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EXHIBIT 10.6
SYMYX TECHNOLOGIES
CHANGE OF CONTROL AGREEMENT
This Change of Control Agreement (the "Agreement") is made and entered
into by and between __________________ (the "Executive") and Symyx Technologies,
a California corporation (together with the successor entity resulting from the
reincorporation Symyx Technologies in Delaware, the "Company"), effective as of
December 31, 1998.
R E C I T A L S
A. It is expected that the Company from time to time will consider the
possibility of an acquisition by another company or other change of control. The
Board of Directors of the Company (the "Board") recognizes that such
consideration can be a distraction to the Executive and can cause the Executive
to consider alternative employment opportunities. The Board has determined that
it is in the best interests of the Company and its shareholders to assure that
the Company will have the continued dedication and objectivity of the Executive,
notwithstanding the possibility, threat or occurrence of a Change of Control (as
defined below) of the Company.
B. The Board believes that it is in the best interests of the Company
and its shareholders to provide the Executive with an incentive to continue his
employment and to motivate the Executive to maximize the value of the Company
upon a Change of Control for the benefit of its shareholders.
C. Certain capitalized terms used in the Agreement are defined in
Section 4 below.
The parties hereto agree as follows:
1. Term of Agreement. This Agreement shall terminate upon the date that
all obligations of the parties hereto with respect to this Agreement have been
satisfied.
2. At-Will Employment. The Company and the Executive acknowledge that
the Executive's employment is and shall continue to be at-will, as defined under
applicable law. If the Executive's employment terminates for any reason,
including (without limitation) any termination prior to a Change of Control, the
Executive shall not be entitled to any payments, benefits, damages, awards or
compensation other than as provided by this Agreement, or as may otherwise be
available in accordance with the Company's established Executive plans and
practices or pursuant to other agreements with the Company.
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3. Benefits.
(a) Termination Following A Change of Control. In the event that a
Change of Control (as defined below) of the Company occurs and during the period
beginning on the closing date of the transaction giving rise to such Change of
Control and ending 18 months after such closing date, the Executive's employment
with the Company (or the successor entity in such Change of Control transaction)
is either (a) terminated by the Company (or its successor entity) or (b) is
Constructively Terminated (as defined below) by the Executive, then all unvested
Stock Rights (as defined below) shall become fully vested as of the date of such
termination of employment by the Company or Constructive Termination by the
Executive, as the case may be.
(b) Termination For Cause. If the Executive's employment terminates
by reason of the Executive's voluntary resignation (and is not a Constructive
Termination), or if the Executive is terminated for Cause, then the Executive
shall not be entitled to receive the accelerated vesting of Stock Rights set
forth in Section 3(a) above.
4. Definition of Terms. The following terms referred to in this
Agreement shall have the following meanings:
(a) Cause. "Cause" shall mean either (i) any act of personal
dishonesty taken by the Executive in connection with his responsibilities as an
Executive and intended to result in substantial personal enrichment of the
Executive, (ii) the conviction of a felony, (iii) a willful act by the Executive
which constitutes gross misconduct and which is injurious to the Company, or
(iv) following delivery to the Executive of a written demand for performance
from the Company which describes the basis for the Company's belief that the
Executive has not substantially performed his duties, continued violations by
the Executive of the Executive's obligations to the Company which are
demonstrably willful and deliberate on the Executive's part.
(b) Change of Control. "Change of Control" means the completion by
the Company of a reorganization, merger, consolidation, in each case with
respect to which persons who were the stockholders of the Company immediately
prior to such reorganization, merger or consolidation would not immediately
thereafter own more than 50% of, respectively, the capital stock and the
combined voting power entitled to vote generally in the election of directors of
the reorganized, merged or consolidated corporation's then-outstanding voting
securities, or of a liquidation or dissolution of the Company or of the sale of
all or substantially all of the assets of the Company. For purposes hereof, such
Change of Control shall be deemed to have occurred on the date on which the
transaction closes. Notwithstanding the foregoing, the reincorporation of the
Company in Delaware shall not constitute a Change of Control for purposes of
this Agreement.
(c) Constructive Termination. "Constructive Termination" shall mean
the resignation by the Executive from employment following (i) without the
Executive's express written consent, the assignment to the Executive of any
duties or the reduction of the Executive's duties, either of which results in a
significant diminution in the Executive's position or responsibilities in effect
immediately prior to such assignment, or the removal of the Executive from such
position and
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responsibilities, provided, however that changes in the circumstances of
employment which are solely the result of changes in corporate legal structure
resulting directly from the Change of Control shall not constitute a basis for
Constructive Termination; (ii) without the Executive's express written consent,
a substantial reduction, without good business reasons, of the facilities and
perquisites (including office space and location) available to the Executive
immediately prior to such reduction; (iii) a material reduction by the Company
in the cash compensation of the Executive as in effect immediately prior to such
reduction; (iv) a material reduction by the Company in the kind or level of
employee benefits to which the Executive is entitled immediately prior to such
reduction with the result that the Executive's overall benefits package is
significantly reduced; or (v) the relocation of Executive's principal place of
employment to a facility or a location more than 50 miles from the Executive's
then present location, with the Executive's express written consent.
(d) Stock Rights. "Stock Rights" shall mean all options or rights to
acquire vested ownership of shares of Common Stock of the Company under plans,
agreements or arrangements which are compensatory in nature, including, without
limitation, the Company's 1996 and 1997 Stock Option Plans and Restricted Stock
Purchase Agreements between the Company and the Executive.
5. Successors.
(a) Company's Successors. Any successor to the Company (whether
direct or indirect and whether by purchase, merger, consolidation, liquidation
or otherwise) to all or substantially all of the Company's business and/or
assets shall assume the obligations under this Agreement and agree expressly to
perform the obligations under this Agreement in the same manner and to the same
extent as the Company would be required to perform such obligations in the
absence of a succession. For all purposes under this Agreement, the term
"Company" shall include any successor to the Company's business and/or assets
which executes and delivers the assumption agreement described in this Section
5(a) or which becomes bound by the terms of this Agreement by operation of law.
(b) Executive's Successors. The terms of this Agreement and all
rights of the Executive hereunder shall inure to the benefit of, and be
enforceable by, the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
6. Notice.
(a) General. Notices and all other communications contemplated by
this Agreement shall be in writing and shall be deemed to have been duly given
when personally delivered or when mailed by U.S. registered or certified mail,
return receipt requested and postage prepaid. In the case of the Executive,
mailed notices shall be addressed to the Executive at his or her home address
most recently communicated to the Company in writing. In the case of the
Company, mailed notices shall be addressed to its corporate headquarters, and
all notices shall be directed to the attention of its Secretary.
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(b) Notice of Termination. Any termination by the Company for Cause
or by the Executive as a result of a voluntary resignation or a Constructive
Termination shall be communicated by a notice of termination to the other party
hereto given in accordance with Section 6(a) of this Agreement. Such notice
shall indicate the specific termination provision in this Agreement relied upon,
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination under the provision so indicated, and shall
specify the termination date (which shall be not more than 30 days after the
giving of such notice). The failure by the Executive to include in the notice
any fact or circumstance which contributes to a showing of Constructive
Termination shall not waive any right of the Executive hereunder or preclude the
Executive from asserting such fact or circumstance in enforcing Executive's
rights hereunder.
7. Miscellaneous Provisions.
(a) No Duty to Mitigate. The Executive shall not be required to
mitigate the amount of any payment contemplated by this Agreement, nor shall any
such payment be reduced by any earnings that the Executive may receive from any
other source.
(b) Waiver. No provision of this Agreement shall be modified, waived
or discharged unless the modification, waiver or discharge is agreed to in
writing and signed by the Executive and by an authorized officer of the Company
(other than the Executive). No waiver by either party of any breach of, or of
compliance with, any condition or provision of this Agreement by the other party
shall be considered a waiver of any other condition or provision or of the same
condition or provision at another time.
(c) Whole Agreement. No agreements, representations or
understandings (whether oral or written and whether express or implied) which
are not expressly set forth in this Agreement have been made or entered into by
either party with respect to the subject matter hereof. This Agreement
represents the entire understanding of the parties hereto with respect to the
subject matter hereof and supersedes all prior arrangements and understandings
regarding same.
(d) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California.
(e) 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.
(f) 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 has executed this Agreement, in
the case of the Company by its duly authorized officer, as of the day and year
set forth below.
COMPANY SYMYX TECHNOLOGIES
By:
__________________________________
Title:
_______________________________
Date:
________________________________
Executive __________________________________
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