|
EXHIBIT 10.15
SALESFORCE.COM, INC.
CHANGE OF CONTROL AND RETENTION AGREEMENT
This Change of Control and Retention Agreement (the "Agreement")
is made and entered into by and between
(the "Executive") and salesforce.com, inc. (the "Company"),
effective as of January 15, 2007 (the "Effective Date").
RECITALS
1. It is possible that the Company may from time to time receive
acquisition proposals by other companies. The Board of Directors of
the Company (the "Board") recognizes that consideration of any such
proposals can be a distraction to the Executive and can cause the
Executive 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 the Executive,
notwithstanding the possibility, threat or occurrence of a Change
of Control (as defined herein) of the Company.
2. The Board believes that it is in the best interests of the
Company and its stockholders to provide the Executive with an
incentive to continue his or her employment and to motivate the
Executive to maximize the value of the Company upon a Change of
Control for the benefit of its stockholders.
3. The Board believes that it is imperative to provide the
Executive with certain benefits upon the Executive’s
termination of employment following a Change of Control. These
benefits will provide the Executive with enhanced financial
security and incentive and encouragement to remain with the Company
notwithstanding the possibility of a Change of Control.
4. Certain capitalized terms used in the Agreement are defined
in Section 5 below.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, the parties hereto agree as follows:
1. Term of Agreement . This Agreement shall terminate
upon the date that all of the obligations of the parties hereto
with respect to this Agreement have been satisfied.
2. At-Will Employment . The Company and the Executive
acknowledge that the Executive’s employment is and shall
continue to be at-will, as defined under applicable law, except as
may otherwise be specifically provided under the terms of any
written formal employment agreement or offer letter between the
Company and the Executive (an "Employment Agreement"). If the
Executive’s employment terminates for any reason, including
(without limitation) any termination prior to a Change of Control,
the Executive shall not be entitled to any payments, benefits,
damages, awards or compensation other than as provided by this
Agreement or under his or her Employment Agreement, or as may
otherwise be available in accordance with the Company’s
established employee plans.
3. Severance Benefits .
(a) Involuntary Termination Other than for Cause or Voluntary
Termination for Good Reason During the Change of Control Period
. If within the period commencing three months prior to a Change of
Control and ending eighteen (18) months following a Change of
Control (the "Change of Control Period") (i) the Executive
terminates his or her employment with the Company (or any parent or
subsidiary of the Company) for "Good Reason" (as defined herein) or
(ii) the Company (or any parent or subsidiary of the Company)
terminates the Executive’s employment for other than "Cause"
(as defined herein), and the Executive signs and does not revoke a
standard release of claims with the Company in a form substantially
similar to that attached hereto as Exhibit A , then the
Executive shall receive the following severance benefits from the
Company:
(i) Severance Payment . The Executive shall receive a
lump-sum severance payment (less applicable withholding taxes)
equal to one hundred and fifty percent (150%) of the
Executive’s annual base salary (as in effect immediately
prior to (A) the Change of Control, or (B) the
Executive’s termination, whichever is greater) plus one
hundred and fifty percent (150%) of the Executive’s
target bonus for the fiscal year in which the Change of Control or
the Executive’s termination occurs, whichever is greater.
(ii) Stock Options, Restricted Stock Units, Other Equity
Compensation . All of the Executive’s then outstanding
stock options to purchase shares of the Company’s Common
Stock (the "Options") shall immediately vest one hundred percent
(100%). The Options shall remain exercisable following the
termination of employment for the period prescribed in the
respective option agreements. Additionally, all of
Executive’s outstanding Restricted Stock Units (the
"Restricted Stock Units") shall immediately vest one hundred
percent (100%). All other Company equity compensation held by
Executive shall also immediately vest one hundred percent
(100%).
(iii) Continued Executive Benefits . Subject to the
Executive timely electing continuation coverage under Title X of
the Consolidated Budget Reconciliation Act of 1985 ("COBRA"), the
Executive shall receive one-hundred percent
(100%) Company-paid health, dental and vision, coverage (the
"Company-Paid Coverage"). If such coverage included the
Executive’s dependents immediately prior to the Change of
Control, such dependents shall also be covered at Company expense.
Company-Paid Coverage shall continue until the earlier of
(i) eighteen (18) months from the date of termination, or
(ii) the date upon which the Executive and his dependents
become covered under another employer’s group health, dental
and vision plans that provide Executive and his dependents with
comparable benefits and levels of coverage. Notwithstanding the
foregoing, if providing the Company-Paid Coverage would violate the
non-discrimination rules of Section 105(h) of the Internal
Revenue Code of 1986, as amended (the "Code"), then Executive shall
receive, in lieu of the Company-Paid Coverage, an additional
lump-sum payment equal to $60,000, less applicable withholding.
(b) Timing of Severance Payments . The severance payments
to which Executive is entitled shall be paid by the Company to
Executive in cash and in full, not later than ten
(10) calendar days after the date of the termination of
Executive’s employment, unless, pursuant to Section 3(f)
hereof, such payments need to be made on the date that is six
months and one day following the termination date to avoid
potential taxes under Code Section 409A. If the 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 the
Executive’s designated beneficiary, if living, or otherwise
to the personal representative of the Executive’s
estate.
(c) Voluntary Resignation; Termination for Cause . If the
Executive’s employment with the Company terminates
(i) voluntarily by the Executive other than for Good Reason or
Disability or (ii) for Cause by the Company, then the
Executive shall not be entitled to receive severance or other
benefits except for those (if any) as may then be established under
the Company’s then existing severance and benefits plans and
practices or pursuant to other written agreements with the
Company.
(d) Termination Outside Change of Control Period . In the
event the Executive’s employment is terminated for any reason
outside of the Change of Control Period, then the Executive shall
be entitled to receive severance and any other benefits only as may
then be established under the Company’s existing written
severance and benefits plans and practices or pursuant to other
written agreements with the Company.
(e) Exclusive Remedy . In the event of a termination of
Executive’s employment within the Change of Control Period,
the provisions of this Section 3 are intended to be and are
exclusive and in lieu of any other rights or remedies to which the
Executive or the Company may otherwise be entitled, whether at law,
tort or contract, in equity, or under this Agreement. The Executive
shall be entitled to no benefits, compensation or other payments or
rights upon termination of employment following a Change in Control
other than those benefits expressly set forth in this
Section 3.
(f) Code Section 409A . Notwithstanding any other
provision of this Agreement, if the Executive is a "specified
employee" under Code Section 409A and a delay in making any
payment or providing any benefit under this Plan is required by
Code Section 409A, such payments or benefits shall not be made
until the end of six (6) months following the date of the
Executive’s separation from service as required by Code
Section 409A.
4. Golden Parachute Excise Tax Best Results . In the
event that the severance and other benefits provided for in this
agreement or otherwise payable to Executive (a) constitute
"parachute payments" within the meaning of Code Section 280G
and (b) would be subject to the excise tax imposed by
Section 4999 of the Code, then such benefits shall be either
be:
|
|
(i)
|
delivered in full, or
|
|
|
(ii)
|
delivered as to such lesser extent which would
result in no portion of such severance benefits being subject to
excise tax under Section 4999 of the Code,
|
whichever of the foregoing amounts, taking into
account the applicable federal, state and local income and
employment taxes and the excise tax imposed by Section 4999,
results in the receipt by Executive, on an after-tax basis, of the
greatest amount of benefits, notwithstanding that all or some
portion of such benefits may be taxable under Section 4999 of
the Code. Unless the Company and the Executive otherwise agree in
writing, the determination of Executive’s excise tax
liability and the amount required to be paid under this
Section 4 shall be made in writing by the Company’s
independent auditors who are primarily used by the Company
immediately prior to the Change of Control (the "Accountants"). For
purposes of making the calculations required by this
Section 4, the Accountants may make reasonable assumptions and
approximations concerning applicable taxes and
may rely on reasonable, good faith
interpretations concerning the application of Sections 280G and
4999 of the Code. The Company and the Executive shall furnish to
the Accountants such information and documents as the Accountants
may reasonably request in order to make a determination under this
Section. The Company shall bear all costs the Accountants may
reasonably incur in connection with any calculations contemplated
by this Section 4.
5. Definition of Terms . The following terms referred to
in this Agreement shall have the following meanings:
(a) Cause . "Cause" shall mean (i) an act of
personal dishonesty taken by the Executive in connection with his
responsibilities as an employee and intended to result in
substantial personal enrichment of the Executive,
(ii) Executive being convicted of a felony, (iii) a
willful act by the Executive which constitutes gross misconduct and
which is injurious to the Company, (iv) following delivery to
the Executive of a written demand for performance from the Company
which describes the basis for the Company’s reasonable belief
that the Executive has not substantially performed his duties,
continued violations by the Executive of the Executive’s
obligations to the Company which are demonstrably willful and
deliberate on the Executive’s part.
(b) Change of Control . "Change of Control" means the
occurrence of any of the following, in one or a series of related
transactions:
(i) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended) becomes
the "beneficial owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing
fifty percent (50%) or more of the total voting power
represented by the Company’s then outstanding voting
securities; or
(ii) Any action or event occurring within a two-year period, 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 the Incumbent
Directors at the time of such election or nomination (but shall not
include an individual whose election or nomination is in connection
with an actual or threatened proxy contest relating to the election
of directors to the Company); or
(iii) The consummation of a merger or consolidation of the
Company with any other corporation, other than a merger or
consolidation which would resu
| 
