Second Amended and Restated
Executive Retention Agreement
THIS SECOND
AMENDED AND RESTATED EXECUTIVE RETENTION AGREEMENT by and between
Netezza Corporation, a Delaware corporation (the
“Company”), and Jitendra Saxena (the
“Executive”) is made as of March 12, 2009 (the
“Effective Date”).
WHEREAS, the
Company and the Executive originally entered into this Executive
Retention Agreement on March 21, 2007, and amended and
restated it on December 24, 2008;
WHEREAS, the
Executive resigned as an executive officer of the Company as of
January 31, 2009 but remains an employee of the Company;
and
WHEREAS, in light
of the Executive’s revised role with the Company, the Company
and the Executive now desire to amend and restate this Agreement
further to limit the benefits provided hereunder.
NOW, THEREFORE,
for good and valuable consideration, the Company and the Executive
hereby agree as follows.
As used herein,
the following terms shall have the following respective
meanings:
1.1
“ Change in Control ” means an event or
occurrence set forth in any one or more of subsections
(a) through (c) below (including an event or occurrence
that constitutes a Change in Control under one of such subsections
but is specifically exempted from another such subsection) and that
also constitutes a “change of control” within the
meaning of Section 409A of the United States Internal Revenue
Code of 1986, as amended, and the guidance issued thereunder
(“Section 409A”):
(a)
the acquisition by an individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”))
(a “Person”) of beneficial ownership of any capital
stock of the Company if, after such acquisition, such Person
beneficially owns (within the meaning of Rule 13d-3
promulgated under the Exchange Act) 30% or more of either
(x) the then-outstanding shares of common stock of the Company
(the “Outstanding Company Common Stock”) or
(y) the combined voting power of the then-outstanding
securities of the Company entitled to vote generally in the
election of directors (the “Outstanding Company Voting
Securities”); provided , however, that for purposes of
this subsection (a), the following acquisitions shall not
constitute a Change in Control: (i) any acquisition directly
from the Company (excluding an acquisition pursuant to the
exercise, conversion or exchange of any security exercisable for,
convertible into or exchangeable for common stock or voting
securities of the Company, unless the Person exercising, converting
or exchanging such security acquired such security directly from
the Company or an underwriter or agent of the Company),
(ii) any acquisition by the Company, (iii) any
acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the
Company or any
corporation controlled by the Company, or (iv) any acquisition
by any corporation pursuant to a transaction which complies with
clauses (i) and (ii) of subsection (c) of this
Section 1.1; or
(b) such
time as the Continuing Directors (as defined below) do not
constitute a majority of the Board (or, if applicable, the Board of
Directors of a successor corporation to the Company), where the
term “Continuing Director” means at any date a member
of the Board (i) who was a member of the Board on the date of
the execution of this Agreement or (ii) who was nominated or
elected subsequent to such date by at least a majority of the
directors who were Continuing Directors at the time of such
nomination or election or whose election to the Board was
recommended or endorsed by at least a majority of the directors who
were Continuing Directors at the time of such nomination or
election; provided , however , that there shall be
excluded from this clause (ii) any individual whose initial
assumption of office occurred as a result of an actual or
threatened election contest with respect to the election or removal
of directors or other actual or threatened solicitation of proxies
or consents, by or on behalf of a person other than the Board;
or
(c) the
consummation of a merger, consolidation, reorganization,
recapitalization or statutory share exchange involving the Company
or a sale or other disposition of all or substantially all of the
assets of the Company in one or a series of transactions (a
“Business Combination”), unless, immediately following
such Business Combination, each of the following two conditions is
satisfied: (i) all or substantially all of the individuals and
entities who were the beneficial owners of the Outstanding Company
Common Stock and Outstanding Company Voting Securities immediately
prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of the then-outstanding shares of common
stock and the combined voting power of the then-outstanding
securities entitled to vote generally in the election of directors,
respectively, of the resulting or acquiring corporation in such
Business Combination (which shall include, without limitation, a
corporation which as a result of such transaction owns the Company
or substantially all of the Company’s assets either directly
or through one or more subsidiaries) (such resulting or acquiring
corporation is referred to herein as the “Acquiring
Corporation”) in substantially the same proportions as their
ownership, immediately prior to such Business Combination, of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities, respectively; and (ii) no Person (excluding any
employee benefit plan (or related trust) maintained or sponsored by
the Company or by the Acquiring Corporation) beneficially owns,
directly or indirectly, 30% or more of the then outstanding shares
of common stock of the Acquiring Corporation, or of the combined
voting power of the then-outstanding securities of such corporation
entitled to vote generally in the election of directors (except to
the extent that such ownership existed prior to the Business
Combination).
1.2
“ Change in Control Date ” means the first date
on which a Change in Control occurs. Anything in this Agreement to
the contrary notwithstanding, if (a) a Change in Control
occurs, (b) the Executive’s employment with the Company is
terminated prior to the date on which the Change in Control occurs,
and (c) it is reasonably demonstrated by the Executive that
such termination of employment (i) was at the request of a
third party who has taken steps reasonably calculated to effect a
Change in Control or (ii) otherwise arose in connection with
or in anticipation of a Change in Control, then for all purposes of
this
2
Agreement the
“Change in Control Date” shall mean the date
immediately prior to the date of such termination of
employment.
1.3
“ Cause ” means a good faith finding by the
Company that:
(a) the
Executive has breached any of his or her material legal or
contractual obligations to the Company (other than as a result of
incapacity) which breach (i) has not been cured by the
Executive within 10 business days following written notice by the
Company to the Executive notifying him or her of such breach and
(ii) would have a material adverse effect on the Company;
or
(b) the
Executive has engaged in gross or persistent misconduct with
respect to the Company; or
(c) the
Executive has been convicted of or pleaded guilty or nolo
contendere to (i) any misdemeanor relating to the affairs of
the Company which is injurious to the Company or (ii) any
felony.
1.4
“ Good Reason ” means the occurrence, without
the Executive’s written consent, of any of the
following:
(a) a
material reduction of the Executive’s annual base salary,
provided that the reduction is at least 15%;
(b) a
significant diminution in the Executive’s authority and
duties, such that the Executive’s employment duties and
responsibilities are no longer of an executive nature;
or
(c) the
relocation of the Executive’s principal place of employment
to a location that is more than 30 miles further away from the
Executive’s residence than is the Executive’s current
principal place of employment.
Any termination by
the Executive for Good Reason shall be communicated by means of a
written notice delivered by the Executive to the Company within
90 days of the initial existence of the occurrence or
condition on which the Executive bases his claim for Good Reason.
If the condition is capable of being corrected, the Company shall
have 30 days during which it may remedy the condition. If the
condition is fully remedied within such time period, the Company
shall not owe the amounts otherwise required to be paid under this
Agreement. If the condition is not corrected, the Executive must
leave employment within one year after the Company fails to cure
the condition giving rise to the Executive’s claim for Good
Reason.
2. Term
of Agreement . This Agreement, and all rights and obligations
of the parties hereunder, shall take effect upon the Effective Date
and shall continue in effect until the fulfillment by the Company
of all of its obligations under Sections 4 and 5.2.
3.
Employment Status; Notice of Termination of Employment
.
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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
Notice of 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
whether the termination is for Cause or Good Reason, (ii) to
the extent applicable, set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination for Cause
or Good Reason and (iii) specify the Date of Termination (as
defined below). 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 10 days or more than 90 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.
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