{"id":39432,"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-stewart-g-nelson.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-novell-inc-and-stewart-g-nelson","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-novell-inc-and-stewart-g-nelson.html","title":{"rendered":"Employment Agreement &#8211; Novell Inc. and Stewart G. Nelson"},"content":{"rendered":"<pre>                                  NOVELL, INC.\n\n                     STEWART G. NELSON EMPLOYMENT AGREEMENT\n\n        This Agreement is entered into as of this first day of November, 2000,\n(the \"Effective Date\") by and between Novell, Inc. (the \"Company\"), and Stewart\nG. Nelson (\"Executive\").\n\n        1. Duties and Scope of Employment.\n\n                (a) Position and Duties. As of the Effective Date, Executive\nwill serve as Executive Vice President of the Company (\"EVP\"). Executive will\nrender such business and professional services in the performance of his duties,\nconsistent with Executive's position within the Company, as shall reasonably be\nassigned to him by the Company's Chief Executive Officer (the \"CEO\") and\/or as\nare contemplated by the Company's bylaws. The period of Executive's employment\nunder this Agreement is referred to herein as the \"Employment Term.\"\n\n                (b) Obligations. During the Employment Term, Executive will\nperform his duties faithfully and to the best of his ability and will devote his\nfull business efforts and time to the Company. For the duration of the\nEmployment Term, Executive agrees not to actively engage in any other\nemployment, occupation or consulting activity for any direct or indirect\nremuneration without the prior approval of the Board of Directors of the\nCompany.\n\n        2. At-Will Employment. The parties agree that Executive's employment\nwith the Company will be \"at-will\" employment and may be terminated at any time\nwith or without cause or notice. Executive understands and agrees that neither\nhis job performance nor promotions, commendations, bonuses or the like from the\nCompany give rise to or in any way serve as the basis for modification,\namendment, or extension, by implication or otherwise, of his employment status\nwith the Company. If the Executive's employment with the Company or a successor\nentity terminates for any reason, the Executive shall not be entitled to any\nseverance payments, benefits, or compensation other than as provided by this\nAgreement.\n\n        3. Place of Employment. The Executive's services shall be performed at\nthe Company's principal executive offices in Provo, Utah. The parties\nacknowledge, however, that the Executive will be required to travel frequently\nin connection with the performance of his duties hereunder.\n\n        4. Compensation.\n\n                (a) Base Salary. \"Base Salary\" shall mean the Executive's gross\nannual base salary, exclusive of bonuses, commissions, and other incentive pay.\nFor all services to be rendered by the Executive pursuant to this Agreement, the\nCompany agrees to pay the Executive during the Employment Period a Base Salary\nat an annual rate of not less than Five Hundred Thousand Dollars ($500,000). The\nBase Salary shall be paid in periodic installments in accordance with the\nCompany's regular payroll practices. The Company agrees to review the\n\n\n\n                                       1\n   2\n\nBase Salary at least annually consistent with the Company's normal practice\n(beginning in 2001) and to make such increases therein as the Company's Board of\nDirectors may approve.\n\n                (b) Target Bonus. \"Target Bonus\" shall mean the annual\npercentage of Executive's Base Salary, which is available as a potential bonus.\nBeginning with the Company's 2001 fiscal year and for each fiscal year\nthereafter during the Employment Period, the Executive will be eligible to\nreceive a Target Bonus of up to 75% of the Executive's Base Salary for such\nfiscal year based upon the achievement of certain financial and other criteria\nto be agreed upon by the Executive and the Company's Board of Directors\nincluding revenue and profitability targets and other organizational milestones.\nOn or before the fifteenth day of each quarter, the Executive shall prepare and\nsubmit for the Board of Directors' approval, a management bonus program that\nwill include the terms and conditions of the Executive's Bonus opportunity for\nsuch quarter.\n\n                The Bonus payable hereunder shall be payable quarterly in\naccordance with the Company's normal practices and policies and shall be\ndetermined with respect to the first three quarters of each fiscal year on the\nbasis of unaudited quarterly financial statements and, with respect to the\nfourth quarter, on the basis of audited financial statements. The earned Bonus\nshall be paid within 60 days after such statements have been finally delivered\nto the Company's Board of Directors or as otherwise agreed by said Board of\nDirectors and the Executive.\n\n                (c)     Additional Restricted Stock On November 1, 2000,\n                        Executive shall be granted the right to purchase 100,000\n                        shares of the Company's Common Stock (the \"Additional\n                        Restricted Stock\") at a price per share equal to ten\n                        cents ($.10). Executive shall have thirty (30) days in\n                        which to purchase the shares. Subject to accelerated\n                        vesting as provided elsewhere in this Agreement, the\n                        Additional Restricted Stock shall vest with respect to\n                        forty percent (40%) of the shares originally purchased\n                        on the first anniversary of the date of grant, and as to\n                        thirty percent (30%) of the shares yearly thereafter, so\n                        that the shares will be fully vested three (3) years\n                        from the date of grant, subject to Executive's continued\n                        service to the Company on the relevant vesting dates.\n                        This purchase is subject to Executive entering into the\n                        Company's form of Restricted Stock Purchase Agreement\n                        which provides the Company with the right to purchase\n                        unvested shares at the original purchase price in the\n                        event of Executive's termination of employment and other\n                        standard terms and conditions. In the event that there\n                        is an inconsistency between the Company's form of\n                        Restricted Stock Purchase Agreement and this Agreement,\n                        this Agreement shall supersede the Company's form of\n                        Restricted Stock Purchase Agreement.\n\n                (d)     5. Employee Benefits. During the Employment Period, the\n                        Executive shall be entitled to participate in employee\n                        benefit plans or programs of the Company, if any, to the\n                        extent that his position, tenure, salary, age, health\n                        and other qualifications make him eligible to\n                        participate, subject to the rules and regulations\n                        applicable thereto. The Company reserves the right to\n                        cancel or change the benefit plans and programs it\n                        offers to its employees at any time.\n\n\n\n                                       2\n   3\n\n        6. Vacation. Executive will be entitled to paid vacation in accordance\nwith the Company's vacation policy, with the timing and duration of specific\nvacations mutually and reasonably agreed to by the parties hereto.\n\n        7. Expenses. The Executive shall be entitled to prompt reimbursement by\nthe Company for all reasonable ordinary and necessary travel, entertainment, and\nother expenses incurred by the Executive during the Employment Period (in\naccordance with the policies and procedures established by the Company for its\nsenior executive officers) in the performance of his duties and responsibilities\nunder this Agreement; provided, that the Executive shall properly account for\nsuch expenses in accordance with Company policies and procedures. The parties\nagree that for purposes of this paragraph, the Executive's air travel shall be\ncoach class domestically and business class internationally.\n\n        8. Other Activities. The Executive shall devote substantially all of his\nworking time and efforts during the Company's normal business hours to the\nbusiness and affairs of the Company and its subsidiaries and to the diligent and\nfaithful performance of the duties and responsibilities duly assigned to him\npursuant to this Agreement, except for vacations, holidays and sickness.\nHowever, the Executive may devote a reasonable amount of his time to civic,\ncommunity, or charitable activities and, with the prior written approval of the\nBoard of Directors, to serve as a director of other corporations and to other\ntypes of business or public activities not expressly mentioned in this\nparagraph.\n\n        9. Severance. Executive shall be eligible for the following severance\nbenefits:\n\n                (a) Definitions:\n\n                        (i) Cause. For all purposes under this Agreement,\n        \"Cause\" shall mean (A) Executive's continued violations of Executive's\n        obligations which are demonstrably willful or deliberate on Executive's\n        part after there has been delivered to the Executive a written demand\n        for performance from the Company which describes the basis for the\n        Company's belief that Executive has not substantially performed his or\n        her duties, (B) Executive's engagement in willful misconduct which is\n        injurious to the Company or its affiliates, (C) Executive's commission\n        of a felony, an act of fraud against or the misappropriation of property\n        belonging to the Company or its affiliates, (D) Executive's breaching,\n        in any material respect, the terms of any confidentiality or proprietary\n        information agreement between Executive and the Company, or (E)\n        Executive's commission of a material violation of the Company's\n        standards of employee conduct.\n\n                        (ii) Change in Control. A \"Change in Control\" shall be\n        deemed to have occurred: (A) upon the date of the close of any\n        transaction in which the Company sells or otherwise disposes of all or\n        substantially all of its assets; or (B) upon the date of the close of a\n        merger transaction or consolidation of Company with any other entity or\n        entities, provided that the shareholders of the Company, as a group, do\n        not hold, immediately after such event, at least 50% of the voting power\n        of the surviving or successor entity or entities; or (C) if any person\n        or entity, including any \"person\" as such\n\n\n\n                                       3\n   4\n\n        term is used in Section 13(d)(3) of the Securities Exchange Act of 1934,\n        as amended (the \"Exchange Act\"), becomes the \"beneficial owner\" (as\n        defined in the \"Exchange Act\") of Common Stock of the Company\n        representing 50% or more of the combined voting power of the voting\n        securities of the Company (exclusive of persons who are now officers or\n        directors of the Company);\n\n                        (iii) Involuntary Termination Other than for Cause and\n        Not Following a Change in Control. \"Involuntary Termination Other than\n        for Cause and Not Following a Change in Control\" shall mean (A) without\n        the Executive's express written consent, a reduction in Executive's job\n        title, (B) without the Executive's express written consent a substantial\n        reduction in Executive's duties, authority and responsibilities compared\n        to Executive's duties, authority and responsibilities immediately prior\n        to such reduction or the removal of the Executive from such position and\n        responsibilities, unless the Executive is provided with a comparable\n        position (i.e., a position of equal or greater organization level,\n        duties, authority, compensation and status; (C) without the Executive's\n        express written consent, a substantial reduction in the Executive's Base\n        Salary and\/or Target Bonus potential of greater than twenty percent\n        (20%) compared to the Executive's Base Salary and\/or Target Bonus\n        potential in effect immediately prior to such reduction and\/or which is\n        not part of an overall reduction in compensation also applied to other\n        senior executives of the Company as a result of decreased business\n        performance by the Company or one of its business units; (D) without the\n        Executive's express written consent, the relocation of the Executive to\n        a facility or a location more than thirty-five (35) miles from the\n        Executive's then present location; (E) any purported termination of the\n        Executive by the Company that is not effected for Disability or Cause or\n        any purported termination for which the grounds relied upon are not\n        valid; or (F) the failure of the Company to obtain the assumption of\n        this Agreement by any successors contemplated in paragraph 16.\n        Notwithstanding the foregoing, the Company shall have thirty (30) days\n        following receipt by the Company's general counsel from the Executive of\n        the written notice required under paragraph 21 herein to cure any of the\n        above described circumstances.\n\n                        (iv) Involuntary Termination Following a Change in\n        Control. \"Involuntary Termination Following a Change in Control\" shall\n        mean as a result of a Change in Control, within two (2) months prior to\n        or twenty-four (24) months following such Change in Control: (A) without\n        the Executive's express written consent, a substantial change or\n        reduction of the Executive's duties, position or responsibilities, or\n        the removal of the Executive from such position and responsibilities,\n        unless the Executive is provided with a comparable position (i.e., a\n        position of equal or greater organizational level, duties, authority,\n        compensation and status); (B) without the Executive's express written\n        consent, a substantial reduction in the Executive's Base Salary and\/or\n        Target Bonus potential of greater than twenty percent (20%) compared to\n        the Executive's Base Salary and\/or Target Bonus potential in effect\n        immediately prior to such reduction and\/or which is not part of an\n        overall reduction in compensation also applied to other senior\n        executives of the Company as a result of decreased business performance\n        by the Company or one of its business units without the Executive's\n        express written consent, (C) the relocation of the Executive to a\n        facility or a location more than\n\n\n\n                                       4\n   5\n\n        thirty-five (35) miles from the Executive's then present location; (D)\n        any purported termination of the Executive by the Company which is not\n        effected for Disability or for Cause, or any purported termination for\n        which the grounds relied upon are not valid; or (E) the failure of the\n        Company to obtain the assumption of this Agreement by any successor\n        contemplated by paragraph 16 in the event of a Change in Control.\n        Notwithstanding the foregoing, the Company shall have thirty (30) days\n        following receipt by the Company's General Counsel from the Executive of\n        the written notice required under paragraph 21 herein to cure any of the\n        above described circumstances.\n\n                (b) Benefits Upon Involuntary Termination Other than for Cause\nand Not Following a Change in Control or Upon Involuntary Termination Following\na Change in Control. If Executive's employment with the Company terminates as\nthe result of an Involuntary Termination Other than for Cause and Not Following\na Change in Control or an Involuntary Termination Following a Change in Control,\nthe Executive shall be entitled to receive the following benefits.\n\n                        (i) Restricted Stock Vesting. All Restricted Stock,\n        including but not limited to the Additional Restricted Stock, shall\n        become one hundred percent (100%) vested and the Company shall have no\n        repurchase right as to the number of shares of Restricted Stock that\n        would have vested on the next anniversary of the Restricted Stock grant\n        date;\n\n                        (ii) Severance Payment. Executive shall receive a cash\n        payment of three (3) times the sum of the Executive's Base Salary and\n        Executive's Target Bonus potential at the time of the Executive's\n        Involuntary Termination Other than for Cause. Any such Severance Payment\n        shall be paid in cash by the Company to the Executive in no more than\n        six (6) equal monthly installments. Notwithstanding the foregoing, the\n        Company may pay the Severance Payment in a single, lump sum payment in\n        lieu of monthly installments.\n\n                        (iii) Stock Option Vesting. With respect to any Company\n        stock options held by the Executive as of the date of any Involuntary\n        Termination Following a Change of Control or as of the date of any\n        Involuntary Termination Other than for Cause and Not Following a Change\n        in Control, the Company shall accelerate the vesting of that portion of\n        the Executive's stock options, if any, which would have vested within\n        two (2) years after the date of the Executive's Involuntary Termination\n        Other than for Cause and Not Following a Change in Control or\n        Involuntary Termination Following a Change in Control, such options to\n        remain exercisable, notwithstanding anything in any other agreement\n        governing such options, for a period of one (1) year after such\n        Involuntary Termination Other than for Cause and Not Following a Change\n        in Control or Involuntary Termination Following a Change in Control, but\n        in no event later than the expiration of such options as set forth in\n        the option agreement(s).\n\n                        (iv) COBRA Benefits. \"COBRA\" as used herein shall mean\n        the Consolidated Omnibus Budget Reconciliation Act of 1986, as amended.\n        Executive shall receive a lump sum payment in an amount equal to the\n        cost of COBRA continuation for a period of not less than thirty-six (36)\n        months.\n\n\n\n                                       5\n   6\n\n        10. Voluntary Termination; Termination for Cause. If Executive's\nemployment with the Company terminates voluntarily by Executive or for Cause by\nthe Company, then (i) Executive is not eligible for any benefits under this\nAgreement (except as to amounts already earned and\/or stock options already\nvested at that time), and (ii) Executive will not be eligible for any severance\nbenefits under any severance arrangement or plan of the Company.\n\n        11. Termination of Participation in Senior Management Severance Plan.\nExecutive acknowledges and agrees that pursuant to Article III.C.(iii) of the\nNovell, Inc. Senior Management Severance Plan (the \"Plan\"), he is ineligible to\nreceive any benefits under the Plan and his participation in the Plan will\nterminate upon his execution of this Agreement. Executive acknowledges and\nagrees that he is not due any benefits under the Plan, except as provided\nherein.\n\n        12. Disability; Death. If Executive's employment terminates by reason of\nthe Executive's death, or by reason of Executive's Disability, then Executive\nshall not be entitled to receive the Severance Payment set forth in paragraph\n9(b)(ii) herein. In the event that Executive's employment with the Company\nterminates because of Executive's death or Disability, Executive shall be\nentitled only to the following benefits under this Agreement: (A) with respect\nto any Company stock options held by the Executive as of the Executive's\ntermination date, the Company shall accelerate the vesting of that portion of\nthe Executive's stock options, if any, which would have vested within one (1)\nyear after the Executive's death and\/or disability, such options to remain\nexercisable, notwithstanding anything in any other agreement governing such\noptions, for a period of one (1) year after such death and\/or disability, but in\nno event later than the expiration of such options as set forth in the option\nagreement(s); and (B) with respect to any shares of Company Restricted Stock\nheld by the Executive, including the Additional Restricted Stock, that are, on\nthe date of Executive's death and\/or disability, subject to the Company's\nrepurchase right upon termination of the Executive's employment, the Company\nshall waive such repurchase right as to the number of shares of Restricted Stock\nthat would have vested on the next vesting date following the date of\nExecutive's death and\/or disability. For purposes of this Agreement,\n\"Disability\" shall mean that Executive has been unable to perform his duties as\nan Executive as the result of incapacity due to physical or mental illness, and\nsuch inability, at least twenty-six (26) weeks after its commencement, is\ndetermined to be total and permanent by a physician selected by the Company or\nits insurers and acceptable to Executive or Executive's legal representative\n(such agreement as to acceptability not to be unreasonably withheld).\nTermination resulting from Disability may only be effected after at least thirty\n(30) days' written notice by the Company of its intention to terminate\nExecutive's employment. In the event that Executive resumes the performance of\nsubstantially all of his duties before the termination of Executive's employment\nbecomes effective, the notice of intent to terminate shall automatically be\ndeemed to have been revoked.\n\n        13. Proprietary Information. During the Employment Period and\nthereafter, Executive shall not, without the prior written consent of the\nCompany's Board of Directors, disclose or use for any purpose (except in the\ncourse of his employment under this Agreement and in furtherance of the business\nof the Company or any of its affiliates or subsidiaries) any confidential\ninformation or proprietary data of the Company. As an express condition of the\nExecutive's employment with the Company, the Executive agrees to execute\nconfidentiality\n\n\n\n                                       6\n   7\n\nagreements as requested by the Company, including but not limited to the\nCompany's standard Intellectual Property Agreement (the \"Confidentiality\nAgreement\"), which is attached hereto as Exhibit A and incorporated herein by\nreference.\n\n        14. Non-Competition and Non-Solicitation.\n\n                (a) Non-Competition. Executive acknowledges that the nature of\nthe Company's business is such that if Executive were to become employed by, or\nsubstantially involved in, the business of a competitor of the Company during\nthe twelve (12) months following the termination of Executive's employment, in\nany geographic area in which the Executive has done business on behalf of the\nCompany, it would cause substantial and irreparable harm to the Company. Thus,\nto protect the Company's goodwill, trade secrets and confidential information,\nExecutive agrees and acknowledges that Executive will not directly or indirectly\nengage in (whether as an employee, consultant, agent, proprietor, principal,\npartner, stockholder, corporate officer, director or otherwise), nor have any\nownership interest in or participation in the financing, operation, management\nor control of, any person, firm, corporation or business that competes with\nCompany or is a customer of the Company. For this purpose, ownership of no more\nthan one-half of one percent (.5%) of the outstanding voting stock of a publicly\ntraded corporation shall not constitute a violation of this provision.\n\n                (b) Non-Solicitation. During the twelve (12) months after the\ntermination of Executive's employment with the Company for any reason, Executive\nagrees and acknowledges that Executive will not either directly or indirectly\nsolicit, induce, attempt to hire, recruit, encourage, take away, hire any\nemployee of the Company or cause an employee to leave his or her employment\neither for Executive or for any other entity or person.\n\n                (c) Understanding of Covenants. Executive represents that he (i)\nis familiar with the foregoing covenants not to compete and not to solicit, and\n(ii) is fully aware of his obligations hereunder, including, without limitation,\nthe reasonableness of the length of time, scope and geographic coverage of these\ncovenants, and (iii) agrees that the length of time, scope and geographic\ncoverage of these covenants are reasonable and are necessary to protect the\ninterests of the Company.\n\n        15. Right to Advice of Counsel. The Executive acknowledges that he has\nconsulted with counsel and\/or tax advisors and is fully aware of his rights and\nobligations under this Agreement. The Company agrees to pay any and all\nreasonable fees and costs associated with such consultation incurred through the\ndate the Agreement is executed by Executive and Company.\n\n        16. Successors. The Company will make reasonable efforts to negotiate\nwith any successor (whether direct or indirect, by purchase, merger,\nconsolidation or otherwise) to all or substantially all of the business and\/or\nassets of the Company to expressly assume and agree to perform this Agreement in\nthe same manner and to the same extent that the Company would be required to\nperform it if no such succession had taken place. Failure of the Company to\nobtain such assumption agreement prior to: (i) the effectiveness of any such\nsuccession; and\/or (ii) within three (3) business days subsequent to the close\nof any transactions in which the Company sells or disposes of all or\nsubstantially all of its assets; and\/or (iii) within three (3) business days\n\n\n\n                                       7\n   8\n\nsubsequent to the close of a merger transaction, shall entitle the Executive to\nthe benefits described in paragraph 9(b) of this Agreement, subject to the terms\nand conditions therein.\n\n        17. Assignment. This Agreement and all rights under this Agreement shall\nbe binding upon, inure to the benefit of, and be enforceable by the parties\nhereto and their respective personal or legal representatives, executors,\nadministrators, heirs, distributees, devisees, legatees, successors and assigns.\nThis Agreement is personal in nature, and neither of the parties to this\nAgreement shall, without the written consent of the other (which consent will\nnot be unreasonably withheld), assign or transfer this Agreement or any right or\nobligation under this Agreement to any other person or entity; except that the\nCompany may assign this Agreement to any of its affiliates or wholly-owned\nsubsidiaries, provided, that such assignment will not relieve the Company of its\nobligations hereunder. If the Executive should die while any amounts are still\npayable to the Executive hereunder, all such amounts shall be paid in accordance\nwith the terms of this Agreement to the Executive's devisee, legatee, or other\ndesignee or, if there be no such designee, to the Executive's estate.\n\n        18. Absence of Conflict. The Executive represents and warrants that his\nemployment by the Company as described herein shall not conflict with and will\nnot be constrained by any prior employment or consulting agreement or\nrelationship.\n\n        19. Notices.\n\n                (a) General. All notices, requests, demands and other\ncommunications called for hereunder shall be in writing and shall be deemed\ngiven (i) on the date of delivery, or, if earlier, (ii) one (1) day after being\nsent by a well established commercial overnight service, or (iii) three (3) days\nafter being mailed by registered or certified mail, return receipt requested,\nprepaid and addressed to the parties or their successors at the following\naddresses, or at such other addresses as the parties may later designate in\nwriting:\n\n        If to the Executive:        Stewart G. Nelson\n                                    155 North Pfeifferhorn Drive\n                                    Alpine, Utah   84004 and\n\n                                    Workman, Nydegger &amp; Seeley\n                                    60 East South Temple, Suite 1000\n                                    Salt Lake City, Utah 84111\n\n                                    Attention:  Larry R. Laycock\n\n        If to the Company:          Josephine T. Parry\n                                    General Counsel\n                                    Novell, Inc.\n                                    1800 South Novell Place\n                                    Provo, Utah 84606\n\n\n\n                                       8\n   9\n\nor to such other address or to the attention of such other person as the\nrecipient party has previously furnished to the other party in writing in\naccordance with this paragraph.\n\n        20. Notice of Termination by the Company. Any termination by the Company\nof Executive's employment with the company shall be communicated by a notice of\ntermination to Executive at least fourteen (14) days prior to the date of such\ntermination (or at least thirty (30) days prior to the date of termination by\nreason of Executive's Disability). Such notice shall indicate the specific\ntermination provision or provision in this Agreement relied upon (if any), shall\nset forth in reasonable detail the facts and circumstances claimed to provide a\nbasis for termination under the indicated provisions, and shall specify the\ntermination date.\n\n        21. Notice by Executive of Involuntary Termination Other than for Cause\nand Not Following a Change in Control or Involuntary Termination Following a\nChange in Control. In the event that the Executive determines that an\nInvoluntary Termination Other than for Cause and Not Following a Change in\nControl or an Involuntary Termination Following a Change in Control has\noccurred, the Executive shall give written notice to the Company that such\nInvoluntary Termination Other than for Cause and Not Following a Change in\nControl or Involuntary Termination Following a Change in Control has occurred.\nSuch notice shall be delivered by the Executive to the Company within ninety\n(90) days following the date on which such Involuntary Termination Other than\nfor Cause and Not Following a Change in Control or Involuntary Termination\nFollowing a Change in Control occurred, shall indicate the specific provision or\nprovisions in this Agreement upon which the Executive relied to make such\ndetermination, and shall set forth in reasonable detail the facts and\ncircumstances claimed to provide a basis for such determination. The failure by\nthe Executive to include in the notice a fact or circumstance which contributes\nto a showing of Involuntary Termination Other than for Cause and Not Following a\nChange in Control or Involuntary Termination Following a Change in Control shall\nnot waive any right of the Executive hereunder or preclude the Executive from\nasserting such fact or circumstance in enforcing Executive's rights hereunder.\n\n        22. Waiver. Failure or delay on the part of either party hereto to\nenforce any right, power, or privilege hereunder shall not be deemed to\nconstitute a waiver thereof. Additionally, a waiver by either party or a breach\nof any promise hereof by the other party shall not operate as or be construed to\nconstitute a waiver of any subsequent waiver by such other party.\n\n        23. Severability. Whenever possible, each provision of this Agreement\nwill be interpreted in such manner as to be effective and valid under applicable\nlaw, but if any provision of this Agreement is held to be invalid, illegal or\nunenforceable in any respect under any applicable law or rule in any\njurisdiction, such invalidity, illegality or unenforceability will not affect\nany other provision or any other jurisdiction, but this Agreement will be\nreformed, construed and enforced in such jurisdiction as if such invalid,\nillegal or unenforceable provision had never been contained herein.\n\n        24. Integration. This Agreement, together with the Restricted Stock\nPurchase Agreement and the Intellectual Property Agreement, represents the\nentire agreement and understanding between the parties as to the subject matter\nherein and supersedes all prior or contemporaneous agreements whether written or\noral. No waiver, alteration, or modification of\n\n\n\n                                       9\n   10\n\nany of the provisions of this Agreement will be binding unless in writing and\nsigned by duly authorized representatives of the parties hereto.\n\n        25. Headings. The headings of the paragraphs contained in this Agreement\nare for reference purposes only and shall not in any way affect the meaning or\ninterpretation of any provision of this Agreement.\n\n        26. Applicable Law. This Agreement shall be governed by and construed in\naccordance with the internal substantive laws, and not the choice of law rules,\nof the State of Utah. Executive hereby consents to the exclusive and personal\njurisdiction of the state and federal courts of Utah.\n\n        27. Counterparts. This Agreement may be executed in one or more\ncounterparts, none of which need contain the signature of more than one party\nhereto, and each of which shall be deemed to be an original, and all of which\ntogether shall constitute a single agreement.\n\n        28. Tax Withholding. All payments made pursuant to this Agreement will\nbe subject to withholding of applicable taxes so long as such withholding is\nreasonable and consistent with the Company's normal practices.\n\n        29. Golden Parachute Excise Tax and Non-Deductibility Limitations. In\nthe event that a payment or benefit received or to be received by the Executive\ncould result in all or a portion of such payment to be subject to the excise tax\nunder Section 4999 of the Code (\"Code\" shall mean the Internal Revenue Code of\n1986, as amended), then the Executive's payment shall be either (i) the full\npayment, or (ii) such lesser amount which would result in no portion of the\npayment being subject to excise tax under Section 4999 of the Code, whichever of\nthe foregoing amounts, taking into account the applicable federal, state and\nlocal employment taxes, income taxes and the excise tax imposed by Section 4999\nof the Code, results in the receipt by the Executive, on an after-tax basis, of\nthe greatest amount of the payment notwithstanding that all or some portion of\nthe payment may be taxable under Section 4999 of the Code. All determinations\nrequired to be made hereunder shall be made by Ernst &amp; Young or any other\nnationally recognized accounting firm that is the Company's outside auditor at\nthe time of such determination (the \"Accounting Firm\"). The Company shall cause\nthe Accounting Firm to provide detailed supporting calculations of its\ndetermination to the Company and the Executive. Notice must be given to the\nAccounting Firm within fifteen (15) business days after an event entitling the\nExecutive to a payment under this Plan. For purposes of making a calculation\nrequired by this Article, the Accounting Firm may make reasonable assumptions\nand approximations concerning applicable taxes and may rely on reasonable, good\nfaith interpretations concerning the applications of Sections 280G and 4999 of\nthe Code. The Company and the Executive shall furnish to the Accounting Firm\nsuch information and documents as the Accounting Firm may reasonably request in\norder to make a determination hereunder. The Company shall bear all costs the\nAccounting Firm may reasonably incur in connection with any calculations\ncontemplated by this Article.\n\n        30. Acknowledgment. Executive acknowledges that he has had the\nopportunity to discuss this matter with and obtain advice from his private\nattorney, has had sufficient time to,\n\n\n\n                                       10\n   11\n\nand has carefully read the provisions of this Agreement, and is knowingly and\nvoluntarily entering into this Agreement.\n\n        IN WITNESS WHEREOF, each of the parties has executed this Agreement, in\nthe case of the Company by their duly authorized officers, as of the day and\nyear first above written.\n\n\nCOMPANY:\n\nNOVELL, INC.\n\n\nBy:   \/s\/Eric Schmidt                   Date: 11\/13\/00\n   ---------------------------------         -----------------------------------\n\nTitle:  CEO\n      ------------------------------\n\nEXECUTIVE:\n\n\n\/s\/Stewart Nelson                       Date:11\/13\/00\n-------------------------------------        -----------------------------------\nSTEWART G. NELSON\n\n\n\n                                       11\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-39432","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\/39432","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=39432"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39432"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39432"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39432"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}