{"id":39047,"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-kanwal-rekhi.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-cybermedia-inc-and-kanwal-rekhi","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-cybermedia-inc-and-kanwal-rekhi.html","title":{"rendered":"Employment Agreement &#8211; CyberMedia Inc. and Kanwal Rekhi"},"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 Kanwal  Rekhi with an address of\n16150 Hillvale Avenue, Monte Sereno, California 95030 ('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').\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  Chief  Executive  Officer.  In such capacity,\nExecutive  shall  report to,  and have such  responsibilities  and  duties  with\nrespect to the  Company's  business as may be  required of him by the  Company's\nBoard of  Directors  (the  'Board').  Executive  currently  serves on the Board.\nDuring the  Employment  Term, the Company shall use its best efforts to nominate\nand elect  Executive as a director,  and Executive  shall serve in such capacity\nwithout additional  consideration.  Executive shall serve the Company faithfully\nand to the best of his ability in such  capacities,  devoting his full  business\ntime,  attention,  knowledge,  energy and skills to such  employment;  provided,\nhowever,  the  Company  acknowledges  that  Executive  may serve on the board of\ndirectors of other  companies  with the prior  approval of the Board.  Executive\nshall travel as reasonably  required in connection  with the  performance of his\nduties 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 $275,000 ('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                                       28\n\n\n                  (e)  Non-qualified  stock  options (the  'Options') to acquire\nfive hundred twenty eight thousand  (528,000)  shares of the common stock of the\nCompany (the 'Common Stock'), on terms substantially similar to those applicable\nto options  granted  under the  Company's  Amended  1993 Stock  Option Plan (the\n'Option  Plan') and  standard  form of option  agreement,  as  modified  by this\nAgreement.  The Options shall be granted, and vesting thereof shall commence, as\nof the Effective Date, and the Options shall have an exercise price equal to $10\nper share.  Except as otherwise  provided  herein,  the Options  shall vest on a\nmonthly  basis over a  forty-eight  (48) month  period,  subject to  Executive's\ncontinued service to the Company.\n\n                  (f) Within thirty (30) days of the Effective Date, the Company\nshall pay Executive a bonus of $341,250.  Provided Executive remains an employee\nof the Company on the first anniversary of the Effective Date, the Company shall\npay Executive a bonus of $300,000 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 $300,000\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 $46,200 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 $68,750 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 fifty thousand  (150,000) shares of Common\nStock, at a price of $6.375 per share (the  'Restricted  Stock').  Executive may\npurchase the Restricted Stock with a full recourse promissory note (the 'Note').\nThe Note shall accrue interest  semi-annually  at the 'applicable  federal rate'\n(within  the  meaning of Section  1274(d) of the Code),  and shall be subject to\nrepayment in accordance with Section 5 below.  Restricted  Stock shall vest on a\nmonthly  basis over a thirty-six  (36) month period  commencing on the Effective\nDate,  subject to Executive's  continued  service to the Company or as otherwise\nprovided herein, with 4,166 shares of Restricted Stock to vest each month during\nsuch  thirty-six  (36) month period except for the last month of such thirty-six\n(36) month period in which 4,190 shares of Restricted Stock shall vest,  subject\nto earlier  vesting,  if any, if either of the  following  events or  conditions\noccurs or is satisfied  during the Term of Employment:  (x) the average  closing\nstock  price of the common  stock of the Company on the Nasdaq  National  Market\nexceeds fifteen dollars ($15) for any twenty (20)  consecutive  trading days, or\n(y) the Company recognizes a Net Profit for two fiscal consecutive quarters (the\n'Net Profit  Period').  For purposes of this  Agreement,  the Company shall have\nrecognized  a 'Net  Profit' for the Net Profit  Period if, with  respect to each\nfiscal  quarter in the Net Profit  Period,  (x) the Company has net  revenues in\nexcess of $16 million for each such fiscal  quarter as reported in the Company's\nconsolidated   statement  of  operations  ('Statement  of  Operations')  in  the\nCompany's Form 10-Q for the quarter then ended or the Company's annual report on\nForm 10-K for the year then ended, as the case may be (the 'SEC  Reports'),  and\n(y) the  Company's  earnings  before  interest  and taxes  for each such  fiscal\nquarter ('EBIT') are in excess of 5% of the net revenues of the Company for such\nfiscal  quarter as reported in the  Statement of Operations in the Company's SEC\nReports;  provided,  that,  EBIT  for any  \n\n                                       29\n\nparticular 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 and  Executive  agree to  negotiate,  in good\nfaith,  mutually agreeable  temporary living  accommodations  near the Company's\ncurrent offices in Santa Monica,  California. In addition, the Company shall pay\nor reimburse Executive,  as the case may be, for the Executive's  reasonable and\nprudent travel expenses  incurred by Executive to and from his current residence\nin Monte Sereno, California.\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 shall  offer  Executive  an\nopportunity,  within 20 days of the  receipt  of such  notice,  to meet with the\nBoard to defend such  breaches,  acts or failures to act and\/or to cure any such\nbreaches or acts which are possible to cure. In the event of a  termination  for\nCause, this Agreement shall terminate and Executive shall be removed from office\neffective as of the date specified by the Company in the notice  (subject to the\n20-day  period  referred  to above)  and (i) the  Company  shall have no further\nobligations hereunder,  except to pay all amounts of Base Salary,  reimburse all\nreasonable unreimbursed  business-related expenses and pay and provide all other\nbenefits  accrued to the date of termination  and (ii)  Executive  shall have no\nfurther obligations  hereunder except for those provided for in Sections 6 and 7\nhereof;  provided,  however,  that nothing  contained in this Section 4(c) shall\nconstitute  a waiver or  release  by the  Company of any rights or\n\n                                       30\n\nclaims it may have against Executive for actions or omissions which give rise to\na 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                   (g)  Change  of  Control.  In the  event  (i) of a Change  of\nControl  of the  Company  during  the  six-month  period  immediately  after the\nEffective  Date (the 'Initial  Period') and (ii) within twelve months after such\nChange of Control 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  \n\n                                       31\n\n\nimmediately  vest  upon  such  termination,  in all  cases subject to applicable\ntax  withholding.  In the event (i) of a Change of Control of the Company at any\ntime after the Initial Period and (ii) within twelve months after such Change of\nControl  Executive  either   voluntarily   resigns  or  the  Company  terminates\nExecutive's  employment  other than for Cause,  then (A) the  Company  shall pay\nExecutive an amount equal to 200% of the Executive's annual Base Salary, and (B)\nall  Options  which  would have vested had  Executive  remained  employed by the\nCompany for an eighteen  month  period  after the date of such  termination  and\nRestricted  Stock that  remain  unvested  as of such date of  termination  shall\nautomatically and immediately vest upon such  termination,  in all cases subject\nto  applicable  tax  withholding.  In the  event of a Change of  Control  of the\nCompany at a value (the  'Transaction  Value')  that  equals or exceeds  $20 per\nshare of Company common stock (as determined by the Board,  in its  discretion),\nExecutive's  Options  shall  vest as follows  (in  addition  to any  accelerated\nvesting  provided above):  if the Transaction  Value is less than $30 per share,\nthen the Options  shall vest as though  Executive  had remained  employed by the\nCompany for an additional 12 months;  if the Transaction Value equals or exceeds\n$30 per share,  then Executive's  Options shall fully vest.For  purposes of this\nAgreement,  a 'Change  of  Control'  shall be deemed to have  occurred  upon the\nclosing of (i) a merger,  reorganization or consolidation of the Company with or\ninto any other  corporation or other entity, or sale of all or substantially all\nof the assets of the Company, unless the stockholders of the Company immediately\nprior  to  such  transaction  hold  at  least  50% of  the  total  voting  power\nrepresented  by the voting  securities  of the  entity  surviving  such  merger,\nreorganization or consolidation  (or its parent),  or the entity purchasing such\nassets (or its parent),  or (ii) upon a sale or transfer of more than 50% of the\nCommon  Stock of the  Company  to a person or persons  acting as a group,  which\nperson or group is not  controlled  directly or indirectly by the Company,  in a\nsingle 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 provided\nin Section 3(f), Executive shall pay to the Company an amount equal to the bonus\namount, 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 or affiliates,  whether in tangible or intangible form,  pertaining\nto the  business  of the  Company  or any  of its  subsidiaries  or  affiliates,\nincluding,  but not limited to,  research and development  operations,  systems,\ndatabases,   computer  programs  and  software,   designs,   models,   operating\nprocedures,  knowledge of the  organization,  products  and services  (including\nprices, costs, sales or content), processes,  techniques,  contracts,  financial\ninformation or measures,  business  methods,  future business plans,  details of\nconsultant  contracts,  new personnel  acquisition plans,  business  acquisition\nplans,   customers  and  suppliers   (including   identities  of  customers  and\nprospective  customers  and  suppliers,  identities  of  individual  contacts at\nbusiness  entities  which are customers or  prospective  customers or suppliers,\npreferences,  businesses  or  habits),  and  business  relationships;  provided,\nhowever,  that Protected  Information  shall not include  information that shall\nbecome  generally  known to the public or the trade  without  violation  of this\nSection 6.\n                                       32\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\none (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\nto  participate  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\n         9........Survivorship.  The  respective  rights and  obligations of the\nparties hereunder,  including,  without  limitation,  the rights and obligations\npursuant to Sections 6 and 7, shall survive any termination of this Agreement to\nthe  extent  necessary  for  the  intended   preservation  of  such  rights  and\nobligations.\n\n         10.......Specific Performance. Executive acknowledges that the services\nto be 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\n\n                                       33\n\n\njurisdiction.  Nothing  contained  herein shall be construed as prohibiting  the\nCompany  or any of its  subsidiaries  or  affiliates  from  pursuing  any  other\nremedies  available to it for such breach or  threatened  breach,  including the\nrecovery of damages from Executive.\n\n         11.......Deductions  and Withholding;  Expenses.  Executive agrees that\nthe Company and\/or its  subsidiaries  or affiliates  shall withhold from any and\nall compensation  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\nof this Agreement by Executive  shall not operate or be construed as a waiver of\nany  subsequent  breach  by him.  The  waiver  by  Executive  of a breach of any\nprovision of this  Agreement by the Company shall not operate or be construed as\na waiver of any subsequent-breach by the Company.\n\n         13.......Governing   Law. This   Agreement  shall be  subject to,  and \ngoverned by, the laws of the State of California  applicable to  agreements made\nand to be performed 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         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\n                                       34\n\n\n(e.g.,  reduction  first  from the  Severance  Payment,  then  from the  vesting\nacceleration).  If the Internal  Revenue  Service (the 'IRS')  determines that a\nSeverance  Parachute  Payment is subject to the Excise Tax, then the Company may\nseek to enforce the  provisions  of Section 15(b) hereof.  Such  enforcement  of\nSection  15(b)  hereof shall be the only  remedy,  under any and all  applicable\nstate and  federal  laws or  otherwise,  for  Executive's  failure to reduce the\nSeverance Parachute Payments so that no portion thereof is subject to the Excise\nTax.\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  by the Panel to be  unreasonable  because  of the  duration  of such\nprovision or the geographic  scope  thereof,  the Panel or such court shall have\nthe power to reduce the duration or restrict or redefine the geographic scope of\nsuch  provision  and to enforce  such  provision  as so reduced,  restricted  or\nredefined.\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                  (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                                    16150 Hillvale Avenue\n                                    Monte Sereno, CA  95030\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\n\n                                       35\n\n\npersonally,  upon receipt; if sent by certified or registered mail, 3 days after\ndeposit (postage prepaid) with the U.S. mail service; if sent by courier service\nproviding  for next day delivery,  the next business day following  deposit with\nsuch courier service; and if 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\nagreement  expressly  referred to herein  embodies  the entire  agreement of the\nparties and supersedes all prior  agreements and  understandings  of the parties\nwith respect to Executive's  employment between the Company and Executive.  This\nAgreement  may not be changed or  terminated  orally but only by an agreement in\nwriting signed by 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\n                                                Directors\n\n\n                                         \/s\/ Kanwal Rekhi\n                                         ----------------------\n                                         Kanwal Rekhi\n\n\n                                      36\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-39047","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\/39047","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=39047"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39047"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39047"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39047"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}