{"id":38596,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/change-in-control-agreement.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"change-in-control-agreement","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/change-in-control-agreement.html","title":{"rendered":"Change in Control Agreement"},"content":{"rendered":"<pre>\n                           CHANGE IN CONTROL AGREEMENT\n\n\n     This Change in Control Agreement (the \"Agreement\") is entered into as of\n______________, 2000, by and between ___________________, an individual\n(\"Executive\") and Corio, Inc., a Delaware corporation (the \"Company\").\n\n                                    RECITALS\n\n     A.   Executive is currently a member of senior management of the Company,\nserving in the capacity of ________________________________.\n\n     B.   The Company desires to provide certain protection to Executive in the\nevent of a change in control or potential change in control of the Company, in\norder to induce Executive to remain in the employ of the Company notwithstanding\nany risks and uncertainties created by a potential change in control of the\nCompany, as set forth in this Agreement.\n\n                                    AGREEMENT\n\n     THEREFORE, in consideration of the mutual covenants contained herein, the\nparties hereby agree as follows:\n\n     1.   Benefits Upon a Change in Control. If (i) during the term of this\nAgreement and while Executive remains an employee of the Company, the Company\nshall be subject to a Change in Control and (ii) within one (1) year following\nsuch Change in Control the Company terminates the employment of Executive\ninvoluntarily and without Business Reasons or a Constructive Termination occurs,\nthen in such case Executive shall be entitled to receive the following: (A)\nExecutive's base salary and vacation accrued through the Termination Date, (B)\nvesting of all outstanding stock options and other equity arrangements subject\nto vesting and held by Executive through the Termination Date, plus acceleration\nof an additional 12 months of vesting of such options and other equity\narrangements, and (C) to the extent required by COBRA only, continuation of\ngroup health benefits pursuant to the Company's standard programs or in effect\nat the Termination Date, for a period of not less than 18 months (or such longer\nperiod as may be required by COBRA), provided that Executive makes the necessary\nconversion.\n\n     2.   Exclusivity. The provisions of this Agreement are intended to be and\nare exclusive and in lieu of any other rights or remedies to which Executive or\nthe Company may otherwise be entitled, either at law, tort or contract, in\nequity, under Company policies in effect now or hereafter, or under this\nAgreement, in the event that (i) during the term of this Agreement and while\nExecutive remains an employee of the Company, the Company shall be subject to a\nChange in Control and (ii) within one (1) year following such Change in Control\nthe Company terminates the employment of Executive involuntarily and without\nBusiness Reasons or a Constructive Termination occurs. In such circumstances,\nExecutive shall be entitled to no benefits, compensation or other payments or\nrights upon termination of employment other than those benefits expressly set\nforth in Section 1.\n\n\n     The provisions of this Agreement shall not affect the terms of employment\nbetween the Company and Executive or the rights and obligations of the parties\nunder such relationship except as expressly provided herein, it being understood\nhowever that Executive's employment is and shall continue to be at-will, as\ndefined under applicable law. Either the Company or Executive may terminate this\nagreement and Executive's employment at any time, with or without Business\nReasons (as defined in subsection 3(a) below), in its or his\/her sole\ndiscretion, upon fourteen (14) days' prior written notice of termination. If\nExecutive's employment terminates for any reason, Executive shall not be\nentitled to any payments, benefits, damages, awards or compensation other than\nas provided by this Agreement (in circumstances to which this Agreement applies,\nas set forth in Section 1), or (in circumstances to which this Agreement does\nnot apply) as may otherwise be available in accordance with the Company's\nestablished employee plans and policies at the time of termination.\n\n     3.   Definition of Terms. The following terms referred to in this Agreement\nshall have the following meanings:\n\n          (a)  \"Business Reasons\" shall mean (i) any act of personal dishonesty\ntaken by Executive in connection with his\/her responsibilities as an employee\nand intended to result in substantial personal enrichment of Executive, (ii)\ncommission of a felony or other offense which involves moral turpitude or is\notherwise injurious to the Company or its reputation, (iii) a willful act by\nExecutive which constitutes gross misconduct and which is injurious to the\nCompany or its reputation, (iv) material breach of this Agreement by Executive,\nincluding any material breach of the provisions of Section 4 or 5 hereof, or (v)\ncontinued violation by Executive of Executive's obligations and duties as an\nExecutive of the Company that are demonstrably willful and deliberate on\nExecutive's part after there has been delivered to Executive a written demand\nfor performance from the Company which describes the basis for the Company's\nbelief that Executive has not substantially performed his\/her duties.\n\n          (b)  \"Constructive Termination\" shall be deemed to occur if (A)\nwithout the consent of Executive, (i) there is a significant reduction in\nExecutive's overall scope of duties, authorities and responsibilities (it being\nunderstood that a new position within a larger combined company is not a\nconstructive termination if it is in the same area of operations and involves\nsimilar scope of management responsibility notwithstanding that the individual\nmay not retain as senior a position overall within the larger combined\ncorporation as Executive's prior position within the Company), (ii) Executive is\nrequired to relocate his\/her place of employment, other than a relocation within\n50 miles of Executive's current business location, or (iii) there is a reduction\nof more than 20% of Executive's base salary or target bonus (other than any such\nreduction consistent with a general reduction of pay across the Executive staff\nas a group, as an economic or strategic measure due to poor financial\nperformance by the Company) and (B) within the thirty (30) day period\nimmediately following such material adverse change or reduction Executive elects\nto terminate his\/her employment voluntarily.\n\n          (c)  \"Change in Control\" shall mean any merger, consolidation, sale of\nassets or other similar transaction or series of transactions involving the\nCompany, other than any such transaction or transactions following which the\nCompany or its stockholders continue to own a majority of the combined voting\npower of the outstanding securities of the corporation or other entity surviving\nor succeeding to the business of the Company.\n\n                                       -2-\n\n\n     4.   Confidential Information.\n\n          (a)  Executive acknowledges that the Confidential Information (as\ndefined below) relating to the business of the Company and its subsidiaries\nwhich Executive has obtained or will obtain during the course of his\/her\nassociation with the Company and subsidiaries and his\/her performance under this\nAgreement are the property of the Company and its subsidiaries. Executive agrees\nthat he\/she will not disclose or use at any time, either during or after the\nEmployment period, any Confidential Information without the written consent of\nthe Board of Directors of the Company. Executive agrees to deliver to the\nCompany at the end of the Employment period, or at any other time that the\nCompany may request, all memoranda, notes, plans, records, documentation and\nother materials (and copies thereof) containing Confidential Information\nrelating to the business of the Company and its subsidiaries, no matter where\nsuch material is located and no matter what form the material may be in, which\nExecutive may then possess or have under his\/her control. If requested by the\nCompany, Executive shall provide to the Company written confirmation that all\nsuch materials have been delivered to the Company or have been destroyed.\nExecutive shall take all appropriate steps to safeguard Confidential Information\nand to protect it against disclosure, misuse, espionage, loss and theft.\n\n          (b)  \"Confidential Information\" shall mean information which is not\ngenerally known to the public and which is used, developed, or obtained by the\nCompany or its subsidiaries relating to the businesses of any of the Company and\nits subsidiaries or the business of any customer thereof including, but not\nlimited to: products or services; fees, costs and pricing structure; designs;\nanalyses; formulae; drawings; photographs; reports; computer software, including\noperating systems, applications, program listings, flow charts, manuals and\ndocumentation; databases; accounting and business methods; inventions and new\ndevelopments and methods, whether patentable or unpatentable and whether or not\nreduced to practice; all copyrightable works; the customers of any of the\nCompany and its subsidiaries and the Confidential Information of any customer\nthereof; and all similar and related information in whatever form. Confidential\nInformation shall not include any information which (i) was rightfully known by\nExecutive prior to the Employment Period; (ii) is publicly disclosed by law or\nin response to an order of a court or governmental agency; (iii) becomes\npublicly available through no fault of Executive or (iv) has been published in a\nform generally available to the public prior to the date upon which Executive\nproposes to disclose such information. Information shall not be deemed to have\nbeen published merely because individual portions of the information have been\nseparately published, but only if all the material features comprising such\ninformation have been published in combination.\n\n          (c)  Inventions and Patents. In the event that Executive, as a part of\nExecutive's activities on behalf of the Company, generates, authors or\ncontributes to any invention, new development or method, whether or not\npatentable and whether or not reduced to practice, any copyrightable work, any\ntrade secret, any other Confidential Information, or any information that gives\nany of the Company and its subsidiaries an advantage over any competitor, or\nsimilar or related developments or information related to the present or future\nbusiness of any of the Company and its subsidiaries (collectively \"Developments\nand Information\"), Executive acknowledges that all Developments and Information\nare the exclusive property of the Company. Executive hereby assigns to the\nCompany, its nominees, successors or assigns, all rights, title and interest to\n\n\n                                       -3-\n\n\nDevelopments and Information. Executive shall cooperate with the Company's Board\nof Directors to protect the interests of the Company and its subsidiaries in\nDevelopments and Information. Executive shall execute and file any document\nrelated to any Developments and Information requested by the Company's Board of\nDirectors including applications, powers of attorney, assignments or other\ninstruments which the Company's Board of Directors deems necessary to apply for\nany patent, copyright or other proprietary right in any and all countries or to\nconvey any right, title or interest therein to any of the Company's nominees,\nsuccessors or assigns.\n\n     5.   Non-Competition Agreement.\n\n          (a)  Executive acknowledges that his\/her services are of a special,\nunique and extraordinary value to the Company and that he\/she has access to the\nCompany's trade secrets, Confidential Information and strategic plans of the\nmost valuable nature. Accordingly, Executive agrees that during the term of the\nAgreement and for a period of one (1) year following the occurrence of both\nevents discussed in subsections 1(i) and 1(ii) hereof, Executive shall not\ndirectly or indirectly own, manage, control, participate in, consult with,\nrender services for, or in any manner engage in any business competing with the\nbusinesses of the Company or any of its subsidiaries as such businesses exist or\nare in process of development on the Termination Date, including without\nlimitation the publication of periodic research and analysis of the information\ntechnology industries. Nothing herein shall prohibit Executive from being a\npassive owner of not more than 1% of the outstanding stock of any class of a\ncorporation which is publicly traded, so long as Executive has no active\nparticipation in the business of such corporation.\n\n          (b)  In addition, during the term of the Agreement and for a period of\none (1) year following the occurrence of both events discussed in subsections\n1(i) and 1(ii) hereof, Executive shall not (i) induce or attempt to induce any\nemployee of the Company or any subsidiary to leave the employ of the Company or\nsuch subsidiary, or in any way interfere with the relationship between the\nCompany or any subsidiary and any employee thereof, (ii) hire directly or\nthrough another entity any person who was an employee of the Company or any\nsubsidiary at any time during the Employment Period, or (iii) induce or attempt\nto induce any customer, supplier, licensee or other business relation of the\nCompany or any subsidiary to cease doing business with the Company or such\nsubsidiary, or in any way interfere with the relationship between any such\ncustomer, supplier, licensee or business relation and the Company or any\nsubsidiary.\n\n          (c)  Executive agrees that these restrictions on competition and\nsolicitation shall be deemed to be a series of separate covenants not-to-compete\nand a series of separate non-solicitation covenants for each month within the\nspecified periods, separate covenants not-to-compete and non-solicitation\ncovenants for each state within the United States and each country in the world,\nand separate covenants not-to-compete for each area of competition. If any court\nof competent jurisdiction shall determine any of the foregoing covenants to be\nunenforceable with respect to the term thereof or the scope of the subject\nmatter or geography covered thereby, such remaining covenants shall nonetheless\nbe enforceable by such court against such other party or parties or upon such\nshorter term or within such lesser scope as may be determined by the court to be\nenforceable.\n\n\n                                       -4-\n\n\n          (d)  Because Executive's services are unique and because Executive has\naccess to Confidential Information and strategic plans of the Company of the\nmost valuable nature, the parties agree that the covenants contained in this\nSection 5 are necessary to protect the value of the business of the Company and\nthat a breach of any such covenant would result in irreparable and continuing\ndamage for which there would be no adequate remedy at law. The parties agree\ntherefore that in the event of a breach or threatened breach of this Agreement,\nthe Company or its successors or assigns may, in addition to other rights and\nremedies existing in their favor, apply to any court of competent jurisdiction\nfor specific performance and\/or injunctive or other relief in order to enforce,\nor prevent any violations of, the provisions hereof.\n\n     6.   Term of Agreement. This Agreement shall commence as of the date first\nset forth above and shall continue until the date (the \"Termination Date\") which\nis the earlier of (i) the date that Executive ceases to be an employee of the\nCompany, for any reason, and (ii) December 31, 2004. Any benefits accruing to\nExecutive under Section 1 hereof prior to or upon the Termination Date shall\nsurvive termination of the Agreement, and any obligations of Executive under\nSections 1, 4 and 5 hereof shall survive any such termination.\n\n     7.   Miscellaneous Provisions.\n\n          (a)  Notice. Notices and all other communications contemplated by this\nAgreement shall be in writing, shall be effective when given, and in any event\nshall be deemed to have been duly given (i) when delivered, if personally\ndelivered, (ii) three (3) business days after deposit in the U.S. mail, if\nmailed by U.S. registered or certified mail, return receipt requested, or (iii)\none (1) business day after the business day of deposit with Federal Express or\nsimilar overnight courier, if so delivered, freight prepaid. In the case of\nExecutive, notices shall be addressed to him at the home address which he\/she\nmost recently communicated to the Company in writing. In the case of the\nCompany, notices shall be addressed to its corporate headquarters, and all\nnotices shall be directed to the attention of its Corporate Secretary.\n\n          (b)  Successors.\n\n               (i)  Company's Successors. Any successor to the Company (whether\ndirect or indirect and whether by purchase, lease, merger, consolidation,\nliquidation or otherwise) to all or substantially all of the Company's business\nand\/or assets shall be entitled to assume the rights and shall be obligated to\nassume the obligations of the Company under this Agreement and shall agree to\nperform the Company's obligations under this Agreement in the same manner and to\nthe same extent as the Company would be required to perform such obligations in\nthe absence of a succession. For all purposes under this Agreement, the term\n\"Company\" shall include any successor to the Company's business and\/or assets\nwhich executes and delivers the assumption agreement described in this\nsubsection (i) or which becomes bound by the terms of this Agreement by\noperation of law.\n\n               (ii) Executive's Successors. The terms of this Agreement and all\nrights of Executive hereunder shall inure to the benefit of, and be enforceable\nby, Executive's personal or legal representatives, executors, administrators,\nsuccessors, heirs, distributees, devisees and legatees.\n\n\n                                       -5-\n\n\n               (iii) No Other Assignment of Benefits. Except as provided in this\nSection 7(b), the rights of any person to payments or benefits under this\nAgreement shall not be made subject to option or assignment, either by voluntary\nor involuntary assignment or by operation of law, including (without limitation)\nbankruptcy, garnishment, attachment or other creditor's process, and any action\nin violation of this subsection (iii) shall be void.\n\n          (c)  Waiver. No provision of this Agreement shall be modified, waived\nor discharged unless the modification, waiver or discharge is agreed to in\nwriting and signed by Executive and by an authorized officer of the Company\n(other than Executive). No waiver by either party of any breach of, or of\ncompliance with, any condition or provision of this Agreement by the other party\nshall be considered a waiver of any other condition or provision or of the same\ncondition or provision at another time.\n\n          (d)  Entire Agreement. Executive acknowledges and reaffirms his\/her\nobligations contained in the Company's standard form of Employment, Confidential\nInformation and Invention Assignment Agreement, which was previously executed by\nExecutive (or, if Executive has not previously executed such agreement, by which\nExecutive hereby agrees to be bound in consideration for the mutual agreements\nherein), and offer letter or employment agreement, if any, which was previously\nexecuted by Executive, which documents include, without limitation, obligations\nregarding confidential information, non-competition and non-solicitation. If\nthere is any conflict between the terms of this Agreement, the Employment,\nConfidential Information and Invention Assignment Agreement, and any offer\nletter or employment agreement, the terms of the more restrictive provisions\nshall control. This Agreement, the Employment, Confidential Information and\nInvention Assignment Agreement, any offer letter or employment agreement and any\nstock option agreements collectively contain the entire understanding of the\nparties with respect to the subject matter hereof and supersede any prior\nunderstandings or agreements between the parties with respect to such subject\nmatter.\n\n          (e)  Severability. The invalidity or unenforceability of any provision\nor provisions of this Agreement shall not affect the validity or enforceability\nof any other provision hereof, which shall remain in full force and effect.\n\n          (f)  Governing Law; Arbitration. This Agreement shall be construed in\naccordance with and governed by the laws of the State of California as they\napply to contracts entered into and wholly to be performed within such state by\nresidents of such state. Any dispute or controversy arising under or in\nconnection with this Agreement shall be settled exclusively by arbitration\nwithin the federal Northern District of California, in accordance with the rules\nof the American Arbitration Association then in effect. Judgment may be entered\non the arbitrator's award in any court having jurisdiction. No party shall be\nentitled to seek or be awarded punitive damages. All attorneys' fees and costs\nshall be allocated or apportioned by the parties, and in the absence of any\nagreement or allocation or apportionment shall be awarded to the prevailing\nparty.\n\n          (g)  Employment Taxes. All payments made pursuant to this Agreement\nwill be subject to withholding of applicable taxes.\n\n\n                                       -6-\n\n\n          (h)  Counterparts. This Agreement may be executed in counterparts,\neach of which shall be deemed an original, but all of which together will\nconstitute one and the same instrument.\n\n     IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the\ncase of the Company by its duly authorized officer, as of the day and year first\nabove written.\n\n                                   COMPANY\n\n                                   CORIO, INC.\n\n\n                                   By:\n                                       -----------------------\n\n                                   Its:\n                                       -----------------------\n\n\n                                   EXECUTIVE\n\n                                   -----------------------\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7212],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9539,9551],"class_list":["post-38596","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-corio-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-compensation","corporate_contracts_types-compensation__severance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38596","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38596"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38596"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38596"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38596"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}