Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1 Filing Table of Contents
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1: S-1/A Pre-Effective Amendment to Registration Statement HTML 1.46M
(General Form)
14: CORRESP ¶ Comment-Response or Other Letter to the SEC HTML 111K
2: EX-3.2 Articles of Incorporation/Organization or By-Laws HTML 27K
3: EX-3.4 Articles of Incorporation/Organization or By-Laws HTML 164K
4: EX-4.7 Instrument Defining the Rights of Security Holders HTML 112K
9: EX-10.13A Material Contract HTML 54K
10: EX-10.14 Material Contract HTML 85K
11: EX-10.15 Material Contract HTML 32K
12: EX-10.16 Material Contract HTML 59K
5: EX-10.6 Material Contract HTML 75K
6: EX-10.7 Material Contract HTML 73K
7: EX-10.8 Material Contract HTML 73K
8: EX-10.9 Material Contract HTML 58K
13: EX-23.2 Consent of Experts or Counsel HTML 8K
This
Employment Agreement (the “Agreement”) is effective as of November 8, 2010 (the
“Effective Date”) by and between Cornerstone OnDemand, Inc., a Delaware
corporation (the “Company”), and Perry Wallack (“Executive”).
RECITALS
WHEREAS,
the Company wishes to continue to retain the services of Executive and Executive
wishes to remain employed by the Company on the terms and subject to the
conditions set forth in this Agreement;
NOW
THEREFORE, in consideration of the foregoing recital and the respective
undertakings of the Company and Executive set forth below, the Company and
Executive agree as follows:
1. Duties and Scope of
Employment. Executive will continue to serve as Chief Financial
Officer for the Company. Executive shall have the authority generally
allowed to persons discharging the duties of such positions. Executive
shall perform his duties faithfully and satisfactorily to the performance
standards reasonably expected of a person in such positions. Executive
will render such business and professional services in the performance of his
duties, consistent with Executive’s position within the Company, as will
reasonably be assigned to him by the Company’s Chief Executive Officer.
Executive will devote substantially his full business efforts and time to the
performance of Executive’s duties hereunder, provided however, that Executive
may serve on outside board positions that are not competitive with the Company
subject to the requirement that such service on outside boards of directors does
not materially interfere with Executive’s performance of his duties under this
Agreement and the Company’s Board of Directors (the “Board”) approves such board
membership (which will not be unreasonably withheld). The Company shall
indemnify Executive to the same extent as it indemnifies all other officers
under Delaware law and in accordance with the Company’s bylaws, as same may be
amended from time to time (as a Company officer, such indemnification shall
include Executive as a beneficiary of any insurance directors and officers
liability insurance policies maintained by the Company). Executive’s principal
place of employment shall be at the Company’s offices located at 1601
Cloverfield Boulevard., Suite 620 South, Santa Monica, California.
2. At-Will
Employment. Subject to the terms hereof, Executive’s employment
with the Company will be “at-will” employment and may be terminated by Company
at any time with or without cause or with or without notice. However, as
described in this Agreement, Executive may be entitled to severance benefits
depending upon the circumstances of Executive’s termination of
employment.
3. Term of
Agreement. Subject to Section 2, this Agreement will have an
initial term of three (3) years, commencing on the Effective Date. On the
third anniversary of the Effective Date, this Agreement will automatically renew
for additional one (1) year terms unless either party provides the other party
with written notice of non-renewal at least sixty (60) days prior to the
date of automatic renewal. Notwithstanding the foregoing, if a Change of
Control should occur during the term of this Agreement, the term of this
Agreement will automatically be extended for eighteen (18) months if there is
less than eighteen (18) months remaining on the term of this Agreement at the
time of the Change of Control. If Executive becomes entitled to benefits
under Section 9 during the term of this Agreement, this Agreement will not
terminate until all of the obligations under this Agreement have been
satisfied.
4. Compensation.
(a) Base Salary.
Executive shall receive an annual base salary of $240,000 (“Base Salary”)
payable in accordance with the Company’s normal payroll practices. In
addition, upon the initial listing of any securities of the Company on a
national securities exchange, Executive’s Base Salary will be increased to
$295,000. Executive’s Base Salary shall be reviewed by the Company’s Board
of Directors at least annually for increase (but not decrease) in light of
Executive’s performance of his duties, external market conditions and the
Company’s financial condition and performance.
(b) Performance
Bonus. Effective for calendar year 2011, the Executive will
qualify for an annual performance bonus with a target level of 70% of Base
Salary up to a maximum of 105% of Base Salary based upon performance criteria as
established by the Compensation Committee of the Board after consultation with
Executive. The Board or the Compensation Committee will endeavor in good
faith to establish the annual performance bonus criteria by February 15th of
each calendar year. Any earned bonus will be paid as soon as practicable
after the Board or the Compensation Committee determines that the bonus has been
earned, but in no event will the bonus be paid after the later of (i) the
fifteenth (15th) day of the third (3rd) month following the close of the
Company’s fiscal year in which the bonus is earned or (ii) March 15
following the calendar year in which the bonus is earned.
(c) Equity
Awards.
(i) Effective
November 7, 2010, Executive was granted an option to purchase two hundred
fifteen thousand (215,000) shares of Company common stock (the “Option”) with a
per share exercise price equal to $6.51, the fair market value of a share of
Company common stock on such date of grant as determined by the Board.
Subject to accelerated vesting upon certain terminations of employment as set
forth herein, the Option will vest over four (4) years at a rate of one forth
(1/4th) of the
total number of shares subject to the Option becoming vested on the twelve (12)
month anniversary of the grant date and one forty-eighth (1/48th) of the
total number of shares subject to the Option becoming vested each month
thereafter for the next thirty six (36) months subject to Executive’s continued
employment with the Company through each scheduled vesting date.
(ii) Effective
November 7, 2010, Executive was granted a restricted stock unit covering sixty
thousand (60,000) shares of Company common stock (the “RSU”). Subject to
accelerated vesting upon certain terminations of employment as set forth herein,
the RSU will vest over four (4) years with twenty thousand (20,000) RSUs
becoming vested on November 7, 2012, twenty thousand (20,000) RSUs
becoming vested on November 7, 2013, and twenty thousand (20,000) RSUs becoming
vested on November 7, 2014, subject to Executive’s continued employment with the
Company through each scheduled vesting date. Each RSU represents the right
to receive one share of Company common stock and the award will be settled in
shares of Company common stock upon vesting.
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(iii) In
the event of a termination of employment either by the Company without Cause or
by the Executive for Good Reason any unvested portion of the Option and RSU as
of Executive’s termination date (after taking into account acceleration of
vesting) shall remain outstanding but unvested until the three (3) month
anniversary of such termination. In the event a Change in Control occurs
during such three (3) month period, the unvested portion of the Option and RSU
shall become vested immediately prior to the occurrence of such Change of
Control in accordance with Section 10(a). The Option and RSU will be
subject to the terms and conditions of the 2009 Stock Option Plan and the form
of Stock Option and Restricted Stock Unit Agreements, as applicable, consistent
with terms consistent of this Agreement.
(d) Future Equity
Awards. Executive will be eligible to receive awards of stock
options, restricted stock or other equity awards covering shares of Company
common stock pursuant to any plans or arrangements the Company may have in
effect from time to time, including but not limited to any focal grants.
The Board or the Compensation Committee will determine in its discretion whether
Executive will be granted any such equity awards and the terms of any such award
in accordance with the terms of any applicable plan or arrangement that may be
in effect from time to time.
5. Other Benefits.
Executive shall be entitled to participate in Executive benefit plans and
programs of the Company, if any, on the same terms and conditions as other
similarly-situated employees to the extent that Executive’s position, tenure,
salary, age, health and other qualifications make Executive eligible to
participate in such plans or programs, subject to the rules and regulations
applicable thereto.
6. Vacations; Holidays, Sick
Days. Executive shall be entitled to annual paid vacation (which
shall be at least four (4) weeks per year), paid holidays, and paid sick leave
in accordance with the Company’s applicable policies, which may change from time
to time. In addition, Executive shall receive Company holidays in
accordance with the Company’s then current policies in effect from time to time
for its other senior executive officers. Vacation and sick-pay carry-over
from year to year and the other employee benefits offered by the Company shall
be subject to those limitations, if any, imposed under the Company’s standard
policies governing same.
7. Expenses. The
Company will reimburse Executive for standard business expenses pursuant to the
Company’s standard policies in effect from time to time. Executive shall
be reimbursed for business-class air fare for all flights in excess of one
hour. The Company will reimburse Executive, or directly pay, reasonable
attorney’s fees related to the negotiation and review of this Agreement and
related documentation up to a maximum of $10,000 provided Executive submits the
invoice for such attorney’s fees no later than February 12, 2011. The
Company shall reimburse the Executive for the attorney’s fees within thirty (30)
days after Executive submits the invoice for such attorney’s fees to the
Company, but in no event later than March 15, 2011.
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8. Definitions.
(a) Cause. “Cause”
shall mean (i) an act of material dishonesty made by Executive in
connection with Executive’s carrying out his job responsibilities to Company
intended to result in substantial personal enrichment of the Executive,
(ii) Executive’s conviction of, or plea of nolo contendre to a felony
which the Board reasonably believes had or will have a material detrimental
effect on the Company’s reputation or business, (iii) a willful act by the
Executive which constitutes gross misconduct and which is injurious to the
Company or its affiliates, (iv) Executive’s willful and material breach of this
Agreement, including without limitation his intentional failure to perform his
stated duties, and his continued failure to cure such breach to the reasonable
satisfaction of the Board within 10 days following written notice of such breach
to Executive from the Company, and (v) Executive’s material
violation of a Company policy that results in a material detrimental effect on
the Company’s reputation or business.
(b) Change of
Control. “Change of Control” means the occurrence of any of the
following:
(i) A
change in the ownership of the Company which occurs on the date that any one
person, or more than one person acting as a group (“Person”), acquires ownership
of the stock of the Company that, together with the stock held by such Person,
constitutes more than 50% of the total voting power of the stock of the Company;
provided, however, that for purposes of this subsection (i), the acquisition of
additional stock by any one Person, who is considered to own more than 50% of
the total voting power of the stock of the Company will not be considered a
Change of Control; or
(ii) A
change in the effective control of the Company which occurs on the date that a
majority of members of the Board (each, a “Director”) is replaced during any
twelve (12) month period by Directors whose appointment or election is not
endorsed by a majority of the members of the Board prior to the date of the
appointment or election. For purposes of this subsection (ii), if any
Person is considered to be in effective control of the Company, the acquisition
of additional control of the Company by the same Person will not be considered a
Change of Control; or
(iii) A
change in the ownership of a substantial portion of the Company’s assets which
occurs on the date that any Person acquires (or has acquired during the twelve
(12) month period ending on the date of the most recent acquisition by such
person or persons) assets from the Company that have a total gross fair market
value equal to or more than 50% of the total gross fair market value of all of
the assets of the Company immediately prior to such acquisition or acquisitions;
provided, however, that for purposes of this subsection (iii), the following
will not constitute a change in the ownership of a substantial portion of the
Company’s assets: (A) a transfer to an entity that is controlled by the
Company’s stockholders immediately after the transfer, or (B) a transfer of
assets by the Company to: (1) a stockholder of the Company (immediately before
the asset transfer) in exchange for or with respect to the Company’s stock, (2)
an entity, 50% or more of the total value or voting power of which is owned,
directly or indirectly, by the Company, (3) a Person, that owns, directly or
indirectly, 50% or more of the total value or voting power of all the
outstanding stock of the Company, or (4) an entity, at least 50% of the total
value or voting power of which is owned, directly or indirectly, by a Person
described in this subsection (iii)(B)(3). For purposes of this subsection
(iii), gross fair market value means the value of the assets of the Company, or
the value of the assets being disposed of, determined without regard to any
liabilities associated with such assets.
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For
purposes of this definition of Change of Control, persons will be considered to
be acting as a group if they are owners of a corporation that enters into a
merger, consolidation, purchase or acquisition of stock, or similar business
transaction with the Company.
Notwithstanding
the foregoing, a transaction will not be deemed a Change of Control unless the
transaction qualifies as a change in control event within the meaning of Code
Section 409A, as it has been and may be amended from time to time, and any
proposed or final Treasury Regulations and Internal Revenue Service guidance
that has been promulgated or may be promulgated thereunder from time to
time.
Further
and for the avoidance of doubt, the completion of an underwritten public
offering of the Company’s common stock will not constitute a Change of Control
and a transaction will not constitute a Change of Control if: (i) its sole
purpose is to change the state of the Company’s incorporation, or (ii) its
sole purpose is to create a holding company that will be owned in substantially
the same proportions by the persons who held the Company’s securities
immediately before such transaction. In addition, a transaction must
actually be consummated in order for there to be a Change of
Control.
(c) Disability.
“Disability” shall mean total and permanent disability as defined in
Section 22(e)(3) of the Internal Revenue Code.
(d) Good
Reason. “Good Reason” shall mean without Executive’s express
written consent (i) a significant reduction or adverse change in
Executive’s duties, position, reporting relationship or responsibilities, or the
removal of Executive from such duties, position or responsibilities; (ii) a
reduction by the Company in the Base Salary of Executive as in effect
immediately prior to such reduction unless (a) such reduction is part of a
salary reduction plan across the Company’s entire senior management team, (b)
such reduction does not have a disproportionate effect on Executive in
comparison to other members of the senior management team of the Company and (c)
such reduction is not in excess of 10% of Executive’s Base Salary; (iii) a
material reduction by the Company in the kind or level of benefits to which
Executive was entitled immediately prior to such reduction with the result that
Executive’s overall benefits package is significantly reduced disproportionally
to other members of senior management; (iv) a material breach by the Company of
a term of this Agreement or any other agreement between the Company and
Executive, including the failure of the Company to obtain assumption of this
Agreement by any successor; and (v) the relocation of Executive to a
facility or a location more than thirty-five (35) miles from Executive’s then
present employment location. In addition, Executive must provide written
notice to the Company of the existence of the one or more of the above
conditions within ninety (90) days of its initial existence and the Company must
be provided with thirty (30) days to cure the condition. If the condition
is not cured within such thirty (30) day period, the Executive must terminate
employment within thirty (30) days of the end of such cure period in order to
qualify as a termination for Good Reason.
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9. Severance
Benefits.
(a) Termination Following a
Change of Control. In the event Executive’s employment is
terminated as a result of either (i) termination by the Company without Cause or
(ii) termination by Executive for Good Reason during the period beginning
three (3) months prior to the consummation of a Change of Control and ending
eighteen (18) months following the consummation of a Change of Control (the
“Change in Control Severance Period”), then:
(1) Executive
will receive: (i) a lump-sum payment equal to the sum of twelve (12) months
of Executive’s then current Base Salary plus 100% of Executive’s full annual
bonus for the year of termination at target level for the year in which the
termination occurs (less applicable tax withholdings); (ii) 100%
Company-paid premiums paid for continued health, dental and vision benefits for
Executive (and any eligible dependents) under the Company’s health, dental and
vision plans until the earlier of (x) twelve (12) months, (provided Executive
validly elects to continue coverage under the Consolidated Omnibus Budget
Reconciliation Act (“COBRA”) or (y) the date upon which Executive and
Executive’s eligible dependents become covered under similar plans; and (iii)
any bonuses earned prior to the termination of employment but not yet paid
solely due to Company policy which shall be paid out at the earliest time as
would not give rise to additional taxation under Section 409A of the U.S.
Internal Revenue Code of 1986, as amended (the “Code”) and the final regulations
and any guidance promulgated under Section 409A, as each may be amended from
time to time (together, “Section 409A”);
(2) all
then unvested Company stock options, shares of the Company’s common stock
granted to or held by Executive under buy-back provisions under the Company’s
restricted stock, stock option and/or stock purchase or stock compensation plans
and any other equity compensation awards shall become immediately vested and
subject to exercise or, in the case of such shares as are subject to repurchase
by the Company for the purchase price paid, no longer subject to such
repurchase; and
(3) the
post-termination exercise period of all stock options shall expire on the
earlier of (i) the expiration of the term of the stock option and (ii) the
twelve (12) month anniversary of the termination date.
(b) Termination without Cause or
for Good Reason. In the event Executive’s employment is terminated
as a result of either (i) termination by the Company without Cause or
(ii) termination by Executive for Good Reason at any time other than during
the Change in Control Severance Period, then:
(1) Executive
will receive: (i) continuing payments of severance pay at a rate equal to
his Base Salary rate, as then in effect, for twelve (12) months from the date of
such termination in accordance with the Company’s normal payroll policies, (ii)
100% of Executive’s average actual annual bonus for the three-year period prior
to the year during which the termination occurs (less applicable tax
withholdings); (iii) 100% Company-paid premiums paid for continued health,
dental and vision benefits for Executive (and any eligible dependents) under the
Company’s health, dental and vision plans until the earlier of (x) twelve (12)
months, (provided Executive validly elects to continue coverage under COBRA) or
(y) the date upon which Executive and Executive’s eligible dependents become
covered under similar plans; and (iv) any bonuses earned prior to the
termination of employment but not yet paid solely due to Company policy which
shall be paid out at the earliest time as would not give rise to additional
taxation under Section 409A; and
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(2) Twelve
(12) months of accelerated vesting with respect to all then unvested Company
stock options, shares of the Company’s common stock granted to or held by
Executive under buy-back provisions under the Company’s restricted stock, stock
option and/or stock purchase or stock compensation plans and any other equity
compensation awards shall become immediately vested and subject to exercise or,
in the case of such shares as are subject to repurchase by the Company for the
purchase price paid, no longer subject to such repurchase
(c) Notwithstanding
the Sections 9(a)(1)(ii) and 9(b)(1)(iii), if the Company determines in its sole
discretion that it cannot provide the benefit without potentially violating
applicable law (including, without limitation, Section 2716 of the Public Health
Service Act), the Company will, in lieu thereof, provide to Executive a taxable
monthly payment in an amount equal to the monthly COBRA premium that Executive
would be required to pay to continue his group health coverage in effect on the
last date of employment with the Company (which amount will be based on the
premium for the first month of COBRA coverage), which will be made regardless of
whether Executive elects COBRA continuation coverage and will commence in the
month following the month in which the termination date occurs and will end at
the times COBRA reimbursements would have otherwise ended.
(d) All
benefits described in Sections 9(a) and 9(b) shall be contingent upon
Executive’s execution of a full release of claims against the Company in
substantially the form attached to this Agreement as Exhibit B (the
“Release”), the lapse of any statutory period for revocation of the Release, and
the Release becoming effective in accordance with its terms. In addition,
all payments payable pursuant to Sections 9(a)(1)(i) and 9(b)(1)(i) above shall
not be paid by the Company until the lapse of any statutory period for
revocation of the Release, and such release becoming effective in accordance
with its terms within fifty-two (52) days following the termination date.
Any severance payment to which Executive otherwise would have been entitled
during such fifty-two (52) day period shall be paid by the Company in full on
the fifty-third (53rd) day following Executive’s employment termination date or
such later date as is required to avoid the imposition of additional taxes under
Section 409A as set forth in Section 11. In addition, such benefits will
be subject to Executive continuing to comply with the terms of the
Confidentiality Agreement and the provisions of this Agreement.
(e) For
purposes of this Section 9, Base Salary shall mean Executive’s Base Salary
immediately prior to the termination date, or, if Executive resigned for Good
Reason as a result of a material reduction in his Base Salary, his Base Salary
as in effect immediately prior to such reduction. If Executive should die
before all amounts have been paid, such unpaid amounts shall be paid in a lump
sum payment (less any withholding taxes) to Executive’s designated beneficiary,
if living, or otherwise to the personal representative of Executive’s
estate.
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(f) Non-Renewal of
Agreement. In the event that the Company provides notice to
Executive pursuant to Section 3 to not extend the term of this Agreement (either
the initial term or any automatic one-year extensions thereof) and no new
employment agreement or arrangement is agreed upon by the Company and Executive
in writing prior to the expiration of this Agreement, then the non-renewal of
this Agreement will be treated as a material breach of this Agreement by the
Company for purposes of Section 8(d)(iv). If the Company provides notice
of non-renewal to Executive prior to a Change of Control and the primary purpose
of the Company providing such notice is to enter into a new written employment
agreement or arrangement with Executive, the parties agree to work in good faith
through, if necessary, the expiration of the Company’s cure period set forth in
Section 8(d), to come to terms and conditions that are market at that time,
including with respect to the amount of compensation to be provided to
Executive, and that are consistent with good corporate principles at that
time.
(g) No Duty to
Mitigate. Executive will not be required to mitigate the amount of
any payment contemplated by this Agreement, nor will any earnings that Executive
may receive from any other source reduce any such payment.
(h) Voluntary Resignation;
Termination for Cause Termination as a Result of Death or
Disability. If Executive’s employment with the Company is
terminated (i) voluntarily by Executive without Good Reason, (ii) for
Cause by the Company or (iii) as a result of Executive’s death or Disability,
then Executive will be entitled to the following: (a) unpaid Base Salary
accrued up to the effective date of termination; (b) unpaid, but earned and
accrued annual incentive for any completed fiscal year as of his termination of
employment; (c) pay for accrued but unused vacation; (d) benefits or
compensation as provided under the terms of any employee benefit and
compensation agreements or plans applicable to Executive; (e) unreimbursed
business expenses required to be reimbursed to Executive; (f) rights to
indemnification Executive may have under the Company’s Articles of
Incorporation, Bylaws, the Agreement, or separate indemnification agreement, as
applicable and (g) any amounts as may then be established under the Company’s
then existing written severance and benefits plans and practices or pursuant to
other written agreements with the Company. In addition, (i) all vesting
will terminate immediately with respect to Executive’s outstanding equity
awards, and (ii) all payments of compensation by the Company to Executive
hereunder will terminate immediately (except as to amounts already
earned).
10. Code Section 280G Best
Results. If any payment or benefit Executive would receive pursuant
to this Agreement or otherwise, including accelerated vesting of any equity
compensation (“Payment”) would (i) constitute a “parachute payment” within
the meaning of Section 280G of the Code, and (ii) but for this
sentence, be subject to the excise tax imposed by Section 4999 of the Code
(the “Excise Tax”), then such Payment shall be reduced to the Reduced
Amount. The “Reduced Amount” shall be either (x) the largest portion of
the Payment that would result in no portion of the Payment being subject to the
Excise Tax or (y) the largest portion, up to and including the total, of the
Payment, whichever amount, after taking into account all applicable federal,
state and local employment taxes, income taxes, and the Excise Tax (all computed
at the highest applicable marginal rate), results in Executive’s receipt, on an
after-tax basis, of the greater amount of the Payment notwithstanding that all
or some portion of the Payment may be subject to the Excise Tax. If a
reduction in payments or benefits constituting “parachute payments” is necessary
so that the Payment equals the Reduced Amount, reduction shall occur in the
following order: (A) cash payments shall be reduced first and in reverse
chronological order such that the cash payment owed on the latest date following
the occurrence of the event triggering such excise tax will be the first cash
payment to be reduced; (B) accelerated vesting of stock awards shall be
cancelled/reduced next and in the reverse order of the date of grant for such
stock awards (i.e., the vesting of the most recently granted stock awards will
be reduced first), with full-value awards reversed before any stock option or
stock appreciation rights are reduced; and (C) employee benefits shall be
reduced last and in reverse chronological order such that the benefit owed on
the latest date following the occurrence of the event triggering such excise tax
will be the first benefit to be reduced.
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The
Company shall appoint a nationally recognized accounting firm to make the
determinations required hereunder and perform the foregoing calculations.
The Company shall bear all expenses with respect to the determinations by such
accounting firm required to be made hereunder.
The
accounting firm engaged to make the determinations hereunder shall provide its
calculations, together with detailed supporting documentation, to the Company
and Executive within fifteen (15) calendar days after the date on which right to
a Payment is triggered (if requested at that time by the Company or Executive)
or such other time as requested by the Company or Executive. Any good
faith determinations of the accounting firm made hereunder shall be final,
binding and conclusive upon the Company and Executive
11. Section 409A.
Notwithstanding anything to the contrary in this Agreement, no Deferred
Compensation Separation Benefits payable under this Agreement will be considered
due or payable until and unless Executive has a “separation from service” within
the meaning of Section 409A. Notwithstanding anything to the contrary
in this Agreement, if Executive is a “specified employee” within the meaning of
Section 409A at the time of Executive’s “separation from service” other than due
to Executive’s death, then any severance benefits payable pursuant to this
Agreement and any other severance payments or separation benefits, that in each
case when considered together may be considered deferred compensation under
Section 409A (together, the “Deferred Compensation Separation Benefits”)
and are otherwise due to Executive on or within the six (6) month period
following Executive’s “separation from service” will accrue during such six (6)
month period and will instead become payable in a lump sum payment on the date
six (6) months and one (1) day following the date of Executive’s “separation
from service.” All subsequent Deferred Compensation Separation Benefits,
if any, will be payable in accordance with the payment schedule applicable to
each payment or benefit. Each payment and benefit payable under this
Agreement is intended to constitute separate payments for purposes of
Section 1.409A-2(b)(2) of the Treasury Regulations.
Notwithstanding
anything to the contrary in this Agreement, if Executive dies following his
“separation from service” but prior to the six (6) month anniversary of the date
of his “separation from service,” then any Deferred Compensation Separation
Benefits delayed in accordance with this Section will be payable in a lump sum
as soon as administratively practicable after the date of Executive’s death, but
not later than ninety (90) days after the date of Executive’s death, and all
other Deferred Compensation Separation Benefits will be payable in accordance
with the payment schedule applicable to each payment or
benefit.
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It is the
intent of this Agreement to comply with the requirements of Section 409A so that
none of the severance payments and benefits to be provided under this Agreement
will be subject to the additional tax imposed under Section 409A, and any
ambiguities in this Agreement will be interpreted to so comply. The
Company and Executive agree to work together in good faith to consider
amendments to this Agreement and to take such reasonable actions which are
necessary, appropriate or desirable to avoid imposition of any additional tax or
income recognition under Section 409A prior to actual payment to
Executive.
12. Proprietary Information and
Inventions Agreement. Executive confirms his continuing obligations
under the Proprietary Information and Inventions Agreement dated November 8,1999 (the “Confidentiality Agreement”).
13. No Conflict.
Executive represents and warrants that his employment by the Company as
described herein shall not conflict with and will not be constrained by any
prior employment or consulting agreement or relationship.
14. Miscellaneous.
(a) Governing Law.
This Agreement will be governed by the laws of the State of California (with the
exception of its conflict of law provisions).
(b) Assignment.
This Agreement and all rights hereunder shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
personal or legal representatives, executors, administrators, heirs,
distributees, devisees, legatees, successors and assigns. This Agreement
is personal in nature, and neither of the parties to this Agreement shall,
without the written consent of the other, assign or transfer this Agreement or
any right or obligation under this Agreement to any other person or entity;
except that the Company may assign this Agreement to any of its affiliates or
wholly-owned subsidiaries or to any successor-in-interest by virtue of a
reorganization, merger or other form of business combination, provided, that
such assignment will not relieve the Company of its obligations hereunder.
If Executive should die while any severance amounts are still payable to
Executive hereunder, all such amounts, unless otherwise provided herein, shall
be paid in accordance with the terms of this Agreement to Executive’s devisee,
legatee, or other designee or, if there be no such designee, to Executive’s
estate.
(c) Notices. All
notices, requests, demands and other communications called for hereunder will be
in writing and will be deemed given (a) on the date of delivery if
delivered personally; (b) one (1) day after being sent overnight by a
well-established commercial overnight service, or (c) four (4) days after
being mailed by registered or certified mail, return receipt requested, prepaid
and addressed to the parties or their successors at the following addresses, or
at such other addresses as the parties may later designate in
writing:
at the
last residential address known by the Company
(d) Severability. In
the event that any provision hereof becomes or is declared by a court of
competent jurisdiction to be illegal, unenforceable or void, this Agreement will
continue in full force and effect without said provision.
(e) Integration. This
Agreement represents the entire agreement and understanding between the parties
as to the subject matter herein and supersedes all prior or contemporaneous
agreements whether written or oral. No waiver, alteration, or
modification of any of the provisions of this Agreement will be binding unless
in writing and signed by the Company and Executive.
(f) Arbitration. Any
dispute or controversy arising out of or relating to any interpretation,
construction, performance or breach of this agreement or the Confidentiality
Agreement, will be settled by arbitration pursuant to the arbitration provisions
set forth in the Confidentiality Agreement.
(g) Headings. All
captions and section headings used in this Agreement are for convenient
reference only and do not form a part of this Agreement.
(h) Counterparts. This
Agreement may be executed in counterparts, PDF or facsimile, each an original
and each having the same force and effect as an original and shall constitute an
effective, binding agreement on the part of each of the
undersigned.
-11-
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 first above
written.
