Exhibit 10.2
POLYCOM, INC.
SEVERANCE
AGREEMENT
This Severance Agreement (the
“Agreement”) is made and entered into by and between
Polycom, Inc., a Delaware Corporation (the “Company”),
and you, Andrew Miller, effective as of July 1, 2009 (the
“Effective Date”). 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. If you have not relocated to the San Francisco,
California, Bay Area, as of February 1, 2010, this Agreement
will expire and become null and void and you will receive none of
the payments and benefits described hereunder.
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 and No Hire 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 Change of Control Severance Agreement with the
Company dated July 1, 2009, 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 one year 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
any Company stock options granted to you after the 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: (a) any unpaid base salary due for
periods prior to the Termination Date, (b) all of your accrued
and unused PTO through the Termination Date, (c) 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 (d) 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.
2
4. Definition of Terms . The
following terms used to in this Agreement shall have the following
meanings:
(a) Cause. “Cause” means
(1) an act of personal dishonesty taken by you in connection
with your responsibilities as an employee and intended to result in
your substantial personal enrichment, (2) your being convicted
of a crime recognized as a felony in the United States, (3) a
willful act by you which constitutes gross misconduct and which is
injurious to the Company, (4) following delivery to you of a
written demand for performance from the Company which describes the
basis for the Company&rsq
