Exhibit 10.7
Amended and Restated Executive
Retention Agreement
THIS AMENDED AND RESTATED EXECUTIVE
RETENTION AGREEMENT by and among Vistaprint N.V. (the
“Company”) and Robert Keane (the
“Executive”) was originally made as of December 1,
2004 (the “Effective Date”), and is hereby further
amended and restated as of October 23, 2009. Except where the
context otherwise requires, the term “Company” shall
include each of Vistaprint N.V. and any of its present or future
parent or subsidiary corporations.
WHEREAS, the Company desires to
retain the services of the Executive and, in order to do so, are
entering into this Agreement in order to provide compensation to
the Executive in the event the Executive’s employment with
the Company is terminated under certain circumstances;
WHEREAS, the Company also recognizes
that the possibility of a change in control of the Company exists
and that such possibility, and the uncertainty and questions which
it may raise among key personnel, may deter key potential personnel
from joining the Company and may result in the departure or
distraction of key personnel to the detriment of the Company and
its shareholders, and
WHEREAS, the Supervisory Board of
the Company (the “Supervisory Board”) has determined
that appropriate steps should be taken to retain the Executive and
to reinforce and encourage the continued employment and dedication
of the Company’s key personnel without distraction from the
possibility of a change in control of the Company and related
events and circumstances.
NOW, THEREFORE, as an inducement for
and in consideration of the Executive remaining in the
Company’s employ, the Company agrees that the Executive shall
receive the benefits set forth herein in the event of a Change in
Control and the severance and other benefits set forth in this
Agreement in the event the Executive’s employment with the
Company is terminated under the circumstances described
below.
1. Key Definitions
.
See Annex A for a list of
certain defined terms used herein.
2. Term of Agreement . This
Agreement, and all rights and obligations of the parties hereunder,
shall take effect upon the Effective Date and shall terminate upon
the fulfillment by the Company of its obligations under this
Agreement following a termination of the Executive’s
employment (the “Term”).
3. Employment Status; Termination
of Employment .
3.1. Not an Employment
Contract . The Executive acknowledges that this Agreement does
not constitute a contract of employment or impose on the Company
any obligation to retain the Executive as an employee and that this
Agreement does not prevent the Executive from terminating
employment at any time.
3.2. Termination of
Employment .
(a) Any termination of the
Executive’s employment by the Company or by the Executive
(other than due to the death of the Executive) shall be
communicated by a written notice to the other party hereto (the
“Notice of Termination”), given in accordance with
Section 7. Any Notice of Termination shall:
(i) indicate the specific
termination provision (if any) of this Agreement relied upon by the
party giving such notice,
(ii) to the extent applicable, set
forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive’s employment
under the provision so indicated, and
(iii) specify the Date of
Termination (as defined below).
(b) The effective date of an
employment termination (the “Date of Termination”)
shall be the close of business on the date specified in the Notice
of Termination (which date may not be less than 15
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days or more than 120 days after the date of
delivery of such Notice of Termination), in the case of a
termination other than one due to the Executive’s death, or
the date of the Executive’s death, as the case may be;
provided, however that if the Executive is resigning the
Executive’s employment for other than Good Reason, the
Company may elect to accept such resignation prior to the date
specified in the Executive’s notice and the Date of
Termination shall be the date the Company notifies the Executive of
such acceptance. In the event the Company fails to satisfy the
requirements of Section 3.2(a) regarding a Notice of
Termination, the purported termination of the Executive’s
employment pursuant to such Notice of Termination shall not be
effective for purposes of this Agreement.
(c) The failure by the Executive or
the Company to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason or Cause
shall not waive any right of the Executive or the Company,
respectively, hereunder or preclude the Executive or the Company,
respectively, from asserting any such fact or circumstance in
enforcing the Executive’s or the Company’s rights
hereunder.
(d) Any Notice of Termination for
Cause given by the Company must be given within 30 days of the
occurrence of the event(s) or circumstance(s), which constitute(s)
Cause. Prior to any Notice of Termination for Cause being given
(and prior to any termination for Cause being effective), the
Executive shall be entitled to a hearing before the Supervisory
Board at which the Executive may, at the Executive’s
election, be represented by counsel and at which the Executive
shall have a reasonable opportunity to be heard. Such hearing shall
be held on not less than 30 days prior written notice to the
Executive stating the Supervisory Board’s intention to
terminate the Executive for Cause and stating in detail the
particular event(s) or circumstance(s) which the Supervisory Board
believes constitutes Cause for termination. Any such Notice of
Termination for Cause must be approved by an affirmative vote of
two-thirds of the members of the Supervisory Board.
(e) Any Notice of Termination for
Good Reason given by the Executive must be given within 90 days of
the occurrence of the event(s) or circumstance(s), which
constitute(s) Good Reason.
4. Benefits to Executive
.
4.1 Acceleration of Awards .
If the Change in Control Date occurs prior to the Date of
Termination, then, effective upon the Change in Control
Date,
(a) each outstanding option to
purchase shares of the Company held by the Executive (to the extent
not then currently exercisable) shall become immediately
exercisable in full and shares of the Company received upon
exercise of any options will no longer be subject to any applicable
right of repurchase or first refusal by the Company,
(b) each outstanding restricted
stock award held by the Executive shall be deemed to be fully
vested and such vested shares will no longer be subject to any
applicable right of repurchase or first refusal by the
Company,
(c) each outstanding restricted
share unit award held by the Executive shall be deemed to be fully
vested and such vested shares shall be distributed to the Executive
as soon as practicable thereafter,
(d) notwithstanding any provision in
any applicable option agreement to the contrary, each such option
shall continue to be exercisable by the Executive for a period of
12 months following the Date of Termination if the Executive is
terminated without Cause or resigns for Good Reason following the
Change in Control Date, but in no event may the option be exercised
after the original expiration date of the option,
(e) the performance criteria set
forth in any Multi-Year Award Agreement shall be deemed satisfied
at the mid-range target level for the Performance Period in which
the Change in Control occurs and for each subsequent Performance
Period that is part of the award under such Multi-Year Award
Agreement, and the Executive shall be entitled to receive the full
mid-range target bonus for each such Performance Period on the
Change in Control Payment Date, and
(f) the performance criteria set
forth in any Annual Award Agreement shall be deemed satisfied at
100% of the target levels, and the Executive shall be entitled to
receive, on the Change in Control Payment Date, the product of
(i) 100% of the target bonus for the Performance Period in
which the Change in Control occurs and (ii) the Pro-Rating
Fraction.
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4.2 Compensation . If the
Executive’s employment with the Company terminates during the
Term, the Executive shall be entitled to the following
benefits:
(a) Termination Without Cause or
Resignation for Good Reason Prior to the Change in Control Date
. If the Executive’s employment with the Company is
terminated by the Company (other than for Cause, Disability or
Death) or the Executive resigns for Good Reason prior to the Change
in Control Date, then the Executive shall be entitled to the
following benefits:
(i) the Company shall pay to the
Executive the following amounts:
(1) in a lump sum in cash in the
next regularly scheduled pay cycle following the Date of
Termination, the sum of:
(A) the Executive’s
unpaid base salary through the Date of Termination,
(B) if quarterly bonuses are then
being paid, the product of (i) the greater of any
quarterly bonus paid or payable (including any bonus or portion
thereof which has been earned but deferred or which the Executive
forewent) for the most recently completed fiscal quarter or any
quarterly bonus payable for the then current fiscal quarter and
(ii) a fraction, the numerator of which is the number of days
in the current fiscal quarter through the Date of Termination, and
the denominator of which is 90, and
(C) the amount of any
compensation previously deferred by the Executive (together with
any accrued interest or earnings thereon) and any accrued vacation
pay,
in each case to the extent not
previously paid (the sum of the amounts described in clauses (A),
(B) and (C) shall be hereinafter referred to as the
“Accrued Obligations”);
(2) in a lump sum in cash in the
next regularly scheduled pay cycle following the Date of
Termination, an amount equal to the sum of :
(A) 200% of the greater of
(i) the Executive’s target annual bonus (including the
sum of any target annual bonus under any Annual Award Agreement or
other agreement or arrangement and any target quarterly bonuses, if
applicable) for the then current fiscal year multiplied by the
average actual annual bonus payout percentage for the three fiscal
year period ending prior to the Date of Termination; provided
however that, if the Executive has been employed by the Company for
more than two but less than three full fiscal years prior to the
Date of Termination, the average actual annual bonus payout
percentage for the two fiscal year period ending prior to the Date
of Termination will be used for calculating the product in this
clause (i) instead of the average actual annual bonus payout
percentage for the three fiscal year period; and provided further
that if the Executive has been employed by the Company for less
than two full fiscal years prior to the Date of Termination, the
product in this clause (i) shall be deemed to equal zero; and
(ii) the Executive’s target annual bonus (including the
sum of any target annual bonus under any Annual Award Agreement or
other agreement or arrangement and any quarterly bonuses, if
applicable) for the then current fiscal year; and
(B) 200% of the Executive’s
then current annual base salary,
(the sum of the amounts described in
clauses (A) and (B) shall be hereinafter referred to as
the “Severance Payment”);
(3) with respect to any Multi-Year
Award Agreement and Annual Award Agreement:
(A) If subsequent to such
termination or resignation a Change in Control does not
occur prior to the end of the applicable Performance Period, the
Company shall pay the Executive, in a lump sum in cash on the Award
Payment Date, any Pro-Rated Multi-Year Award and any Pro-Rated
Annual Award, as
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applicable. Notwithstanding the
foregoing, in no event will any Pro-Rated Multi-Year Award or any
Pro-Rated Annual Award, as applicable, be higher than the bonus the
Executive would have achieved for the applicable Performance Period
under the applicable Multi-Year Award Agreement or Annual Award
Agreement, as the case may be, had the Executive remained employed
with the Company through the end of the applicable Performance
Period.
(B) If subsequent to such
termination or resignation a Change in Control does occur
prior to the end of the applicable Performance Period, the Company
shall pay the Executive, in a lump sum in cash on the Change in
Control Payment Date, any Pro-Rated Multi-Year Award and any
Pro-Rated Annual Award, as applicable.
(C) Upon the occurrence of either of
the events described in Section 4.2(a)(i)(3)(A) or
Section 4.2(a)(i)(3)(B), as applicable, each Multi-Year Award
Agreement shall be terminated with respect to any remaining
Performance Periods under such Agreement that would occur after the
Performance Period in which the Date of Termination occurs and the
Executive shall have no further rights with respect to the
terminated portion of such Multi-Year Award Agreement.
(ii) for 24 months after the Date of
Termination, or such longer period as may be provided by the terms
of the appropriate plan, program, practice or policy, the Company
shall continue to provide benefits to the Executive and the
Executive’s family at least equal to those which would have
been provided to them if the Executive’s employment had not
been terminated, in accordance with the applicable Benefit Plans in
effect on the Effective Date or, if more favorable to the Executive
and the Executive’s family, in effect generally at any time
thereafter with respect to other peer executives of the Company and
its affiliated companies; provided , however, that if the
Executive becomes reemployed with another employer and is eligible
to receive a particular type of benefits (e.g., health insurance
benefits) from such employer on terms at least as favorable to the
Executive and the Executive’s family as those being provided
by the Company, then the Company shall no longer be required to
provide those particular benefits to the Executive and the
Executive’s family (such benefits shall be hereinafter
referred to as the “Primary Benefits”);
(iii) to the extent not previously
paid or provided, the Company shall timely pay or provide to the
Executive any other amounts or benefits required to be paid or
provided or which the Executive is eligible to receive following
the Executive’s termination of employment under any plan,
program, policy, practice, contract or agreement of the Company and
its affiliated companies (such other amounts and benefits shall be
hereinafter referred to as the “Other Benefits”);
and
(iv) for purposes of determining
eligibility (but not the time of commencement of benefits) of the
Executive for retiree benefits to which the Executive is entitled,
the Executive shall be considered to have remained employed by the
Company until 24 months after the Date of Termination.
(b) Termination Without Cause or
Resignation for Good Reason within one year after the Change in
Control Date . If the Executive’s employment with the
Company is terminated by the Company (other than for Cause,
Disability or Death) or the Executive resigns for Good Reason at
any time on or before the one year anniversary of the Change in
Control Date, then the Executive shall be entitled to the following
benefits:
(i) the Company shall pay to the
Executive the following amounts:
(1) in a lump sum in cash in the
next regularly scheduled pay cycle following the Date of
Termination, the Accrued Obligations;
(2) in a lump sum in cash in the
next regularly scheduled pay cycle following the Date of
Termination, an amount equal to the Severance Payment;
(ii) for 24 months after the Date of
Termination, or such longer period as may be provided by the terms
of the appropriate plan, program, practice or policy, the Company
shall continue to provide to the Executive and the
Executive’s family the Primary Benefits;
(iii) to the extent not previously
paid or provided, the Company shall timely pay or provide to the
Executive the Other Benefits; and
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(iv) for purposes of determining
eligibility (but not the time of commencement of benefits) of the
Executive for retiree benefits to which the Executive is entitled,
the Executive shall be considered to have remained employed by the
Company until 24 months after the Date of Termination.
(c) Section 409A of the
Code . Neither the Company nor the Executive may elect to defer
delivery of any of the payments to be made under
Section 4.2(a) or 4.2(b). If any of the benefits payable under
Section 4.2(a) or 4.2(b) (each a “Termination
Benefit”) is considered “nonqualified deferred
compensation” within the meaning of Section 409A of the
Code (“Section 409A”), and the Executive is considered
a “specified employee” within the meaning of
Section 409A, then notwithstanding the provisions of Sections
4.2(a) and (b), no such Termination Benefit shall be paid to the
Executive during the six-month period following the
Executive’s termination of employment, provided, however that
that such Termination Benefits may be paid immediately following
the death of the Executive and such Termination Benefits shall be
paid in a lump sum immediately upon the expiration of such 6-month
period; and, provided, further, if not prohibited by
Section 409A, such Termination Benefits shall, upon the Date
of Termination, be paid into an escrow account with a third party
acceptable to the Executive, such escrow account to be subject to
the claims of creditors of the Company and such Termination
Benefits to be paid to the Executive immediately upon the
expiration of such six-month period.
(d) Termination for Cause;
Resignation without Good Reason; Termination for Death or
Disability . If the Company terminates the Executive’s
employment with the Company for Cause at any time, the Executive
voluntarily resigns at any time for other than Good Reason, or if
the Executive’s employment with the Company is terminated by
reason of the Executive’s death or Disability, then the
Company shall (i) pay the Executive (or the Executive’s
estate, if applicable), in a lump sum in cash within 30 days after
the Date of Termination, the sum of (A) the Executive’s
unpaid base salary through the Date of Termination, and
(B) the amount of any compensation previously deferred by the
Executive to the extent not previously paid and (ii) timely
pay or provide to the Executive the Other Benefits.
(e) Currency and Foreign Exchange
Rate . For purposes of calculating the benefits payable to the
Executive pursuant to this Section 4, such benefits shall in
each case be payable in the currency in which the Executive would
have received such compensation in the ordinary course of business
as of the Date of Termination or Change in Control Date, as
applicable (the “Present Currency”). In the event that
the Executive received any compensation in prior fiscal years in
any currency other than the Present Currency (the “Prior
Currency”), then for purposes of calculating the
Executive’s Severance Payment, Pro-Rated Annual Award, and
Pro-Rated Multi-Year Award, as applicable, any amounts paid to the
Executive in the Prior Currency shall be converted to the Present
Currency at the prevailing exchange rate that was in effect on the
date such compensation was paid.
(f) Exclusions from Base Salary
and Bonus . For purposes of this Section 4, base salary
and bonus exclude, without limitation, the following items:
permanent or temporary housing allowances, transportation and
moving expenses, tuition, air travel for non-business reasons, tax
equalization payments, and any extraordinary payments that the
Executive may be entitled to pursuant to non-U.S. law.
4.3 Taxes .
(a) In the event that Vistaprint
N.V. (or any successor thereto) undergoes a “Change in
Ownership or Control” (as defined in Annex A ), the
Company shall, within 15 days after each date on which the
Executive becomes entitled to receive (whether or not then due) a
Contingent Compensation Payment (as defined in Annex A )
relating to such Change in Ownership or Control, determine and
notify the Executive (with reasonable detail regarding the basis
for its determinations) (i) which of the payments or benefits
due to the Executive (under this Agreement or otherwise) following
such Change in Ownership or Control constitute Contingent
Compensation Payments, (ii) the amount, if any, of the excise
tax (the “Excise Tax”) payable pursuant to
Section 4999 of the Code, by the Executive with respect to
such Contingent Compensation Payment and (iii) t
