EXHIBIT 10.2
EMPLOYEE RETENTION AND MOTIVATION AGREEMENT
(AMENDED AND RESTATED AS OF MARCH 22, 2007)
This agreement (the "Agreement") originally effective as of July 23, 1998
(the "Agreement Date") by and between Xxxxx X. Xxxxxxxx (the "Covered Person")
and Progress Software Corporation, a Massachusetts corporation (the "Company"),
is hereby amended and restated as of March 22, 2007, as follows:
R E C I T A L S
A. The Covered Person presently serves as an employee or officer of the
Company in a role that is important to the continued conduct of the Company's
business and operations.
B. The Board of Directors of the Company (the "Board") has determined that
it is in the best interest of the Company and its stockholders to assure that
the Company will have the continued dedication and objectivity of the Covered
Person, notwithstanding the possibility, threat or occurrence of a Change of
Control (as defined below) of the Company.
C. The Board believes that it is imperative to provide the Covered Person
with certain benefits following a Change of Control and certain severance
benefits upon the Covered Person's termination of employment following a Change
in Control and has previously entered into the Agreement with the Covered
Person.
D. The Board now believes that it is important to revise the benefit
provided by the Agreement in the event of a Change of Control.
E. The Covered Party accepts the revisions to the Agreement.
F. In order to accomplish the foregoing objectives, the parties desire the
Agreement to be amended and restated and superseded in its entirety.
G. Certain capitalized terms used in this Agreement are defined in Section
4 below.
In consideration of the mutual covenants herein contained and in
consideration of the continuing employment of the Covered Person by the Company,
the parties agree to amend and restate the Agreement as follows:
1. Term of Employment The Company and the Covered Person acknowledge that
the Covered Person's employment is at will, as defined under applicable law,
except as may otherwise be provided under the terms of any written employment
agreement between the Company and the Covered Person, that is signed on behalf
of the Company now or hereafter in effect. If the Covered Person's employment
terminates for any reason, the Covered Person shall not be entitled to any
payments, benefits, damages, awards or compensation (collectively, "recompense")
other than the maximum recompense as provided by one of the following: (i) this
Agreement, or (ii) any written employment agreement then in effect between the
Covered
Person and the Company, or (iii) the Company's existing severance guidelines and
benefit plans which are in effect at the time of termination, or (iv) applicable
statutory provisions. The provisions of this Agreement shall terminate upon the
earlier of (i) the date that all obligations of the parties hereunder have been
satisfied, or (ii) 30 September 2008; provided, however, that the term of the
provisions of this Agreement may be extended by written resolutions adopted by
the Board. A termination of the provisions of this Agreement pursuant to the
preceding sentence shall be effective for all purposes, except that such
termination shall not affect the payment or provision of compensation or
benefits on account of termination of employment occurring prior to the
termination of the provisions of this Agreement.
2. Benefits Immediately Following Change of Control
(a) Treatment of Outstanding Options and Restricted Equity Effective
immediately upon a Change of Control, unless the outstanding stock options and
shares of restricted equity held by the Covered Person under the Company's stock
option plans on the date of the Change of Control are continued by the Company
or assumed by its successor entity, all outstanding stock options held by the
Covered Person shall accelerate and become fully exercisable, and all shares of
restricted equity held by the Covered Person shall become nonforfeitable and all
restrictions shall lapse. If such outstanding options and shares of restricted
equity held by the Covered Person are continued by the Company or assumed by its
successor entity, then vesting shall continue in its usual course.
(b) Payment of Management Bonus Effective immediately upon a Change
of Control, the Covered Person's annual management bonus shall be fixed at the
Covered Person's target bonus level as in effect immediately prior to the Change
of Control and the Covered Person shall be paid a pro-rated portion of such
bonus, as of the date of the Change of Control. Any payment to which the Covered
Person is entitled pursuant to this section shall be paid in a lump sum within
thirty (30) days of the event requiring such payment.
3. Severance Benefits
(a) Termination Following a Change of Control If the Covered
Person's employment terminates after a Change of Control, then, subject to
Section 5 below, the Covered Person shall be entitled to receive severance
benefits as follows:
(i) Involuntary Termination If the Covered Person's employment
is terminated within twelve (12) months following a Change of Control as a
result of Involuntary Termination, then the Covered Person shall be entitled to
receive a lump sum severance payment in an amount equal to fifteen (15) months
of the Covered Person's annual Target Compensation; and in addition, for a
period of fifteen (15) months after such termination, the Company shall be
obligated to provide the Covered Person with benefits that are substantially
equivalent to the Covered Person's benefits (medical, dental, vision and life
insurance) that were in effect immediately prior to the Change of Control. In
addition, each outstanding stock option held by the Covered Person which had
been granted prior to the date of the Change of Control under the Company's
stock option plans shall accelerate and become fully exercisable and all shares
of restricted equity held by the Covered Person which had been granted prior to
the date of the Change of Control under the Company's stock option plans shall
become nonforfeitable and all
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restrictions shall lapse. Any severance payments to which the Covered Person is
entitled pursuant to this section shall be paid in a lump sum within thirty (30)
days of the effective date of the Covered Person's termination. For purposes of
this Paragraph 3(a)(i), the term "Target Compensation" shall mean the highest
level of Target Compensation applicable to the Covered Person from the period of
time immediately prior to the Change of Control through the effective date of
the Covered Person's termination. With respect to any taxable income that the
Covered Person is deemed to have received for federal income tax purposes by
virtue of the Company providing continued employee benefits to the Covered
Person, the Company shall make a cash payment to the Covered Person such that
the net economic result to the Covered Person will be as if such benefits were
provided on a tax-free basis to the same extent as would have been applicable
had the Covered Person's employment not been terminated.
Anything in this Agreement to the contrary notwithstanding, if
at the time of the Covered Person's separation from service (within the meaning
of Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"),
the Covered Person is considered a "specified employee" within the meaning of
Section 409A(a)(2)(B)(i) of the Code, and if any payment that the Covered Person
becomes entitled to under this Agreement is considered deferred compensation
subject to interest and additional tax imposed pursuant to Section 409A(a) of
the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code,
then no such payment shall be payable prior to the date that is the earliest of
(A) six months after the Covered Person's date of termination, (B) the Covered
Person's death, or (C) such other date as will cause such payment not to be
subject to such interest and additional tax. The parties agree that this
Agreement may be amended, as reasonably requested by either party and as may be
necessary to comply fully with Section 409A of the Code and all related rules
and regulations in order to preserve the payments and benefits provided
hereunder without additional cost to either party.
(ii) Voluntary Resignation If the Covered Person's employment
terminates by reason of the Covered Person's voluntary resignation (and is not
an Involuntary Termination), then the Covered Person shall not be entitled to
receive any severance payments or other benefits except for such benefits (if
any) as may then be established under the Company's then existing severance
guidelines and benefit plans at the time of such termination.
(iii) Disability; Death If the Company terminates the Covered
Person's employment as a result of the Covered Person's Disability, or such
Covered Person's employment is terminated due to the death of the Covered
Person, then the Covered Person shall not be entitled to receive any severance
payments or other benefits except for those (if any) as may then be established
under the Company's then existing severance guidelines and benefit plans at the
time of such Disability or death.
(iv) Termination for Cause If the Company terminates the
Covered Person's employment for Cause, then the Covered Person shall not be
entitled to receive any severance payments or other benefits following the date
of such termination, and the Company shall have no obligation to provide for the
continuation of any health and medical benefit or life insurance plans existing
on the date of such termination, other than as required by law.
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(b) Termination Other than in Connection with Change of Control If
the Covered Person's employment is terminated for any reason either prior to the
occurrence of a Change of Control or after the twelve (12) month period
following a Change of Control, then the Covered Person shall be entitled to
receive severance and any other benefits only as may then be established under
the Company's existing severance guidelines and benefit plans at the time of
such termination.
4. Definition of Terms The following terms referred to in this Agreement
shall have the following meanings:
(a) Change of Control "Change of Control" shall mean the occurrence
of any of the following events:
(i) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing fifty percent (50%) or
more of the total voting power represented by the Company's then outstanding
voting securities, whether by tender offer, or otherwise; or
(ii) A change in the composition of the Board, as a result of
which fewer than a majority of the directors are Incumbent Directors. "Incumbent
Directors" shall mean directors who either (A) are directors of the Company as
of the Agreement Date, or (B) are elected, or nominated for election, to the
Board with the affirmative votes of at least a majority of the directors of the
Company as of the Agreement Date, at the time of such election or nomination
(but shall not include an individual whose election or nomination is in
connection with an actual or threatened proxy contest relating to the election
of directors to the Company); or
(iii) The consummation of a merger or consolidation of the
Company with any other entity, other than a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least fifty percent
(50%) of the total voting power represented by the voting securities of the
Company or such surviving entity outstanding immediately prior thereto
representing less than fifty percent (50%) of the total voting power represented
by the voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation; but the Company is clearly the
acquirer considering the totality of the circumstances, including such factors
as whether the president of the Company will continue as president of the
Company or the surviving entity, the majority of the directors of the Company or
the surviving entity will be Incumbent Directors, substantially all of the
executive officers of the Company will be retained, etc., all as determined
immediately prior to the consummation of the merger or consolidation by the
Incumbent Directors.
(iv) The liquidation of the Company; or the sale or
disposition by the Company of all or substantially all of the Company's assets.
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(b) Involuntary Termination "Involuntary Termination" shall mean (i)
without the Covered Person's express written consent, the assignment to the
Covered Person of any duties or the significant reduction of the Covered
Person's duties, either of which is materially inconsistent with the Covered
Person's position with the Company and responsibilities in effect immediately
prior to such assignment, or the removal of the Covered Person from such
position and responsibilities, which is not effected for Disability or for
Cause; (ii) a material reduction by the Company in the base salary and/or bonus
of the Covered Person as in effect immediately prior to such reduction; (iii) a
material reduction by the Company in the kind or level of employee benefits to
which the Covered Person is entitled immediately prior to such reduction with
the result that the Covered Person's overall benefit package is significantly
reduced; (iv) the relocation of the Covered Person to a facility or a location
more than fifty (50) miles from the Covered Person's then present location,
without the Covered Person's express written consent; (v) any purported
termination of the Covered Person by the Company which is not effected for death
or Disability or for Cause, or any purported termination for Cause for which the
grounds relied upon are not valid; or (vi) the failure of the Company to obtain,
on or before the Change of Control, the assumption of the terms of this
Agreement by any successors contemplated in Section 7 below. An Involuntary
Termination shall be effective upon written notice by the Covered Person.
(c) Cause "Cause" shall mean (i) any act of personal dishonesty
taken by the Covered Person in connection with his or her responsibilities as an
employee and intended to result in substantial personal enrichment of the
Covered Person, (ii) the conviction of a felony, (iii) a willful act by the
Covered Person which constitutes gross misconduct and which is injurious to the
Company, and (iv) continued violations by the Covered Person of the Covered
Person's obligations as an employee of the Company which are demonstrably
willful and deliberate on the Covered Person's part after there has been
delivered to the Covered Person a written demand for performance from the
Company which describes the basis for the Company's belief that the Covered
Person has not substantially performed his or her duties.
(d) Disability "Disability" shall mean that the Covered Person has
been unable to perform his or her duties as an employee of the Company as the
result of incapacity due to physical or mental illness, and such inability, at
least twenty-six (26) weeks after its commencement, is determined to be total
and permanent by a physician selected by the Company or its insurers and
acceptable to the Covered Person or the Covered Person's legal representative
(such agreement as to acceptability not to be unreasonably withheld).
Termination resulting from Disability may only be effected after at least thirty
(30) days' written notice by the Company of its intention to terminate the
Covered Person's employment. In the event that the Covered Person resumes the
performance of substantially all of his or her duties as an employee of the
Company before termination of his or her employment becomes effective, the
notice of intent to terminate shall automatically be deemed to have been
revoked.
(e) Target Compensation "Target Compensation" shall mean the total
of all fixed and variable cash compensation due a Covered Person based upon one
hundred percent (100%) attainment of performance levels.
5. Limitation on Payments In the event that the severance and other
benefits provided for in this Agreement or otherwise payable to the Covered
Person (i) constitute
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"parachute payments" within the meaning of Section 280G of the Code and (ii) but
for this Section 5, would be subject to the excise tax imposed by Section 4999
of the Code (the "Excise Tax"), then the Covered Person's severance benefits
under Section 3(a)(i) shall be either
(i) delivered in full, or
(ii) delivered as to such lesser extent which would result in
no portion of such severance benefits 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 the
Covered Person on an after tax basis, of the greatest amount of severance
payments and benefits, notwithstanding that all or some portion of such
severance payments and benefits may be taxable under Section 4999 of the Code.
Unless the Company and the Covered Person otherwise agree in writing, any
determination required under this Section 5 shall be made in writing in good
faith by the accounting firm serving the Company's independent public
accountants immediately prior to the Change of Control (the "Accountants") in
good faith consultation with the Covered Person. In the event of a reduction in
benefits hereunder, the Covered Person shall be given the choice of which
benefits to reduce. For purposes of making the calculations required by this
Section 5, the Accountants may make reasonable assumptions and approximations
concerning the application taxes and may rely on reasonable good faith
interpretations concerning the application of Sections 280G and 4999 of the
Code. The Company and the Covered Person shall furnish to the Accountants such
information and documents as the Accountants may reasonable request in order to
make a determination under this Section. The Company shall bear all costs the
Accountants may reasonably incur in connection with any calculations
contemplated by this Section 5.
6. Remedy If Covered Person's benefits are reduced to avoid the Excise Tax
pursuant to Section 5 hereof and notwithstanding such reduction, the IRS
determines that the Covered Person is liable for the Excise Tax as a result of
the receipt of severance benefits from the Company, then Covered Person shall be
obligated to pay to the Company (the "Repayment Obligation") an amount of money
equal to the "Repayment Amount." The Repayment Amount shall be the smallest such
amount, if any, as shall be required to be paid to the Company so that the
Covered Person's net proceeds with respect to his or her severance benefits
hereunder (after taking into account the payment of the Excise Tax imposed on
such benefits) shall be maximized. Notwithstanding the foregoing, the Repayment
Amount shall be zero if a Repayment Amount of more than zero would not eliminate
the Excise Tax. If the Excise Tax is not eliminated through the performance of
the Repayment Obligation, the Covered Person shall pay the Excise Tax. The
Repayment Obligation shall be discharged within thirty (30) days of either (i)
the Covered Person entering into a binding agreement with the IRS as to the
amount of Excise Tax liability, or (ii) a final determination by the IRS or a
court decision requiring the Covered Person to pay the Excise Tax from which no
appeal is available or is timely taken.
7. Successors
(a) Company's Successors Any successor to the Company (whether
direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) or to all
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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 subsection (a) which becomes bound by
the terms of this Agreement by operation of law.
(b) Covered Person's Successors The terms of this Agreement and all
rights of the Covered Person's hereunder shall inure to the benefit of, and be
enforceable by, the Covered Person's personal or legal representatives,
executors, administrators, successors, heirs, distributes, devisees and
legatees.
8. 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 Covered Person,
mailed notices shall be addressed to him or her at the home address which he or
she 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 General Counsel.
(b) Notice of Termination by the Company Any termination by the
Company of the Covered Person's employment with the Company at any time
following a Change of Control shall be communicated by notice of termination to
the Covered Person at least five (5) days prior to the date of such termination,
given in accordance with Section 8(a) of this Agreement. Such notice shall
specify the termination date and whether the termination is considered by the
Company to be for Cause as defined in Section 4(c) in which case the Company
shall identify the specific subsection(s) of Section 4(c) asserted by the
Company as the basis for the termination and shall set forth in reasonable
detail the facts and circumstances relied upon by the Company in categorizing
the termination as for Cause.
(c) Notice by Covered Person of Involuntary Termination by the
Company In the event the Covered Person determines that an Involuntary
Termination has occurred at any time following a Change of Control, the Covered
Person shall give written notice that such Involuntary Termination has occurred
as set forth in this Section 8(c). Such notice shall be delivered by the Covered
Person to the Company in accordance with Section 8(a) of this Agreement within
ninety (90) days following the date on which such Involuntary Termination has
occurred (or, if such Involuntary Termination occurred as a result of more than
one event set forth in Section 4(b), within ninety (90) days following the
earliest of such events), shall indicate the specific provision or provisions in
this Agreement upon which the Covered Person relied to make such determination
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for such determination. The failure by the Covered Person to
include in the notice any fact or circumstance which contributes to a showing of
Involuntary Termination shall not waive any right of the Covered Person
hereunder or preclude the Covered Person from asserting such fact or
circumstance in enforcing his or her rights hereunder.
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9. Miscellaneous Provisions
(a) No Duty to Mitigate The Covered Person shall not be required to
mitigate the amount of any payment contemplated by this Agreement (whether by
seeking new employment or in any other manner), nor shall any such payment be
reduced by any earnings that the Covered Person 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 in writing
and signed by the Covered Person and by an authorized officer of the Company
(other than the Covered Person). No waiver by either party of any breach of, or
compliance with, any condition or provision of this Agreement by the other party
shall be considered a waiver of any other condition or provision of the same
condition or provision at another time.
(c) Entire Agreement Except with respect to the terms of any written
employment agreement, if any, by and between the Company and the Covered Person
that is signed on behalf of the Company, 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.
(d) Choice of Law The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the Commonwealth
of Massachusetts.
(e) Severability The invalidity or enforceability of any provisions
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) Arbitration Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by final and binding
arbitration in Massachusetts, 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. In the event the Covered
Person prevails in an action or proceeding brought to enforce the terms of this
Agreement or to enforce and collect on any non-de minimis judgment entered
pursuant to this Agreement, the Covered Person shall be entitled to recover all
costs and reasonable attorney's fees.
(g) No Assignment of Benefits The rights of any person to payments
or benefits under this Agreement shall not be made subject to option or
assignment, either by voluntary or involuntary assignment or by operation of
law, including (without limitation) bankruptcy, garnishment, attachment or other
creditor's process, and any action in violation of this subsection (g) shall be
void.
(h) Employment Taxes Subject to Section 5, all payments made
pursuant to this Agreement will be subject to withholding of applicable income
and employment taxes.
(i) Assignment by Company The Company may assign its rights under
this Agreement to an affiliate and an affiliate may assign its rights under this
Agreement to another
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affiliate of the Company or to the Company; provided, however, that no
assignment shall be made if the net worth of the assignee is less than the net
worth of the Company at the time of the assignment. In the case of any such
assignment, the term "Company" when used in a section of the Agreement shall
mean the corporation that actually employs the Covered Person.
(j) 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.
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 date first
above written.
Progress Software Corporation
By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
------------------------------ ------------------------------
Authorized Officer Covered Person
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