Delaware | 001-34781 | 20-1059798 | ||
(State or Other Jurisdiction of Incorporation or Organization) | (Commission File Number) | (IRS Employer Identification No.) |
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Exhibit No. | Description | |
10.1 | Amended and Restated Executive Officer Severance/Change in Control Plan | |
10.2 | 2012 Form of Named Executive Officer Option Agreement |
MOTRICITY, INC. (Registrant) | ||
May 31, 2012 | By: | /s/ James R. Smith, Jr. |
(Date) | James R. Smith, Jr. Interim Chief Executive Officer |
(a) | Termination without Cause. In the event the Executive’s employment is terminated by the Company without Cause (as defined herein), the Executive shall be entitled to a severance payment in an amount equal (i) all Accrued Obligations, (ii) an amount equal to six-twelfths (6/12) of his or her annualized Base Salary, paid ratably over the 6-month period following the termination of his or her employment in accordance with the Company’s payroll practices, and (iii) any other benefits or compensation payable under any of the Company’s employee benefit plans in accordance with the applicable plan’s terms; which payments are subject to and conditioned upon Executive’s execution and delivery to the Company of the Release. Payments and benefits provided in this Section 6.1(a) shall commence 15 days following the expiration of the revocation period set forth in the Release and shall be in lieu of any termination or severance payments or benefits for which Executive may be eligible under any of the plans, policies or programs of the Company or under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation. |
(b) | Termination as a Result of Death, Disability or Cause. If the Executive’s employment is terminated for Cause or as a result of the Executive’s death or Disability, then Executive’s participation in this Plan shall terminate and Executive shall receive no payments hereunder other than payment of any Accrued Obligations and payment of any benefits or compensation payable under any of the Company’s employee benefit plans in accordance with the applicable plan’s terms. |
(c) | Termination of Employment Following a Change in Control without Cause or for Good Reason. In the event Executive’s employment is terminated by the Company without Cause (other than in connection with Executive’s death or Disability) or by Executive for Good Reason during the period |
(d) | Acceleration of Rights following a Change in Control with Termination without Cause or for Good Reason. In the event Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason during the period (i) commencing on the date of execution of a definitive transaction agreement to which the Company is a party which, when consummated, will constitute a Change in Control, and (ii) ending on the earlier of (A) the termination of the executed definitive transaction agreement that would have effected a Change in Control contemplated by clause (i) of this Section 6.1(d) or (B) the 12-month anniversary of such Change in Control, then in addition to any vested rights of the Executive under the terms of any Company plan relating to stock options, restricted stock or performance stock units, seventy-five percent (75%) of the then unvested options, restricted stock or performance stock units, which Executive then holds to acquire securities from the Company, shall be immediately and automatically vested and exercisable as of the date Executive’s employment is so terminated by the Company without Cause or by Executive for Good Reason notwithstanding any other provisions to the contrary contained herein or in any stock option, restricted stock, performance stock units, or other equity compensation plans sponsored by the Company, unless such policy or plan expressly references and supersedes this Plan. Notwithstanding the foregoing, any stock option, restricted stock or performance stock unit that is subject to a performance vesting schedule will only accelerate in accordance with this section subject to achievement of the applicable performance target set forth in the governing agreement. |
(a) | Medical, dental and vision benefits and all other Company-provided and elected life, accident and disability coverage ends on the last day of the month in which the termination of employment occurs. Medical, dental and vision coverage may be elected subject to the provisions of COBRA. All other benefit coverage will end on the Executive’s termination date. |
(b) | Benefits under the Company’s 401(k) Plan will be made in accordance with the terms thereof. Executives participating in this Plan will receive information regarding these benefits after their termination. |
(a) | In the event that the Executive shall become entitled to payments and/or benefits provided by this Plan or any other amounts in the “nature of compensation” (whether pursuant to the terms of this Plan or any other plan, arrangement or policy with the Company, any person whose actions result in a change of ownership or effective control covered by Section 280G(b)(2) of the Internal Revenue Code (the “Code”) or any person affiliated with the Company or such person) as a result of such change in ownership or effective control (collectively, the “Company Payments”), and such Company Payments will be subject to the tax imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority) (the “Excise Tax”), the amounts of any Company Payments shall be automatically reduced to an amount one dollar less than the amount that would subject the Executive to the Excise Tax. The dollar amount of the reduction, if any, to be made with respect to any Company Payments shall be determined by the Company’s Accountants on or before the date such Company Payments are due and payable to the Executive. Company Payments shall be reduced as mutually agreed between the Company and the Executive or, in the event the parties cannot agree, in the following order (1) any lump sum severance based on a multiple of Annual Base Salary or Average Annual Bonus, (2) any other cash amounts payable to the Executive, (3) any benefits valued as parachute payments; and (4) acceleration of vesting of any equity. |
(b) | For purposes of determining whether any of the Company Payments will be subject to the Excise Tax and the amount of such Excise Tax, (x) the Company Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Code Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that, in the opinion of the Company’s Accountants such Company Payments (in whole or in part) either do not constitute “parachute |
(c) | In the event of any controversy with the Internal Revenue Service (or other taxing authority) with regard to the Excise Tax, the Executive shall permit the Company to control issues related to the Excise Tax (at its expense), provided that such issues do not potentially materially adversely affect the Executive, but the Executive shall control any other issues. In the event the issues are interrelated, the Executive and the Company shall in good faith cooperate so as not to jeopardize resolution of either issue, but if the parties cannot agree the Executive shall make the final determination with regard to the issues. In the event of any conference with any taxing authority as to the Excise Tax or associated income taxes, the Executive shall permit the representative of the Company to accompany the Executive, and the Executive and the Executive’s representative shall cooperate with the Company and its representative. The Company shall be responsible for all charges of the Company’s Accountant. The Company and the Executive shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax covered by this section. |
(a) | Governing Law. This Plan shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to principles of conflict of laws. The captions of this Plan are not part of the provisions hereof and shall have no force or effect. |
(b) | Severability. The invalidity or unenforceability of any provision of this Plan shall not affect the validity or enforceability of any other provision of this Plan. |
(c) | Waiver. The Executive’s or the Company’s failure to insist upon strict compliance with any provision hereof shall not be deemed to be a waiver of such provision or any other provision thereof. |
(d) | Amendment. This Plan may be amended or modified only by written action of the Compensation Committee; provided, however, that any such amendment or modification that materially and adversely affects the rights of an Executive shall not be effective as applied to such Executive until six months after the Company provides written notice such Executive of any such amendment or modification. |
(e) | Successors. This Plan is personal to the Executive and without the prior written consent of the Company shall not be assignable by the Executive otherwise than by will or the laws of descent and distribution. This Plan shall inure to the benefit of and be enforceable by the Executive’s legal representatives. This Plan shall inure to the benefit of and be binding upon the Company and its successors and assigns. The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Plan in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. The Company or successor shall provide written evidence to the Executive to document compliance |
(f) | Counterparts. This Plan may be executed in several counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. |
(a) | either accept or deny the claim completely or partially; and |
(b) | notify the claimant of acceptance or denial of the claim. |
• | specific reasons for the denial; |
• | specific references to the Plan provisions on which any denial is based; |
• | a description of any additional material or information that must be provided by the claimant in order to support the claim and reason why such material or information is necessary; and |
• | an explanation of the Plan’s appeal procedures and time limits applicable to such procedures, including a statement of any right of the claimant to bring a civil action under ERISA Section 502(a). |
• | request an appeal by written request to the Compensation Committee, not later than sixty (60) days after receipt of notice from the Compensation Committee, denying his claim; |
• | review relevant Plan documents; and |
• | submit issues and comments regarding the claim in writing to the Compensation Committee. |
(a) | To examine all documents relating to this Plan without charge at the Company’s offices during normal working hours. These documents may include annual financial reports, insurance contracts, plan descriptions, and all other official plan documents filed with the United States Department of Labor or Internal Revenue Service. |
(b) | To obtain copies of documents relating to this Plan and other information by writing to the Benefits Department or the Chief Human Resources Officer. You will be required to pay a reasonable charge for the copies. |
(c) | To not be discharged or discriminated against to prevent you from obtaining a benefit or exercising your ERISA rights. |
(d) | If your claim for a benefit is denied in whole or in part, you will receive a written explanation of the denial. You have the right to have the Compensation Committee review and reconsider your claim. |
(a) | If you request materials and do not receive them within 30 days, you may file suit in a federal court. In such a case, the court may require the Chief Human Resources Officer to provide the materials and pay you up to $110 a day until you receive the materials – unless the materials were not sent |
(b) | If your claim for benefits is denied or ignored in whole or in part, you may file suit in a federal court. |
(c) | If you are discriminated against for pursuing a benefit or exercising your ERISA rights, you may seek help from the United States Department of Labor or file suit in a federal court. |
Motricity Inc. | |
By: | |
Name: | |
Title: |
Participant | |
By: | |
Name: | |
Social Security Number: |
1. | Exercise of Option. Effective as of today, ______________, 20___, the undersigned (“Participant”) hereby elects to exercise Participant’s option to purchase _____________ shares of the Common Stock (the “Shares”) of Motricity, Inc. (the “Company”) under and pursuant to the 2010 Long Term Incentive Plan (the “Plan”) and the Non-Qualified Stock Option Agreement, dated ____________, 20___ (the “Award Agreement”). |
2. | Delivery of Payment. Participant herewith delivers to the Company the full purchase price of the Shares, as set forth in the Award Agreement. |
3. | Representations of Participant. Participant acknowledges that Participant has received, read and understood the Plan and the Award Agreement, and agrees to abide by and be bound by their terms and conditions. Participant hereby certifies that he/she is in compliance with the terms and conditions of the Plan and that to the best of his/her knowledge that he/she has not engaged in, and does not intend to engage in, behavior that would result in a Termination for Cause (as defined in the Plan). |
4. | Lock-Up Period. Participant hereby agrees that, if so requested by the Company or any representative of the underwriters (the “Managing Underwriter”) in connection with any registration of the offering of any securities of the Company under the Securities Act of 1933, as amended (the “Securities Act”), Participant shall not sell or otherwise transfer any Shares or other securities of the Company during the 180-day period (or such other period as may be requested in writing by the Managing Underwriter and agreed to in writing by the Company) (the “Market Standoff Period”) following the effective date of a registration statement of the Company filed under the Securities Act, and provided further that if requested by the Managing Underwriter or the Company, such Participant shall further evidence the foregoing restrictions by executing a “lock-up” agreement in the form provided by the |
5. | Rights as Stockholder. Until the issuance of the Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to the Option Shares (as defined in the Award Agreement), notwithstanding the exercise of the Option (as defined in the Award Agreement). The Shares shall be issued to Participant as soon as practicable after the Option is exercised. No adjustment shall be made for a dividend or other right for which the record date is prior to the date of issuance except as provided in Section 4.2 of the Plan. |
6. | Tax Consultation. Participant understands that Participant may suffer adverse tax consequences as a result of Participant’s purchase or disposition of the Shares. Participant represents that Participant has consulted with any tax consultants Participant deems advisable in connection with the purchase or disposition of the Shares and that Participant is not relying on the Company for any tax advice. |
7. | Successors and Assigns. The Company may assign any of its rights under this Agreement to single or multiple assignees, and this Agreement shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this Agreement shall be binding upon Participant and his or her heirs, executors, successors and assigns. |
8. | Interpretation. Any dispute regarding the interpretation of this Agreement shall be submitted by Participant or by the Company forthwith to the Committee (as defined in the Plan) which shall review such dispute at its next regular meeting. The resolution of such a dispute by the Committee shall be final and binding on all parties. |
9. | Governing Law; Venue. This Agreement and any disputes or claims arising hereunder shall be construed in accordance with, governed by and enforced under the laws of the State of Delaware without regard for any rules of conflicts of law. Any action at law, suit in equity or judicial proceeding arising directly, indirectly or otherwise in connection with, out of, related to, or from this Agreement, or any provision hereof, shall be litigated only in the courts of the State of Delaware and the parties each hereby waive the right to a trial by jury of any claim, demand, action or causes of action under this Agreement. Participant and the Company consent to the jurisdiction of such courts over the subject matter of this Agreement. Participant waives any right Participant might have to transfer or change the venue of any litigation brought against Participant by the Company. In no event shall any dispute arising out of, or in connection with, this Agreement be submitted to arbitration or mediation. |
10. | Entire Agreement. The Plan and Award Agreement are incorporated herein by reference. This Agreement, the Plan and the Award Agreement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and Participant with respect to the subject matter hereof, and may not be modified adversely to Participant’s interest except by means of a writing signed by the Company and Participant. |
Submitted by: | Accepted by: | |
PARTICIPANT | MOTRICITY, INC. | |
Signature | By | |
Print Name | Title | |
Address: | Address: | |
Date Received by Company:____________ |