BROADVISION,
INC.
2006
Equity Incentive Plan
Restricted
Stock Bonus Agreement
Pursuant
to
the Restricted Stock Bonus Grant Notice ("Grant Notice") and this Restricted
Stock Bonus Agreement (collectively, the "Award") and in consideration of your
past services, BroadVision, Inc. (the "Company") has awarded you a stock bonus
under its 2006 Equity Incentive Plan (the "Plan") for the number of shares
of
the Company's Common Stock subject to the Award as indicated in the Grant
Notice. Defined terms not explicitly defined in this Restricted Stock Bonus
Agreement but defined in the Plan shall have the same definitions as in the
Plan.
The
details
of your Award are as follows:
1.
Vesting
. Subject to the limitations
contained herein, your Award will vest as provided in the Grant Notice, provided
that vesting will cease upon the termination of your Continuous
Service.
2.
Number of Shares
. The number of shares subject to your Award may
be adjusted from time to time for adjustments in the stock subject to the Plan,
as provided in Section 11(a) of the Plan.
3.
Securities Law Compliance
. You may not be issued any shares under
your Award unless the shares are either (a) then registered under the Securities
Act or (b) the Company has determined that such issuance would be exempt from
the registration requirements of the Securities Act. Your Award must also comply
with other applicable laws and regulations governing the Award, and you will
not
receive such shares if the Company determines that such receipt would not be
in
material compliance with such laws and regulations.
4.
Right of Reacquisition.
(a) To
the extent provided in the Company's bylaws, as amended from time to time,
the
Company shall have the right to reacquire all or any part of the shares received
pursuant to your Award (a "Reacquisition Right").
(b)
To
the extent
a Reacquisition Right is not provided in the Company's bylaws, as amended from
time to time, the Company shall have a Reacquisition Right as to the shares
you
received pursuant to your Award that have not as yet vested in accordance with
the Vesting Schedule on the Grant Notice ("Unvested Shares") on the following
terms and conditions:
(i)
The Company, shall simultaneously with termination of your Continuous Service
automatically reacquire for no consideration all of the Unvested Shares, unless
the Company agrees to waive its Reacquisition Right as to some or all of the
Unvested Shares. Any such waiver shall be exercised by the Company by written
notice to you or your representative (with a copy to the Escrow Holder as
defined below) within ninety (90) days after the termination of your Continuous
Service, and the Escrow Holder may then release to you the number of Unvested
Shares not being reacquired by the Company. If the Company does not waive its
Reacquisition Right as to all of the Unvested Shares, then upon such termination
of your Continuous Service, the Escrow Holder shall transfer to the Company
the
number of shares the Company is reacquiring.
(ii)
The Company initially shall have the right to reacquire Unvested Shares for
no
monetary consideration (that is, for $0.00); provided, however, that the
Company's right to reacquire Unvested Shares for no monetary consideration
shall
lapse at a minimum rate of twenty percent (20%) of the total number of shares
subject to your Award per year over five (5) years from the Date of
Grant.
(iii)
If
your Award is not fully vested on the date of grant, the shares issued under
your Award shall be held in escrow pursuant to the terms of the Joint Escrow
Instructions attached to the Grant Notice as Attachment IV. You agree to execute
two (2) Assignment Separate From Certificate forms (with date and number of
shares blank) substantially in the form attached to the Grant Notice as
Attachment III and deliver the same, along with the certificate or certificates
evidencing the shares, for use by the escrow agent pursuant to the terms of
the
Joint Escrow Instructions.
(iv)
Subject to the provisions of your Award, you shall, during the term of your
Award, exercise all rights and privileges of a stockholder of the Company with
respect to the shares deposited in escrow. You shall be deemed to be the holder
of the shares for purposes of receiving any dividends which may be paid with
respect to such shares and for purposes of exercising any voting rights relating
to such shares, even if some or all of such shares have not yet vested and
been
released from the Company's Reacquisition Right.
(v)
If, from time to time, there is any stock dividend, stock split or other change
in the character or amount of any of the outstanding stock of the corporation
the stock of which is subject to the provisions of your Award, then in such
event any and all new, substituted or additional securities to which you is
entitled by reason of your ownership of the shares acquired under your Award
shall be immediately subject to the Reacquisition Right with the same force
and
effect as the shares subject to this Reacquisition Right immediately before
such
event.
5.
Restrictive
Legends
.
The
shares issued under your Award shall be endorsed with appropriate legends
determined by the Company.
6.
Award
not a Service Contract
.
Your
Award is not an employment or service contract, and nothing in your Award shall
be deemed to create in any way whatsoever any obligation on your part to
continue in the employ of the Company or an Affiliate, or on the part of the
Company or an Affiliate to continue your employment. In addition, nothing in
your Award shall obligate the Company or an Affiliate, their respective
stockholders, boards of directors, Officers or Employees to continue any
relationship that you might have as a Director or Consultant for the Company
or
an Affiliate.
7.
Withholding
Obligations
.
(a)
At
the time
your Award is made, or at any time thereafter as requested by the Company,
you
hereby authorize withholding from payroll and any other amounts payable to
you,
and otherwise agree to make adequate provision for any sums required to satisfy
the federal, state, local and foreign tax withholding obligations of the Company
or an Affiliate, if any, which arise in connection with your Award.
(b)
Unless
the
tax withholding obligations of the Company and/or any Affiliate are satisfied,
the Company shall have no obligation to issue a certificate for such shares
or
release such shares from any escrow provided for herein.
8.
Tax
Consequences
.
The
acquisition and vesting of the shares may have adverse tax consequences to
you
that may avoided or mitigated by filing an election under Section 83(b) of
the
Internal Revenue Code, as amended (the "Code"). Such election must be filed
within thirty (30) days after the date of your Award. YOU ACKNOWLEDGE THAT
IT IS
YOUR OWN RESPONSIBILITY, AND NOT THE COMPANY'S, TO FILE A TIMELY ELECTION UNDER
CODE SECTION 83(B), EVEN IF YOU REQUEST THE COMPANY TO MAKE THE FILING ON YOUR
BEHALF.
9.
Notices
.
Any notices provided for in your Award or the Plan shall be given in writing
and
shall be deemed effectively given upon receipt or, in the case of notices
delivered by the Company to you, five (5) days after deposit in the United
States mail, postage prepaid, addressed to you at the last address you provided
to the Company.
10.
Miscellaneous
.
(a)
The
rights
and obligations of the Company under your Award shall be transferable to any
one
or more persons or entities, and all covenants and agreements hereunder shall
inure to the benefit of, and be enforceable by the Company's successors and
assigns. Your rights and obligations under your Award may only be assigned
with
the prior written consent of the Company.
(b)
You
agree
upon request to execute any further documents or instruments necessary or
desirable in the sole determination of the Company to carry out the purposes
or
intent of your Award.
(c)
You
acknowledge and agree that you have reviewed your Award in its entirety, have
had an opportunity to obtain the advice of counsel prior to executing and
accepting your Award and fully understand all provisions of your
Award.
11.
Governing Plan Document
.
Your
Award is subject to all the provisions of the Plan, the provisions of which
are
hereby made a part of your Award, and is further subject to all interpretations,
amendments, rules and regulations which may from time to time be promulgated
and
adopted pursuant to the Plan. In the event of any conflict between the
provisions of your Award and those of the Plan, the provisions of the Plan
shall
control.
Joint
Escrow Instructions
BroadVision,
Inc.
1600
Seaport Blvd.
Redwood
City, CA 94063
Dear
Sir/Madam:
As
Escrow
Agent for both BroadVision, Inc., a Delaware corporation (the "Company"), and
the undersigned recipient of stock of the Company ("Recipient"), you are hereby
authorized and directed to hold the documents delivered to you pursuant to
the
terms of that certain Restricted Stock Bonus Grant Notice (the "Grant Notice"),
dated __________, 200__ to which a copy of these Joint Escrow Instructions
is attached as Attachment IV, and pursuant to the terms of that certain
Restricted Stock Bonus Agreement ("Agreement"), which is Attachment I to the
Grant Notice, in accordance with the following instructions:
1.
In
the
event Recipient ceases to render services to the Company or an affiliate
of the
Company during the vesting period set forth in the Grant Notice, the Company
or
its assignee will give to Recipient and you a written notice specifying that
the
shares of stock shall be transferred to the Company. Recipient and the Company
hereby irrevocably authorize and direct you to close the transaction
contemplated by such notice in accordance with the terms of said
notice.
2.
At
the
closing you are directed (a) to date any stock assignments necessary for
the transfer in question, (b) to fill in the number of shares being
transferred, and (c) to deliver same, together with the certificate
evidencing the shares of stock to be transferred, to the Company.
3.
Recipient
irrevocably authorizes the Company to deposit with you any certificates
evidencing shares of stock to be held by you hereunder and any additions
and
substitutions to said shares as specified in the Grant Notice. Recipient
does
hereby irrevocably constitute and appoint you as Recipient's attorney-in-fact
and agent for the term of this escrow to execute with respect to such securities
and other property all documents of assignment and/or transfer and all stock
certificates necessary or appropriate to make all securities negotiable and
complete any transaction herein contemplated.
4.
This
escrow shall terminate upon vesting of the shares or upon the earlier return
of
the shares to the Company.
5.
If
at the
time of termination of this escrow you should have in your possession any
documents, securities, or other property belonging to Recipient, you shall
deliver all of same to any pledgee entitled thereto or, if none, to Recipient
and shall be discharged of all further obligations hereunder.
6.
Your
duties hereunder may be altered, amended, modified or revoked only by a writing
signed by all of the parties hereto.
7.
You
shall
be obligated only for the performance of such duties as are specifically
set
forth herein and may rely and shall be protected in relying or refraining
from
acting on any instrument reasonably believed by you to be genuine and to
have
been signed or presented by the proper party or parties or their assignees. You
shall not be personally liable for any act you may do or omit to do hereunder
as
Escrow Agent or as attorney-in-fact for Recipient while acting in good faith
and
any act done or omitted by you pursuant to the advice of your own attorneys
shall be conclusive evidence of such good faith.
8.
You
are
hereby expressly authorized to disregard any and all warnings given by any
of
the parties hereto or by any other person or corporation, excepting only
orders
or process of courts of law, and are hereby expressly authorized to comply
with
and obey orders, judgments or decrees of any court. In case you obey or comply
with any such order, judgment or decree of any court, you shall not be liable
to
any of the parties hereto or to any other person, firm or corporation by
reason
of such compliance, notwithstanding any such order, judgment or decree being
subsequently reversed, modified, annulled, set aside, vacated or found to
have
been entered without jurisdiction.
9.
You
shall
not be liable in any respect on account of the identity, authority or rights
of
the parties executing or delivering or purporting to execute or deliver the
Grant Notice or any documents or papers deposited or called for
hereunder.
10.
You
shall
not be liable for the outlawing of any rights under any statute of limitations
with respect to these Joint Escrow Instructions or any documents deposited
with
you.
11.
You
shall
be entitled to employ such legal counsel, including but not limited to Cooley
Godward Kronish LLP, and other experts as you may deem necessary properly
to
advise you in connection with your obligations hereunder, may rely upon the
advice of such counsel, and may pay such counsel reasonable compensation
therefor.
12.
Your
responsibilities as Escrow Agent hereunder shall terminate if you shall cease
to
be Secretary of the Company or if you shall resign by written notice to each
party. In the event of any such termination, the Company may appoint any
officer
or assistant officer of the Company as successor Escrow Agent and Recipient
hereby confirms the appointment of such successor or successors as his
attorney-in-fact and agent to the full extent of your appointment.
13.
If
you
reasonably require other or further instruments in connection with these
Joint
Escrow Instructions or obligations in respect hereto, the necessary parties
hereto shall join in furnishing such instruments.
14.
It
is
understood and agreed that should any dispute arise with respect to the delivery
and/or ownership or right of possession of the securities, you may (but are
not
obligated to) retain in your possession without liability to anyone all or
any
part of said securities until such dispute shall have been settled either
by
mutual written agreement of the parties concerned or by a final order, decree
or
judgment of a court of competent jurisdiction after the time for appeal has
expired and no appeal has been perfected, but you shall be under no duty
whatsoever to institute or defend any such proceedings.
15.
Any
notice required or permitted hereunder shall be given in writing and shall
be
deemed effectively given upon personal delivery or upon deposit in any
United
States Post Box, by registered or certified mail with postage and fees
prepaid,
addressed to each of the other parties hereunto entitled at the following
addresses, or at such other addresses as a party may designate by ten (10)
days'
written notice to each of the other parties hereto:
Company:
BroadVision,
Inc.
1600
Seaport Blvd., 5
th
Floor,
North Bldg.
Redwood
City, CA 94063
Attn:
Chief Financial Officer
Escrow
Agent:
BroadVision,
Inc.
1600
Seaport Blvd., 5
th
Floor,
North Bldg.
Redwood
City, CA 94063
Attn:
Corporate Secretary
16.
By
signing these
Joint Escrow Instructions you become a party hereto only for the purpose of
said
Joint Escrow Instructions; you do not become a party to the Grant
Notice.
[Remainder
of page intentionally left blank]
17.
This
instrument
shall be binding upon and inure to the benefit of the parties hereto, and their
respective successors and permitted assigns. It is understood and agreed that
references to "you" or "your" herein refer to the original Escrow Agent and
to
any and all successor Escrow Agents. It is understood and agreed that the
Company may at any time or from time to time assign its rights under the Grant
Notice and these Joint Escrow Instructions in whole or in part.
Very
truly yours,
BroadVision,
Inc.
By:
Recipient
Name
Assignment
Separate From Certificate
For
Value Received
and pursuant to that certain Restricted Stock Bonus
Grant Notice and Restricted Stock Bonus Agreement (the "Award"),
hereby sells, assigns and transfers unto BroadVision, Inc., a Delaware
corporation ("Assignee") ________________________ (__________) shares of
the
common stock of the Assignee, standing in the undersigned's name on the books
of
said corporation represented by Certificate No. _____ herewith and do
hereby irrevocably constitute and appoint _____________________ as
attorney-in-fact to transfer the said stock on the books of the within named
Company with full power of substitution in the premises. This Assignment
may be
used only in accordance
with and subject to the terms and
conditions of the Award, in connection with the reacquisition of shares of
Common Stock of the Corporation issued to the undersigned pursuant to the
Award,
and only to the extent that such shares remain subject to the Corporation's
Reacquisition Right under the Award.
Dated:
Signature:
BROADVISION,
INC.
SEVERANCE
BENEFIT PLAN
Section
1.
Introduction.
The
BroadVision, Inc. Severance Benefit Plan (the "Plan") was established effective
March 26, 2007. The purpose of the Plan is to provide for the payment of
severance benefits to certain eligible employees of BroadVision, Inc. (the
"Company") whose employment with the Company is involuntarily terminated. This
Plan shall supersede any severance benefit plan, policy or practice previously
maintained by the Company, except for any local plan that is specifically
designated for a certain subsidiary or country. This Plan document also is
the
Summary Plan Description for the Plan.
Section
2.
Eligibility
For Benefits.
(a)
General
Rules.
Subject
to the requirements set forth in this Section, the Company will grant severance
benefits under the Plan to Eligible Employees.
(i)
Definition
of "Eligible Employee."
For
purposes of this Plan, an "Eligible Employee" is a regular, full-time hire
employee of the Company meeting all of the following requirements:
(1)
the
employee has been continuously employed by the Company for a period of one
(1)
year or more;
(2)
the
employee's employment is terminated by the Company pursuant to (i) an
Involuntary Termination Without Cause or (ii) Constructive Termination within
one (1) month prior to or twenty-four (24) months following a Change of Control;
and
(3)
the
employee is notified by the Company in writing that he or she is eligible for
participation in the Plan ("Notification"). Notification will include details
of
the level(s) of participation applicable to the Eligible Employee.
The
determination of whether an employee is an Eligible Employee shall be made
by
the Company, in its sole discretion, and such determination shall be binding
and
conclusive on all persons.
(ii)
Definition
of "Involuntary Termination Without Cause."
For
purposes of this Plan, an "Involuntary Termination Without Cause" means an
Eligible Employee's involuntary termination of employment by the Company for
a
reason other than Cause. "Cause" means the occurrence of any one or more of
the
following:
(1)
the
Eligible Employee's conviction of, or plea of no contest with respect to, any
crime involving fraud, dishonesty or moral turpitude;
(2)
the
Eligible Employee's attempted commission of or participation in a fraud or
act
of dishonesty against the Company that results in (or might have reasonably
resulted in) material harm to the business of the Company;
(3)
the
Eligible Employee's intentional, material violation of any contract or agreement
between the Eligible Employee and the Company or any statutory duty the Eligible
Employee owes to the Company;
(4)
the
Eligible Employee's conduct that constitutes gross misconduct, insubordination,
incompetence or habitual neglect of duties and that results in (or might have
reasonably resulted in) material harm to the business of the Company;
or
(5)
the
Eligible Employee's persistent unsatisfactory performance of his or her job
duties.
The
conduct described under clause (3), (4) or (5) above will only constitute Cause
if such conduct is not cured within fifteen (15) days after the Eligible
Employee's receipt of written notice from the Company or the Board specifying
the particulars of the conduct that may constitute Cause.
(iii)
Definition
of Change of Control
.
"Change
of Control" means the occurrence in a single transaction or in a series of
related transactions of any one or more of the following events.
(1)
any
person (within the meaning of Section 13(d) or 14(d) of the Exchange Act of
1934, as amended (the "Exchange Act") becomes the owner, directly or indirectly,
of securities of the Company representing more than fifty percent (50%) of
the
combined voting power of the Company's then outstanding securities other than
by
virtue of a merger, consolidation or similar transaction; provided, however,
that there shall be excluded from the foregoing any person who owns, as of
the
effective date of the Plan, securities of the Company representing more than
fifteen percent (15%) of the combined voting power of the Company's then
outstanding securities;
(2)
there
is
consummated a merger, consolidation or similar transaction involving (directly
or indirectly) the Company and, immediately after the consummation of such
merger, consolidation or similar transaction, the stockholders of the Company
immediately prior thereto do not own, directly or indirectly, outstanding voting
securities representing more than fifty percent (50%) of the combined
outstanding voting power of the surviving entity in such merger, consolidation
or similar transaction or more than fifty percent (50%) of the combined
outstanding voting power of the parent of the surviving entity in such merger,
consolidation or similar transaction;
(3)
the
stockholders of the Company approve or the Board of Directors approves a plan
of
complete dissolution or liquidation of the Company, or a complete dissolution
or
liquidation of the Company shall otherwise occur; or
(4)
there
is
consummated a sale, lease, license or other disposition of all or substantially
all of the consolidated assets of the Company and its subsidiaries, other than
a
sale, lease, license or other disposition of all or substantially all of the
consolidated assets of the Company and its subsidiaries to an entity, more
than
fifty percent (50%) of the combined voting power of the voting securities of
which are owned by stockholders of the Company in substantially the same
proportions as their ownership of the Company immediately prior to such sale,
lease, license or other disposition.
Once
a
Change of Control has occurred for purposes of this Plan, no future events
will
constitute a Change of Control for purposes of this Plan.
(iv)
Definition
of Constructive Termination
"Constructive
Termination" means a termination of employment by an Eligible Employee after
one
of the following occurs without the Eligible Employee's express written
consent:
(1)
Following
a Change of Control, a substantial reduction in the Eligible Employee's duties
or responsibilities (and not simply a change in title or reporting
relationships) in effect immediately prior to the effective date of the Change
of Control; provided, however, that it shall not be a "Constructive Termination"
if the Company is retained as a separate legal entity or business unit following
the effective date of the Change of Control and the Eligible Employee holds
the
same position in such legal entity or business unit as the Eligible Employee
held before the effective date of the Change of Control;
(2)
Following
a Change of Control, a material reduction by the Company in the Eligible
Employee's annual base salary, as in effect on the effective date of the Change
of Control or as increased thereafter;
(3)
Following
a Change of Control, any failure by the Company to continue in effect any
benefit plan or program, including incentive plans or plans with respect to
the
receipt of securities of the Company, in which the Eligible Employee was
participating immediately prior to the effective date of the Change of Control
(hereinafter referred to as "Benefit Plans"), or the taking of any action by
the
Company that would adversely affect the Eligible Employee's participation in
or
reduce the Eligible Employee's benefits under the Benefit Plans or deprive
the
Eligible Employee of any fringe benefit that he or she enjoyed immediately
prior
to the effective date of the Change of Control; provided, however, that a
Constructive Termination shall not be deemed to have occurred if the Company
provides for the Eligible Employee's participation in benefit plans and programs
that, taken as a whole, are comparable to the Benefit Plans;
(4)
Following
a Change of Control, a relocation of the Eligible Employee's business office
to
a location more than fifty (50) miles from the location at which the Eligible
Employee performed his or her duties as of the effective date of the Change
of
Control, except for required travel by the Eligible Employee on the Company's
business to an extent substantially consistent with his or her business travel
obligations prior to the effective date of the Change of Control; or
(5)
a
material breach by the Company of any provision of any material agreement
between the Eligible Employee and the Company concerning the terms and
conditions of the Eligible Employee's employment.
(b)
Additional
Requirements for Benefit Entitlement.
In order
to be eligible to receive benefits under the Plan, an Eligible Employee must
(i)
remain on the job until his or her date of termination as scheduled by the
Company and (ii) must execute a general waiver and release in substantially
the
form attached hereto as Exhibit A, Exhibit B or Exhibit C, as appropriate,
and
such release must become effective in accordance with its terms. The Company,
in
its discretion, may modify the form of the required release to comply with
applicable law and shall determine the form of the required release, which
may
be incorporated into a termination agreement or other agreement with the
Eligible Employee.
(c)
Exceptions
to Benefit Entitlement.
An
employee, including an employee who otherwise is an Eligible Employee, will
not
receive benefits under the Plan (or will receive reduced benefits under the
Plan) in the following circumstances, as determined by the Company in its sole
discretion:
(i)
The
employee has executed an individually negotiated employment contract or
agreement with the Company relating to severance benefits that is in effect
on
his or her termination date, in which case such employee's severance benefit,
if
any, shall be governed by the terms of such individually negotiated employment
contract or agreement and shall be governed by this Plan only to the extent
that
the reduction pursuant to Section 3(c) below does not entirely eliminate
benefits under this Plan.
(ii)
The
employee is eligible for benefits pursuant to a local plan that supersedes
the
Plan and that is specifically designated for a certain subsidiary or country.
(iii)
The
employee is employed in a country whose laws or statutory labor requirements
govern employee termination.
(iv)
The
employee voluntarily terminates employment with the Company (other than pursuant
to a Constructive Termination). Voluntary terminations include, but are not
limited to, resignation, retirement or failure to return from a leave of absence
on the scheduled date.
(v)
The
employee voluntarily terminates employment with the Company in order to accept
employment with another entity that is wholly or partly owned (directly or
indirectly) by the Company.
(vi)
The
employee is offered an identical or substantially equivalent or comparable
position with the Company. For purposes of the foregoing, a "substantially
equivalent or comparable position" is one that offers the employee substantially
the same level of responsibility and compensation.
(vii)
The
employee is offered immediate reemployment by a successor to the
Company
or
by a
purchaser of its assets, as the case may be, following a change in ownership
of
the Company
or
a sale
of substantially all of the assets of a division or business unit of the
Company. For purposes of the foregoing, "immediate reemployment" means that
the
employee's employment with the successor to the Company
or
the
purchaser of its assets, as the case may be, results in uninterrupted employment
such that the employee does not incur a lapse in pay as a result of the change
in ownership of the Company
or
the
sale of its assets.
(viii)
The
employee is rehired by the Company prior to the date benefits under the Plan
are
scheduled to commence.
Section
3.
Amount
Of Benefit.
(a)
Severance
Benefits.
Severance
benefits under the Plan, if any, shall be provided to Eligible Employees
described in Section 2 in the amount provided in Appendix 1, as such Appendix
1
may be revised by the Company, in its sole discretion, from time to
time.
(b)
Additional
Benefits.
Notwithstanding
the foregoing, the Company may, in its sole discretion, provide benefits in
addition to those pursuant to Section 3(a) to Eligible Employees or employees
who are not Eligible Employees ("Non-Eligible Employees") chosen by the Company,
in its sole discretion, and the provision of any such benefits to an Eligible
Employee or a Non-Eligible Employee shall in no way obligate the Company to
provide such benefits to any other Eligible Employee or to any other
Non-Eligible Employee, even if similarly situated. If benefits under the Plan
are provided to a Non-Eligible Employee, references in the Plan to "Eligible
Employee" (with the exception of Section 3(a)) shall be deemed to refer to
such
Non-Eligible Employee.
(c)
Certain
Reductions.
The
Company, in its sole discretion, shall have the authority to reduce an Eligible
Employee's severance benefits, in whole or in part, by any other severance
benefits, pay in lieu of notice, or other similar benefits payable to the
Eligible Employee by the Company that become payable in connection with the
Eligible Employee's termination of employment pursuant to (i) any applicable
legal requirement, including, without limitation, the Worker Adjustment and
Retraining Notification Act (the "WARN Act"), (ii) a written employment or
severance agreement with the Company, or (iii) any Company policy or practice
providing for the Eligible Employee to remain on the payroll for a limited
period of time after being given notice of the termination of the Eligible
Employee's employment. The benefits provided under this Plan are intended to
satisfy, in whole or in part, any and all statutory obligations that may arise
out of an Eligible Employee's termination of employment, and the Plan
Administrator shall so construe and implement the terms of the Plan. The
Company's decision to apply such reductions to the severance benefits of one
Eligible Employee and the amount of such reductions shall in no way obligate
the
Company to apply the same reductions in the same amounts to the severance
benefits of any other Eligible Employee, even if similarly situated. In the
Company's sole discretion, such reductions may be applied on a retroactive
basis, with severance benefits previously paid being recharacterized as payments
pursuant to the Company's statutory obligation.
In
addition to the foregoing reductions, if an Eligible Employee becomes employed
by an entity other than the Company during the period of time in respect of
which severance benefits pursuant to Sections 3(a) and 3(b) are paid, the
Eligible Employee must notify the Company in writing immediately. Following
receipt of such notification, the Company will reduce such Eligible Employee's
unpaid severance benefits by fifty percent (50%).
Section
4.
Time
Of Payment And Form Of Benefit.
The
Company reserves the right to determine whether severance benefits under the
Plan, if any, shall be paid in a single sum, in installments, or in any other
form and to choose the timing of such payments;
provided, however
,
that in
the event that any of the benefits payable under the Plan to an Eligible
Employee are determined by the Plan Administrator to constitute deferred
compensation subject to Section 409A(a)(2)(B)(i) of the Internal Revenue Code
of
1986 (the "Code"), as amended, then the amount of such benefits so determined
shall be payable to such Eligible Employee in a manner that complies with the
requirements of Section 409A, which may include, without limitation, deferring
the payment of such benefits for six (6) months after such Eligible Employee's
date of termination,
provided,
further, however
,
that
nothing in this paragraph shall require the payment of benefits to such Eligible
Employee earlier than they would otherwise be payable under this Plan. All
such
payments under the Plan will be subject to applicable withholding for federal,
state and local taxes. If an Eligible Employee is indebted to the Company at
his
or her termination date, the Company reserves the right to offset any severance
payments under the Plan by the amount of such indebtedness. In no event shall
payment of any Plan benefit be made prior to the Eligible Employee's termination
date or prior to the effective date of the release described in Section
2(a)(3).
Section
5.
Reemployment.
In
the
event of an Eligible Employee's reemployment by the Company as an employee
or
return to service with the Company as an independent contractor during the
period of time in respect of which severance benefits pursuant to Sections
3(a)
and 3(b) have been paid, the Company, in its sole and absolute discretion,
may
require such Eligible Employee to repay to the Company all or a portion of
such
severance benefits as a condition of reemployment or resumption of
service.
Section
6.
Right
To Interpret Plan; Amendment and Termination, Limitations of
Benefits.
(a)
Exclusive
Discretion.
The Plan
Administrator shall have the exclusive discretion and authority to establish
rules, forms, and procedures for the administration of the Plan and to construe
and interpret the Plan and to decide any and all questions of fact,
interpretation, definition, computation or administration arising in connection
with the operation of the Plan, including, but not limited to, the eligibility
to participate in the Plan and amount of benefits paid under the Plan. The
rules, interpretations, computations and other actions of the Plan Administrator
shall be binding and conclusive on all persons.
(b)
Amendment
or Termination.
The
Company reserves the right to amend or terminate this Plan (including Appendix
1) or the benefits provided hereunder at any time;
provided,
however,
that
no
such amendment or termination shall affect the right to any unpaid benefit
of
any Eligible Employee whose termination date has occurred prior to amendment
or
termination of the Plan. Any action amending or terminating the Plan shall
be in
writing and executed by the Chief Executive Officer or other Executive Vice
President of the Company as authorized in writing by the Chief Executive
Officer.
(c)
Section
280G Parachute Payments.
If
any
payment or benefit an Eligible Employee would receive pursuant to a Change
of
Control from the Company or otherwise ("Payment") would (i) constitute a
"parachute payment" within the meaning of Section 280G of the Code, and (ii)
but
for this sentence, be subject to the excise tax imposed by Section 4999 of
the
Code (the "Excise Tax"), then such Payment shall be equal to the Reduced Amount.
The "Reduced Amount" shall be either (x) the largest portion of the Payment
that
would result in no portion of the Payment being subject to the Excise Tax or
(y)
the largest portion, up to and including the total, of the Payment, whichever
amount, after taking into account all applicable federal, state and local
employment taxes, income taxes, and the Excise Tax (all computed at the highest
applicable marginal rate), results in the Eligible Employee's receipt, on an
after-tax basis, of the greater amount of the Payment notwithstanding that
all
or some portion of the Payment may be subject to the Excise Tax. If a reduction
in payments or benefits constituting "parachute payments" is necessary so that
the Payment equals the Reduced Amount, reduction shall occur in the following
order unless the Eligible Employee elects in writing a different order
(
provided,
however,
that
such election shall be subject to Company approval if made on or after the
date
on which the event that triggers the Payment occurs): reduction of cash
payments; cancellation of accelerated vesting of stock awards; reduction of
employee benefits. In the event that acceleration of vesting of stock award
compensation is to be reduced, such acceleration of vesting shall be cancelled
in the reverse order of the date of grant of the Eligible Employee's stock
awards unless the Eligible Employee elects in writing a different order for
cancellation.
The
accounting firm engaged by the Company for general audit purposes as of the
day
prior to the effective date of the Change of Control shall perform the foregoing
calculations. If the accounting firm so engaged by the Company is serving as
accountant or auditor for the individual, entity or group effecting the Change
of Control, the Company shall appoint a nationally recognized accounting firm
to
make the determinations required hereunder. The Company shall bear all expenses
with respect to the determinations by such accounting firm required to be made
hereunder.
The
accounting firm engaged to make the determinations hereunder shall provide
its
calculations, together with detailed supporting documentation, to the Company
and the Eligible Employee within fifteen (15) calendar days after the date
on
which the Eligible Employee's right to a Payment is triggered (if requested
at
that time by the Company or the Eligible Employee) or such other time as
requested by the Company or the Eligible Employee. If the accounting firm
determines that no Excise Tax is payable with respect to a Payment, either
before or after the application of the Reduced Amount, it shall furnish the
Company and the Eligible Employee with an opinion reasonably acceptable to
the
Eligible Employee that no Excise Tax will be imposed with respect to such
Payment. Any good faith determinations of the accounting firm made hereunder
shall be final, binding and conclusive upon the Company and the Eligible
Employee.
Section
7.
No
Implied Employment Contract.
The
Plan
shall not be deemed (i) to give any employee or other person any right to be
retained in the employ of the Company or (ii) to interfere with the right of
the
Company to discharge any employee or other person at any time, with or without
cause, which right is hereby reserved.
Section
8.
Legal
Construction.
This
Plan
is intended to be governed by and shall be construed in accordance with the
Employee Retirement Income Security Act of 1974 ("ERISA") and, to the extent
not
preempted by ERISA, the laws of the State of California.
Section
9.
Claims,
Inquiries And Appeals, Limitations of Benefits
(a)
Applications
for Benefits and Inquiries.
Any
application for benefits, inquiries about the Plan or inquiries about present
or
future rights under the Plan must be submitted to the Plan Administrator in
writing by an applicant (or his or her authorized representative). The Plan
Administrator is:
BroadVision,
Inc.
1600
Seaport Blvd.,
Redwood
City, CA 94063
(b)
Denial
of Claims.
In the
event that any application for benefits is denied in whole or in part, the
Plan
Administrator must provide the applicant with written or electronic notice
of
the denial of the application, and of the applicant's right to review the
denial. Any electronic notice will comply with the regulations of the U.S.
Department of Labor. The notice of denial will be set forth in a manner designed
to be understood by the applicant and will include the following:
(i)
the
specific reason or reasons for the denial;
(ii)
references
to the specific Plan provisions upon which the denial is based;
(iii)
a
description of any additional information or material that the Plan
Administrator needs to complete the review and an explanation of why such
information or material is necessary; and
(iv)
an
explanation of the Plan's review procedures and the time limits applicable
to
such procedures, including a statement of the applicant's right to bring a
civil
action under section 502(a) of ERISA following a denial on review of the claim,
as described in Section 9(d) below.
This
notice of denial will be given to the applicant within ninety (90) days after
the Plan Administrator receives the application, unless special circumstances
require an extension of time, in which case, the Plan Administrator has up
to an
additional ninety (90) days for processing the application. If an extension
of
time for processing is required, written notice of the extension will be
furnished to the applicant before the end of the initial ninety (90) day
period.
This
notice of extension will describe the special circumstances necessitating the
additional time and the date by which the Plan Administrator is to render its
decision on the application.
(c)
Request
for a Review.
Any
person (or that person's authorized representative) for whom an application
for
benefits is denied, in whole or in part, may appeal the denial by submitting
a
request for a review to the Plan Administrator within sixty (60) days after
the
application is denied. A request for a review shall be in writing and shall
be
addressed to:
BroadVision,
Inc.
1600
Seaport Blvd.,
5th
Floor, North Bldg.
Redwood
City, CA 94063
A
request
for review must set forth all of the grounds on which it is based, all facts
in
support of the request and any other matters that the applicant feels are
pertinent.
The
applicant (or his or her representative) shall have the opportunity to submit
(or the Plan Administrator may require the applicant to submit) written
comments, documents,
records
,
and
other information relating to his or her claim. The applicant (or his or her
representative) shall be provided, upon request and free of charge, reasonable
access to, and copies of, all documents, records and other information relevant
to his or her claim. The review shall take into account all comments, documents,
records and other information submitted by the applicant (or his or her
representative) relating to the claim, without regard to whether such
information was submitted or considered in the initial benefit
determination.
(d)
Decision
on Review.
The Plan
Administrator will act on each request for review within sixty (60) days after
receipt of the request, unless special circumstances require an extension of
time (not to exceed an additional sixty (60) days), for processing the request
for a review. If an extension for review is required, written notice of the
extension will be furnished to the applicant within the initial sixty (60)
day
period.
This
notice of extension will describe the special circumstances necessitating the
additional time and the date by which the Plan Administrator is to render its
decision on the review.
The
Plan
Administrator will give prompt, written or electronic notice of its decision
to
the applicant. Any electronic notice will comply with the regulations of the
U.S. Department of Labor. In the event that the Plan Administrator confirms
the
denial of the application for benefits in whole or in part, the notice will
set
forth, in a manner calculated to be understood by the applicant, the
following:
(i)
the
specific reason or reasons for the denial;
(ii)
references
to the specific Plan provisions upon which the denial is based;
(iii)
a
statement that the applicant is entitled to receive, upon request and free
of
charge, reasonable access to, and copies of, all documents, records and other
information relevant to his or her claim; and
(iv)
a
statement of the applicant's right to bring a civil action under section 502(a)
of ERISA.
(e)
Rules
and Procedures.
The Plan
Administrator will establish rules and procedures, consistent with the Plan
and
with ERISA, as necessary and appropriate in carrying out its responsibilities
in
reviewing benefit claims. The Plan Administrator may require an applicant who
wishes to submit additional information in connection with an appeal from the
denial of benefits to do so at the applicant's own expense.
(f)
Exhaustion
of Remedies.
No legal
action for benefits under the Plan may be brought until the claimant (i) has
submitted a written application for benefits in accordance with the procedures
described by Section 9(a) above, (ii) has been notified by the Plan
Administrator that the application is denied, (iii) has filed a written request
for a review of the application in accordance with the appeal procedure
described in Section 9(c) above, and (iv) has been notified that the Plan
Administrator has denied the appeal. Notwithstanding the foregoing, if the
Plan
Administrator does not respond to a Participant's claim or appeal within the
relevant time limits specified in this Section 9, the Participant may bring
legal action for benefits under the Plan pursuant to Section 502(a) of
ERISA.
Section
10.
Basis
Of Payments To And From Plan.
All
benefits under the Plan shall be paid by the Company. The Plan shall be
unfunded, and benefits hereunder shall be paid only from the general assets
of
the Company.
Section
11.
Other
Plan Information.
(a)
Employer
and Plan Identification Numbers.
The
Employer Identification Number assigned to the Company (which is the "Plan
Sponsor" as that term is used in ERISA) by the Internal Revenue Service is
94-3184304. The Plan Number assigned to the Plan by the Plan Sponsor pursuant
to
the instructions of the Internal Revenue Service is
511
.
(b)
Ending
Date for Plan's Fiscal Year.
The date
of the end of the fiscal year for the purpose of maintaining the Plan's records
is December 31.
(c)
Agent
for the Service of Legal Process.
The
agent for the service of legal process with respect to the Plan is:
BroadVision,
Inc.
1600
Seaport Blvd.,
5th
Floor, North Bldg.
Redwood
City, CA 94063
(d)
Plan
Sponsor and Administrator.
The
"Plan Sponsor" and the "Plan Administrator" of the Plan is:
BroadVision,
Inc.
1600
Seaport Blvd.,
5th
Floor, North Bldg.
Redwood
City, CA 94063
The
Plan
Sponsor's and Plan Administrator's telephone number is (650) 331-1000. The
Plan
Administrator is the named fiduciary charged with the responsibility for
administering the Plan.
Section
12.
Statement
Of ERISA Rights.
Participants
in this Plan (which is a welfare benefit plan sponsored by
BroadVision,
Inc.
)
are
entitled to certain rights and protections under ERISA. If you are an Eligible
Employee, you are considered a participant in the Plan and, under ERISA, you
are
entitled to:
Receive
Information About Your Plan and Benefits
(a)
Examine,
without charge, at the Plan Administrator's office and at other specified
locations, such as worksites, all documents governing the Plan and a copy of
the
latest annual report (Form 5500 Series) filed by the Plan (note: the Plan
currently is not subject to the requirement of filing such an annual report)
with the U.S. Department of Labor and available at the Public Disclosure Room
of
the Employee Benefit Security Administration;
(b)
Obtain,
upon written request to the Plan Administrator, copies of documents governing
the operation of the Plan and copies of the latest annual report (Form 5500
Series) (note: the Plan currently is not subject to the requirement of filing
such an annual report) and an updated (as necessary) Summary Plan Description.
The Administrator may make a reasonable charge for the copies; and
(c)
Receive
a
summary of the Plan's annual financial report (note: the Plan currently is
not
subject to the requirement of providing a summary annual report). The Plan
Administrator is required by law to furnish each participant with a copy of
this
summary annual report.
Prudent
Actions by Plan Fiduciaries
In
addition to creating rights for Plan participants, ERISA imposes duties upon
the
people who are responsible for the operation of the employee benefit plan.
The
people who operate the Plan, called "fiduciaries" of the Plan, have a duty
to do
so prudently and in the interest of you and other Plan participants and
beneficiaries. No one, including your employer, your union or any other person,
may fire you or otherwise discriminate against you in any way to prevent you
from obtaining a Plan benefit or exercising your rights under
ERISA.
Enforce
Your Rights
If
your
claim for a Plan benefit is denied or ignored, in whole or in part, you have
a
right to know why this was done, to obtain copies of documents relating to
the
decision without charge, and to appeal any denial, all within certain time
schedules.
Under
ERISA, there are steps you can take to enforce the above rights. For instance,
if you request a copy of Plan documents or the latest annual report from the
Plan (note: the Plan currently is not subject to the requirement of filing
such
an annual report) 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 Plan Administrator
to
provide the materials and pay you up to $110 a day until you receive the
materials, unless the materials were not sent because of reasons beyond the
control of the Administrator.
If
you
have a claim for benefits which is denied or ignored, in whole or in part,
you
may file suit in a state or Federal court. In addition, if you disagree with
the
Plan's decision or lack thereof concerning the qualified status of a domestic
relations order or a medical child support order, you may file suit in Federal
court.
If
it
should happen that Plan fiduciaries misuse the Plan's money, or if you are
discriminated against for asserting your rights, you may seek assistance from
the U.S. Department of Labor, or you may file suit in a Federal court. The
court
will decide who should pay court costs and legal fees. If you are successful,
the court may order the person you have sued to pay these costs and fees. If
you
lose, the court may order you to pay these costs and fees, for example, if
it
finds your claim is frivolous.
Assistance
with Your Questions
If
you
have any questions about the Plan, you should contact the Plan Administrator.
If
you have any questions about this statement or about your rights under ERISA,
or
if you need assistance in obtaining documents from the Plan Administrator,
you
should contact the nearest office of the Employee Benefit Security
Administration, U.S. Department of Labor, listed in your telephone directory
or
the Division of Technical Assistance and Inquiries, Employee Benefit Security
Administration, U.S. Department of Labor, 200 Constitution Avenue N.W.,
Washington, D.C. 20210. You may also obtain certain publications about your
rights and responsibilities under ERISA by calling the publications hotline
of
the Employee Benefit Security Administration.
Section
13.
Execution.
To
record
the adoption of the Plan as set forth herein, effective as of March 26, 2007,
BroadVision, Inc.
has caused its duly authorized officer
to execute the same as of March 26, 2007.
BroadVision,
Inc
.
By:
/s/ Pehong Chen
Pehong
Chen, Chairman,
CEO,
President and Interim CFO
Exhibit
A
RELEASE
AGREEMENT ("RELEASE")
I
understand and agree completely to the terms set forth in the BroadVision,
Inc.
Severance Benefit Plan (the "Plan").
I
understand that this Release, together with the Plan, constitutes the complete,
final and exclusive embodiment of the entire agreement between the Company
and
me with regard to the subject matter hereof. I am not relying on any promise
or
representation by the Company that is not expressly stated therein. Certain
capitalized terms used in this Release are defined in the Plan.
I
hereby
confirm my obligations under the Company's proprietary information and
inventions agreement.
I
hereby
represent that I have been paid all compensation owed and for all hours worked,
have received all the leave and leave benefits and protections for which I
am
eligible, pursuant to the Family and Medical Leave Act or otherwise, and have
not suffered any on-the-job injury for which I have not already filed a
claim.
In
exchange for the consideration provided to me by this Release that I am not
otherwise entitled to receive, I hereby generally and completely release the
Company and its current and former directors, officers, employees, shareholders,
partners, agents, attorneys, predecessors, successors, parent and subsidiary
entities, insurers, affiliates, and assigns from any and all claims, liabilities
and obligations, both known and unknown, that arise out of or are in any way
related to events, acts, conduct, or omissions occurring prior to my signing
this Release. This general release includes, but is not limited to: (a) all
claims arising out of or in any way related to my employment with the Company
or
the termination of that employment; (b) all claims related to my compensation
or
benefits from the Company, including salary, bonuses, commissions, vacation
pay,
expense reimbursements, severance pay, fringe benefits, stock, stock options,
or
any other ownership interests in the Company; (c) all claims for breach of
contract, wrongful termination, and breach of the implied covenant of good
faith
and fair dealing; (d) all tort claims, including claims for fraud, defamation,
emotional distress, and discharge in violation of public policy; and (e) all
federal, state, and local statutory claims, including claims for discrimination,
harassment, retaliation, attorneys' fees, or other claims arising under the
federal Civil Rights Act of 1964 (as amended), the federal Americans with
Disabilities Act of 1990, the federal Age Discrimination in Employment Act
of
1967 (as amended) ("ADEA"), and the California Fair Employment and Housing
Act
(as amended). Nothing in this Release shall prevent me from challenging this
Release by filing, cooperating with, or participating in any proceeding before
the Equal Employment Opportunity Commission, the Department of Labor, or the
California Department of Fair Employment and Housing, except that I hereby
acknowledge and agree that I shall not recover any monetary benefits in
connection with any challenge to my Release.
I
acknowledge that I am knowingly and voluntarily waiving and releasing any rights
I may have under the ADEA ("ADEA Waiver"). I also acknowledge that the
consideration given for the ADEA Waiver is in addition to anything of value
to
which I was already entitled. I further acknowledge that I have been advised
by
this writing, as required by the ADEA, that: (a) my ADEA Waiver does not apply
to any rights or claims that arise after the date I sign this Release; (b)
I
should consult with an attorney prior to signing this Release; (c) I have
twenty-one (21) days to consider this Release (although I may choose to
voluntarily sign it sooner); (d) I have seven (7) days following the date I
sign
this Release to revoke the ADEA Waiver; and (e) the ADEA Waiver will not be
effective until the date upon which the revocation period has expired
unexercised, which will be the eighth day after I sign this
Release.
I
acknowledge that I have read and understand Section 1542 of the California
Civil
Code which reads as follows:
"A
general release does not extend to claims which the creditor does not know
or
suspect to exist in his or her favor at the time of executing the release,
which
if known by him or her must have materially affected his or her settlement
with
the debtor."
I hereby
expressly waive and relinquish all rights and benefits under that section and
any law of any jurisdiction of similar effect with respect to my release of
any
claims hereunder.
I
acknowledge that to become effective, I must sign and return this Release to
the
Company so that it is received not later than twenty-one (21) days following
the
date it is provided to me.
Employee
Name:
Date:
Exhibit
B
RELEASE
AGREEMENT ("RELEASE")
I
understand and agree completely to the terms set forth in the BroadVision,
Inc.
Severance
Benefit Plan (the "Plan").
I
understand that this Release, together with the Plan, constitutes the complete,
final and exclusive embodiment of the entire agreement between the Company
and
me with regard to the subject matter hereof. I am not relying on any promise
or
representation by the Company that is not expressly stated therein. Certain
capitalized terms used in this Release are defined in the Plan.
I
hereby
confirm my obligations under the Company's proprietary information and
inventions agreement.
I
hereby
represent that I have been paid all compensation owed and for all hours worked,
have received all the leave and leave benefits and protections for which I
am
eligible, pursuant to the Family and Medical Leave Act or otherwise, and have
not suffered any on-the-job injury for which I have not already filed a
claim.
Except
as
otherwise set forth in this Release, I hereby generally and completely release
the Company and its current and former directors, officers, employees,
shareholders, partners, agents, attorneys, predecessors, successors, parent
and
subsidiary entities, insurers, affiliates, and assigns from any and all claims,
liabilities and obligations, both known and unknown, that arise out of or are
in
any way related to events, acts, conduct, or omissions occurring prior to my
signing this Release. This general release includes, but is not limited to:
(a)
all claims arising out of or in any way related to my employment with the
Company or the termination of that employment; (b) all claims related to my
compensation or benefits from the Company, including salary, bonuses,
commissions, vacation pay, expense reimbursements, severance pay, fringe
benefits, stock, stock options, or any other ownership interests in the Company;
(c) all claims for breach of contract, wrongful termination, and breach of
the
implied covenant of good faith and fair dealing; (d) all tort claims, including
claims for fraud, defamation, emotional distress, and discharge in violation
of
public policy; and (e) all federal, state, and local statutory claims, including
claims for discrimination, harassment, retaliation, attorneys' fees, or other
claims arising under the federal Civil Rights Act of 1964 (as amended), the
federal Americans with Disabilities Act of 1990, the federal Age Discrimination
in Employment Act of 1967 (as amended) ("ADEA"), and the California Fair
Employment and Housing Act (as amended). Nothing in this Release shall prevent
me from challenging this Release by filing, cooperating with, or participating
in any proceeding before the Equal Employment Opportunity Commission, the
Department of Labor, or the California Department of Fair Employment and
Housing, except that I hereby acknowledge and agree that I shall not recover
any
monetary benefits in connection with any challenge to my Release.
I
acknowledge that I am knowingly and voluntarily waiving and releasing any rights
I may have under the ADEA ("ADEA Waiver"). I also acknowledge that the
consideration given for the ADEA Waiver is in addition to anything of value
to
which I was already entitled. I further acknowledge that I have been advised
by
this writing, as required by the ADEA, that: (a) my ADEA Waiver does not apply
to any rights or claims that arise after the date I sign this Release; (b)
I
should consult with an attorney prior to signing this Release; (c) I have
forty-five (45) days to consider this Release (although I may choose to
voluntarily sign it sooner); (d) I have seven (7) days following the date I
sign
this Release to revoke the ADEA Waiver; and (e) the ADEA Waiver will not be
effective until the date upon which the revocation period has expired
unexercised, which will be the eighth day after I sign this Release.
I
have
received with this Release a written disclosure of all of the information
required by the ADEA, including without limitation a detailed list of the job
titles and ages of all employees who were terminated in this group termination
and the ages of all employees of the Company in the same job classification
or
organizational unit who were not terminated, along with information on the
eligibility factors used to select employees for the group termination and
any
time limits applicable to this group termination program.
I
acknowledge that I have read and understand Section 1542 of the California
Civil
Code which reads as follows:
"A
general release does not extend to claims which the creditor does not know
or
suspect to exist in his or her favor at the time of executing the release,
which
if known by him or her must have materially affected his or her settlement
with
the debtor."
I hereby
expressly waive and relinquish all rights and benefits under that section and
any law of any jurisdiction of similar effect with respect to my release of
any
claims hereunder.
I
acknowledge that to become effective, I must sign and return this Release to
the
Company so that it is received not later than forty-five (45) days following
the
date this Release and the ADEA disclosure form is provided to me.
Employee
Name:
Date:
Exhibit
C
RELEASE
AGREEMENT ("RELEASE")
I
understand and agree completely to the terms set forth in the BroadVision,
Inc.
Severance Benefit Plan (the "Plan").
I
understand that this Release, together with the Plan, constitutes the complete,
final and exclusive embodiment of the entire agreement between the Company
and
me with regard to the subject matter hereof. I am not relying on any promise
or
representation by the Company that is not expressly stated therein. Certain
capitalized terms used in this Release are defined in the Plan.
I
hereby
confirm my obligations under the Company's proprietary information and
inventions agreement.
I
hereby
represent that I have been paid all compensation owed and for all hours worked,
have received all the leave and leave benefits and protections for which I
am
eligible, pursuant to the Family and Medical Leave Act or otherwise, and have
not suffered any on-the-job injury for which I have not already filed a
claim.
In
exchange for the consideration provided to me by this Release that I am not
otherwise entitled to receive, I hereby generally and completely release the
Company and its current and former directors, officers, employees, shareholders,
partners, agents, attorneys, predecessors, successors, parent and subsidiary
entities, insurers, affiliates, and assigns from any and all claims, liabilities
and obligations, both known and unknown, that arise out of or are in any way
related to events, acts, conduct, or omissions occurring prior to my signing
this Release. This general release includes, but is not limited to: (a) all
claims arising out of or in any way related to my employment with the
Company
or
the
termination of that employment; (b) all claims related to my compensation or
benefits from the Company, including salary, bonuses, commissions, vacation
pay,
expense reimbursements, severance pay, fringe benefits, stock, stock options,
or
any other ownership interests in the Company; (c) all claims for breach of
contract, wrongful termination, and breach of the implied covenant of good
faith
and fair dealing; (d) all tort claims, including claims for fraud, defamation,
emotional distress, and discharge in violation of public policy; and (e) all
federal, state, and local statutory claims, including claims for discrimination,
harassment, retaliation, attorneys' fees, or other claims arising under the
federal Civil Rights Act of 1964 (as amended), the federal Americans with
Disabilities Act of 1990, and the California Fair Employment and Housing Act
(as
amended). Nothing in this Release shall prevent me from challenging this Release
by filing, cooperating with, or participating in any proceeding before the
Equal
Employment Opportunity Commission, the Department of Labor, or the California
Department of Fair Employment and Housing, except that I hereby acknowledge
and
agree that I shall not recover any monetary benefits in connection with any
challenge to my Release.
I
acknowledge that I have read and understand Section 1542 of the California
Civil
Code which reads as follows:
"A
general release does not extend to claims which the creditor does not know
or
suspect to exist in his or her favor at the time of executing the release,
which
if known by him or her must have materially affected his or her settlement
with
the debtor."
I hereby
expressly waive and relinquish all rights and benefits under that section and
any law of any jurisdiction of similar effect with respect to my release of
any
claims hereunder.
I
acknowledge that to become effective, I must sign and return this Release to
the
Company
so
that
it is received not later than fourteen (14) days following the date it is
provided to me.
Employee
Name:
Date:
APPENDIX
1
BROADVISION,
INC.
SEVERANCE
BENEFIT PLAN
Severance
benefits provided to Eligible Employees under the BroadVision, Inc. Severance
Benefit Plan (the "Plan") are as set forth below.
A.
Eligible
Employees Involuntarily Terminated Without Cause, No Change of Control.
Pursuant
to Section 3(a) of the Plan, each Eligible Employee subject to an Involuntary
Termination Without Cause, except where such termination is a result of a Change
of Control, shall receive the following:
1.
Cash
Severance Benefits.
Designated
Eligible Employees
shall
receive a cash severance benefit in accordance with the Company's then current
payroll practices as follows:
EMPLOYEE
DESIGNATION
|
|
BASE
|
|
ACCRUAL/YR
|
|
MAXIMUM
|
|
|
6.00
Mo.
|
|
|
|
|
EVP
|
|
3.00
Mo.
|
|
|
|
6.00
Mo.
|
SVP
|
|
2.00
Mo.
|
|
|
|
5.00
Mo.
|
VP
|
|
1.00
Mo.
|
|
|
|
4.00
Mo.
|
Director
|
|
0.50
Mo.
|
|
|
|
3.00
Mo.
|
Manager
|
|
|
|
0.25
Mo./Yr.
|
|
2.00
Mo.
|
Employee
|
|
|
|
0.08
Mo./Yr.
|
|
1.00
Mo.
|
For
the purposes of the table above:
EMPLOYEE
DESIGNATION equals the Eligible Employee's highest official title granted by
the
Company.
BASE
is equal to the number of months of Base Salary the Eligible Employee shall
accrue under the Plan as a cash severance benefit upon completion of one year
of
continuous employment with the Company.
ACCRUAL/YR
is equal to the number of months of additional Base Salary that the Eligible
Employee will accrue under the Plan for each additional full year of completed
continuous employment with the Company subsequent to the first year of
continuous employment with the Company.
MAXIMUM
is equal to the maximum number of months of Base Salary that the Eligible
Employee will be entitled to accrue as a cash severance benefit under the Plan
regardless of the Eligible Employee's total number of years of continuous
employment with the Company.
Partial
months of employment shall not be taken into account in calculating the amount
of any such severance benefit nor shall service provided as an independent
contractor or as an employee of an entity or other business unit prior to such
entity's or other business unit's acquisition by the Company or an affiliate
of
the Company be taken into account in calculating the amount of any severance
benefit. A break in continuous employment of whatever duration shall cause
the
loss of all completed months of continuous employment prior to such
break.
For
purposes of calculating Plan benefits under this Section 1, "Base Salary" shall
mean the Eligible Employee's base pay (excluding incentive pay, premium pay,
commissions, overtime, bonuses, profit sharing and any and all other forms
of
variable compensation), at the rate in effect during the last regularly
scheduled payroll period immediately preceding the Eligible Employee's
termination date.
No
Eligible Employee shall be entitled to receive more than 12 months of Base
Salary under the Plan.
2.
Additional
Severance Benefits.
With
respect to an Eligible Employee who is enrolled in a health, dental, or vision
plan sponsored by the Company and who elects to continue coverage under such
health, dental, or vision plan (or to convert to an individual policy), at
the
time of the Eligible Employee's termination of employment, the Company shall
pay
the portion of premiums for the Eligible Employee's health, dental and/or vision
plan coverage, including coverage for the Eligible Employee's eligible
dependents, that the Company paid prior to the Eligible Employee's termination
of employment for the same number of months as such Eligible Employee is
entitled to receive cash severance benefits as set forth in Section 1,
above.
3.
COBRA
Continuation Coverage.
Each
Eligible Employee who is enrolled in a health, dental, or vision
plan
sponsored by the Company
may
be
eligible to continue coverage under such health, dental, or vision plan (or
to
convert to an individual policy) at the time of the Eligible Employee's
termination of employment under the Consolidated Omnibus Budget Reconciliation
Act of 1985 ("COBRA"). The Company will notify the Eligible Employee of any
such
right to continue such coverage at the time of termination pursuant to COBRA.
No
provision of this Plan will affect the continuation coverage rules under COBRA,
except that the Company's payment, if any, of applicable insurance premiums
pursuant to Section 2, above, will be credited as payment by the Eligible
Employee for purposes of the Eligible Employee's payment required under COBRA.
Therefore, the period during which an Eligible Employee may elect to continue
the Company's health, dental, or vision plan coverage at his or her own expense
under COBRA, the length of time during which COBRA coverage will be made
available to the Eligible Employee, and all other rights and obligations of
the
Eligible Employee under COBRA (except the obligation to pay insurance premiums
pursuant to Section 2, above) will be applied in the same manner that such
rules
would apply in the absence of this Plan. Following the expiration of the period
that the Company is obligated to pay an Eligible Employee's insurance premiums
pursuant to Section 2 following the Eligible Employee's termination of
employment, the Eligible Employee will be responsible for the entire payment
of
premiums required under COBRA for the duration of the COBRA period. For purposes
of this Section 3, (i) references to COBRA shall be deemed to refer also to
analogous provisions of state law and (ii) any applicable insurance premiums
that are paid by the Company shall not include any amounts payable by an
Eligible Employee under an Internal Revenue Code Section 125 health care
reimbursement plan, which amounts, if any, are the sole responsibility of the
Eligible Employee.
4.
Other
Employee Benefits.
All
other
benefits (such as life insurance, disability coverage, and pension plan
coverage) terminate as of the Eligible Employee's termination date (except
to
the extent that a conversion privilege may be available
thereunder).
5.
Reductions
Pursuant to Section 3(c) of the Plan.
The
severance benefits set forth in this Appendix 1 are subject to certain
reductions under Section 3(c) of the Plan.
B.
Eligible
Employees Terminated Due to a Change of Control.
There
are
three (3) categories of Eligible Employees covered in a Change of Control
situation: Level I, Level II and Level III as hereinafter defined.
Level
I
Eligible Employees are defined as those Company Executive Officers designated
by
the Compensation Committee as Level I Eligible Employees. Level II Eligible
Employees are defined as those Non-Executive Company Officers designated by
the
CEO as Level II Eligible Employees who report directly to the CEO. Level III
Eligible Employees are defined as those Non-Executive Company Officers and
Department Managers designated by the CEO as Level III Eligible Employees who
report either directly to the CEO or to Level II Eligible Employees. Designated
Level I, II and III employees/positions covered under the Plan are set forth
in
the spreadsheet attached hereto as Appendix 3 together with detailed analysis
of
current status.
Pursuant
to
Section 3(a) of the Plan, each Level I, Level II and Level III Eligible Employee
subject to an Involuntary Termination Without Cause or Constructive Termination
within 1 month prior to or 24 months following a Change of Control shall receive
the following:
1.
|
Cash
Severance Payment.
Level I, Level II and Level III Eligible Employees shall be entitled
to
cash severance payments up the Maximums set forth in the table
below.
|
EMPLOYEE
DESIGNATION
|
BASE
|
ACCRUAL/YR
|
MAXIMUM
|
|
6.00
Mo.
|
|
|
EVP
|
3.00
Mo.
|
|
6.00
Mo.
|
SVP
|
2.00
Mo.
|
|
5.00
Mo.
|
VP
|
1.00
Mo.
|
|
4.00
Mo.
|
Director
|
0.50
Mo.
|
|
3.00
Mo.
|
Manager
|
|
0.25
Mo./Yr.
|
2.00
Mo.
|
Employee
|
|
0.08
Mo./Yr.
|
1.00
Mo.
|
For
the purposes of the table above:
BASE
is equal to the number of months of Base Salary the Eligible Employee shall
accrue under the Plan as a cash severance benefit upon completion of one year
of
continuous employment with the Company.
ACCELERATOR
is equal to the number of months of additional Base Salary that the Eligible
Employee will accrue under the Plan for each additional full year of completed
continuous employment with the Company subsequent to the first year of
continuous employment with the Company.
MAXIMUM
YEARS is equal to the maximum number of years that the ACCELERATOR will be
applied under the Plan regardless of the number of years of actual continuous
employment with the Company.
MAXIMUM
MONTHS is equal to the maximum number of months of Base Salary that the Eligible
Employee will be entitled to accrue as a cash severance benefit under the Plan
regardless of the
Eligible
Employee's
total
number
of years of continuous employment with the Company.
Partial
months of employment shall not be taken into account in calculating the amount
of any such severance benefit nor shall service provided as an independent
contractor or as an employee of an entity or other business unit prior to such
entity's or other business unit's acquisition by the Company or an affiliate
of
the Company be taken into account in calculating the amount of any severance
benefit. A break in continuous employment of whatever duration shall cause
the
loss of all completed months of continuous employment prior to such break.
For
purposes of calculating Plan benefits under this Section 2, "Base Salary" shall
mean the Eligible Employee's base pay (excluding incentive pay, premium pay,
commissions, overtime, bonuses, profit sharing and any and all other forms
of
variable compensation), at the rate in effect during the last regularly
scheduled payroll period immediately preceding the Eligible Employee's Change
of
Control termination.
No
Eligible Employee shall be entitled to receive more than 24 months of Base
Salary under the Plan for a Change of Control termination.
2.
|
Additional
Severance Benefits.
With respect to an Eligible Employee who is enrolled in a health,
dental,
or vision plan sponsored by the Company and who elects to continue
coverage under such health, dental, or vision plan (or to convert
to an
individual policy), at the time of the Eligible Employee's termination
of
employment, the Company shall pay the portion of premiums for the
Eligible
Employee's health, dental and/or vision plan coverage, including
coverage
for the Eligible Employee's eligible dependents, that the Company
paid
prior to the Eligible Employee's termination of employment as follows:
Level I shall receive a continuation of benefits (as in effect immediately
prior to termination) for up to a maximum of 24 months; Level II
shall
receive continuation of benefits (as in effect immediately prior
to
termination) for up to a maximum of 15 months; Level III shall receive
continuation of benefits (as in effect immediately prior to termination)
for up to a maximum of 9 months. Designated Level I, II and III Eligible
Employees benefit status is set forth in the spreadsheet attached
hereto
as Appendix 3.
|
EMPLOYEE
LEVEL
|
BASE
(NUMBER
OF MO. BASE SALARY
AFTER
1 YEAR
TENURE)
|
ACCELERATOR
(NUMBER
OF MO. BASE SALARY ACCRUED PER EACH YR.
OF
ADDITIONAL TENURE
|
MAXIMUM
YEARS
TENURE
ACCELERATOR
APPLIED
|
MAXIMUM
MONTHS
BASE SALARY
ACCRUAL
ALLOWED
|
Level
I
|
9
|
1.25
|
12
|
24
|
Level
II
|
6
|
1.00
|
9
|
15
|
Level
III
|
3
|
0.75
|
8
|
9
|
3.
|
Stock
Option Accelerated Vesting.
The
vesting and exercisability of unvested stock options held by an Eligible
Employee that are outstanding as of the Eligible Employee's termination
date, beginning with the earliest unvested installments, shall be
accelerated in the following
percentages:
|
EMPLOYEE
LEVEL
|
BASE
(PERCENTAGE
OF
UNVESTED STOCK OPTIONS ACCELERATED
AFTER
1 YEAR
TENURE)
|
ACCELERATOR
(PERCENTAGE
OF UNVESTED STOCK OPTIONS ACCELERATED PER EACH YR.
OF
ADDITIONAL TENURE)
|
MAXIMUM
(TOTAL
%
OF
UNVESTED STOCK OPTIONS ALLOWED TO BE ACCELERATED)
|
Level
I
|
30%
|
7.8%
|
100%
|
Level
II
|
25%
|
6.1%
|
80%
|
Level
III
|
20%
|
4.4%
|
60%
|
Partial
months of employment shall not be taken into account in calculating the amount
of any such accelerated vesting nor shall service provided as an independent
contractor or as an employee of an entity or other business unit prior to such
entity's or other business unit's acquisition by the Company or an affiliate
of
the Company be taken into account in calculating the amount of any accelerated
vesting. A break in continuous employment of whatever duration shall cause
the
loss of all completed months of continuous employment prior to such break.
Designated
Level I, II and III Eligible Employees current stock option vesting status
is
set forth in the spreadsheet attached hereto as Appendix 3.
4.
|
COBRA
Continuation Coverage.
Each
Eligible Employee who is enrolled in a health, dental, or
vision
plan
sponsored by the Company
may
be eligible to continue coverage under such health, dental, or vision
plan
(or to convert to an individual policy), at the time of the Eligible
Employee's termination of employment, under COBRA. The Company will
notify
the Eligible Employee of any such right to continue such coverage
at the
time of termination pursuant to COBRA. No provision of this Plan
will
affect the continuation coverage rules under COBRA, except that the
Company's payment, if any, of applicable insurance premiums pursuant
to
Section 2, above, will be credited as payment by the Eligible Employee
for
purposes of the Eligible Employee's payment required under COBRA.
Therefore, the period during which an Eligible Employee may elect
to
continue the Company's health, dental, or vision plan coverage at
his or
her own expense under COBRA, the length of time during which COBRA
coverage will be made available to the Eligible Employee, and all
other
rights and obligations of the Eligible Employee under COBRA (except
the
obligation to pay insurance premiums pursuant to Section 2, above)
will be
applied in the same manner that such rules would apply in the absence
of
this Plan. Following the expiration of the period that the Company
is
obligated to pay an Eligible Employee's insurance premiums pursuant
to
Section 2 following the Eligible Employee's termination of employment,
the
Eligible Employee will be responsible for the entire payment of premiums
required under COBRA for the duration of the COBRA period. For purposes
of
this Section 4, (i) references to COBRA shall be deemed to refer
also to
analogous provisions of state law and (ii) any applicable insurance
premiums that are paid by the Company shall not include any amounts
payable by an Eligible Employee under an Internal Revenue Code Section
125
health care reimbursement plan, which amounts, if any, are the sole
responsibility of the Eligible
Employee.
|
5.
|
Other
Employee Benefits.
All
other benefits (such as life insurance, disability coverage, and
pension
plan coverage) terminate as of the Eligible Employee's termination
date
(except to the extent that a conversion privilege may be available
thereunder).
|
6.
|
Reductions
Pursuant to Section 3(c) of the Plan.
The
severance benefits set forth in this Appendix 1 are subject to certain
reductions under Section 3(c) of the
Plan.
|
The
foregoing severance benefits are subject to such change as the Company, pursuant
to Section 3(a) of the Plan, may determine in its sole and absolute discretion.
Any such change in severance benefits shall be set forth in a revised version
of
this Appendix 1.
Appendix
1 Adopted: March 26,
2007
Pehong
Chen
|
Title:
Chairman, CEO, President and Interim CFO
|
|
APPENDIX
2
EXPLANATION
OF BETTER AFTER TAX RESULT PROVISION
A
"better
after tax result" provision permits an Eligible Employee to receive the full
amount of his or her benefits following a Change of Control unless a reduction
in such benefits would yield a greater total benefit for the Eligible Employee,
taking into account all applicable taxes including the golden parachute payment
excise tax. Therefore, the following two calculations are done:
1.
|
Assuming
receipt of the full amount of the benefits the Eligible Employee
is
entitled to receive pursuant to the Plan, a calculation is run to
determine whether an excess parachute payment is triggered, the amount
of
any excise tax, and the after tax benefit to the Eligible
Employee.
|
2.
|
A
calculation is run to determine to what extent the Eligible Employee's
benefits would need to be cut back in order to avoid the imposition
of the
excise tax and the amount of the after tax benefit to the Eligible
Employee following the cut back.
|
The
Eligible Employee receives the larger of the two possible after tax benefit
amounts, either the cut back amount (which avoids the imposition of the excise
tax) or the unreduced amount (which is subject to the excise tax).
Example
1:
Assume
the Eligible Employee's average annual compensation paid by the Company over
the
last five years is $300,000. Assume further that upon an Involuntary Termination
without Cause following a Change of Control, the Eligible Employee would receive
$5,000 in insurance benefits, $225,000 in severance payments, and $674,000
in
stock option acceleration valued in accordance with IRS proposed regulations.
Assume further that the Eligible Employee has a marginal income tax rate of
50%.
In this example, the Eligible Employee's benefits payable pursuant to the Change
of Control Severance Benefit Plan have a value, for purposes of the 20% excise
tax under Section 4999 of the Code, of $904,000. Because $904,000 equals or
exceeds three times the Eligible Employee's average annual compensation
($900,000), the Eligible Employee is subject to the 20% excise tax under Section
4999 of the Code. In the absence of the better after tax results provision,
upon
receipt of the benefits described above, the Eligible Employee would pay income
tax on the severance payment equal to $112,500 (50% x $225,000) and excise
tax
of $120,800 (20% x ($904,000 - $300,000)). (The excise tax is paid on the excess
of the value of payments and benefits triggered by the Change of Control less
the Eligible Employee's average annual compensation.)
However,
if effect were given to a better after tax results provision, the Eligible
Employee's benefit would be cut back to provide the Eligible Employee with
greater after tax benefits as follows: Instead of receiving $5,000 in health
insurance benefits, the Eligible Employee would receive $999 in health insurance
benefits. As a result of the reduction in health insurance benefits, the
Eligible Employee's benefits payable pursuant to the Change of Control Severance
Benefit Plan would have a value for excise tax purposes of $899,999, which
would
not equal or exceed three times the Eligible Employee's average annual
compensation and the Eligible Employee would not be subject to the 20% excise
tax. In this example, the $4,001 cut back of health insurance benefits payable
to the Eligible Employee saved $120,800 in excise tax. It also would be possible
to reduce cash severance, instead of health benefits, by the same amount and
achieve the same result.
Example
2:
Assume
the same facts as in Example 1, but the value of the severance payments due
to
the Eligible Employee is $700,000 instead of $225,000. In this example, the
Eligible Employee's benefits payable pursuant to the Change of Control Severance
Benefit Plan are valued for excise tax purposes at $1,379,000. Because
$1,379,000 equals or exceeds three times the Eligible Employee's average annual
compensation of $900,000, the Eligible Employee is subject to the 20% excise
tax
of $215,800 (20% x ($1,379,000 - $300,000)). If the Eligible Employee's benefits
were cut back, the Eligible Employee would avoid the $215,800 excise tax but
also would forfeit $5,000 in health insurance benefits and $474,001 in severance
payments. Pursuant to the better after tax results provision, the Eligible
Employee would receive all of the benefits payable under the Change of Control
Severance Benefit Plan and pay the excise tax because that will put the Eligible
Employee in a better after tax position.
APPENDIX
3
CHANGE
OF CONTROL DESIGNATED ELIGIBLE EMPLOYEES
SEVERANCE
BENEFITS
[insert
spreadsheet]