Employment Agreement - Embarcadero Technologies Inc. and Walter F. Scott III
Mr. Walter F. Scott III
2407 Hidden Shore Drive
Katy, TX 77450
Dear Walter:
I am pleased to make this offer to you to join Embarcadero
Technologies (the "Company") as its Vice President of Sales. If you accept
this offer, we are assuming that you will commence employment not later than
January 4, 2000.
The terms of your employment are as follows:
1. SALARY. Your base salary will be $16,666,67 per month
(equivalent to $200,000 per year).
2. BONUS. You shall be eligible to earn an annual bonus of up to
$300,000 per year based on the achievement of sales and personal goals. This
bonus shall be structured so that you will earn $100,000 at 100% of our
internal plan and $10,000 for each 1 % above of our internal plan up to a
maximum of $300,000.
3. STOCK OPTIONS. You will be granted seven-year standard-form
options to purchase (a) 250,000 shares of Common Stock at an exercise price
of $3.00 per share and (b) 50,000 shares of Common Stock at an exercise price
of $10.00 per share. Your options shall vest over four years on a semi-annual
basis at a rate of 12.5% on each six-month anniversary of your start date.
Your options shall cease vesting upon termination of your employment, except
as set forth in paragraph 7 below. In the event of a "change in control,"
your options shall become fully vested, except that if either (i) the change
of control occurs within six months of the commencement of your employment or
(ii) within such six-month period the Company enters into an agreement that
would result in a change of control and such change of control occurs within
nine months of the commencement of your employment, you shall vest in
ascending order of exercise price, the greater of (a) the number of shares
such that you realize. $6 million in value between the purchase price of such
underlying shares and the applicable. exercise price on such shares or (b)
150,000 shares, You have informed the Company that your current employer may
assert that you have breached the terms of your option agreement by accepting
employment with the Company. Although both you and the Company believe that
any such assertion by your current employer has no merits as the Company is
not in a business competitive With the business of your current employer, the
Company has agreed to reimburse you 70% of any actual lost profits you suffer
(estimated to equal $224,000), which arises from your current employer
successfully asserting that you have breached the terms of your option
agreement by being employed by the Company Such reimbursement shall be made
to you in cash or common stock of the Company, as determined by the Company
in its sole discretion, and paid within five days of any final judgment
against you. The Company also agrees to pay the reasonable costs of defending
you against any such claim made by your currently employer, in an amount not
to exceed $50,000 in the aggregate.
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For purposes of the preceding paragraph, a change in control means
the occurrence of either of the following:
(a) any "person" (as used in Section 13(d) of the
Securities Exchange Act of 1934 and the rules
promulgated thereunder) becomes the "beneficial
owner" (as defined in Rule 13d-3) of securities
representing a majority of the voting power of the
then outstanding securities of Embarcadero
Technologies; or
(b) a sale of assets involving all or substantially all
of the assets of Embarcadero Technologies, or a
merger or consolidation of Embarcadero Technologies
in which the holders of securities of Embarcadero
Technologies immediately prior to such event hold in
the aggregate less than a majority of the securities
of Embarcadero Technologies immediately after such
event.
4. RELOCATION ASSISTANCE. Embarcadero Technologies will reimburse
you for the reasonable and customary out-of-pocket expenses associated with
(i) the sale of your existing residence and purchase of a new residence in
the Bay Area (within twelve months of your relocation) including real estate
commissions on the sale of your existing residence and reasonable and
customary closing expenses paid by you on your new home; (ii) the relocation
of your family and household goods to the Bay Area, including travel and
temporary housing expenses in the Say Area for a period not to exceed twelve
months; (iii) two additional round trips between Houston and the Bay Area for
you and your family to prepare for your move; and (iv) up to $50,000 to cover
any capital loss that you suffer in the sale of your home in Houston. The
reimbursement of expenses listed In (i), (ii) and (iii) above shall not
exceed $120,000,
5. PROPRIETARY INFORMATION. You will be required to sign
Embarcadero Technologies' standard employee confidential information and
inventions agreement.
6. SEVERANCE. Your employment will be at will, which means that either
you or Embarcadero Technologies may terminate your employment at any time with
or without "cause" (as defined below). However, in the event you are terminated
without cause by the Company, you will be entitled to severance pay in an amount
equal to 6 months' base salary (which will be payable in monthly installments)
and the Company will also continue to pay your medical and dental benefits in
accordance with the benefits you were receiving at the time of your termination
for six months. In addition, if your are terminated without cause by the Company
during the first year of your employment, 25% of your options shall become
vested; or, if you are terminated without cause after the first year of your
employment, your option shall continue to vest during the six months that you
are receiving severance payments.
In the event that you voluntarily leave the Company or you are
terminated by the Company with cause, no severance pay will be due to you.
"Cause" shall mean (a) fraud or illegal acts; (b) material violation with
consequential damages to the Company of Company
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agreements, including the Company's confidential information and inventions
agreement: (c) material failure to perform your job function to a reasonable
standard after notice of such failure has been given to you by the Board and
you have had a 16 business-day period to cure such failure or (d) any other
reason deemed cause under applicable California law.
7. ARBITRATION. In the event of any dispute arising out of or relating
to your employment relationship or its termination (including without limitation
claims for breach of contract, wrongful termination, or age, race, sex,
disability or other discrimination) that it is not resolved by good faith
negotiations between the parties, you and Embarcadero Technologies agree fully,
finally and exclusively to arbitrate the dispute in binding arbitration under
the Employment Dispute Resolution Rules of the American Arbitration Association
in San Francisco County, California, rather than litigate the dispute in court;
provided that this arbitration provision shall not apply to any dispute relating
to or arising out of the alleged misuse or misappropriation of Embarcadero
Technologies' trade secrets or proprietary information. In the event of
arbitration, the arbitrator shall be allowed to assess costs.
8. TERM OF OFFER. This offer will remain in effect until 5:00 p.m.
(Pacific Standard Time) on December 31, 1999.
I am enthusiastic about your joining Embarcadero Technologies and look
forward to working with you.
Very truly yours,
/s/ Dennis Wong
Dennis J. Wong
Director
ACCEPTED AND APPROVED:
Date: December 31, 1999
/s/ Walter F. Scott III
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Walter F. Scott III