{"id":39046,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-cybermedia-inc-and-jim-tolonen.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-cybermedia-inc-and-jim-tolonen","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-cybermedia-inc-and-jim-tolonen.html","title":{"rendered":"Employment Agreement &#8211; CyberMedia Inc. and Jim Tolonen"},"content":{"rendered":"<pre>                              Employment Agreement\n\n\n\n         This Employment  Agreement  (this  'Agreement') is made as of April 22,\n1998 by and between  CyberMedia Inc., with offices at 2850 Ocean Park Boulevard,\nSanta Monica, CA 90405 (the 'Company'), and Jim Tolonen, with an address of 3911\nSpray Lane, Malibu, CA 90265 ('Executive').\n\n         1.       Employment and Term.\n\n                  Effective  from and  after  April  22,  1998  (the  'Effective\nDate'),  the Company  hereby  employs  Executive,  and Executive  hereby accepts\nemployment by the Company,  on the terms and subject to the conditions set forth\nin this  Agreement,  until such time as Executive or the Company shall terminate\nsuch employment in accordance with the terms and conditions  herein (such period\nof time, the 'Term of  Employment').  The Company  acknowledges  and understands\nthat prior to May 1, 1998,  Executive will be available on a limited,  part-time\nbasis in  deference  to his  obligations  to and his  transition  from his prior\nemployer.\n\n         2.       Duties; Location of Employment.\n\n                  (a) During the Term of Employment,  Executive shall serve on a\nfull-time basis as the Company's  President and Chief Operating Officer. In such\ncapacity,  Executive shall report to, and have such  responsibilities and duties\nwith  respect  to  the  Company's  business  as may  be  required  of him by the\nCompany's  Chief  Executive  Officer  ('CEO') or, in the  absence of a CEO,  the\nCompany's Board of Directors (the 'Board').  Executive  currently  serves on the\nBoard.  During the  Employment  Term,  the Company shall use its best efforts to\nnominate and elect  Executive as a director,  and Executive  shall serve in such\ncapacity  without  additional  consideration.  Executive shall serve the Company\nfaithfully and to the best of his ability in such capacities,  devoting his full\nbusiness  time,  attention,  knowledge,  energy and  skills to such  employment;\nprovided,  however,  the Company  acknowledges  that  Executive may serve on the\nboard of  directors  of other  companies  with the prior  approval of the Board.\nExecutive shall travel as reasonably required in connection with the performance\nof his duties hereunder.\n\n                  (b)      Executive's  services shall be rendered  principally \nat  the current  offices  of the Company  located at 2850 Ocean  Park Boulevard,\nSanta Monica, CA  90405.\n\n         3.       Compensation and Benefits.\n\n                  As  full  and  complete  compensation  to  Executive  for  the\nperformance of the services required hereunder,  the Company shall pay, grant or\nprovide  Executive,  and Executive  agrees to accept,  the following  salary and\nother compensation and benefits:\n\n                  (a) A base salary,  payable in  accordance  with the Company's\nstandard  payroll  practices  for  senior  executive  employees,  but  not  less\nfrequently than monthly, at an annual rate of $250,000 ('Base Salary').\n\n                   (b)  The  right  to  participate  in  any  medical,   dental,\ndisability,  insurance, retirement, savings, vacation, sick leave or other plans\nor programs  established  for the benefit of the Company's key senior  executive\nemployees.\n\n                  (c) Prompt  reimbursement for all reasonable  business-related\nexpenses incurred by Executive in accordance with the policies and procedures of\nthe  Company  as in effect  from time to time with  respect  to other key senior\nexecutives.\n\n                  (d) Paid  vacation  in  accordance  with the  policies  of the\nCompany  as in  effect  from  time to time  with  respect  to other  key  senior\nexecutives.\n\n                                       37\n\n\n                  (e)  Non-qualified  stock  options (the  'Options') to acquire\nfour  hundred six thousand  (406,000)  shares of the common stock of the Company\n(the 'Common  Stock'),  on terms  substantially  similar to those  applicable to\noptions granted under the Company's  Amended 1993 Stock Option Plan (the 'Option\nPlan')  and  standard  form of  stock  option  agreement,  as  modified  by this\nAgreement.  The Options shall be granted, and vesting thereof shall commence, as\nof the Effective  Date.  The Options  shall have an exercise  price equal to the\nfair market value of Common Stock as of the Effective  Date as determined by the\nBoard as to one hundred  thousand  (100,000) of the Option  shares,  and $10 per\nshare as to three hundred six thousand (306,000) of the Option shares. Except as\notherwise  provided  herein,  the Options  shall vest on a monthly  basis over a\nforty-eight (48) month period,  subject to Executive's  continued service to the\nCompany.\n\n                  (f) Within thirty (30) days of the Effective Date, the Company\nshall pay Executive a bonus of $227,500.  Provided Executive remains an employee\nof the Company on the first anniversary of the Effective Date, the Company shall\npay Executive a bonus of $200,000 within fifteen (15) days of such  anniversary.\nProvided  Executive remains an employee of the Company on the second anniversary\nof the  Effective  Date,  the Company shall pay to Executive a bonus of $200,000\nwithin fifteen (15) days of such anniversary.  Notwithstanding the foregoing, in\nthe event Executive  becomes  entitled to benefits under Section 4(d) or Section\n4(g),  the Company shall pay to Executive the bonuses  described in this Section\n3(f) to the extent not previously  paid. Any bonuses payable  hereunder shall be\nsubject to applicable tax withholding.\n\n                   (g) The  Executive  shall be  eligible  to  receive  for each\nannual  period  during the Term of  Employment  commencing  January 1 and ending\nDecember 31,  beginning  January 1, 1999 (the 'Bonus  Period'),  an annual bonus\n(the 'Annual  Bonus') of up to one hundred  percent (100%) of  Executive's  Base\nSalary (the 'Target  Bonus'),  to be earned based upon attainment of performance\ngoals and  objectives to be  determined  by the Board on or before  January 1 of\neach such year during the Term of Employment.  For the period beginning with the\nEffective  Date and ending on June 30,  1998,  Executive  shall be  eligible  to\nreceive a bonus (the 'Initial Bonus') of $42,000 based on performance  goals and\nobjectives  to be  determined  by the Board on or before  June 1, 1998.  For the\nperiod  beginning July 1, 1998 and ending December 31, 1998,  Executive shall be\neligible to receive a quarterly bonus of $62,500 for each of the fiscal quarters\nbeginning July 1, 1998 and October 1, 1998, (the 'Quarterly Bonus') to be earned\nupon  attainment  of  performance  goals and  objectives to be determined by the\nBoard on or before the  beginning of each such  quarter.  The Initial  Bonus and\nQuarterly  Bonus,  if any,  shall be paid  within 60 days after the close of the\napplicable  fiscal  quarter.  The Annual  Bonus,  if any,  shall be paid no less\nfrequently than once each year within 60 days after the Bonus Period.\n\n                  (h) The right,  exercisable  for 30 days  after the  Effective\nDate, to purchase on terms  substantially  similar to those  applicable to stock\npurchase  rights under the Option Plan and  standard  form of  restricted  stock\npurchase  agreement up to one hundred thousand (100,000) shares of Common Stock,\nat a price of $6.375 per share (the 'Restricted Stock').  Executive may purchase\nthe Restricted Stock with a full recourse promissory note (the 'Note'). The Note\nshall accrue interest semi-annually at the 'applicable federal rate' (within the\nmeaning of Section  1274(d) of the Code),  and shall be subject to  repayment in\naccordance with Section 5 below.  Restricted Stock shall vest on a monthly basis\nover a thirty-six (36) month period commencing on the Effective Date, subject to\nExecutive's  continued  service to the Company or as otherwise  provided herein,\nwith 2,777 shares of Restricted  Stock to vest each month during such thirty-six\n(36) month period except for the last month of such thirty-six (36) month period\nin which  2,805  shares of  Restricted  Stock  shall  vest,  subject  to earlier\nvesting,  if any, if either of the following  events or conditions  occurs or is\nsatisfied during the Term of Employment:  (x) the average closing stock price of\nthe common stock of the Company on the Nasdaq  National  Market exceeds  fifteen\ndollars ($15) for any twenty (20)  consecutive  trading days, or (y) the Company\nrecognizes  a Net Profit for two fiscal  consecutive  quarters  (the 'Net Profit\nPeriod').  For purposes of this  Agreement,  the Company shall have recognized a\n'Net Profit' for the Net Profit  Period if, with respect to each fiscal  quarter\nin the Net Profit  Period,  (x) the  Company  has net  revenues in excess of $16\nmillion for each such fiscal  quarter as reported in the Company's  consolidated\nstatement of operations  ('Statement of  Operations') in the Company's Form 10-Q\nfor the quarter then ended or the  Company's  annual report on Form 10-K for the\nyear then ended, as the\n\n                                       38\n\n\ncase  may  be  (the 'SEC  Reports'),  and (y)  the   Company's  earnings  before\ninterest and taxes for each such fiscal quarter  ('EBIT') are in excess of 5% of\nthe net  revenues  of the  Company  for such  fiscal  quarter as reported in the\nStatement of Operations in the Company's SEC Reports;  provided,  that, EBIT for\nany  particular  fiscal  quarter  shall be determined  without  giving effect to\nExecutive's right to the bonus described in Section 3(f).\n\n                  (i)  The  Company  shall  pay  premiums  during  the  Term  of\nEmployment  required to be paid in order to maintain a life insurance  policy on\nthe life of Executive with $2 million of benefits payable upon Executive's death\nto a beneficiary or beneficiaries  designated by Executive.  Upon termination of\nthis  Agreement,  the  Company  shall  be  entitled  to  withdraw  from the cash\nsurrender value of such policy, to the extent available,  an amount equal to the\ninsurance premiums paid by the Company.\n\n                   (j) The Company will pay or reimburse Executive,  as the case\nmay be,  for the  following  costs and  expenses  incurred  in  connection  with\nExecutive's  and his  family's  relocation  to  Santa  Monica,  California;  (i)\nExecutive's reasonable and prudent moving expenses to a Santa Monica, California\nresidence;  (ii) Executive's  reasonable and prudent rental expenses for a Santa\nMonica,  California  interim  residence  for a period of up to 270 days from the\nEffective Date; (iii) the reasonable and prudent travel expenses incurred by the\nExecutive  arising out of  personal  visits to Los Gatos,  California  until his\nfamily  relocates to the Santa  Monica,  California  area;  (iv) the  reasonable\nclosing costs,  such costs not to include any financing  points,  arising out of\nExecutive's sale of his Los Gatos,  California residence and purchase of a Santa\nMonica,  California  area  residence;  and (v) all other  reasonable and prudent\none-time  direct costs of relocation  (but not including any loss on the sale of\nthe  Los  Gatos,  California  residence).  Notwithstanding  the  foregoing,  the\nCompany's  obligation to pay or reimburse  Executive for such expenses shall not\nexceed $75,000.\n\n         4.       Termination.\n\n                  (a) Disability.  In the event of the permanent  disability (as\nhereinafter  defined) of Executive  during the Term of  Employment,  the Company\nshall have the right, upon written notice to Executive, to terminate Executive's\nemployment hereunder,  effective upon the 30th calendar day following the giving\nof such notice (or such later day as shall be  specified in such  notice).  Upon\nthe  effectiveness  of such  termination,  (i) the Company shall have no further\nobligations  hereunder,  except  to  pay  and  provide,  subject  to  applicable\nwithholding,  (A) all  amounts  of  Base  Salary  accrued,  but  unpaid,  at the\neffective date of termination,  (B) a lump sum amount equal to Executive's  then\nannual Base Salary,  (C) a pro rata portion of  Executive's  Quarterly  Bonus or\nTarget   Bonus,   as   applicable,   and   (D)   all   reasonable   unreimbursed\nbusiness-related  expenses, and (ii) Executive shall have no further obligations\nhereunder other than those provided for in Sections 6 and 7 hereof.  All amounts\npayable to Executive  pursuant to this  Section 4(a) shall be payable  within 30\ndays following the  effectiveness of the termination of Executive's  employment.\nFor purposes of this paragraph,  'permanent  disability' shall be defined as any\nphysical or mental disability or incapacity which renders Executive incapable in\nany material  respect of performing  the services  required of him in accordance\nwith his  obligations  under Section 2 for a period of 120 days,  consecutive or\notherwise, in any 360-day period.\n\n                  (b) Death.  In the event of the death of Executive  during the\nTerm of Employment, this Agreement shall automatically terminate and the Company\nshall  have no  further  obligations  hereunder,  except to pay and  provide  to\nExecutive's  beneficiary  or other legal  representative,  subject to applicable\nwithholding,  (A) all amounts of Base Salary accrued but unpaid,  at the date of\ndeath, (B) a pro rata portion of Executive's Quarterly Bonus or Target Bonus, as\napplicable,  and (C) all reasonable unreimbursed  business-related expenses. All\namounts  payable to  Executive  pursuant to this  Section  4(b) shall be payable\nwithin 30 days following the date of death.\n\n                   (c) Cause.  The Company  shall have the right,  upon  written\nnotice to Executive,  to terminate  Executive's  employment under this Agreement\nfor Cause (as hereinafter  defined);  provided,  however, that the Company shall\nnot terminate  Executive's  employment  for Cause unless the Company shall first\nhave given Executive  written notice of the Company's  intention to do so, which\nwritten  notice shall specify the particular  breaches,  acts or failures to act\nconstituting  the  basis  for such  termination  and \n\n                                       39\n\n\nshall offer  Executive  an opportunity,  within 20 days of  the receipt  of such\nnotice, to meet with the Board to defend such breaches,  acts or failures to act\nand\/or to cure any such  breaches  or acts which are  possible  to cure.  In the\nevent of a termination  for Cause,  this Agreement shall terminate and Executive\nshall be removed from office  effective as of the date  specified by the Company\nin the notice  (subject  to the  20-day  period  referred  to above) and (i) the\nCompany shall have no further obligations  hereunder,  except to pay all amounts\nof Base Salary, reimburse all reasonable unreimbursed  business-related expenses\nand pay and provide all other benefits  accrued to the date of  termination  and\n(ii)  Executive  shall have no further  obligations  hereunder  except for those\nprovided  for in  Sections  6 and 7  hereof;  provided,  however,  that  nothing\ncontained  in this  Section  4(c)  shall  constitute  a waiver or release by the\nCompany of any rights or claims it may have  against  Executive  for  actions or\nomissions which give rise to a termination under this Section 4(c).\n\n                  For purposes of this Agreement, the term 'Cause' shall mean:\n\n                           (i)   any act of fraud, embezzlement or dishonesty on\nthe part of Executive with respect to the Company or any of its affiliates;or\n\n                           (ii)  any  material  breach  by  Executive  of  his  \nobligations under Sections 6 or 7 hereof; or\n\n                           (iii)    conviction of Executive of any felony; or\n\n                           (iv) a material  breach of, or the failure or refusal\nby Executive  to  perform and  discharge, Executive's duties,   responsibilities\nand  obligations  under  this  Agreement  (it  being understood  that no  action\nor failure to act by Executive shall be considered to be Cause if such action or\nfailure to act shall have been taken by  Executive in good faith).\n\n                  (d)  Without  Cause.  The Company  shall have the right,  upon\nwritten  notice to Executive,  to terminate  Executive's  employment  under this\nAgreement  without Cause,  in which case this Agreement  shall  terminate on the\ndate  specified in such  notice.  The Company  thereafter  shall have no further\nobligations hereunder, except (subject to applicable withholding) to (i) pay all\namounts of Base Salary accrued, but unpaid, to the date of termination, (ii) pay\nan additional amount equal to the sum of (A) Executive's  annual Base Salary and\n(B)  Executive's  Target  Bonus for the fiscal  year in which  such  termination\noccurs,  and  (iii)  reimburse  all  reasonable  unreimbursed   business-related\nexpenses. In addition, in the event Executive's  employment is terminated by the\nCompany  without  Cause,  all  Options  which  would have  vested had  Executive\nremained employed by the Company for a twelve month consecutive period after the\ndate of such  termination and Restricted  Stock that remains unvested as of such\ndate  of  termination  shall   automatically  and  immediately  vest  upon  such\ntermination, in all cases subject to applicable tax withholding. For purposes of\nthis  Section  4(d),  Executive's  employment  will be  considered  to have been\nterminated  by the  Company  without  Cause in the event  Executive  voluntarily\nresigns his employment with the Company because of (i) a material adverse change\nin his position with the Company which  materially  reduces his  responsibility,\nwithout  Cause and  without  Executive's  written  consent;  or (ii) a  material\nreduction in Executive's compensation without his written consent.\n\n                  (e) Voluntary Termination. Executive may voluntarily terminate\nhis employment  with the Company at any time upon at least 30 days prior written\nnotice,  in which case this Agreement  shall terminate on the 30th day from such\nnotice  or such  longer  period  as may be  consented  to by the  Company.  Upon\ntermination,  the Company shall have no further obligations hereunder, except to\npay all amounts of Base Salary  accrued,  but unpaid,  at the effective  date of\nvoluntary  termination,   and  all  reasonable   unreimbursed   business-related\nexpenses, if any.\n\n                   (f)  Plan  Benefits.  Upon  any  termination  of  Executive's\nemployment  hereunder,  the Company  shall pay  Executive  the amounts and shall\nprovide all benefits  generally  available upon  termination  under any employee\nbenefit plans,  policies and practices of the Company,  determined in accordance\nwith the applicable terms and provisions of such plans, policies and practices.\n\n                                       40\n\n\n                  (g) Change of Control. In the event (i) of a Change of Control\nof the Company during the six-month period  immediately after the Effective Date\n(the  'Initial  Period')  and (ii)  within  twelve  months  after such Change of\nControl  either  Executive   voluntarily   resigns  or  the  Company  terminates\nExecutive's  employment  other than for Cause,  then (A) the  Company  shall pay\nExecutive  an amount  equal to 300% of  Executive's  annual Base Salary less any\namounts of the Target Bonus,  Initial  Bonus and Quarterly  Bonus earned or paid\nwith respect to the Company's fiscal year in which such termination  occurs, and\n(B) all Options which would have vested had Executive  remained  employed by the\nCompany from the Effective Date through and until twenty-four consecutive months\nafter the Effective  Date and Restricted  Stock that remain  unvested as of such\ndate  of  termination  shall   automatically  and  immediately  vest  upon  such\ntermination,  in all cases subject to applicable tax  withholding.  In the event\n(i) of a Change of Control of the Company at any time after the  Initial  Period\nand (ii) within  twelve  months  after such Change of Control  Executive  either\nvoluntarily resigns or the Company terminates  Executive's employment other than\nfor Cause,  then (A) the Company  shall pay Executive an amount equal to 200% of\nthe Executive's  annual Base Salary, and (B) all Options which would have vested\nhad  Executive  remained  employed by the Company for an eighteen  month  period\nafter the date of such  termination and Restricted Stock that remain unvested as\nof such date of termination  shall  automatically and immediately vest upon such\ntermination, in all cases subject to applicable tax withholding. In the event of\na Change of Control of the  Company at a value (the  'Transaction  Value')  that\nequals or exceeds $20 per share of Company  common stock (as  determined  by the\nBoard,  in its  discretion),  Executive's  Options  shall  vest as  follows  (in\naddition to any accelerated vesting provided above): if the Transaction Value is\nless than $30 per share,  then the Options  shall vest as though  Executive  had\nremained employed by the Company for an additional 12 months; if the Transaction\nValue  equals or exceeds $30 per share,  then  Executive's  Options  shall fully\nvest.For  purposes of this  Agreement,  a 'Change of Control' shall be deemed to\nhave occurred upon the closing of (i) a merger,  reorganization or consolidation\nof the Company with or into any other  corporation  or other entity,  or sale of\nall or substantially  all of the assets of the Company,  unless the stockholders\nof the Company  immediately  prior to such  transaction hold at least 50% of the\ntotal voting power  represented by the voting securities of the entity surviving\nsuch merger,  reorganization  or  consolidation  (or its parent),  or the entity\npurchasing such assets (or its parent),  or (ii) upon a sale or transfer of more\nthan 50% of the Common  Stock of the Company to a person or persons  acting as a\ngroup,  which person or group is not  controlled  directly or  indirectly by the\nCompany, in a single transaction or series of related transactions.\n         \n         5.       Repayment of Note.\n\n                  Executive's Note (as described in Section 3(h)),  shall be due\nand payable in full, together with any accrued but unpaid interest, on the third\nanniversary of the Effective Date, subject to earlier prepayment  voluntarily by\nExecutive or as follows:\n\n                  (a) The  principal  amount  of the  Note,  together  with  any\naccrued but unpaid interest, shall be due and payable in full within ninety (90)\ndays  of the  date  Executive's  employment  with  Company  (or  its  successor)\nterminates for any reason,  but only if such termination occurs more than ninety\n(90) days before the third anniversary of the Effective Date.\n\n                   (b)  Within  thirty  (30)  days of  receiving  any  bonus  as\nprovided in Section 3(f),  Executive shall pay to the Company an amount equal to\nthe bonus amount, net of applicable tax withholding.\n\n         6.       Confidentiality; Ownership.\n\n                  (a) During the Term of Employment  and  thereafter,  Executive\nshall keep secret and retain in  strictest  confidence  and not use or disclose,\nfurnish  or  make  accessible  to  anyone  outside  the  Company  and any of its\naffiliates,  directly or indirectly, or use for the benefit of himself or others\nexcept in connection with the business of the Company and the business of any of\nits subsidiaries or affiliates,  any Protected Information.  The term 'Protected\nInformation' shall mean trade secrets,  confidential or proprietary  information\nand  all  other  knowledge,  technology,  know-how,  information,  documents  or\nmaterials  owned,   developed  or  possessed  by  the  Company  or  any  of  its\nsubsidiaries\n\n                                       41\n\n \nor  affiliates,  whether in  tangible  or  intangible  form,  pertaining  to the\nbusiness of the Company or any of its subsidiaries or affiliates, including, but\nnot  limited  to,  research  and  development  operations,  systems,  databases,\ncomputer programs and software, designs, models, operating procedures, knowledge\nof the organization,  products and services  (including prices,  costs, sales or\ncontent), processes,  techniques,  contracts, financial information or measures,\nbusiness methods,  future business plans, details of consultant  contracts,  new\npersonnel acquisition plans, business acquisition plans, customers and suppliers\n(including  identities of customers  and  prospective  customers and  suppliers,\nidentities of individual  contacts at business  entities  which are customers or\nprospective  customers or suppliers,  preferences,  businesses  or habits),  and\nbusiness relationships;  provided, however, that Protected Information shall not\ninclude information that shall become generally known to the public or the trade\nwithout violation of this Section 6.\n\n                   (b) Executive acknowledges that all developments,  inventions\n(whether patentable or otherwise),  discoveries,  improvements,  patents,  trade\nsecrets, copyrights,  designs, reports, works of authorship,  computer software,\nflow charts and  diagrams,  procedures,  data,  documentation  and  writings and\napplications thereof relating to the business of the Company or planned business\nof the Company or any of its  subsidiaries or affiliates  that, alone or jointly\nwith others,  Executive may conceive,  create, make, develop, reduce to practice\nor acquire  during the Term of  Employment,  or has  conceived,  created,  made,\ndeveloped,  reduced to  practice  or  acquired  prior to the Term of  Employment\n(collectively,  the 'Developments') are, shall remain, and shall be the sole and\nexclusive  property of the Company,  and Executive hereby assigns to the Company\nall of his right, title and interest in and to all such Developments.  Executive\nshall promptly and fully disclose all future material  Developments to the Board\nand, at any time upon request and at the expense of the Company,  shall execute,\nacknowledge  and deliver to the Company all  instruments  that the Company shall\nprepare,  give  evidence  and take all  other  actions  that  are  necessary  or\ndesirable  in the  opinion  of the  Company  to enable  the  Company to file and\nprosecute  applications  for and to  acquire,  maintain  and enforce all letters\npatent,  trademark  registrations or copyrights covering the Developments in all\ncountries in which the same are deemed necessary by the Company.  All memoranda,\nnotes, lists,  drawings,  records,  files, computer tapes,  programs,  software,\nsource  and  programming  narratives  and other  documentation  (and all  copies\nthereof,  except for  Executive's  appointment  book,  daily  planner or similar\norganizational  or  scheduling  notes)  made or compiled  by  Executive  or made\navailable to Executive  concerning the Developments or otherwise  concerning the\nbusiness  of the  Company  or  planned  business  of the  Company  or any of its\nsubsidiaries  or  affiliates  shall  be the  property  of the  Company  or  such\nsubsidiary or affiliate and shall be delivered to the Company or such subsidiary\nor affiliate promptly upon the termination of the Term of Employment.\n\n                  (c) The  provisions  of this  Section  6  shall,  without  any\nlimitation as to time,  survive the  expiration or  termination  of  Executive's\nemployment hereunder, irrespective of the reason for any termination.\n\n         7.  Covenant-Not to Solicit.  Executive agrees that for a period of one\n(1) year  following any  termination  of the  employment  of Executive  with the\nCompany,  Executive will not, directly or indirectly,  without the prior written\nconsent of the  Company:  solicit,  entice,  persuade  or induce  any  employee,\nconsultant,  agent or  independent  contractor  of the  Company or of any of its\nsubsidiaries  or affiliates to terminate his or her employment by the Company or\nsuch  subsidiary  or  affiliate  to  become  employed  by any  person,  firm  or\ncorporation other than the Company or such subsidiary or affiliate,  or approach\nany such employee,  consultant,  agent or independent  contractor for any of the\nforegoing purposes, or hire any such employee,  consultant, agent or independent\ncontractor or authorize or assist in the taking of any such actions by any third\nparty.\n\n         8. Rights  Regarding  Salary and  Benefits.  The right of  Executive to\nparticipate  in  plans  and  programs,  and  to  receive  salary,   benefits  or\nreimbursement from the Company pursuant to the terms of this Agreement shall not\nbe affected by or subject to (i) any set-off, counterclaim,  recoupment, defense\nor other  right  which the Company  may have  against  Executive  (other than in\nrespect  of debts for  money  owed by  Executive  to the  Company),  or (ii) any\ninsolvency, bankruptcy,  reorganization or similar proceedings by or against the\nCompany.\n                                       42\n\n\n         9.  Survivorship.  The respective rights and obligations of the parties\nhereunder, including, without limitation, the rights and obligations pursuant to\nSections 6 and 7, shall survive any  termination of this Agreement to the extent\nnecessary for the intended preservation of such rights and obligations.\n\n         10. Specific Performance.  Executive  acknowledges that the services to\nbe rendered by Executive are of a special,  unique and  extraordinary  character\nand,  in  connection   with  such  services,   Executive  will  have  access  to\nconfidential  information vital to the Company's  Business and the businesses of\nits  subsidiaries  and  affiliates.  By reason of this,  Executive  consents and\nagrees  that if  Executive  violates  any of the  provisions  of Sections 6 or 7\nhereof,   the  Company  and  its   subsidiaries  and  affiliates  would  sustain\nirreparable  injury and that money damages will not provide  adequate  remedy to\nthe  Company and that the  Company  shall be  entitled  to have  Sections 6 or 7\nspecifically enforced by any court having equity jurisdiction. Nothing contained\nherein shall be construed as prohibiting the Company or any of its  subsidiaries\nor affiliates  from pursuing any other remedies  available to it for such breach\nor threatened breach, including the recovery of damages from Executive.\n         \n         11.  Deductions and  Withholding;  Expenses.  Executive agrees that the\nCompany and\/or its  subsidiaries  or affiliates  shall withhold from any and all\ncompensation  paid to and  required  to be paid to  Executive  pursuant  to this\nAgreement,  all  federal,  state,  local  and\/or  other  taxes which the Company\ndetermines are required to be withheld in accordance  with  applicable  statutes\nand\/or  regulations  from time to time in effect and all amounts  required to be\ndeducted in respect of Executive's  coverage under  applicable  employee benefit\nplans.  For purposes of this  Agreement  and  calculations  hereunder,  all such\ndeductions and withholdings shall be deemed to have been paid to and received by\nExecutive.\n\n         12.  Waiver.  The waiver by the Company of a breach of any provision of\nthis Agreement by Executive shall not operate or be construed as a waiver of any\nsubsequent  breach by him. The waiver by Executive of a breach of any  provision\nof this  Agreement by the Company  shall not operate or be construed as a waiver\nof any subsequent-breach by the Company.\n\n         13. Governing Law. This Agreement shall be subject to, and governed by,\nthe laws of the State of  California  applicable  to  agreements  made and to be\nperformed entirely therein.\n\n         14.      Assignability; Successors.\n\n                  (a) The  obligations  of Executive  may not be delegated  and,\nexcept as expressly  provided in Section  4(b)  relating to the  designation  of\nbeneficiaries,  Executive may not,  without the Company's  prior written consent\nthereto,  assign, transfer,  convey, pledge, encumber,  hypothecate or otherwise\ndispose of this Agreement or any interest herein. Any such attempted  delegation\nor disposition  shall be null and void and without effect.  Notwithstanding  the\nforegoing,  Executive  may  transfer  his  Options and  Restricted  Stock to his\nimmediate family members or to a family trust or family partnership,  subject to\nthe terms and conditions of the Option Plan, as modified by this Agreement.\n\n                  (b) The Company and  Executive  agree that this  Agreement and\neach of the  Company's  rights and  obligations  hereunder  may be  assigned  or\ntransferred  by the  Company  to and shall be assumed  by and  binding  upon any\nSuccessor to the Company.\n\n                  (c) The term  'Successor'  shall mean any corporation or other\nbusiness  entity  which  succeeds to the assets or conducts  the business of the\nCompany, whether directly or indirectly, by purchase,  merger,  consolidation or\notherwise.\n\n         In the event that another  corporation or other business entity becomes\na Successor of the Company,  then the Successor  shall,  by an agreement in form\nand substance reasonably  satisfactory to Executive,  expressly assume and agree\nto perform  this  Agreement  in the same  manner  and to the same  extent as the\nCompany would be required to perform if there had been no successor.\n\n                                       43\n\n         15.      Change of Control Payments.\n\n                   (a) Notwithstanding anything to the contrary contained herein\n(including,  without limitation,  in Section 4(g) hereof), in the event that any\npayment or benefit  received or to be received by Executive in connection with a\ntermination  of  Executive's  employment  with the  Company  (collectively,  the\n'Severance  Payments')  would (i)  constitute a 'parachute  payment'  within the\nmeaning of Section  280G of the Internal  Revenue Code of 1986,  as amended (the\n'Code') or any  similar  or  successor  provision  to 280G and (ii) but for this\nSection 15(a),  be subject to the excise tax imposed by Section 4999 of the Code\nor any similar or successor  provision to Section 4999 (the 'Excise Tax'),  then\nsuch Severance Payments (which Severance Payments shall collectively be referred\nto herein as the 'Severance Parachute  Payments')shall be reduced to the largest\namount  which would  result in no portion of the  Severance  Parachute  Payments\nbeing  subject to the Excise  Tax.  In the event any  reduction  of  benefits is\nrequired pursuant to this Agreement,  Executive shall be allowed to choose which\nbenefits  hereunder  are  reduced  (e.g.,  reduction  first  from the  Severance\nPayment,  then from the vesting  acceleration).  If the Internal Revenue Service\n(the  'IRS')  determines  that a Severance  Parachute  Payment is subject to the\nExcise Tax, then the Company may seek to enforce the provisions of Section 15(b)\nhereof. Such enforcement of Section 15(b) hereof shall be the only remedy, under\nany and all  applicable  state and federal laws or  otherwise,  for  Executive's\nfailure to reduce the Severance Parachute Payments so that no portion thereof is\nsubject to the Excise Tax.\n\n                  (b) If,  notwithstanding  the  reduction  described in Section\n15(a) hereof,  the IRS determines that Executive is liable for the Excise Tax as\na result of the receipt of a Severance Parachute Payment,  then Executive shall,\nsubject to the provisions of this Agreement,  be obligated to pay to the Company\n(the 'Repayment Obligation') an amount of money equal to the 'Repayment Amount.'\nThe Repayment Amount with respect to a Severance  Parachute Payment shall be the\nsmallest such amount,  if any, as shall be required to be paid to the Company so\nthat  Executive's net proceeds with respect to any Severance  Parachute  Payment\n(after  taking  into  account  the  payment of the  Excise  Tax  imposed on such\nSeverance Parachute Payment) shall be maximized.  Notwithstanding the foregoing,\nthe Repayment Amount with respect to a Severance Parachute Payment shall be zero\nif a  Repayment  Amount of more than zero  would not  eliminate  the  Excise Tax\nimposed on such Severance Parachute Payment. If the Excise Tax is not eliminated\nthrough the  performance of the Repayment  Obligation,  Executive  shall pay the\nExcise Tax. The Repayment Obligation shall be performed within 30 days of either\n(i) Executive's  entering into a binding agreement with the IRS as to the amount\nof Executive's Excise Tax liability or (ii) a final  determination by the IRS or\na court decision requiring  Executive to pay the Excise Tax with respect to such\na Severance  Parachute  Payment  from which no appeal is  available or is timely\ntaken.\n\n         16.  Severability;  Blue-Pencilling.  If any  provision  (or  any  part\nthereof)  of this  Agreement,  including  Sections 6 and 7, as applied to either\nparty or to any  circumstances,  shall be  determined  by any court of competent\njurisdiction to be invalid or unenforceable, the same shall in no way affect any\nother  provision or remaining  part  thereof of this  Agreement,  which shall be\ngiven full effect  without regard to the invalid or  unenforceable  provision or\npart thereof, or the validity or enforceability of this Agreement.\n\n         If any of the  provisions of Sections 6 or 7, or any part thereof,  are\ndetermined to be  unreasonable  because of the duration of such provision or the\ngeographic scope thereof,  the court shall have the power to reduce the duration\nor restrict or redefine the  geographic  scope of such  provision and to enforce\nsuch provision as so reduced, restricted or redefined.\n\n         17.  Notices.  All notices to the  Company or  Executive  permitted  or\nrequired hereunder shall be in writing,  shall refer to this Agreement and shall\nbe delivered  personally,  by  telecopier  or by courier  service  providing for\nnext-day  delivery or sent by  registered  or  certified  mail,  return  receipt\nrequested, to the following addresses:\n\n                                       44\n\n\n                  (a)      if to the Company to:\n\n                                    CyberMedia, Inc.\n                                    2850 Ocean Park Boulevard\n                                    Santa Monica, CA  90405\n\n                                    Attention:  General Counsel\n                                    Telephone: (310) 664-5000\n                                    Facsimile: (310) 581-4720\n\n                  (b)      if to Executive to:\n\n                                    3911 Spray Lane\n                                    Malibu, CA  90265\n\n                  Any party may change the  address  to which  notices  shall be\nsent by sending written notice of such change of address to the other party. Any\nsuch notice shall be deemed given,  if delivered  personally,  upon receipt;  if\nsent by certified or  registered  mail, 3 days after deposit  (postage  prepaid)\nwith the U.S. mail service;  if sent by courier  service  providing for next day\ndelivery, the next business day following deposit with such courier service; and\nif telecopied, when telecopied.\n\n         18.  Paragraph  Headings.  The  paragraph  headings  contained  in this\nAgreement  are for  reference  purposes only and shall not affect in any way the\nmeaning or interpretation of this Agreement.\n\n         19. Entire Agreement.  This Agreement together with any other agreement\nexpressly  referred to herein  embodies the entire  agreement of the parties and\nsupersedes all prior agreements and  understandings  of the parties with respect\nto Executive's employment between the Company and Executive.  This Agreement may\nnot be changed or terminated  orally but only by an agreement in writing  signed\nby the parties hereto.\n\n         20.  Counterparts.  This  Agreement  may be  executed  in  one or  more\ncounterparts,  each of which shall be deemed to be an original, but all of which\ntaken together shall constitute one and the same instrument.\n\n         In  Witness  Whereof,  the  parties  hereto  have  duly  executed  this\nAgreement as of April 22,1998.\n\n                               CyberMedia, Inc.\n\n\n                      By:      \/s\/ Suhas Patil\n                               ---------------------\n                               Name:  Suhas Patil\n                               Title: Compensation Committee, Board of Directors\n\n\n                               \/s\/ James R. Tolonen\n                               ---------------------\n                               James R. Tolonen\n\n\n\n\n\n\n\n                                       45\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7255],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9539,9544],"class_list":["post-39046","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-cybermedia-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39046","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=39046"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39046"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39046"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39046"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}