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Exhibit 10.4
POLYCOM, INC.
AMENDED SEVERANCE AGREEMENT
This Amended Severance Agreement (the "Agreement") is made and
entered into by and between Polycom, Inc., a Delaware Corporation
(the "Company"), and you, Robert Hagerty, effective as of
December 19, 2008 (the "Effective Date") and amends and
restates the Severance Agreement entered into as of May 20,
2008 (the "Amended Effective Date"), which amended and restated the
Severance Agreement entered into as of July 31, 2003 (the
"Original Effective Date"), by you and the Company. For purposes of
this Agreement, the "Company" shall include any parent or
subsidiary of the Company, unless the context clearly requires
otherwise.
This Agreement is intended to strongly encourage you to remain
with the Company by providing you with certain severance benefits
in the event that your employment with the Company terminates under
certain circumstances. This Agreement also is intended to provide
you with enhanced financial security in recognition of your past
and future service to the Company.
1. Eligibility for Severance Benefits . You will be
entitled to the payments and benefits described in Section 2
only if both: (a) either (1) the Company terminates your
employment for a reason other than Cause, death or Disability, or
(2) you voluntarily terminate your employment with the Company
for Good Reason, and (b) you (1) sign and deliver to the
Company a Release of Claims satisfactory to the Company within the
period required by the Release of Claims and in no event later than
sixty (60) days following your termination, inclusive of any
revocation period set forth in the Release of Claims, (2) do
not subsequently revoke your signature on the Release of Claims,
and (3) comply with all of the terms of this Agreement,
including (but not limited to) Section 7 regarding
Non-Solicitation of Employees and Section 8 regarding
Non-Competition. Notwithstanding the preceding, if your termination
of employment would qualify you for payments and benefits under
your Amended Change of Control Severance Agreement with the Company
dated December 19, 2008, you will receive none of the payments
and benefits described in Section 2. Instead, you will receive
the payments and benefits to which you are entitled under your
Change of Control Severance Agreement.
2. Severance Benefits . If you meet the eligibility
requirements described in Section 1, you will receive the
following.
(a) Severance Payments . You will receive severance pay
equal to your annual base salary and target bonus in effect
immediately prior to the date of your termination of employment
(the "Termination Date") for a period of two years following the
Termination Date. The severance pay with respect to your annual
base salary will be paid in accordance with the Company’s
standard payroll practices and the severance pay with respect to
your target bonus will be paid at the same time as bonuses are
scheduled to be paid to the Company’s other senior
executives. Subject to Section 2(e) below, if your employment
ends on or before October 15 of a calendar year, your
severance payments will commence within three (3) days after
the Release of Claims becomes effective and no longer is subject to
revocation but on or before December 31 of that calendar year.
If your employment ends after October 15 of a calendar year,
your severance payments will commence on the later of (1) the
first payroll date in the calendar year next following the calendar
year in which your employment has ended or (2) the first
payroll date following the date your Release of Claims becomes
effective, subject to Section 2(e) below.
(b) Option Exercisability . You will have one year
following the Termination Date to exercise your Company stock
option grant nos. 00000822 (dated July 23, 1999), NQ000822
(dated July 23, 1999), 00002008 (dated May 17, 2001),
NQ002008 (dated May 17, 2001) and any Company stock options
granted to you after the Original Effective Date, but in each case
only to the extent that such option is vested and unexpired on the
Termination Date. Moreover, in no event may any such option be
exercised after the original maximum term of the option. Any
options that are unvested on the Termination Date will be forfeited
on that date.
(c) Other Benefits . You may continue your health, dental
and vision benefits coverage under the Company’s group health
plans for up to one year following the Termination Date or until
you (and your eligible dependents) become eligible for group
insurance benefits from another employer or are no longer eligible
to receive continuation coverage pursuant to COBRA, whichever comes
first, but only if you elect continuation coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA"), within the time period prescribed pursuant to COBRA. For
the duration of the one-year coverage period, the Company will
reimburse you for the COBRA premiums paid by you (for coverage for
yourself and your eligible dependents). COBRA reimbursements will
be made by the Company to you consistent with the Company’s
normal expense reimbursement policy, provided that you submit
documentation to the Company substantiating your payments for COBRA
coverage. After the one-year coverage period, Company
reimbursements will cease and you will be responsible for the
payment of any COBRA premiums. The Company will not reimburse you
for any taxable income imputed to you because the Company has
reimbursed you for your COBRA premiums (or those of your eligible
dependents).
(d) Accrued Wages and Paid-Time Off;
Expenses . The Company will pay you: (1) any unpaid base
salary due for periods prior to the Termination Date, (2) all
of your accrued and unused paid-time off ("PTO") through the
Termination Date, (3) following your submission of proper
expense reports, the total unreimbursed amount of all expenses
incurred by you in your duties of employment with the Company that
are reimbursable in accordance with the Company’s
then-existing policies, and (4) any other benefits due to you
through the Termination Date under the Company’s formal
employee benefit plans (for example, the Company’s "401(k)"
plan). These payments will be made promptly upon your employment
termination and within the period of time mandated by law or as
provided in the applicable plan document.
(e) Section 409A .
(i) Six-Month Delay . Notwithstanding anything to the
contrary in this Agreement, no Deferred Compensation Separation
Benefits (as defined below) payable under this Agreement will be
considered due or payable until you have incurred a "separation
from service" within the meaning of Section 409A of the
Internal Revenue Code of 1986, as amended and the final regulations
and any guidance promulgated thereunder (together, "Section 409A").
In addition, if you are a "specified employee" within the meaning
of Section 409A at the time of your separation from service
(other than due to death), then the severance benefits payable to
you under this Agreement, if any, and any other severance payments
or separation benefits that may be considered deferred compensation
under Section 409A (together, the "Deferred Compensation
Separation Benefits") otherwise due to you on or within the six
(6) month period following your separation from service will
accrue during such six (6) month period and will become
payable in a lump sum payment (less applicable withholding taxes)
on the date six (6) months and one (1) day following the
date of your separation from service. All subsequent payments, if
any, will be payable in accordance with the payment schedule
applicable to each payment or benefit. Notwithstanding anything
herein to the contrary, if you die following your separation from
service but prior to the six (6) month anniversary of your
date of separation, then any payments delayed in accordance with
this paragraph will be payable in a lump sum (less applicable
withholding taxes) to your estate as soon as administratively
practicable after the date of your death and all other Deferred
Compensation Separation Benefits will be payable in accordance with
the payment schedule applicable to each payment or benefit.
(ii) Amendments to this Agreement to Comply with
Section 409A . This provision is intended to comply with
the requirements of Section 409A so that none of the severance
payments and benefits to be provided hereunder will be subject to
the additional tax imposed under Section 409A, and any
ambiguities herein will be interpreted to so comply. The Company
and you agree to work together in good faith to consider amendments
to this Agreement and to take such reasonable actions, which are
necessary, appropriate or desirable to avoid imposition of any
additional tax or income recognition prior to actual payment to you
under Section 409A.
3. Other Terminations of Employment . If your employment
with the Company is terminated by the Company for Cause, death or
Disability, or if you voluntarily terminate your employment other
than for Good Reason, you will not be entitled to receive any of
the payments or benefits described in Section 2 of this
Agreement. However, you may be eligible for benefits under the
Company’s severance and benefit plans and policies on the
Termination Date. In addition, the Company will pay you:
(1) any unpaid base salary due for periods prior to the
Termination Date, (2) all of your accrued and unused PTO
through the Termination Date, (3) following your submission of
proper expense reports, the total unreimbursed amount of all
expenses incurred by you in your duties of employment with the
Company that are reimbursable in accordance with the
Company’s then-existing policies, and (4) any other
benefits due to you through the Termination Date under the
Company’s formal employee benefit plans (for example, the
Company’s "401(k)" plan). These payments will be made
promptly upon your employment termination and wi
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