{"id":40441,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/senior-management-severance-plan-novell-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"senior-management-severance-plan-novell-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/senior-management-severance-plan-novell-inc.html","title":{"rendered":"Senior Management Severance Plan &#8211; Novell Inc."},"content":{"rendered":"<pre>                                  NOVELL, INC.\n                        SENIOR MANAGEMENT SEVERANCE PLAN\n\n\n                                    ARTICLE I\n                                  INTRODUCTION\n\n        The Novell, Inc. Senior Management Severance Plan (the \"Plan\") was\nestablished effective April 11, 2000. The purpose of the Plan is to provide\nseverance benefits to certain eligible senior management employees of Novell,\nInc. (the \"Company\") whose active employment with the Company is involuntarily\nterminated by the Company. This Plan shall supersede any severance benefit plan,\npolicy or practice previously maintained by the Company with respect to the\nemployees covered hereby. This Plan amends and restates the Novell, Inc. Senior\nManagement Severance Plan (effective November 1, 1997).\n\n                                   ARTICLE II\n\n                          DEFINITIONS AND CONSTRUCTION\n\n        Whenever used in the Plan, the following terms shall have the meanings\nset forth below.\n\n        A. Base Salary. \"Base Salary\" shall mean the Participant's gross annual\nbase salary, exclusive of bonuses, commissions and other incentive pay, as in\neffect immediately preceding the Involuntary Termination or Involuntary\nTermination Following a Change in Control.\n\n        B. Benefits Continuation Period. \"Benefits Continuation Period\" shall\nmean the period set forth in a Participant's Notice of Participation.\n\n        C. Board. \"Board\" shall mean the Board of Directors of the Company.\n\n        D. Cause. \"Cause\" shall mean (i) the Participant's continued violations\nof the Participant's obligations which are demonstrably willful or deliberate on\nthe Participant's part after there has been delivered to the Participant a\nwritten demand for performance from the Company which describes the basis for\nthe Company's belief that the Participant has not substantially performed his or\nher duties, (ii) the Participant's engaging in willful misconduct which is\ninjurious to the Company or its affiliates, (iii) the Participant's committing a\nfelony, an act of fraud against or the misappropriation of property belonging to\nthe Company or its affiliates, (iv) the Participant's breaching, in any material\nrespect, terms of any confidentiality or proprietary information agreement\nbetween the Participant and the Company, or (v) a determination by the Plan\nAdministrator that the Participant has committed a material violation of the\nStandards of Employee Conduct, which standards may be altered from time to time\nby the Company, as defined in the most current version of the Company's Employee\nHandbook.\n\n\n\n   2\n\n        E. Change in Control. A \"Change in Control\" shall be deemed to have\noccurred if: (i) Novell sells or otherwise disposes of all or substantially all\nof its assets; (ii) there is a merger or consolidation of Novell with any other\ncorporation or corporations, provided that the shareholders of Novell, as a\ngroup, do not hold, immediately after such event, at least 50% of the voting\npower of the surviving or successor corporation; or (iii) any person or entity,\nincluding any \"person\" as such term is used in Section 13(d)(3) of the\nSecurities Exchange Act of 1934, as amended (the \"Exchange Act\"), becomes the\n\"beneficial owner\" (as defined in the Exchange Act) of Common Stock of Novell\nrepresenting 50% or more of the combined voting power of the voting securities\nof Novell (exclusive of persons who are now officers or directors of Novell).\n\n        F. COBRA. \"COBRA\" shall mean the Consolidated Omnibus Budget\nReconciliation Act of 1986, as amended.\n\n        G. Code. \"Code\" shall mean the Internal Revenue Code of 1986, as\namended.\n\n        H. Company. \"Company\" shall mean Novell, Inc., any subsidiary\ncorporations, any successor entities as provided in Article VIII hereof, and any\nparent or subsidiaries of such successor entities.\n\n        I. Disability. \"Disability\" shall mean that the Participant has been\nunable to perform his or her duties as an Employee as the result of incapacity\ndue to physical or mental illness, and such inability, at least twenty-six (26)\nweeks after its commencement, is determined to be total and permanent by a\nphysician selected by the Company or its insurers and acceptable to the\nParticipant or the Participant's legal representative (such agreement as to\nacceptability not to be unreasonably withheld). Termination resulting from\nDisability may only be effected after at least thirty (30) days' written notice\nby the Company of its intention to terminate the Participant's employment. In\nthe event that the Participant resumes the performance of substantially all of\nhis or her duties hereunder before the termination of his or her employment\nbecomes effective, the notice of intent to terminate shall automatically be\ndeemed to have been revoked.\n\n        J. Effective Date. \"Effective Date\" shall mean April 11, 2000.\n\n        K. Employee. \"Employee\" shall mean a full-time regular employee of the\nCompany.\n\n        L. Involuntary Termination. \"Involuntary Termination\" shall mean (i)\nwithout the Participant's express written consent, a comprehensive and\nsubstantial reduction in all or most of the Participant's primary duties,\nauthority and responsibilities compared to the Participant's duties, authority\nand responsibilities immediately prior to such reduction; (ii) without the\nParticipant's express written consent, a significant reduction in the\nParticipant's Base Salary compared to the Participant's Base Salary in effect\nimmediately prior to such reduction; provided, however, that a reduction in the\nParticipant's Base Salary of less than twenty percent (20%) or a reduction in\nthe Participant's Base Salary that is part of an overall reduction in\ncompensation also applied to other senior executives of the Company as a result\nof decreased business performance by the Company or one of its business units,\nshall not constitute an Involuntary Termination; (iii) any purported termination\nof the Participant by the Company that is not effected for Disability or Cause;\nor (iv) the\n\n\n\n                                       2\n   3\n\nfailure of the Company to obtain the assumption of this Agreement by any\nsuccessors contemplated in Article IX.\n\n        M. Involuntary Termination Following a Change in Control. \"Involuntary\nTermination Following a Change in Control\" shall mean as a direct result of a\nChange in Control: (i) without the Participant's express written consent, a\nsignificant reduction of the Participant's duties, position or responsibilities,\nor the removal of the Participant from such position and responsibilities,\nunless the Participant is provided with a comparable position (i.e., a position\nof equal or greater organizational level, duties, authority, compensation and\nstatus); (ii) without the Participant's express written consent, a significant\nreduction in the Participant's Base Salary compared to the Participant's Base\nSalary in effect immediately prior to such reduction; provided, however, that a\nreduction in the Participant's Base Salary of less than twenty percent (20%) or\na reduction in the Participant's Base Salary that is part of an overall\nreduction in compensation also applied to other senior executives of the Company\nas a result of decreased business performance by the Company or one of its\nbusiness units, shall not constitute an Involuntary Termination Following a\nChange in Control; (iii) without the Participant's express written consent, the\nrelocation of the Participant to a facility or a location more than thirty-five\n(35) miles from the Participant's then present location; (iv) any purported\ntermination of the Participant by the Company which is not effected for\nDisability or for Cause, or any purported termination for which the grounds\nrelied upon are not valid; or (v) the failure of the Company to obtain the\nassumption of this Agreement by any successors in the event of a change of\ncontrol.\n\n        N. Notice of Participation. \"Notice of Participation\" shall mean an\nindividualized written notice of participation in the Plan from an authorized\nofficer of the Company.\n\n        O. Participant. \"Participant\" shall mean an individual who meets the\neligibility requirements of Article III.\n\n        P. Plan. \"Plan\" shall mean this Novell, Inc. Senior Management Severance\nPlan.\n\n        Q. Plan Administrator. \"Plan Administrator\" shall mean the Board of\nDirectors of the Company, or its committee or designate, as shall be\nadministering the Plan.\n\n        R. Plan Year. \"Plan Year\" shall mean the Company's fiscal year.\n\n        S. Restricted Business. \"Restricted Business\" shall mean (i) the design,\ndevelopment, manufacture, marketing or support of local or wide area network\nproducts, computer operating systems, applications products, or any other\nsoftware products of the type designed, developed, manufacturer, sold or\nsupported by the Company or as proposed to be designed, developed, manufactured,\nsold or supported by the Company pursuant to a development project that is\nactually being pursued during the term of this Plan; and (ii) any business that\ncompetes directly or indirectly with the hardware and software business of the\nCompany.\n\n        T. Restricted Territory. \"Restricted Territory\" shall mean the counties,\ncities or states of the United States.\n\n\n\n                                       3\n   4\n\n        U. Severance Payment. \"Severance Payment\" shall mean the payment of\nseverance compensation as provided in Article IV hereof.\n\n        V. Severance Payment Percentage. \"Severance Payment Percentage\" shall\nmean, for each Participant, the Severance Payment Percentage set forth in such\nParticipant's Notice of Participation.\n\n        W. Target Bonus. \"Target Bonus\" shall mean the annual percentage of\nParticipant's Base Salary which is available as a potential bonus.\n\n\n                                   ARTICLE III\n\n                                   ELIGIBILITY\n\n        A. Waiver. As a condition of receiving benefits under the Plan, an\nEmployee must sign a general waiver and release (the \"Release\") on a form\nprovided by the Company and not revoke the Release within the time permitted\nunder applicable state or federal law.\n\n        B. Participation in Plan. Each Employee who is designated by the Plan\nAdministrator and who signs and timely returns to the Company a Notice of\nParticipation shall be a Participant in the Plan. A Participant shall cease to\nbe a Participant in the Plan with respect to future Plan Years upon receiving\nwritten notice from the Plan Administrator, in accordance with Article IX.A\nherein, at least ten (10) days prior to the beginning of any Plan Year, unless\nsuch Participant has incurred an Involuntary Termination or Involuntary\nTermination Following a Change in Control prior to the receipt of such notice. A\nParticipant entitled to benefits hereunder shall remain a Participant in the\nPlan until the full amount of the benefits has been delivered to the\nParticipant.\n\n        C. Benefit Ineligibility. Employees are not eligible for benefits under\nthis Plan under any of the following conditions: (i) if he or she is a temporary\nemployee or temporary agency worker; (ii) if the Company is not treating the\nindividual as a common-law employee, as conclusively evidenced by its failure to\nwithhold taxes from the individual's compensation, even if the individual is\ndetermined by a governmental agency or court to be a common-law employee of the\nCompany; (iii) if he or she is covered under a separate written agreement or\nemployment contract with the Company relating to severance benefits that is in\neffect at the time of his or her termination of employment with the Company;\n(iv) if he or she is on an unpaid leave of absence without a right of\nreinstatement; or (v) if he or she is otherwise ineligible under Article IV of\nthis Plan.\n\n\n                                   ARTICLE IV\n\n                               SEVERANCE BENEFITS\n\n        A. Upon an Involuntary Termination Other than for Cause and Other than\nFollowing a Change in Control. If the Participant's employment with the Company\nterminates as a result of an Involuntary Termination other than for Cause and\nother than Following a Change in Control, the Participant shall be entitled to\nreceive the following severance benefits:\n\n\n\n                                       4\n   5\n\n                1. Severance Payment. Participant shall receive a cash payment\nequal to the product obtained by multiplying the Participant's Severance Payment\nPercentage times the Participant's Base Salary. Any such Severance Payment shall\nbe paid in cash by the Company to the Participant in substantially equal monthly\ninstallments, subject to the Participant's compliance with Article VII, and\nshall be in lieu of any other severance or severance-type benefits to which the\nParticipant may be entitled under any other Company-sponsored plan, practice or\narrangement. Notwithstanding the forgoing, the Plan Administrator may, in its\nsole discretion, pay the Severance Payment in a single, lump sum payment in lieu\nof monthly installments.\n\n                2. Option Vesting and Restricted Stock.\n\n                        (i)With respect to any Company stock options held by the\nParticipant as of the date of such Involuntary Termination, the Company shall\naccelerate the vesting of that portion of the Participant's stock options, if\nany, which would have vested within one (1) year after the date of the\nParticipant's Involuntary Termination, such options to remain exercisable,\nnotwithstanding anything in any other agreement governing such options, for a\nperiod of six (6) months after such Involuntary Termination, subject only to the\noriginal term of the option; and\n\n                        (ii) With respect to any shares of Company common stock\nheld by the Participant that is, at the time of such Involuntary Termination,\nsubject to the Company's repurchase right upon termination of the Participant's\nemployment (\"Restricted Stock\"), the Company shall waive such repurchase right\nas to the number of shares of Restricted Stock that would have vested on the\nnext anniversary of the Restricted Stock grant date.\n\n                3. COBRA Benefits. Participant shall receive a lump sum payment\nin an amount equal to the cost of COBRA continuation for the Participant's\nBenefits Continuation Period.\n\n        B. Upon Involuntary Termination Following a Change in Control. If the\nParticipant's employment with the Company terminates as a direct result of an\nInvoluntary Termination Following a Change in Control without Cause within two\n(2) months prior to or twelve (12) months following a Change in Control, the\nParticipant shall be entitled to receive the following severance benefits:\n\n                1. Severance Payment. Participant shall receive a cash payment\nequal to three (3) times Participant's Base Salary and Target Bonus at the time\nof Participant's Involuntary Termination Following a Change in Control. Any such\nSeverance Payment shall be paid in cash by the Company to the Participant in\nsubstantially equal monthly installments, subject to the Participant's\ncompliance with Article VII, and shall be in lieu of any other severance or\nseverance-type benefits to which the Participant may be entitled under any other\nCompany-sponsored plan, practice or arrangement. Notwithstanding the forgoing,\nthe Plan Administrator may, in its sole discretion, pay the Severance Payment in\na single, lump sum payment in lieu of monthly installments.\n\n                2. Option Vesting and Restricted Stock.\n\n                        (i) With respect to any Company stock options held by\nthe Participant as of the date of such Involuntary Termination Following a\nChange in Control, the Company shall accelerate the vesting of that portion of\nthe Participant's stock options, if any, which would have\n\n\n\n                                       5\n   6\n\nvested within two (2) years after the date of the Participant's Involuntary\nTermination Following a Change in Control, such options to remain exercisable,\nnotwithstanding anything in any other agreement governing such options, for a\nperiod of one (1) year after such Involuntary Termination Following a Change in\nControl, but in no event later than the expiration of such options as set forth\nin the option agreement(s); and\n\n                        (ii) With respect to any shares of Company common stock\nheld by the Participant that is, at the time of such Involuntary Termination\nFollowing a Change in Control, subject to the Company's repurchase right upon\ntermination of the Participant's employment (\"Restricted Stock\"), the Company\nshall waive such repurchase right as to the number of shares of Restricted Stock\nthat would have vested on the next two (2) anniversaries of the Restricted Stock\ngrant date.\n\n                3. COBRA Benefits. Participant shall receive a lump sum payment\nin an amount equal to the cost of COBRA continuation for a period of thirty-six\n(36) months after Participant's Involuntary Termination Following a Change in\nControl.\n\n        C. Voluntary Resignation; Termination For Cause. If the Participant's\nemployment terminates by reason of the Participant's voluntary resignation (and\nis not an Involuntary Termination and is not an Involuntary Termination\nFollowing a Change in Control), or if the Company terminates the Participant for\nCause, then the Participant shall not be entitled to receive severance or other\nbenefits under this Plan and shall be entitled only to those benefits (if any)\nas may be available under the Company's then existing benefit plans and policies\nat the time of such termination.\n\n        D. Disability; Death. If the Participant's employment terminates by\nreason of the Participant's death, or by reason of Participant's Disability,\nthen the Participant shall not be entitled to receive severance or other\nbenefits under this Plan and shall be entitled only to those benefits (if any)\nas may be available under the Company's then existing benefit plans and policies\nat the time of such death or Disability.\n\n        E. Integration with Other Payments. Should the Plan Administrator, in\nits sole and absolute discretion, determine that any other benefits are or may\nbecome payable, including but not limited to workers' compensation wage\nreplacement benefits, severance pay, or similar benefits under benefit plans,\nseverance programs, employment contracts, or applicable laws such as the\nWorkers' Adjustment and Retraining Notification (WARN) Act, Participant's\nbenefits under this Plan will be reduced accordingly or alternatively, benefits\npreviously paid under the Plan will be treated as having been paid to satisfy\nsuch other benefit obligations. In either case, the Plan Administrator will\ndetermine how to apply this provision, and may override other provisions in this\nPlan in doing so.\n\n        F. Time of Payment. Severance Payments will be paid as soon as\nadministratively feasible after Participant's termination of employment, except\nthat Participant's Severance Payments will not be payable until the expiration\nof any revocation time under applicable state and federal law.\n\n                                    ARTICLE V\n\n\n\n                                       6\n   7\n\n          GOLDEN PARACHUTE EXCISE TAX AND NON-DEDUCTIBILITY LIMITATIONS\n\n        In the event that a payment or benefit received or to be received by the\nParticipant could result in all or portion of such payment to be subject to the\nexcise tax under Section 4999 of the Code, then the Participant's payment shall\nbe either (i) the full payment, or (ii) such lesser amount which would result in\nno portion of the payment being subject to excise tax under Section 4999 of the\nCode, whichever of the foregoing amounts, taking into account the applicable\nfederal, state and local employment taxes, income taxes and the excise tax\nimposed by Section 4999 of the Code, results in the receipt by the Participant,\non an after-tax basis, of the greatest amount of the payment notwithstanding\nthat all or some portion of the payment may be taxable under Section 4999 of the\nCode. All determinations required to be made under this Article V shall be made\nby Ernst &amp; Young or any other nationally recognized accounting firm that is the\nCompany's outside auditor at the time of such determination (the \"Accounting\nFirm\"). The Company shall cause the Accounting Firm to provide detailed\nsupporting calculations of its determination to the Company and the Participant.\nNotice must be given to the Accounting Firm within fifteen (15) business days\nafter an event entitling the Participant to a payment under this Plan. For\npurposes of making a calculation required by this Article, the Accounting Firm\nmay make reasonable assumptions and approximations concerning applicable taxes\nand may rely on reasonable, good faith interpretations concerning the\napplications of Sections 280G and 4999 of the Code. The Company and the\nParticipant shall furnish to the Accounting Firm such information and documents\nas the Accounting Firm may reasonably request in order to make a determination\nunder this Article. The Company shall bear all costs the Accounting Firm may\nreasonably incur in connection with the any calculations contemplated by this\nArticle.\n\n                                   ARTICLE VI\n\n                        POOLING OF INTERESTS LIMITATIONS\n\n        To the extent any of the benefits (including the equity compensation\nvesting acceleration) hereunder would cause a contemplated Change in Control\ntransaction that was intended to be accounted for as a \"pooling-of-interests\"\ntransaction to become ineligible for such accounting treatment under generally\naccepted accounting principles, as determined by the Accounting Firm, then this\nAgreement shall automatically be deemed amended to provide Employee with such\nlesser benefits as would allow for the contemplated Change in Control\ntransaction to be accounted for as a \"pooling-of-interests\" transaction.\n\n                                   ARTICLE VII\n\n                   COVENANTS NOT TO COMPETE AND NOT TO SOLICIT\n\n        In the event of a Participant's Involuntary Termination other than for\nCause or Involuntary Termination Following a Change in Control, the Company's\nobligations to provide severance pay as provided in Article IV.A and Article\nIV.B shall be expressly conditioned upon the Participant's covenants not to\ncompete and not to solicit as provided herein. In the event the Participant\nbreaches his or her obligations to the Company as provided herein, the Company's\nobligations to make\n\n\n\n                                       7\n   8\n\nseverance payments to the Participant pursuant to Article IV.A and Article IV.B\nshall cease, without prejudice to any other remedies that may be available to\nthe Company.\n\n        A. Covenant Not to Compete. For a period of one (1) year following a\nParticipant's Involuntary Termination other than for Cause or Involuntary\nTermination Following a Change in Control, the Participant shall not directly or\nindirectly, engage in (whether as employee, consultant, proprietor, partner,\ndirector or otherwise), or have any ownership interest in, or participate in a\nfinancing, operation, management or control of, any person, firm, corporation or\nbusiness that is a Restricted Business in a Restricted Territory without the\nprior written consent of the Plan Administrator. For this purpose, ownership of\nno more than .5% of the outstanding voting stock of a publicly traded\ncorporation shall not constitute a violation of this provision.\n\n        B. Covenant Not to Solicit. The Participant shall not, for a period of\none (1) year after the Participant's Involuntary Termination other than for\nCause or Involuntary Termination Following a Change in Control: (i) solicit,\nencourage or take any other action which is intended to induce any other\nemployee of the Company to terminate his or her employment with the Company; or\n(ii) interfere in any manner with the contractual or employment relationship\nbetween the Company and any such employee of the Company. The foregoing shall\nnot prohibit the Participant or any entity with which the Participant may be\naffiliated from hiring a former employee of the Company, provided that such\nhiring results exclusively from such former employee's affirmative response to a\ngeneral recruitment effort.\n\n        C. Interpretation. The covenants contained herein are intended to be\nconstrued as a series of separate covenants, one for each county, city and state\nor other political subdivision of a Restricted Territory. Except for geographic\ncoverage, each such separate covenant shall be deemed identical in terms to the\ncovenant contained in the preceding paragraphs. If, in any judicial proceeding,\nthe court shall refuse to enforce any of the separate covenants (or any part\nthereof) deemed included in such paragraphs, then such unenforceable covenant\n(or such part) shall be deemed to be eliminated from this Plan for the purpose\nof those proceedings to the extent necessary to permit the remaining separate\ncovenants (or portions thereof) to be enforced.\n\n        D. Reasonableness. In the event that the provisions of this Article VII\nshall ever be deemed to exceed the time, scope or geographic limitations\npermitted by applicable laws, then such provisions shall be reformed to the\nmaximum time, scope or geographic limitations, as the case may be, permitted by\napplicable laws.\n\n                                  ARTICLE VIII\n\n                         EMPLOYMENT STATUS; WITHHOLDING\n\n        A. Employment Status. This Plan does not constitute a contract of\nemployment or impose on the Participant or the Company any obligation to retain\nthe Participant as an Employee, to change the status of the Participant's\nemployment, or to change the Company's policies regarding termination of\nemployment. The Participant's employment is and shall continue to be at-will, as\ndefined under applicable law. If the Participant's employment with the Company\nor a successor\n\n\n\n                                       8\n   9\n\nentity terminates for any reason, the Participant shall not be entitled to any\npayments, benefits, damages, awards or compensation other than as provided by\nthis Plan, or as may otherwise be available in accordance with the Company's\nestablished employee plans and practices or other agreements with the Company at\nthe time of termination.\n\n        B. Taxation of Plan Payments. All amounts paid pursuant to this Plan\nshall be subject to regular payroll and withholding taxes.\n\n                                   ARTICLE IX\n\n                     SUCCESSORS TO COMPANY AND PARTICIPANTS\n\n        A. Company's Successors. Any successor to the Company (whether direct or\nindirect and whether by purchase, lease, merger, consolidation, liquidation or\notherwise) to all or substantially all of the Company's business and\/or assets\nshall assume the obligations under this Plan and agree expressly to perform the\nobligations under this Plan by executing a written agreement. For all purposes\nunder this Plan, the term \"Company\" shall include any successor to the Company's\nbusiness and\/or assets which executes and delivers the assumption agreement\ndescribed in this subsection or which becomes bound by the terms of this Plan by\noperation of law.\n\n        B. Participant's Successors. All rights of the Participant hereunder\nshall inure to the benefit of, and be enforceable by, the Participant's personal\nor legal representatives, executors, administrators, successors, heirs,\ndistributes, devisees and legatees.\n\n                                    ARTICLE X\n\n                       DURATION, AMENDMENT AND TERMINATION\n\n        A. Duration. This Plan shall be effective for consecutive one year\nperiods unless terminated by the Board, provided that any such termination shall\nbe effective only with respect to future Plan Years. Participants shall be given\nnotice of a Plan termination within thirty (30) days of the Board's decision. A\ntermination of this Plan pursuant to the preceding sentence shall be effective\nfor all purposes, except that such termination shall not affect the payment or\nprovision of compensation or benefits earned by a Participant prior to the\ntermination of this Plan.\n\n        B. Amendment and Termination. The Board or, if authorized by the Board,\nthe Plan Administrator, shall have the discretionary authority to amend the Plan\nprior to a Change-in-Control by resolution adopted by at least two-thirds of the\nBoard or the Plan Administrator, as applicable, provided that no such amendment\nshall reduce the benefits for which Participants may be eligible under the Plan.\nSubject to the provisions of Article X.A above, the Plan may be terminated prior\nto a Change-in-Control by resolution adopted by at least two-thirds of the\nBoard. If a Change-in-Control occurs, the Plan no longer shall be subject to\namendment, change or termination in any respect.\n\n\n                                   ARTICLE XI\n\n\n\n                                       9\n   10\n\n                               PLAN ADMINISTRATION\n\n        A. Plan Administrator. The Plan shall be administered by the Plan\nAdministrator.\n\n                (1) Subject to the provisions set forth in this Plan and to the\nspecific duties delegated by the Board of Directors to the Plan Administrator,\nthe Company as the Plan Administrator shall be responsible for the general\nadministration and interpretation of the Plan and for carrying out its\nprovisions. The Plan Administrator shall have such powers as may be necessary to\ndischarge its duties hereunder, including, but not by way of limitation, the\nfollowing powers and duties:\n\n        X       discretionary authority to construe and interpret the terms of\n                the Plan, to determine eligibility (including a determination\n                whether a Participant has experienced a comprehensive and\n                substantial reduction in the Participant's duties, authority and\n                responsibilities as described in Article II.L and Article II.M),\n                and to determine the amount, manner and time of payment of any\n                benefits hereunder;\n\n        X       to prescribe procedures to be followed by the Participants for\n                purposes of Plan participation and distribution of benefits; and\n\n        X       to take such other action as may be necessary and appropriate\n                for the proper administration of the Plan.\n\n        B. Procedures. The Plan Administrator may adopt such rules, regulations\nand bylaws and may make such decisions as it deems necessary or desirable for\nthe proper administration of the Plan. Any rule or decision that is not\ninconsistent with the provisions of the Plan shall be conclusive and binding\nupon all persons affected by it, and there shall be no appeal from any ruling by\nthe Plan Administrator that is within its authority, except as otherwise\nprovided herein.\n\n                                   ARTICLE XII\n\n                          CLAIMS AND APPEALS PROCEDURES\n\n        A. Claim Dispute. If any person (Claimant) believes that benefits are\nbeing denied improperly, the Claimant must file a formal written claim with the\nPlan Administrator. Any claim may only relate to a matter under the Plan and not\nto any matter under the separation procedures or any other Company policy,\npractice or procedure.\n\n        B. Time for Filing Claims. A formal claim must be filed within ninety\n(90) days after the date the Claimant first knew or should have known of the\nfacts upon which the claim is based, unless the Plan Administrator in writing\nconsents otherwise.\n\n        C. Claim Procedure. A written claim should be sent to the General\nCounsel, Novell, Inc., 2211 North First Street, San Jose, California 95131.\n\n\n\n                                       10\n   11\n\n                If the written claim is denied, in whole or in part, the\nClaimant will receive notice from the General Counsel, including the specific\nreason for the denial, within ninety (90) days of the date the claim was\nreceived. In some cases, more than ninety (90) days may be needed to make a\ndecision. In such cases, the Claimant will be notified in writing, within the\ninitial ninety (90) day period, of the reason more time is needed. An additional\nninety (90) days may be taken to make the decision if the Claimant is sent such\na notice. The extension notice will show the date by which the decision will be\nsent.\n\n                If no response is received by Claimant within the ninety (90)\nday period, the claim is considered denied.\n\n                The appeal procedure which follows gives the rules for appealing\na denied claim.\n\n        D. Appeal Procedures. A claimant may use this procedure if:\n\n                X       no reply at all is received by the claimant within\n                        ninety (90) days after filing the claim;\n\n                X       a notice has extended the time an additional ninety (90)\n                        days and no reply is received within\n                        one-hundred-and-eighty (180) days after filing the\n                        claim; or\n\n                X       written denial of the claim for benefits or other\n                        matters is received within the proper time limit and the\n                        Claimant wishes to appeal the written denial.\n\n        If a claim for benefits is denied, in whole or in part, either expressly\nor by virtue of the Claimant not having received a reply, the Claimant or other\nduty authorized person, may appeal this denial in writing within sixty (60) days\nafter the denial is or should have been received. Written request for review of\nany denied claim should be sent directly to the Novell, Inc. Senior Management\nSeverance Plan Appeal Committee, Legal Department, Novell, Inc., 2211 North\nFirst Street, San Jose, California 94131, Attn: General Counsel. The Plan\nAdministrator serves as the final review under the Plan for all Participants.\nUnless the Plan Administrator sends notice in writing that the claim is a\nspecial case needing more time, the Plan Administrator will conduct a review and\ndecide on the appeal of the denied claim within sixty (60) days after receipt of\nthe written request for review. If more time is required to make a decision, the\nPlan Administrator will send notice in writing that there will be a delay and\ngive the reasons for the delay. In such cases, the Plan Administrator may have\nsixty (60) days more, a total of one-hundred-and-twenty (120) days, to make its\ndecision.\n\n                Procedure:\n\n                If the Claimant sends a written request for review of a denied\nclaim, the Claimant has the right to:\n\n\n\n                                       11\n   12\n\n                X       Review pertinent Plan documents which may be obtained by\n                        sending a written claim to the General Counsel, Novell,\n                        Inc., 2211 North First Street, San Jose, California\n                        95131, and\n\n                X       Send to the Plan Administrator a written statement of\n                        the issues and any other documents in support of the\n                        claim for benefits or other matter upon review.\n\n                The Plan Administrator's decision shall be given to the Claimant\nin writing within sixty (60) days or, if extended, one-hundred-and-twenty (120)\ndays, and shall include specific reasons for the decision. If the Plan\nAdministrator does not give its decision on review within the appropriate time\nspan, the Claimant may consider the claim denied.\n\n                The right to receive benefits under this Plan is contingent on a\nClaimant using the prescribed claims and appeal procedures to resolve any claim.\nTherefore, if a Claimant seeks to resolve any claim by any means other than the\nprescribed claims and appeals procedures, he or she must repay all benefits\nreceived under this Plan and shall not be entitled to any further Plan benefits.\n\n                                  ARTICLE XIII\n\n                                     NOTICE\n\n        A. General. Notices and all other communications contemplated by this\nPlan shall be in writing and shall be deemed to have been duly given when\npersonally delivered or when mailed by U.S. registered or certified mail, return\nreceipt requested and postage prepaid. In the case of the Participant, mailed\nnotices shall be addressed to him or her at the home address which he or she\nmost recently communicated to the Company in writing. In the case of the\nCompany, mailed notices shall be addressed to the Company's General Counsel,\n2211 North First Street, San Jose, California 95131.\n\n        B. Notice of Termination by the Company. Any termination by the Company\nof the Participant's employment with the Company shall be communicated by a\nnotice of termination to the Participant at least fourteen (14) days prior to\nthe date of such termination (or at least thirty (30) days prior to the date of\na termination by reason of the Participant's Disability). Such notice shall\nindicate the specific termination provision or provisions in this Plan relied\nupon (if any), shall set forth in reasonable detail the facts and circumstances\nclaimed to provide a basis for termination under the provision or provisions so\nindicated, and shall specify the termination date.\n\n        C. Notice by the Participant of Involuntary Termination by the Company\nand Involuntary Termination Following a Change in Control. In the event that the\nParticipant determines that an Involuntary Termination or an Involuntary\nTermination Following a Change in Control has occurred, the Participant shall\ngive written notice to the Company that such Involuntary Termination or\nInvoluntary Termination Following a Change in Control has occurred. Such notice\nshall be delivered by the Participant to the Company within ninety (90) days\nfollowing the date on which such Involuntary Termination or Involuntary\nTermination Following a Change in Control occurred, shall indicate the specific\nprovision or provisions in this Plan upon which the Participant relied to\n\n\n\n                                       12\n   13\n\nmake such determination and shall set forth in reasonable detail the facts and\ncircumstances claimed to provide a basis for such determination. The failure by\nthe Participant to include in the notice any fact or circumstance which\ncontributes to a showing of Involuntary Termination or Involuntary Termination\nFollowing a Change in Control shall not waive any right of the Participant\nhereunder or preclude the Participant from asserting such fact or circumstance\nin enforcing his or her rights hereunder.\n\n                                   ARTICLE XIV\n\n                            MISCELLANEOUS PROVISIONS\n\n        A. No Duty to Mitigate. The Participant shall not be required to\nmitigate the amount of any benefits contemplated by this Plan, nor shall any\nsuch benefits be reduced by any earnings or benefits that the Participant may\nreceive from any other source.\n\n        B. Severability. The invalidity or unenforceability of any provision or\nprovisions of this Plan shall not affect the validity or enforceability of any\nother provision hereof, which shall remain in full force and effect.\n\n        C. No Assignment of Benefits. The rights of any person to payments or\nbenefits under this Plan shall not be made subject to option or assignment,\neither by voluntary or involuntary assignment or by operation of law, including\n(without limitation) bankruptcy, garnishment, attachment or other creditor's\nprocess, and any action in violation of this subsection shall be void. However,\npayments and benefits under the Plan may be reduced or offset by any amount a\nParticipant may owe the Company, to the extent permitted by applicable law.\n\n        D. Assignment by Company. The Company may assign its rights under this\nPlan to an affiliate, and an affiliate may assign its rights under this Plan to\nanother affiliate of the Company or to the Company; provided, however, that no\nassignment shall be made if the net worth of the assignee is less than the net\nworth of the Company at the time of assignment; provided, further, that the\nCompany shall guarantee all benefits payable hereunder. In the case of any such\nassignment, the term \"Company\" when used in this Plan shall mean the corporation\nthat actually employs the Participant.\n\n\n\n                                       13\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":[9539,9551],"class_list":["post-40441","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__severance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40441","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=40441"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40441"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40441"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40441"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}