{"id":39430,"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-novell-inc-and-roger-durn.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-novell-inc-and-roger-durn","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-novell-inc-and-roger-durn.html","title":{"rendered":"Employment Agreement &#8211; Novell Inc. and Roger Durn"},"content":{"rendered":"<pre>\nJune 5, 2002\n\n\n\n\nMr.  Roger Durn\nVice President, Asia Pacific\nSilverStream Software, Inc.\nTwo Federal Street\nBillerica, MA  01821-3559\n\nDear Roger:\n\nAs you know, Novell is currently negotiating with SilverStream to enter into a\nmerger agreement with SilverStream and Novell, Inc. Subsidiary, a wholly-owned\nsubsidiary of Novell (\"Novell Subsidiary\") (the \"Merger Agreement\"), pursuant to\nwhich Novell Subsidiary will make a cash tender offer to acquire all of the\noutstanding stock of SilverStream (the \"Offer\"). After consummation of the\nOffer, Novell Subsidiary will be merged with and into SilverStream, with\nSilverStream becoming the surviving corporation and a wholly-owned subsidiary of\nNovell (the \"Merger\").\n\nThe purpose of this letter agreement is to (i) confirm the terms of your\ncontinued employment with SilverStream OR Novell after consummation of the\nMerger, (ii) confirm your reaffirmation of the terms of SilverStream's Standard\nEmployee Agreement, as set forth on Exhibit A (the \"SilverStream Agreement\"),\nor, if you have not previously executed the SilverStream Agreement, your\nagreement to the terms of the SilverStream Agreement, in either case as further\nmodified by this letter, and (iii) confirm your agreement to waive your rights\nto accelerated vesting and exercisability under the terms of any of your stock\noption agreements and any amendment to your outstanding stock option agreements;\nprovided, however, that the foregoing shall not become effective if the Merger\nis not consummated. More specifically, in consideration of the position and\nbenefits outlined in this letter, to induce Novell to enter into the Merger\nAgreement and to perform its obligations thereunder, and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby\nacknowledged, by signing this letter, you agree (i) to the reaffirmation of the\nSilverStream Agreement, or, in the event you have not previously executed the\nSilverStream Agreement, to execute the SilverStream Agreement, in either case as\nfurther modified by this letter, and (ii) that immediately prior to execution of\nthe Merger Agreement by Novell, your rights to the accelerated vesting\n\n\n\n\n\nand exercisability of your stock options, as set forth in your stock option\nagreements, any amendment to your stock option agreements or otherwise, will be\nof no further force and effect; provided, however, that the foregoing shall not\nbecome effective if the Merger is not consummated. You will have the following\ntitle and be eligible for the following benefits after the Merger:\n\n     -    After consummation of the Merger, you will be employed by SilverStream\n          OR Novell in the position of Vice President, Asia Pacific with a rate\n          of pay equal to $7,916.67 semi-monthly (less applicable withholding),\n          which is $190,000.00 annualized (less applicable withholding), payable\n          in accordance with SilverStream's payroll practices. Such rate of pay\n          is exclusive of bonuses, commissions and other incentive pay you may\n          receive during your employment. In this position you will report to\n          David Litwack.\n\n     -    In addition to your base salary, you will also be eligible to\n          participate in the SilverStream Incentive Plan (the \"Incentive Plan\")\n          after consummation of the Merger. Under the Incentive Plan, as an\n          eligible employee, you may receive an annual incentive award that will\n          be $75,000.00 annualized run rate through October 31, 2002. Your\n          incentive for fiscal year 2003 will be no less than your current\n          SilverStream incentive potential.\n\n     -    After consummation of the Merger, subject to approval by Novell's\n          Board of Directors, you will be granted a nonqualified stock option to\n          purchase 20,000 shares of Novell common stock at an exercise price\n          equal to the fair market value (as determined in accordance with the\n          applicable Novell stock option plan) of the stock on the date of\n          grant. Your stock option will vest and become exercisable according to\n          the following schedule:\n\n          Options vest and become exercisable over a 4 year period; with 25%\n          vesting and becoming exercisable one year from the date of grant and\n          monthly vesting thereafter.\n\n     -    Your outstanding SilverStream stock options, whether or not vested or\n          exercisable as of the date of the consummation of the Merger, will be\n          assumed by Novell and converted into stock options to acquire Novell\n          stock (subject to the Merger's exchange ratio, as will be set forth in\n          the Merger Agreement), with continued vesting and exercisability in\n          such options on the vesting and exercisability schedule effective\n          immediately prior to their assumption and not subject to any\n          accelerated vesting and exercisability as a result of the consummation\n          of the Merger.\n\n     -    You will become eligible to participate in the Novell Limited\n          Severance Plan after consummation of the Merger. Your severance\n          protection will be equivalent to that provided to a similarly-situated\n          Novell employee. As a participant, if you are permanently laid off for\n          a reason other than cause, you\n\n\n\n\n\n          will be eligible to receive the greater of either (i) 6 months (of\n          monthly pay) or (ii) 2 months (of monthly pay) plus 1 week (of weekly\n          pay) for every 1 year of service calculated at your then current base\n          salary.\n\n     -    Novell intends to continue SilverStream's current employee benefits\n          programs after the Merger through December 31, 2002, and, thereafter,\n          you will become eligible to participate in Novell's employee benefits\n          programs at the same levels and with the same benefits as other\n          similarly-situated Novell employees. These programs include, but are\n          not limited to, medical, dental, life insurance, disability benefits,\n          401(k) plan, paid holidays, and flexible time off.\n\n     -    As a condition to receiving the title and benefits described above in\n          connection with your continued employment with SilverStream OR Novell\n          after consummation of the Merger, you must reaffirm your acceptance to\n          the terms of the SilverStream Agreement in its entirety, or, if you\n          have not previously executed the SilverStream Agreement, you agree to\n          execute the SilverStream Agreement, except that in either case, the\n          SilverStream Agreement shall be amended to provide that (i) the\n          non-solicitation period in Section 3 thereof shall continue for a\n          period of two years after your termination or cessation of employment\n          for any reason, (ii) the term \"Company\" shall be amended to mean the\n          Company and all of its subsidiary and affiliated companies as they may\n          exist from time to time, whether or not you are employed by any such\n          subsidiary or affiliated companies, (iii) the second sentence of\n          Section 6(d) shall be deleted, and (iv) the term \"Development\" shall\n          be amended to include intellectual property owned by you, or in which\n          you have an interest, that is or has been incorporated in a Company\n          product, service, process, software or other property. In addition,\n          after consummation of the Merger, you will be required to execute\n          Novell's Code of Business Ethics, which is required for all employees\n          of Novell and its subsidiaries.\n\nPlease signify acceptance of this offer of continued employment with\nSilverStream or Novell, as well as your reaffirmation of the SilverStream\nAgreement, or, in the event you have not previously executed the SilverStream\nAgreement, you execute the SilverStream Agreement, in either case as further\nmodified by this letter, and your waiver of any provision under your stock\noption agreements and any amendment to your stock option agreements that\nprovides for the accelerated vesting and exercisability of your outstanding\nSilverStream stock options as a result of the Merger, by executing this letter\nagreement. You must return an executed copy of this letter agreement and an\nexecuted copy of the SilverStream Agreement, if you have not previously executed\nsuch agreement, to Alan Friedman at Novell's headquarters in Cambridge, MA no\nlater than FRIDAY, JUNE 7, 2002. Please understand that your employment with\nSilverStream or Novell constitutes at-will employment.\n\n\n\n\n\nIf you have any questions or wish to discuss this letter, please contact me.\n\nSincerely,\n\n\n\nAlan J. Friedman\nSenior Vice President, People\n\nACKNOWLEDGED AND AGREED\n\n\/s\/ Roger Durn\n-----------------------\nRoger Durn\n\nDated: June 7, 2002.\n\n\n\n                                    EXHIBIT A\n\n                    SILVERSTREAM STANDARD EMPLOYEE AGREEMENT\n\n\n\n\n                    SILVERSTREAM STANDARD EMPLOYEE AGREEMENT\n\nThis agreement is made between SilverStream Software Inc. (the \"Company\"), and\n__________________________________________ (the \"Employee\").\n\nIn consideration of the employment or the continued employment of the Employee\nby the Company, the Company and the Employee agree as follows:\n\n1.   PROPRIETARY INFORMATION\n\na) The Employee agrees that all information, whether or not in writing, of a\n   private, secret or confidential nature concerning the Company's business,\n   business relationships or financial affairs (collectively, \"Proprietary\n   Information\") is and will continue to be the exclusive property of the\n   Company. In order to illustrate this definition, Proprietary Information may\n   include, without limitation, inventions, products, processes, methods,\n   techniques, formulas, compositions, compounds, projects, developments, plans,\n   research data, clinical data, financial data, personnel data, computer\n   programs, customer and supplier lists, and contact at or knowledge of\n   customers or prospective customers of the Company, as well as materials and\n   tangible property of customers of the Company or suppliers to the Company.\n   The Employee will not communicate any Proprietary Information to any person\n   or entity other than employees of the Company or use Proprietary Information\n   for any purpose (other than in the performance of his\/her duties as an\n   employee of the Company) without written approval by an officer of the\n   Company, either during or after his\/her employment with the Company, unless\n   and until such Proprietary Information has become public knowledge without\n   activity by the Employee.\n\nb) The Employee agrees to return promptly to the Company, upon (i) a request by\n   the Company or (ii) termination of his\/her employment, whichever is earlier,\n   all Proprietary Information and all tangible property furnished to or\n   prepared by the Employee in the course of or relating to his\/her employment.\n   After such delivery, the Employee shall not keep any Proprietary Information\n   or copies of Proprietary Information or any such tangible property.\n\n2.   DEVELOPMENTS\n\na) The Employee will make full and prompt communication to the Company of all\n   inventions, improvements, discoveries, methods, developments, software, and\n   works of authorship, whether patentable or not, which are created, made,\n   conceived or reduced to practice by him\/her or under his\/her direction or\n   jointly with others during his\/her employment by the Company, whether or not\n   during normal working hours or on the premises of the Company (collectively,\n   \"Developments\").\n\nb) The Employee agrees to transfer and does hereby transfer to the Company (or\n   any person or entity designated by the Company) all his\/her rights, title and\n   interest in and to all Developments and all related patents, patent\n   applications, copyrights and copyright applications. However, this paragraph\n   2(b) shall not apply to Developments which do not relate to the present or\n   planned business or research and development of the Company and which are\n   made by the Employee not during normal working hours, not on the Company's\n   premises and not using the Company's tools, devices, equipment or Proprietary\n   Information. If this Agreement is interpreted under the laws of any state\n   that does not permit a requirement in an employee agreement to assign certain\n   classes of inventions made by an employee, this paragraph 2b will be\n   interpreted not to apply to any invention which a court rules and\/or the\n   Company agrees falls within such classes.\n\nc) In the event that the Company decides that any Development is copyrightable\n   or patentable or otherwise registrable, the Employee agrees to assist the\n   Company (at its expense) in obtaining and maintaining letters, patents, or\n   other applicable registrations and in vesting the Company with full title. If\n   the Company is unable to obtain the signature of the Employee on any document\n   necessary to apply for, prosecute, obtain, or enforce any patent, copyright,\n   or other right or protection relating to any Development, the Employee\n   irrevocably appoints the Company and each of its authorized officers and\n   agents as the Employee's agent to\n\n\n                                       1\n\n\n    do all lawfully permitted acts to further the prosecution, issuance, and\n    enforcement of patents, copyrights, or other rights or protection with the\n    same force and effect as if executed and delivered by the Employee.\n\n3.  NON-SOLICITATION AND NON-COMPETITION\n\nWhile the Employee is employed by the Company and for a period of one year\nafter the termination or cessation of such employment for any reason, the\nEmployee will not directly or indirectly\n\na)  recruit, solicit, hire or engage as an independent contractor, any employee\n    of the Company, or induce or attempt to induce any employee of the Company\n    to terminate his\/her employment with the Company;\n\nb)  solicit, divert or take away, or attempt to divert or to take away any of\n    the clients, customers or accounts, or prospective clients, customers or\n    accounts, of the Company which were contacted, solicited or served by the\n    Employee while employed by the Company.\n\nIn addition, if the Employee is a Vice President-, Director- or Senior\nDeveloper-level employee, then, for a period of one year after the termination\nor cessation of such employment for any reason, the Employee will not directly\nor indirectly in the geographic territory or territories where the Company does\nbusiness, as an individual proprietor, partner, officer, employee, director,\njoint venturer, consultant or in any other capacity whatsoever (other than as\nthe holder of not more than one percent of the combined voting power of the\noutstanding stock of a publicly held company), develop, design, produce,\nmarket, sell or render (or assist any other person in developing, designing,\nproducing, marketing, selling or rendering) products or services competitive\nwith those developed, designed, produced, marketed, sold or rendered by the\nCompany while the Employee was employed by the Company;\n\nIf any restriction set forth in this Section is found by any court of competent\njurisdiction to be unenforceable because it extends for too long a period of\ntime or over too great a range of activities or in too broad a geographic area,\nit shall be interpreted to extend only over the maximum period of time, range\nof activities or geographic area as to which it may be enforceable.\n\n4.  OTHER AGREEMENTS\n\nThe Employee hereby states that, except as the Employee has disclosed in\nwriting to the Company, the Employee is not obligated by the terms of any\nagreement with any previous employer or other party to not use or communicate\nany trade secret or confidential or proprietary information in the course of\nhis\/her employment with the Company or to not compete, directly or indirectly,\nwith the business of such previous employer or any other party. The Employee\nfurther states that he\/she will not disclose to the Company, or use, or induce\nthe Company to use, any proprietary information or trade secrets of others.\n\n5.  NOT EMPLOYMENT CONTRACT\n\nThe Employee understands that this Agreement is not a contract of employment\nand does not mean that his\/her employment will continue for any period of time.\nThe Employee understands that all employment with the Company is on an \"at\nwill\" basis.\n\n6.  MISCELLANEOUS\n\na)  Even if one or more of the provisions of this Agreement is found to be\n    unenforceable or invalid, the remainder will remain valid and enforceable.\n\nb)  This Agreement replaces all previous agreements, written or oral, between\n    the Employee and the Company relating to the subject matter of this\n    Agreement. This Agreement may not be modified, changed, or terminated in\n    whole or in part, except by an agreement in writing signed by the Employee\n    and the Company.\n\n\n\n                                       2\n\n\nc) No failure to exercise or delay in exercising any right under this Agreement\n   by the Company or the Employee will be a waiver of this Agreement.\n\nd) This Agreement will be binding upon the Employee's heirs, executors and\n   administrators and may be assigned by the Company and its successors and\n   assigns. The Employee expressly consents to be bound by the provisions of\n   this Agreement for the benefit of the Company or any subsidiary or affiliate\n   of the Company to whom the Employee may be transferred without the necessity\n   that this Agreement be re-executed at the time of such transfer.\n\ne) The restrictions contained in this Agreement are necessary for the protection\n   of the business and goodwill of the Company and are considered by the\n   Employee to be reasonable for such purpose. The Employee agrees that any\n   breach of this Agreement is likely to cause the Company substantial and\n   irrevocable damage and therefore, in the event of any such breach, the\n   Employee agrees that the Company, in addition to such other remedies which\n   may be available, shall be entitled to specific performance and other\n   injunctive relief.\n\nf) This Agreement is to be interpreted by the laws of the Commonwealth of\n   Massachusetts. Any legal proceeding which is commenced to resolve any\n   dispute arising under this Agreement shall be commenced only in a court of\n   the Commonwealth of Massachusetts (or, if appropriate, a federal court\n   located within Massachusetts), and the parties consent to the jurisdiction of\n   such court.\n\nTHE EMPLOYEE ACKNOWLEDGES THAT HE\/SHE HAS CAREFULLY READ THIS AGREEMENT AND\nUNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\n\nWITNESS                       SILVERSTREAM SOFTWARE INC.\n\nDate:                         By:\n     _________________           ____________________________________\n                                 Charles C. Cabot III, Vice President\n                                 Human Resources\n\n                              EMPLOYEE:\n\n\n                              _______________________________________\n                              Signature\n\n                              Date:\n                                    _________________________________\n\n\n\n                                       3\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8378],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9539,9544],"class_list":["post-39430","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-novell-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\/39430","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=39430"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39430"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39430"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39430"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}