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Exhibit
10.1
EMBARCADERO TECHNOLOGIES,
INC.
CHANGE OF CONTROL
POLICY
This Change of Control Policy
of Embarcadero Technologies, Inc., a Delaware corporation (the
“ Company ”) is effective as of February 7,
2007.
POLICY
GOALS
A. It is expected that the
Company from time to time will consider the possibility of an
acquisition by another company or other change of control
transaction. The Board of Directors of the Company (the “
Board ”) recognizes that such consideration can be a
distraction to officers of the Company and can cause these
individuals to consider alternative employment opportunities. The
Board has determined that it is in the best interests of the
Company and its stockholders to assure that the Company will have
the continued dedication and objectivity of its officers,
notwithstanding the possibility, threat or occurrence of a Change
of Control (as defined below) of the Company.
B. Accordingly, the Board
believes that it is in the best interests of the Company and its
stockholders to provide officers with an incentive to continue
their employment and to motivate such individuals to maximize the
value of the Company upon a Change of Control for the benefit of
its stockholders by providing them with certain benefits upon a
Change of Control that provide them with enhanced financial
security and incentive notwithstanding the possibility or
occurrence of a Change of Control.
POLICY
1. Eligibility . This
Policy shall be applicable to each individual who is an employee of
the Company holding any of the following positions: (i) Chief
Executive Officer, (ii) Chief Financial Officer,
(iii) Chief Technology Officer, (iv) Vice President of
Marketing, (v) Vice President of Product Management, and
(vi) Vice President of Sales, in each case, as of the
effective date of a Change of Control (each, an “
Officer ”); provided , however , that
the terms of this Policy will not apply to any Officer who is or
becomes party to one or more agreements with the Company, other
than an agreement which merely reflects the terms of a Company
stock plan under which the Officer has received awards, which
provides for specified benefits to the Officer upon or in
connection with a Change of Control. In order to become eligible to
receive benefits under this Policy, each Officer must execute the
acknowledgment provided below. Once acknowledged, the terms of this
Policy shall constitute the entire agreement between the Officer
and the Company as to the subject matter covered by the Policy and
such terms may thereafter be amended only by a written agreement
signed by the Officer and, following approval by the Board or an
authorized Committee thereof, a duly authorized officer of the
Company.
2. No Right to
Employment . Nothing in this Policy shall confer upon any
Officer any right to continue in the employ of, or other
relationship with, the Company or any of its affiliates, or limit
in any way the right of the Company or any of its affiliates to
terminate such Officer’s employment or other relationship at
any time, with or without cause. Nothing in this Policy shall give
any Officer any benefits whatsoever in the event the
Officer’s employment terminates in a manner that is not in
connection with a Change of Control.
1
3. Separation Benefits
Upon Change of Control Termination . In the event that an
Officer experiences a Change of Control Termination (as defined
below), then subject to Sections 3(d) and 4 below, the Officer will
be entitled to the following benefits:
(a) Cash Benefits. The
Company will continue to pay the Officer’s then-current base
salary for the Applicable Period (as defined below) following the
effective date of the release referred to in Section 3(d)
below, in accordance with the Company’s normal payroll
schedule;
(b) Vesting
Acceleration . The remaining unvested portion of any stock
options or shares of restricted stock held by the Officer as of the
effective date of the Change of Control Termination shall
automatically be accelerated so as to become completely vested and
exercisable (and any such right of repurchase or forfeiture
provision shall lapse in full) as of the effective date of the
Change of Control Termination; and
(c) Health Benefits .
If the Officer timely elects continued health insurance coverage
under COBRA, the Company will reimburse the Officer for premium
payments sufficient to continue such Officer’s group health
insurance coverage at the level in effect as of the effective date
of the Change of Control Termination (including dependent coverage,
if any) for the lesser of (i) the Applicable Period following
the Change of Control Termination or (ii) the date that the
Officer becomes eligible for group health insurance benefits
through another employer.
(d) Conditions to Payment
of Benefits . Notwithstanding anything else to the contrary
contained herein, no Officer shall be entitled to payment of any
benefits provided under this Section 3 or otherwise under this
Policy unless and until the Company (or its successor) shall have
received from the Officer an effective release (a “
Release ”) releasing the Company (or its successor)
from any and all claims such Officer may h
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