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UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _____________ FORM 8-K _____________ CURRENT REPORT
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported):
July 27, 2010
SuccessFactors, Inc.
(Exact Name of the Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
001-33755 |
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94-3398453 |
(Commission File Number) |
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(IRS Employer Identification No.) |
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1500 Fashion Island Blvd., Suite 300, San Mateo, CA |
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94404 |
(Address of Principal Executive Offices) |
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(Zip Code) |
(650) 645-2000
(Registrant's Telephone Number, Including Area Code)
(Former Name or Former Address, If Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
[ ] 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)
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
On July 27, 2010, the Board of Directors of SuccessFactors, Inc. (the "Company") approved the SuccessFactors, Inc. Change in Control Plan (the "Change in Control Plan"). The Company's named executive officers for the year ended December 31, 2009 and other employees designated as Tier 2 Employees by the plan administrator are eligible to participate in the Change in Control Plan.
Under the Change in Control Plan, in the event of a qualifying termination in connection with a Change in Control (as defined below) and contingent upon the participant's execution of a binding severance and release agreement, the participant will be entitled to receive (1) a lump sum cash payment in an amount equal to such participant's annual base salary as in effect immediately prior to the severance date, plus (a) such participant's target annual bonus or cash incentive opportunity for the year in which the severance date occurs, multiplied by (i) two, in the case of the Chief Executive Officer and other employees designated as Tier 1 Employees by the plan administrator or (ii) one, in the case of all participants designated as Tier 2 Employees by the plan administrator, less applicable withholding taxes; (2) full acceleration of all outstanding equity awards (subject to certain restrictions noted in the Change in Control Plan); and (3) reimbursement of premiums paid for continuati on coverage for twelve months pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA").
A "Change in Control" shall be deemed to have occurred if any one of the following events shall have occurred: (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act")) becomes the "beneficial owner" (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the total voting power represented by the Company's then-outstanding voting securities; (ii) the consummation of the sale or disposition by the Company of all or substantially all of the Company's assets; (iii) the consummation of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the survivin g entity or its parent) at least fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving entity or its parent outstanding immediately after such merger or consolidation; or (iv) any other transaction which qualifies as a "corporate transaction" under Section 424(a) of the Code wherein the stockholders of the Company give up all of their equity interest in the Company (except for the acquisition, sale or transfer of all or substantially all of the outstanding shares of the Company).
The Change in Control Plan terminates automatically five years from the date it was adopted by the Company unless extended by the Company or unless a Change in Control has occurred prior to its termination. If a Change in Control occurs prior to the Plan's termination, the Plan will terminate automatically one year and one day after the Change in Control, or if later, when all benefits payable under the Plan are paid.
In order to be eligible to participate in the Change in Control Plan, the participant must opt in to the Change in Control Plan and waive any existing severance arrangement that would be triggered by a Change in Control or similar transaction.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
The information set forth above under Item 1.01 is hereby incorporated by reference into this Item 5.02.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Number |
|
Description |
99.1 |
SuccessFactors, Inc. Change in Control Plan, adopted July 27, 2010 |
|
99.2 |
Form of Notice of Participation under Change in Control Plan |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
SUCCESSFACTORS, INC. |
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By: |
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/s/ Hillary Smith Hillary Smith General Counsel and Secretary |
Date: July 28, 2010
EXHIBIT INDEX
Number |
|
Description |
99.1 |
SuccessFactors, Inc. Change in Control Plan, adopted July 27, 2010 |
|
99.2 |
Form of Notice of Participation under Change in Control Plan |
Exhibit 99.1
SUCCESSFACTORS, INC.
CHANGE IN CONTROL PLAN
The Company has adopted the SuccessFactors, Inc. Change in Control Plan (the "Plan") for the benefit of certain employees of the Company and its Affiliates, on the terms and conditions set forth in this Plan.
Unless defined elsewhere in this Plan, the following terms shall have the definitions set forth below:
(i) any willful, material violation by the Eligible Employee of any law or regulation applicable to the business of the Company, the Eligible Employee's conviction for, or guilty plea to, a felony or a crime involving moral turpitude, or any willful perpetration by the Eligible Employee of a common law fraud,
(ii) the Eligible Employee's commission of an act of personal dishonesty which involves personal profit in connection with the Company or any other entity having a business relationship with the Company,
(iii) any material breach by the Eligible Employee of any provision of any agreement or understanding between the Company and the Eligible Employee regarding the terms of the Eligible Employee's service as an employee, officer, director or consultant to the Company, including without limitation, the willful and continued failure or refusal of the Eligible Employee to perform the material duties required of such Eligible Employee as an employee, officer, director or consultant of the Company, other than as a result of having a Disability, or a breach of any applicable invention assignment and confidentiality agreement or similar agreement between the Company and the Eligible Employee,
(iv) the Eligible Employee's disregard of the policies of the Company so as to cause loss, damage or injury to the property, reputation or employees of the Company,
(v) failure by the Eligible Employee to substantially perform, or gross negligence in the performance of the Eligible Employee's duties after there has been delivered to the Eligible Employee written demand for performance which describes the specific deficiencies in the Eligible Employee's performance and the specific manner in which performance must be improved, and which provides 30 days from the date of notice to remedy performance deficiencies subject to remedy; or
(vi) any other misconduct by the Eligible Employee which is materially injurious to the financial condition or business reputation of, or is otherwise materially injurious to, the Company.
(i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) becomes the "beneficial owner" (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the total voting power represented by the Company's then-outstanding voting securities;
(ii) the consummation of the sale or disposition by the Company of all or substantially all of the Company's assets;
(iii) the consummation of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its parent) at least fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving entity or its parent outstanding immediately after such merger or consolidation; or
(iv) any other transaction which qualifies as a "corporate transaction" under Section 424(a) of the Code wherein the stockholders of the Company give up all of their equity interest in the Company (except for the acquisition, sale or transfer of all or substantially all of the outstanding shares of the Company).
(i) a material diminution in the executive's authority, duties and responsibilities,
(ii) a material diminution in the executive's annual base salary, annual bonus opportunity, or long-term incentive opportunity;
(iii) any action or inaction that constitutes a material breach by the Company of this Agreement; or
(iv) a material change (defined for this purpose to mean a change greater than 50 miles from executive's current principal place of employment) in the geographic location of executive's principal place of employment.
Notwithstanding the foregoing, Good Reason shall exist only if the following conditions are met: (A) the Eligible Employee gives the Employer written notice, pursuant to Section 5.8, of his or her intention to terminate employment with the Employer for Good Reason; (B) such notice is delivered to the Employer within 90 days of the initial existence of the condition giving rise to the right to terminate for Good Reason, and at least 30 days in advance of the date of termination; (C) the Employer fails to cure the alleged Good Reason to the reasonable satisfaction of the Eligible Employee prior to the Eligible Employee's termination, and (D) the events described in the preceding sentence, singly or in combination, result in a material negative change in the Executive's employment relationship with the Employer, so that the Executive's termination effectively constitutes an involuntary separation from service within the meaning of Section 409A of the Code.
At the conclusion of the Continuation Period, the Eligible Employee shall be responsible for the entire payment of premiums required under COBRA for the duration of the COBRA continuation period. For purposes of this Section, applicable premiums that will be paid by the Company during the Continuation Period shall not include any amounts payable by the Eligible Employee under a Section 125 health care reimbursement plan, which amounts, if any, are the sole responsibility of the Eligible Employee.
SCHEDULE A
SPECIFIED ELIGIBLE EMPLOYEES
APPENDIX I
FORM OF
SEVERANCE AGREEMENT AND RELEASE
This SEVERANCE AGREEMENT AND RELEASE (this "Agreement") is made as of [ ], 20[_], by and between SuccessFactors, Inc., a Delaware corporation (which together with its affiliates subsidiaries, and any successors, will hereinafter collectively be called "Employer") and [ ], an individual residing ("Employee").
A. Employee has been employed by Employer, and Employee has entered into a the Company's Employee Invention Assignment and Confidentiality and Arbitration Agreement (the "Proprietary Information Agreement").
B. The SuccessFactors, Inc. Change in Control Severance Plan (as such plan may be amended from time to time, the "Plan") sets forth certain rights, benefits and obligations of the parties arising out of Employee's employment by Employer and the severance of such employment in connection with a Change in Control as determined in accordance with the Plan.
C. Employee recognizes that this Agreement will automatically be revoked and Employee shall forfeit any benefit to which he or she may be entitled under the Plan unless Employee submits an executed copy of this Agreement or similar agreement to be provided to persons employed by the Company outside the United States to the Employer on or before [ ].
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth below, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Employer and Employee agree as follows:
A general release does not extend to claims which the creditor does not know or suspect to exist in his/her favor at the time of executing the release, which if known by him/her must have materially affected his/her settlement with the debtor.
Employee acknowledges that the waiver of this Section of the California Civil Code set forth above is an essential and material term of this release, and that Employee has read this provision, and intends these consequences even as to unknown claims which may exist at the time of this release.
BY SIGNING THIS AGREEMENT, YOU STATE THAT:
(a) YOU HAVE READ THIS AGREEMENT AND HAVE HAD SUFFICIENT TIME TO CONSIDER ITS TERMS;
(b) YOU UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND KNOW THAT YOU ARE GIVING UP IMPORTANT RIGHTS, INCLUDING, WITHOUT LIMITATION, THOSE ARISING UNDER THE ADEA;
(c) YOU ARE AWARE OF YOUR RIGHT TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS AGREEMENT AND HAVE BEEN ADVISED OF SUCH RIGHT;
(e) YOU HAVE SIGNED THIS AGREEMENT KNOWINGLY AND VOLUNTARILY; AND
(f) THIS AGREEMENT INCLUDES A RELEASE BY YOU OF ALL KNOWN AND UNKNOWN CLAIMS AS OF ITS EFFECTIVE DATE, AND NO CLAIMS ARISING AFTER ITS EFFECTIVE DATE ARE WAIVED OR RELEASED IN THIS AGREEMENT.
EMPLOYER By:
Its: |
EMPLOYEE NAME Signature: Print Name: Date: |
Attachment A to Severance Agreement and Release
This notice contains the information that is required to be provided to you by the Older Workers Benefit Protection Act.
The following is a listing of the job titles and ages of (a) persons who were selected for termination and offered enhanced severance benefits for signing the Severance Agreement and Release, and (b) all individuals in the same job classification or organizational unit who were not selected:
Table 1 - Positions Selected or Eligible for Severance Package
Job Class or Group |
Job Title |
Age |
Table 2 - Positions Not Selected or Ineligible for Severance Package
Job Class or Group |
Job Title |
Age |
Exhibit 99.2
SuccessFactors, Inc.
Change in Control Plan
Notice of Participation
Re: SuccessFactors, Inc. Change in Control Plan
Dear [Participant]:
SuccessFactors, Inc. (the "Company") has adopted the SuccessFactors, Inc. Change in Control Plan (the "Plan"), attached hereto as Exhibit A. Pursuant to Section 1.10 the Plan Administrator is required to appoint participants in the Plan in writing. This document is intended as notice to you that the Plan Administrator has appointed you as a Participant in the Plan ("Notice of Participation"). Terms not otherwise defined in this Notice of Participation are defined in the Plan. This Notice of Participation is governed by the terms of the Plan. This Notice of Participation and the Plan constitutes the entire agreement between you and the Company with respect to the subject matter hereof. By signing below, you expressly agree to be bound by the terms set forth in this Notice of Participation and the Plan. Failure by you to execute and return this Notice of Participation means t hat you will not be a Participant in the Plan and shall not be entitled to any of the payments or benefits provided pursuant to the Plan upon certain event. This Agreement may only be amended in writing signed by you and the Plan Administrator.
SuccessFactors, Inc.
I, having been designated a Participant in the Plan, have read the Plan, Notice of Participation and agree to be bound by the terms and conditions of the Plan and this Notice of Participation.
___________________________________
Participant
____________________________________
Signature of Participant
Exhibit A
SuccessFactors, Inc. Change in Control Plan