisions set forth herein.
Executive has reviewed this Agreement in its entirety, has had an opportunity to
obtain the advice of counsel prior to executing this Agreement and fully
understands all provisions of this Agreement. Executive agrees to accept as
binding, conclusive and final all decisions or interpretations of the Board of
Directors of the Company upon any questions arising under this Agreement.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which shall constitute one instrument.
EXECUTIVE ANDROMEDIA, INC.
_______________________ By:_______________________
Signature Signature
____________________ Title:____________________
Print Name Print Name
Change of Control Agreement
EXHIBIT A
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CONSENT OF SPOUSE
I, ____________________, spouse of Executive, have read and approve the
foregoing Agreement. In consideration of granting to my spouse the Securities
of Andromedia, Inc., as referenced in the recitals to the Agreement, I hereby
appoint my spouse as my attorney-in-fact in respect to the exercise of any
rights under the Agreement and agree to be bound by the provisions of the
Agreement insofar as I may have any rights in said Agreement under the community
property laws or similar laws relating to marital property in effect in the
state of our residence as of the date of the signing of the foregoing Agreement.
Dated: ___________________, ______
______________________________
