AMENDED AND RESTATED CHANGE OF
CONTROL AGREEMENT
This Amended and
Restated Change of Control Agreement (this
“Agreement”), dated as of
, 2009 (the “Effective Date”), is by and between SPSS
Inc., a Delaware corporation having its principal offices at 233
South Wacker Drive, Chicago, Illinois 60606 (“SPSS” or
the “Company”), and
, a senior management employee of SPSS (the
“Employee”).
WHEREAS, the
Company and the Employee are parties to that certain Change of
Control Agreement dated
, 2007 (the “Current Agreement”) and
WHEREAS, it is now
desirable to amend the Current Agreement to reflect clarifying
changes to conform to changes in the Company’s incentive plan
and to make certain other technical and conforming
changes;
NOW, THEREFORE, in
consideration of the foregoing, the mutual covenants and conditions
contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties hereto mutually agree as follows:
1. Certain
Defined Terms.
(a) The term
“Change of Control,” as used herein, shall mean any one
or more of the following:
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(i)
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the
accumulation, by any individual, entity or group (within the
meaning of Section 13(d) (3) or 14(d) (2) of the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) of thirty three percent (33%) or more of the then
outstanding common stock of SPSS;
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(ii)
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a
merger or consolidation of SPSS in which SPSS does not survive as
an independent public company;
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(iii)
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a
sale of all or substantially all of the assets of SPSS;
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(iv)
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a
triggering event under that certain Rights Agreement, dated as of
June 18, 2008, between SPSS, Computershare Trust Company,
N.A., as Rights Agent and Computershare Investor Services, L.L.C.,
as Transfer Agent, or any amendment, restatement or replacement
thereof;
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(v)
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a
liquidation or dissolution of SPSS; or
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(vi)
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a
change in the composition of the Board of Directors of SPSS (the
“Board”) not previously endorsed by the Board existing
as of the Effective Date or the directors’ endorsed
successors, as a result of which fewer than a majority of the
directors are Incumbent Directors (“Incumbent
Directors” are directors who either (A) are directors of
SPSS
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as of the
Effective Date, or (B) are nominated for election to the Board
by the Nominating and Corporate Governance Committee and endorsed
by the Board existing as of the Effective Date or the
directors’ endorsed successors).
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Notwithstanding
the foregoing, the following acquisitions shall not constitute a
Change of Control for the purposes of this Agreement: (I) any
acquisitions of common stock or securities convertible into common
stock directly from SPSS, or (II) any acquisition of common
stock or securities convertible into common stock by any employee
benefit plan (or related trust) sponsored or maintained by
SPSS.
(b) “Constructive
Termination,” as used herein, shall mean any of the following
events:
(i) a material
reduction in the Employee’s base compensation or annual
incentive cash target as in effect immediately prior to the
Employee’s termination of employment, which reduction occurs
on or after the Change of Control Effective Date and prior to the
second anniversary date of the Change of Control Effective Date;
or
(ii) any action
taken by the Company or the Surviving Entity (as defined herein)
following a Change of Control, for a reason other than Good Cause,
which results in a material diminution of the Employee’s job
assignment, duties, responsibilities, or reporting relationships
which is inconsistent with his position with SPSS as it existed
immediately prior to the Change of Control Effective Date;
or
(iii) a change in
the Employee’s principal assigned location of employment by
more than fifty (50) miles from the Employee’s principal
assigned location of employment on the Effective Date (as the same
may be changed prior to the Change in Control Effective Date with
the Employee’s consent), which change in assigned location
the Company has determined would constitute a material change in
the geographic location at which the Employee is required to
provide his duties.
The
Employee’s termination of employment shall not be treated as
a Constructive Termination unless (A) within ninety
(90) days after the initial occurrence of the applicable event
that is purported to give rise to a basis for a termination on
account of Constructive Termination, the Employee provides written
notice of the occurrence of such event to the Company (or the
Surviving Entity), (B) such event is not cured within thirty
(30) days after the date of the written notice from the
Employee to the Company (or the Surviving Entity), and (C) the
Employee terminates employment no later than sixty (60) days
after the expiration of the applicable cure period. Notwithstanding
the foregoing, if the event giving rise to a Constructive
Termination occurs during the thirty (30) day period
immediately preceding the second anniversary date of the Change of
Control Effective Date and if the requirements set forth in the
preceding sentence are otherwise satisfied, then the
Employee’s termination of employment shall be treated as a
Constructive Termination occurring prior to the such second
anniversary even though the Employee’s actual termination of
employment does not occur within the twenty four (24) months
immediately following the Change of Control Effective
Date.
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(c) “Change
of Control Effective Date,” as used herein, shall mean the
date on which a Change of Control becomes effective.
(d) “Good
Cause,” as used herein, shall mean:
(i) the
Employee’s willful and continued failure to substantially
perform his duties for the Company (other than any such failure
resulting from the Employee’s disability) which is not cured
within a reasonable period (not exceeding thirty (30) days)
following the date on which the Company provides to the Employee
written notice which specifies the event or behavior that forms the
Company’s basis for a Good Cause termination;
(ii) the
Employee’s willful engagement in conduct which is
demonstrably and materially injurious to the Company or its
reputation, monetarily or otherwise;
(iii) the
Employee’s engagement in fraud, theft or
embezzlement;
(iv) the
Employee’s conviction of, or the Employee’s entry of a
plea of nolo contendre to, a felony (determined under
applicable state law); or
(v) the
Employee’s illegal use of a controlled substance.
For purposes of
clauses (i) and (ii) above under this definition of Good
Cause, no act, or failure to act, on the part of the Employee shall
be deemed “willful” unless done, or omitted to be done,
by the Employee not in goo
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