EXHIBIT (d)(5)
June 17, 2002
Xx. Xxxxx X. Xxxxxxxx
Vice President, Chief Technology Officer
SilverStream Software, Inc.
Two Federal Street
Billerica, MA 01821-3559
Dear Xxxxx:
As you know, Novell, Inc. ("Novell") has entered into a merger agreement with
SilverStream Software, Inc. ("SilverStream"), dated June 9, 2002, (the "Merger
Agreement"), pursuant to which Delaware Planet Inc., a wholly-owned subsidiary
of Novell ("Novell Subsidiary") will make a cash tender offer to acquire all of
the outstanding stock of SilverStream (the "Offer"). After consummation of the
Offer, Novell Subsidiary will be merged with and into SilverStream, with
SilverStream becoming the surviving corporation and a wholly-owned subsidiary of
Novell (the "Merger").
The purpose of this letter agreement is to (i) confirm the terms of your
continued employment with SilverStream or Novell for a minimal period of 6
months after consummation of the merger, and (ii) confirm your reaffirmation of
the terms of SilverStream's Standard Employee Agreement, as set forth on Exhibit
A (the "SilverStream Agreement"), or, if you have not previously executed the
SilverStream Agreement, your agreement to the terms of the SilverStream
Agreement, in either case as further modified by this letter; provided, however,
that the foregoing shall not become effective if the Merger is not consummated.
More specifically, in consideration of the position and benefits outlined in
this letter, to induce Novell to enter into the Merger Agreement and to perform
its obligations thereunder, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, by signing this
letter, you agree to the reaffirmation of the SilverStream Agreement, or, in the
event you have not previously executed the SilverStream Agreement, to execute
the SilverStream Agreement, in either case as further modified by this letter;
provided, however, that the foregoing shall not become effective if the Merger
is not consummated. You will have the following title and be eligible for the
following benefits after the Merger:
- After consummation of the Merger, you will be employed by
SilverStream or Novell in your current position of Vice
President, Chief Technology Officer with a rate of pay equal
to $7,083.33 semi-monthly (less applicable withholding), which
is $170,000.00 annualized (less applicable withholding),
payable in accordance with SilverStream's or Novell's payroll
practices. Such rate of pay is exclusive of bonuses,
commissions and other incentive pay you may receive during
your employment.
- If the Merger is consummated, your outstanding SilverStream
stock options, whether or not vested or exercisable as of the
date of the consummation of the Merger, will be assumed by
Novell and converted into stock options to acquire Novell
stock (subject to the Merger's exchange ratio, as will be set
forth in the Merger Agreement), with continued vesting and
exercisability in such options on the vesting and
exercisability schedule effective immediately prior to their
assumption.
- If the Merger is consummated, if your employment with
SilverStream or Novell is terminated (i) due to your
resignation or (ii) by SilverStream or Novell for any reason
other than Cause (as defined below), after the consummation of
the Merger; provided in either case you execute, and do not
revoke, a release of claims in a form satisfactory to Novell,
you will receive severance benefits in an amount that is equal
to one year of your then current annual base salary, as in
effect immediately prior to your termination of employment.
Such severance benefits shall be in lieu of any severance
program or plan maintained by SilverStream or Novell, and
shall be paid to you in one lump sum (less applicable
withholding) after your termination of employment with
SilverStream or Novell in accordance with SilverStream's or
Novell's payroll practices.
- Novell intends to continue SilverStream's current employee
benefits programs after the Merger through December 31, 2002.
While you are employed by SilverStream or Novell, you will be
eligible to participate in these employee benefit programs at
the same levels and with the same benefits, in the aggregate,
as other similarly-situated employees of SilverStream or
Novell. If the Merger is consummated, if your employment with
SilverStream or Novell is terminated (i) due to your
resignation or (ii) by SilverStream or Novell for any reason
other than Cause, after the consummation of the Merger, if you
elect to receive healthcare benefits under COBRA, Novell will
make COBRA healthcare (medical and dental) payments on your
behalf to the applicable medical and/or dental insurance
provider for a period that is no longer than 12 months after
your termination of employment.
- Provided that you remain employed by SilverStream or Novell
for a minimum of 6 months after the consummation of the
Merger, or such longer period as
mutually agreed to between you and SilverStream or Novell, you
will receive a cash stay bonus equal to 50% of your base
salary earned during the stay period (excluding vacation hours
taken), plus an additional month's base salary (less
applicable withholding). This stay bonus will be paid to you
after your termination of employment with SilverStream or
Novell in accordance with SilverStream's or Novell's payroll
practices. If you voluntarily resign from SilverStream or
Novell prior to the end of the requested stay period or are
terminated by SilverStream or Novell for Cause prior to the
end of the requested stay period, you will not receive any
portion of the stay bonus. If your employment with
SilverStream or Novell terminates for any reason other than
that provided in the preceding sentence, you will be entitled
to the stay bonus that you would have been provided if you
remain employed by SilverStream or Novell for the entire stay
period.
- As a condition to receiving the title and benefits described
above in connection with your continued employment with
SilverStream or Novell after consummation of the Merger, you
must reaffirm your acceptance to the terms of the SilverStream
Agreement in its entirety, or, if you have not previously
executed the SilverStream Agreement, you agree to execute the
SilverStream Agreement, except that in either case, the
SilverStream Agreement shall be amended to provide that (i)
the non-solicitation period in Section 3 thereof shall
continue for a period of two years after your termination or
cessation of employment for any reason, (ii) the term
"Company" shall be amended to mean the Company and all of its
subsidiary and affiliated companies as they may exist from
time to time, whether or not you are employed by any such
subsidiary or affiliated companies, (iii) the second sentence
of Section 6(d) shall be deleted, and (iv) the term
"Development" shall be amended to include intellectual
property owned by you, or in which you have an interest, that
is or has been incorporated in a Company product, service,
process, software or other property. In addition, after
consummation of the Merger, you will be required to execute
Novell's Code of Business Ethics, which is required for all
employees of Novell and its subsidiaries.
For purposes of this letter, "Cause" shall mean your (i) demonstrably willful or
deliberate violation of your obligations with respect to your employment with
SilverStream or Novell, (ii) engaging in willful misconduct which is injurious
to SilverStream or Novell or their affiliates, (iii) committing a felony, an act
of fraud against or the misappropriation of property belonging to SilverStream
or Novell or their affiliates, (iv) breaching, in any material respect, terms of
any confidentiality or proprietary information agreement between you and
SilverStream or Novell, or (v) breaching any written noncompetition or
nonsolicitation agreement between you and SilverStream or Novell.
Please signify acceptance of this offer of continued employment with
SilverStream or Novell, as well as your reaffirmation of the SilverStream
Agreement, or, in the event you have not previously executed the SilverStream
Agreement, you execute the SilverStream
Agreement, in either case as further modified by this letter, by executing this
letter agreement. You must return an executed copy of this letter agreement and
an executed copy of the SilverStream Agreement, if you have not previously
executed such agreement, to Xxxx Xxxxxxxx at Novell's Cambridge, MA headquarters
no later than Monday, June 17, 2002. Please understand that your employment with
SilverStream or Novell constitutes at-will employment.
If you have any questions or wish to discuss this letter, please contact me.
Sincerely,
Xxxx X. Xxxxxxxx
Senior Vice President, People
ACKNOWLEDGED AND AGREED
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Dated: June 17, 2002.
EXHIBIT A
SILVERSTREAM STANDARD EMPLOYEE AGREEMENT
SILVERSTREAM STANDARD EMPLOYEE AGREEMENT
This agreement is made between SilverStream Software Inc. (the "Company"), and
__________________________________________ (the "Employee").
In consideration of the employment or the continued employment of the Employee
by the Company, the Company and the Employee agree as follows:
1. PROPRIETARY INFORMATION
a) The Employee agrees that all information, whether or not in writing, of a
private, secret or confidential nature concerning the Company's business,
business relationships or financial affairs (collectively, "Proprietary
Information") is and will continue to be the exclusive property of the
Company. In order to illustrate this definition, Proprietary Information may
include, without limitation, inventions, products, processes, methods,
techniques, formulas, compositions, compounds, projects, developments, plans,
research data, clinical data, financial data, personnel data, computer
programs, customer and supplier lists, and contact at or knowledge of
customers or prospective customers of the Company, as well as materials and
tangible property of customers of the Company or suppliers to the Company.
The Employee will not communicate any Proprietary Information to any person
or entity other than employees of the Company or use Proprietary Information
for any purpose (other than in the performance of his/her duties as an
employee of the Company) without written approval by an officer of the
Company, either during or after his/her employment with the Company, unless
and until such Proprietary Information has become public knowledge without
activity by the Employee.
b) The Employee agrees to return promptly to the Company, upon (i) a request by
the Company or (ii) termination of his/her employment, whichever is earlier,
all Proprietary Information and all tangible property furnished to or
prepared by the Employee in the course of or relating to his/her employment.
After such delivery, the Employee shall not keep any Proprietary Information
or copies of Proprietary Information or any such tangible property.
2. DEVELOPMENTS
a) The Employee will make full and prompt communication to the Company of all
inventions, improvements, discoveries, methods, developments, software, and
works of authorship, whether patentable or not, which are created, made,
conceived or reduced to practice by him/her or under his/her direction or
jointly with others during his/her employment by the Company, whether or not
during normal working hours or on the premises of the Company (collectively,
"Developments").
b) The Employee agrees to transfer and does hereby transfer to the Company (or
any person or entity designated by the Company) all his/her rights, title and
interest in and to all Developments and all related patents, patent
applications, copyrights and copyright applications. However, this paragraph
2(b) shall not apply to Developments which do not relate to the present or
planned business or research and development of the Company and which are
made by the Employee not during normal working hours, not on the Company's
premises and not using the Company's tools, devices, equipment or Proprietary
Information. If this Agreement is interpreted under the laws of any state
that does not permit a requirement in an employee agreement to assign certain
classes of inventions made by an employee, this paragraph 2b will be
interpreted not to apply to any invention which a court rules and/or the
Company agrees falls within such classes.
c) In the event that the Company decides that any Development is copyrightable
or patentable or otherwise registrable, the Employee agrees to assist the
Company (at its expense) in obtaining and maintaining letters, patents, or
other applicable registrations and in vesting the Company with full title. If
the Company is unable to obtain the signature of the Employee on any document
necessary to apply for, prosecute, obtain, or enforce any patent, copyright,
or other right or protection relating to any Development, the Employee
irrevocably appoints the Company and each of its authorized officers and
agents as the Employee's agent to
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do all lawfully permitted acts to further the prosecution, issuance, and
enforcement of patents, copyrights, or other rights or protection with the
same force and effect as if executed and delivered by the Employee.
3. NON-SOLICITATION AND NON-COMPETITION
While the Employee is employed by the Company and for a period of one year
after the termination or cessation of such employment for any reason, the
Employee will not directly or indirectly
a) recruit, solicit, hire or engage as an independent contractor, any employee
of the Company, or induce or attempt to induce any employee of the Company
to terminate his/her employment with the Company;
b) solicit, divert or take away, or attempt to divert or to take away any of
the clients, customers or accounts, or prospective clients, customers or
accounts, of the Company which were contacted, solicited or served by the
Employee while employed by the Company.
In addition, if the Employee is a Vice President-, Director- or Senior
Developer-level employee, then, for a period of one year after the termination
or cessation of such employment for any reason, the Employee will not directly
or indirectly in the geographic territory or territories where the Company does
business, as an individual proprietor, partner, officer, employee, director,
joint venturer, consultant or in any other capacity whatsoever (other than as
the holder of not more than one percent of the combined voting power of the
outstanding stock of a publicly held company), develop, design, produce,
market, sell or render (or assist any other person in developing, designing,
producing, marketing, selling or rendering) products or services competitive
with those developed, designed, produced, marketed, sold or rendered by the
Company while the Employee was employed by the Company;
If any restriction set forth in this Section is found by any court of competent
jurisdiction to be unenforceable because it extends for too long a period of
time or over too great a range of activities or in too broad a geographic area,
it shall be interpreted to extend only over the maximum period of time, range
of activities or geographic area as to which it may be enforceable.
4. OTHER AGREEMENTS
The Employee hereby states that, except as the Employee has disclosed in
writing to the Company, the Employee is not obligated by the terms of any
agreement with any previous employer or other party to not use or communicate
any trade secret or confidential or proprietary information in the course of
his/her employment with the Company or to not compete, directly or indirectly,
with the business of such previous employer or any other party. The Employee
further states that he/she will not disclose to the Company, or use, or induce
the Company to use, any proprietary information or trade secrets of others.
5. NOT EMPLOYMENT CONTRACT
The Employee understands that this Agreement is not a contract of employment
and does not mean that his/her employment will continue for any period of time.
The Employee understands that all employment with the Company is on an "at
will" basis.
6. MISCELLANEOUS
a) Even if one or more of the provisions of this Agreement is found to be
unenforceable or invalid, the remainder will remain valid and enforceable.
b) This Agreement replaces all previous agreements, written or oral, between
the Employee and the Company relating to the subject matter of this
Agreement. This Agreement may not be modified, changed, or terminated in
whole or in part, except by an agreement in writing signed by the Employee
and the Company.
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c) No failure to exercise or delay in exercising any right under this Agreement
by the Company or the Employee will be a waiver of this Agreement.
d) This Agreement will be binding upon the Employee's heirs, executors and
administrators and may be assigned by the Company and its successors and
assigns. The Employee expressly consents to be bound by the provisions of
this Agreement for the benefit of the Company or any subsidiary or affiliate
of the Company to whom the Employee may be transferred without the necessity
that this Agreement be re-executed at the time of such transfer.
e) The restrictions contained in this Agreement are necessary for the protection
of the business and goodwill of the Company and are considered by the
Employee to be reasonable for such purpose. The Employee agrees that any
breach of this Agreement is likely to cause the Company substantial and
irrevocable damage and therefore, in the event of any such breach, the
Employee agrees that the Company, in addition to such other remedies which
may be available, shall be entitled to specific performance and other
injunctive relief.
f) This Agreement is to be interpreted by the laws of the Commonwealth of
Massachusetts. Any legal proceeding which is commenced to resolve any
dispute arising under this Agreement shall be commenced only in a court of
the Commonwealth of Massachusetts (or, if appropriate, a federal court
located within Massachusetts), and the parties consent to the jurisdiction of
such court.
THE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND
UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.
WITNESS SILVERSTREAM SOFTWARE INC.
Date: By:
_________________ ____________________________________
Xxxxxxx X. Xxxxx XXX, Vice President
Human Resources
EMPLOYEE:
_______________________________________
Signature
Date:
_________________________________
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