Exhibit 10.23
AMENDMENT NO. 1
TO
CHANGE IN CONTROL
AGREEMENT
This Amendment No. 1 (this
“ Amendment ”), effective as of
December 31, 2008, is made by and between Serena Software,
Inc., a Delaware corporation (the “ Company ”)
and
(“ Executive ”).
WHEREAS, the Company and Executive are parties to a
change in control agreement dated as of
(the “ Change in Control Agreement
”);
WHEREAS , the Company and Executive desire to amend the
Change in Control Agreement in order to ensure compliance with
Section 409A of the Internal Revenue Code of 1986, as
amended;
NOW, THEREFORE,
in consideration of the promises and
mutual agreements herein contained, the Company and Executive
hereby agree as follows:
1. Amendment to
Section 2(a) . The Change in Control Agreement shall
hereby be amended by adding the following proviso to the end of
Section 2(a):
“; provided that the first
payment shall be made on the fiftieth (50th) day following the
Termination Date and shall include any amounts that would have
otherwise been due prior to such fiftieth
(50th) day.”
2. Amendment to
Section 2(b) . The Change in Control Agreement shall
hereby be amended by deleting clause (1) of Section 2(b)
and replacing it with the following:
“(1) a
prorated portion of Executive’s Target Bonus based on the
number of days that Executive has been employed by Serena (or any
of its affiliate and/or the successor company of Serena or such
successor company’s affiliate, if applicable) during the
fiscal year in which the Termination Date occurs, which amount
shall be paid in lump sum on the fiftieth (50
th
) day following
the Termination Date, whether or not the performance goals or
objectives upon which such bonus might otherwise be contingent are
attained; and”
3. Amendment to
Section 2(e) . The Change in Control Agreement shall
hereby be amended by deleting clause (1) of Section 2(e)
and replacing it with the following:
“(1) Executive shall execute
and deliver (and not subsequently revoke) to Serena (or a successor
company, as applicable) a general waiver and release, in
substantially the form attached hereto as Exhibit B, within
forty-five (45) days following the Termination Date (and which
general release shall be delivered to Executive within five
(5) days following the Termination Date);”
4. A
