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Exhibit 10.1
TIGERLOGIC CORPORATION
AMENDED CHANGE OF CONTROL AND SEVERANCE
AGREEMENT
This Amended Change of Control and Severance Agreement (the "
Agreement ") is made and entered into effective as of
December 18, 2008 (the " Effective Date "), by and
between Carlton H. Baab (the " Employee ") and TigerLogic
Corporation (formerly known as Raining Data Corporation), a
Delaware corporation (the " Company "), and amends and
restates the change of control and severance agreement entered into
effective as of April 3, 2003, by the Company and the
Employee. Certain capitalized terms used in this Agreement are
defined in Section 1 below.
R E C I T A L S
A. The Board of Directors of the Company (the "
Board ") believes that it is in the best interests of the
Company and its stockholders to provide the Employee with an
incentive to continue his employment and to maximize the value of
the Company for the benefit of its stockholders.
B. In order to provide the Employee with enhanced financial
security and sufficient encouragement to remain with the Company,
the Board believes that it is imperative to provide the Employee
with certain benefits upon the Employee’s termination of
employment.
AGREEMENT
In consideration of the mutual covenants herein contained and
the continued employment of Employee by the Company, the parties
agree as follows:
1. Definition of Terms . The following terms
referred to in this Agreement shall have the following
meanings:
(a) Cause . "Cause" shall mean (i) gross and
willful failure to perform services; (ii) conviction of, or a
plea of "guilty" or no "contest" to, a felony under the laws of the
United States or any state thereof, if such felony either is
work-related or materially impairs Employee’s ability to
perform services for the Company; (iii) a material breach of
fiduciary duty, including fraud, embezzlement, dishonesty or any
intentional action that materially injures the Company as
determined in good faith by the Board; (iv) death; (v) a
material breach of the Company’s Employment Confidential
Information, Invention Assignment, and Arbitration Agreement. In
all of the foregoing cases, the Company shall provide written
notice to Employee indicating in reasonable detail the event or
circumstances that constitute Cause under this Agreement, and the
Company will provide the Employee with 45 days to cure such
breach or failure prior to termination for Cause. During such
45-day cure period, the Company may place the Employee on an unpaid
leave.
(b) Change of Control . "Change of Control" shall
mean the occurrence of any of the following events after the date
of this Agreement:
(i) any merger or consolidation in which the Company is not
the surviving entity, except for a transaction the principal
purpose of which is to change the state in which the Company is
incorporated;
(ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Company (including the
capital stock of the Company’s subsidiary corporations);
(iii) approval by the Company’s stockholders of any
plan or proposal for the complete liquidation or dissolution of the
Company;
(iv) any reverse merger in which the Company
is the surviving entity but in which securities possessing more
than fifty percent (50%) of the total combined voting power of
the Company’s outstanding securities are transferred to a
person or persons different from those who held such securities
immediately prior to such merger; or
(v) acquisition by any person or related group of persons
(other than the Company or by a Company-sponsored employee benefit
plan) of beneficial ownership (within the meaning of
Rule 13d-3 of the Exchange Act) of securities possessing more
than fifty percent (50%) of the total combined voting power of
the Company’s outstanding securities.
(c) Disability . "Disability" shall mean that the
Employee physically or mentally is unable regularly to perform
Employee’s duties for a period in excess of sixty
(60) consecutive days or more than ninety (90) days in
any consecutive twelve (12) month period. The Company shall
make a good faith determination of whether the Employee is
physically or mentally unable to regularly perform Employee’s
duties subject to its review and consideration of any physical
and/or mental health information provided to it by the
Employee.
(d) Involuntary Termination . "Involuntary
Termination" shall mean (i) without the Employee’s
express written consent, the substantial reduction in
Employee’s duties or responsibilities relative to
Employee’s duties or responsibilities in effect immediately
prior to such reduction; provided , however , that a
reduction in title solely by virtue of the Company being acquired
and made part of a larger entity (as, for example, when the Chief
Executive Officer of a Company remains as such following a Change
of Control and is not made the Chief Executive Officer of the
acquiring corporation) shall not constitute an "Involuntary
Termination"; (ii) without the Employee’s express
written consent, a material reduction by the Company in
Employee’s base compensation as in effect immediately prior
to such reduction; (iii) without the Employee’s express
written consent, a material reduction by the Company in the kind or
level of employee benefits package; (iv) without the
Employee’s express written consent, the relocation of the
Employee to a facility or a location more than 30 miles from
Employee’s then present location; (v) any purported
termination of the Employee by the Company which is not effected
for death or Disability or for Cause; or (vi) the failure of
the Company to obtain the assumption of this Agreement by any
successors.
2. Term of Agreement . This Agreement shall
terminate upon the date that all obligations of the parties hereto
under this Agreement have been satisfied.
3. At-Will Employment . The Company and the
Employee acknowledge that the Employee’s employment is and
shall continue to be at-will, as defined under applicable law. If
the Employee’s employment terminates for any reason, the
Employee shall not be entitled to any payments, benefits, 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 or policies at the time of
termination.
4. Annual Review of Bonus . The Company’s
Compensation Committee shall review, at least annually, the
appropriate amount of bonus, if any, to the Employee.
5. Severance Benefits .
(a) Termination Prior to a Change of Control . In
the event that the Employee is terminated as a result of an
Involuntary Termination other than for Cause, death, or Disability
at any time on or prior to a Change of Control, Employee shall be
entitled to twelve (12) months of Employee’s base salary
as in effect as of the date of such termination, less applicable
withholding, payable in a lump sum within thirty (30) days of
such termination, subject to Section 5(e) below.
(b) Termination Less than Twelve
(12) Months after a Change of Control . In the event that
the Employee is terminated as a result of an Involuntary
Termination other than for Cause, death, or Disability less than
twelve (12) months after a Change of Control, Employee shall
be entitled to the following severance benefits:
(i) 200% of the aggregate base salary and bonus earned by
the Employee during the twelve (12)-month period immediately prior
to such termination, less applicable withholding, payable in a lump
sum within thirty (30) days of the such termination, subject
to Section 5(e) below;
(ii) all stock options granted by the Company to the
Employee prior to such termination shall become fully vested and
exercisable as of the date of the termination; and
(iii) Company-paid health (i.e., medical, vision and
dental) coverage commensurate with those in effect for the Employee
on the day immediately preceding the day of the Employee’s
termination of employment, whether under a health plan maintained
by the Company or the Employee; provided , however ,
that (A) the Employee constitutes a qualified beneficiary, as
defined in Section 4980B(g)(1) of the Internal Revenue Code of
1986, as amended (the "Code"); and (B) Employee elects
continuation coverage pursuant to the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended ("COBRA"), within the time
period prescribed pursuant to COBRA. The Company shall continue to
provide Employee with health coverage until the earlier of
(1) the date Employee is no longer eligible to receive
continuation coverage pursuant to COBRA, or (2) twelve
(12) months from the termination date.
(c) Termination At Least Twelve (12) Months after
a Change of Control. In the event that the Employee is
terminated as a result of an Involuntary Termination other than for
Cause, death, or Disability at least twelve months after a Change
of Control, Employee shall be entitled to receive the benefits set
forth in
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