Exhibit 10.28
CRYSTAL DECISIONS, INC.
MANAGEMENT RETENTION AGREEMENT
This Management Retention Agreement (the "Agreement") is made and entered
into effective as of September 26, 2003 (the "Effective Date"), by and between
▇▇▇▇ ▇▇▇▇▇ ("Employee"), Crystal Decisions, Inc., a Delaware corporation (the
"Company"), and Seagate Software (Cayman) Holdings ("Holding Company");
provided, however, that Employee shall not be eligible for, or entitled to
receive, the Excess Benefits provided herein, unless the requisite stockholder
approval is obtained pursuant to Section 6 hereof. Certain capitalized terms
used in this Agreement are defined in Section 1 hereof.
1. Definition of Terms. The following terms referred to in this Agreement
shall have the following meanings:
(a) Cause. "Cause" shall have the meaning given to it by the common
law of the Province of British Columbia.
(b) Change of Control. "Change of Control" shall mean the occurrence
of any of the following events:
(i) the consummation of a merger or consolidation of the
Company with any other corporation, 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) more 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;
(ii) the approval by the stockholders of the Company of a plan
of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's assets;
(iii) any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Act")) becoming
the "beneficial owner" (as defined in Rule 13d-3 under the Act), directly or
indirectly, of securities of the Company representing 50% or more of the total
voting power represented by the Company's then outstanding voting securities; or
(iv) a change in the composition of the Board of Directors of
the Company (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 date hereof, or (B) are
elected, or nominated for election, to the Board with the affirmative votes of
at least a majority of those directors whose election or nomination was not in
connection with any transactions described in subsections (i), (ii), or (iii) or
in connection with an actual or threatened proxy contest relating to the
election of directors of the Company.
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(c) Good Reason. "Good Reason" shall mean, without Employee's
express written consent: (i) a significant reduction of any of Employee's
duties, position (not including title) or responsibilities relative to
Employee's duties, position or responsibilities in effect immediately prior to
such reduction; provided, however, that a reduction of duties, position or
responsibilities solely by virtue of the Company being acquired and made part of
a larger entity (as for example, when the Chief Financial Officer of the Company
remains as such following a Change of Control and is not made the Chief
Financial Officer of the acquiring corporation) shall not constitute grounds for
a termination for Good Reason; (ii) a reduction by the Company of Employee's
base salary or target bonus opportunity as in effect immediately prior to such
reduction (other than pursuant to a proportional reduction applying to all
senior executives of the Company); (iii) a material reduction by the Company in
the kind or level of employee benefits to which Employee is entitled immediately
prior to such reduction with the result that Employee's overall benefits package
is significantly reduced (other than pursuant to a proportional reduction
applying to all senior executives of the Company); (iv) the relocation of
Employee's principal place of employment to a place outside of the ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇; or (v) any action that would constitute
constructive dismissal under the common law of British Columbia. Unless waived
by the Company, Employee shall provide Company with thirty (30) days' written
notice and an opportunity to cure with respect to any curable grounds for Good
Reason termination. Notwithstanding the foregoing, the Employee's written
consent to any changes to his terms of employment following completion of the
Merger Agreement shall not constitute a waiver of the Employee's right to
assert, at any time during the term of this Agreement, that such change from the
terms of his employment at the time of signature of the Merger Agreement
constitutes Good Reason.
(d) Merger Agreement. "Merger Agreement" shall mean that certain
Agreement and Plan of Merger, dated as of July 18, 2003, by and among Business
Objects S.A., Borg Merger Sub I, Inc., Business Objects Americas, Inc. (as
assignee of Borg Merger Sub II, Inc.), Borg Merger Sub III, Inc., Seagate
Software (Cayman) Holdings Corporation and Crystal Decisions, Inc.
(e) Termination Date. Except as provided in Section 8(b) hereof,
"Termination Date" shall mean the date thirty (30) days following any notice of
termination delivered by one party to the other hereunder.
2. Term of Agreement. This Agreement shall expire and be of no force or
effect upon the date that all obligations of the parties hereto under this
Agreement have been satisfied or, if earlier, on the earliest to occur of the
following: (a) the termination of Employee's employment with the Company for any
reason prior to the occurrence of a Change of Control; (b) the first anniversary
of the occurrence of a Change of Control; or (c) the termination of Employee's
employment with the Company by the Employee other than for Good Reason, except
pursuant to Section 5(c) hereof, or by the Company for Cause.
3. Employment Term. The Company and Employee acknowledge that Employee's
employment shall continue for a period of three (3) months following a Change of
Control ("Employment Term"); provided, however, the Company may terminate
Employee's employment for Cause, and Employee may terminate his employment for
Good Reason, at any time during the Employment Term. Subject to Section 5
hereof, if Employee's employment terminates due to a Change of Control or Good
Reason, Employee shall not be entitled to any payments, benefits,
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damages, awards or compensation other than as provided by this Agreement, or as
may otherwise be established under the Company's then existing employee benefit
plans at the time of termination.
4. Options.
(a) Acceleration Upon a Change of Control. Upon the occurrence of a
Change of Control, fifty percent (50%) of all unvested options held pursuant to
each option grant by the Company to Employee that is outstanding as of July 18,
2003 (the "Options") shall become vested and exercisable upon a Change of
Control. Subject to Section 5 hereof, if Employee continues to be employed by
the Company or any successor thereto following the Change of Control until the
first anniversary of the Change of Control, then the remaining fifty percent
(50%) of the Options shall become vested and exercisable as of that one year
anniversary.
(b) Exercisability of Options Prior to Change of Control. Employee
acknowledges and agrees that, for the period of time commencing on the date
hereof until the earlier of (1) the Effective Time (as defined in the Merger
Agreement) and (2) the termination of the Merger Agreement, Employee shall not
exercise, transfer or otherwise dispose of Employee's options to purchase
Company stock granted under the 1999 Stock Option Plan, including any subplan
thereto, or any other options agreement between Employee and the Company.
5. Severance Benefits.
(a) Termination for Good Reason or Without Cause. If Employee
terminates his employment for Good Reason or if the Company terminates the
Employee's employment other than for Cause at any time within twelve (12) months
after a Change of Control and Employee signs and does not revoke a release of
claims agreement, in a form acceptable to the Company, then Employee shall be
entitled to the following severance benefits:
(i) twelve (12) months of Employee's base salary, Company RRSP
contribution and target bonus as in effect as of the Termination Date, less all
applicable withholding, payable in a lump sum within thirty (30) days of the
Termination Date, provided, however, such amount shall be increased to eighteen
(18) months of Employee's base salary, Company RRSP contribution and target
bonus as in effect as of the date of termination if Employee enters into a
non-compete and non-solicitation agreement with the Company (the material terms
of which are set forth in Schedule A attached hereto);
(ii) any outstanding unvested Options shall become fully
vested and exercisable as of the Termination Date. Employee shall be entitled to
a post-termination exercise period of ninety (90) days from his Termination Date
for any outstanding and unexercised options without regard to whether Employee
continues thereafter to receive any severance benefits as described in this
Agreement; provided however, in no event may Employee exercise any option after
the expiration date provided in the applicable option agreement;
(iii) Company-paid group health, vision, group life insurance,
legal expenses in relation to Employee's application for landed immigrant status
and dental coverage and benefits at the same level of coverage as in effect for
Employee on the day immediately preceding the Termination Date ("Company-Paid
Coverage"). Employee's dependents shall be covered to the
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same extent they were covered immediately prior to the Termination Date. In
respect of the Employee's eldest daughter, Company shall continue to pay her
private medical insurance premiums and to pay non-insured medical costs up to a
maximum of US$1,500 in any 12 month period. Company-Paid Coverage shall continue
until the earlier of (i) twelve (12) months from the Termination Date, or (ii)
the date upon which Employee and his dependents become covered under another
employer's group health, vision and dental plans; provided, however, such period
of coverage shall be increased to eighteen (18) months if the Employee enters
into a non-compete and non-solicitation agreement with the Company (the material
terms of which are set forth in Schedule A attached hereto); and
(iv) Company reimbursement of reasonable expenses of up to
five thousand dollars ($5,000) for individual executive outplacement services
performed for Employee following Employee's Termination Date, to the extent
Employee satisfies the Company's policies for reimbursement of expenses,
(collectively, the "Agreement Severance").
Notwithstanding the foregoing, Employee agrees and acknowledges that in
the event that Employee is terminated pursuant to Section 5(a) hereof, any
payments and benefits that Employee is entitled to receive under this Agreement
shall be offset and reduced by any severance payment or other benefit that
Employee is otherwise entitled to receive pursuant to any applicable law,
severance plan, policy, program, agreement or arrangement of the Company or
otherwise.
(b) Termination Without Good Reason or For Cause. If the Employee
terminates his employment other than for Good Reason or the Company terminates
the Employee's employment for Cause, then Employee shall not be entitled to
receive any of the severance or any other benefits provided hereunder.
(c) Maintaining Employment Status. In the event the Company wishes
to terminate Employee's employment without cause hereunder before Employee has
been granted Canadian landed immigrant status, at Employee's request, Employee
and Company shall use best efforts to agree on legally permissible arrangements
whereby Employee maintains his employment status while receiving compensation
constituting the Agreement Severance.
(d) Accrued Wages and Vacation; Expenses. Without regard to the
reason for, or the timing of, Employee's termination of employment: (i) the
Company shall pay Employee any due and unpaid base salary for periods prior to
the Termination Date; (ii) the Company shall pay Employee all of Employee's due
and accrued unused vacation through the Termination Date; and (iii) following
submission of proper expense reports by Employee, the Company shall reimburse
Employee for all expenses reasonably and necessarily incurred by Employee in
connection with the business of the Company prior to the Termination Date. These
payments shall be made promptly upon termination and within the period of time
mandated by law.
6. 280G Stockholder Vote.
(a) Requisite Approval. Notwithstanding anything in this Agreement
to the contrary, Employee shall not be eligible for, or entitled to receive, any
payments, benefits, or other
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rights that Employee would otherwise possess under this Agreement to the extent
such amounts, together with any other payments, benefits or rights Employee is
eligible to receive in connection with a change of control within the meaning of
Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") (a
"Statutory Change of Control"), would exceed 2.99 times his "base amount," as
such term is defined in Section 280G of the Code and the proposed Treasury
Regulations thereunder (the "Excess Benefits"), unless requisite stockholder
approval is obtained prior to the Statutory Change of Control to exempt such
Excess Benefits from the application of Section 280G of the Code, in accordance
with the requirements of Section 280G(b)(5)(B) of the Code and proposed Treasury
Regulation Section 1.280G-1, Q&A7. Accordingly, unless such requisite
stockholder approval is obtained prior to the consummation of a Statutory Change
of Control, Employee shall not be eligible for or entitled to receive the Excess
Benefits.
(b) Company and Holding Company Representation. The Company and
Holding Company hereby covenant and agree that they will forthwith submit to the
stockholders of the Company and the shareholders of Holding Company for a
separate vote a proposal to approve, in compliance with the requirements of
Section 280G(b)(5)(B) of the Code and proposed Treasury Regulation Section
1.280G-1, Q&A7, Employee's conditional right to receive the Excess Benefits.
Holding Company agrees to vote its shares in the Company in favour of such
proposal.
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) to all or substantially all of the Company's business
and/or assets shall assume the Company's obligations under this Agreement and
agree expressly to perform the Company's 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) or which becomes bound by the terms of this
Agreement by operation of law. Without in any way limiting the rights of the
Company to assign this Agreement, it is expressly understood and agreed that the
Company shall have the right to assign this Agreement to any other entity to
which the business of the Company is transferred in whole or in part whether or
not it results in a change of control and which thereafter carries on business
of the Company.
(b) Employee's Successors. Without the written consent of the
Company, Employee shall not assign or transfer this Agreement or any right or
obligation under this Agreement to any other person or entity. Notwithstanding
the foregoing, the terms of this Agreement and all rights of Employee hereunder
shall inure to the benefit of, and be enforceable by, Employee's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
8. Notices.
(a) General. Any notice provided for by this Agreement shall be in writing and
shall be properly served on the Employee if served upon him personally or if
left at or sent by registered mail addressed to him at his last known
residential address or to any other address known
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to the Company as then being his residence, and on the Company if sent by
registered mail to its registered office.
(b) Notice of Termination. Any termination by the Company for Cause
or by Employee for Good Reason shall be communicated by a notice of termination
to the other party hereto given in accordance with this Section. 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,
notwithstanding Section 1(e) hereof, shall specify the Termination Date. The
failure by Employee to include in the notice any fact or circumstance which
contributes to a showing of termination for Good Reason shall not waive any
right of Employee hereunder or preclude Employee from asserting such fact or
circumstance in enforcing his rights hereunder.
9. Arbitration.
(a) Any dispute or controversy arising out of, relating to, or in
connection with this Agreement, or the interpretation, validity, construction,
performance, breach, or termination thereof, may be settled by binding
arbitration before a single arbitrator to be held in Vancouver, British Columbia
in accordance with the Domestic Rules of the British Columbia International
Commercial Arbitration Centre (the "Rules"). The arbitrator may grant
injunctions or other relief in such dispute or controversy.
(b) The arbitrator shall apply British Columbia law to the merits of
any dispute or claim, without reference to conflicts of law rules. The
arbitration proceedings shall be governed by the arbitration law of British
Columbia and by the Rules. Employee and the Company hereby consent to the
personal jurisdiction of the courts of British Columbia for any action or
proceeding arising from or relating to this Agreement or relating to any
arbitration in which the parties are participants.
10. Legal Advice. Employee acknowledges that he has reviewed this
Agreement thoroughly, that he has read and understood the terms of this
Agreement, that the Company has recommended that he obtain independent legal
advice before execution of this Agreement and that by executing this Agreement,
the Employee represents that he did obtain independent legal advice.
11. Miscellaneous Provisions.
(a) No Duty to Mitigate. Employee 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 Employee may receive from any other
source, except as set forth in Section 5(a)(iii) hereof.
(b) Waiver. No provision of this Agreement may be modified, waived
or discharged unless the modification, waiver or discharge is agreed to in
writing and signed by Employee and by an authorized officer of the Company
(other than Employee). 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.
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(c) Integration. This Agreement, the Confidential Information and
Invention Assignment Agreement and any stock options or stock option agreements
outstanding on the date hereof or referenced herein represent the entire
agreement and understanding between the parties as to the subject matter herein
and supersede all prior or contemporaneous agreements, whether written or oral,
with respect to this Agreement and any stock option agreement. To the extent of
any conflict between this Agreement and any other agreement between the Employee
and the Company, this Agreement shall prevail.
(d) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the internal substantive
laws, but not the conflicts of law rules, of British Columbia.
(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) Employment Taxes. All payments made pursuant to this Agreement
shall be subject to withholding of applicable income tax and other deductions
required by statute.
(g) 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.
(h) Confidential Information and Invention Assignment Agreement.
Employee acknowledges and agrees that his Confidential Information and Invention
Assignment Agreement shall remain in full force and effect and that the
consideration provided in this Agreement is valid consideration for the ongoing
enforceability of the Confidential Information and Invention Assignment
Agreement.
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.
CRYSTAL DECISIONS, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: President & CEO
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Date: September 26, 2003
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SEAGATE SOFTWARE (CAYMAN) HOLDINGS
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Chairman & CEO
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Date: September 22, 2003
EMPLOYEE
/s/ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇
Date: September __, 2003
SCHEDULE A
MATERIAL TERMS OF NON-COMPETE AGREEMENT
(A) NON-COMPETE: Employee acknowledges and agrees that during his
employment with the Company he will have access to the Company's sensitive,
confidential, and proprietary information, data, technology, business plans,
customer and vendor information, and trade secrets which would afford him an
unfair advantage if he were to compete against the Company. Therefore, Employee
agrees that during the term of this Non-Compete and Non-Solicitation Agreement
and for a period of twelve (12) months following termination of employment for
any reason, Employee will not directly or indirectly, alone or as a partner,
officer, director, lender, shareholder, employee, or consultant of any other
person, firm or entity, render any services, whether paid or unpaid, in Canada
or the United States for the following organizations: Actuate Corporation, Brio
Software, Inc., Cognos, Inc., MicroStrategy, Inc., Hummingbird Ltd., SAS,
Informatica Corporation, Ascential Software Corporation, Microsoft Corporation,
the Business Warehouse Group of SAP, Siebel Systems, Inc. with respect to
business intelligence software or services only, and Oracle Corporation with
respect to business intelligence software or services only (collectively, the
"Competing Companies"). For purposes of this clause, "shareholder" shall not
include beneficial ownership of less than five percent (5%) of the combined
voting power of all issued and outstanding voting securities of a publicly held
Company whose stock is traded on a generally recognized stock exchange.
(B) NON-SOLICITATION OF EMPLOYEES: Employee acknowledges and agrees that
the Company's workforce constitutes an important and vital aspect of its
business on a world-wide basis. Therefore, Employee agrees that for a period of
twelve (12) months following the termination of this Non-Compete and
Non-Solicitation Agreement for any reason, Employee shall not solicit or induce,
or assist anyone else in the solicitation or inducement of, any of the Company's
then current employees to terminate their employment with the Company and to
become employed by or associated with any other business enterprise.
(C) NON-SOLICITATION OF CLIENTS: In the event Employee provides services
for one of the Competing Companies or any entity that is in the business of
manufacturing, producing, or providing business intelligence software or
services, then for twelve (12) months following termination of employment for
any reason, Employee shall not use his knowledge of the business requirements
of, or canvass, or by any other means seek or solicit business or orders for
business intelligence software or services from any person or entity who is or
has been at any time during the eighteen (18) months preceding Employee's
termination, a client or customer of the Company or any person, firm or
corporation in the habit of dealing with the Company.
(D) BLUE PENCIL: The words making up this Non-Compete and Non-Solicitation
Agreement are severable, and without limiting the generality of the foregoing,
if any of the capacities, activities, periods of time or geographic areas
specified in this Agreement are considered by a court of competent jurisdiction
as being unreasonable, void or unenforceable, the parties hereto agree that such
court shall be authorized to and is hereby requested and directed to limit such
capacities, activities, periods of time or geographic areas to such capacities,
activities, periods of time or geographic areas as the court considers
reasonable and enforceable in the circumstances (any
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such determination as to a particular element is individually referred to as a
"Replacement Term"). Where the court specifies one or more Replacement Terms,
such term or terms shall automatically replace the corresponding term or terms
set forth herein and be binding upon the parties to the same extent as if
originally set forth herein.