Amended and Restated Employment Agreement



 
EXHIBIT 10.39

 
January 9, 2003

 
Allen Snyder 
5665 Flatiron Parkway 
Boulder, CO 80301 
 
Re: Amended and Restated Employment Terms 
 
Dear Al: 
 
This letter sets forth the terms of your employment at Openwave Systems Inc. (the “Company”) and memorializes that to which we previously
agreed. This letter supersedes all prior agreements relating to the terms of your employment, except for the Change of Control Severance Agreement dated October 12, 2001, between you and the Company (the “Change of Control Agreement”) and
the Confidentiality and Invention Assignment Agreement dated September 1, 2002 (the “Confidentiality and Invention Assignment Agreement”). As we previously agreed, the terms set forth below are effective as of October 1, 2002. Capitalized
terms used in this letter have the meanings set forth on the attached Exhibit A. 
 
Your title is now Senior Vice President, Worldwide Customer Operations and you continue to report to me. Your monthly base salary is $25,830 per month or $310,000 on an annualized basis. Under your individual variable pay
plan in effect for the period from October 1, 2002 through December 31, 2003, you are eligible for: (a) an additional quarterly bonus of up to $77,500 based upon your achievement of your quarterly incentive target objectives, and (b) an additional
upside quarterly bonus of up to an additional $77,500 payable based upon your achievement of your quarterly stretch incentive target objectives. Your quarterly target incentive and stretch incentive objectives shall be established by the COO in
consultation with you, the CEO and the Compensation Committee of the Board of Directors. Any quarterly bonus or quarterly upside bonus amounts due shall be paid payable within 45 days following the end of the corresponding quarter. You also have
received the November 2, 2002 retention bonus payment set forth below and will receive the February 28 and August 31, 2003 retention bonuses set forth below, based upon your continued full time employment with the Company on the corresponding
payment date: 
 

	  Date

	   	  Amount


	  November 2, 2002
	   	  $
	  136,000

	  February 28, 2003
	   	  $
	  150,000

	  August 31, 2003
	   	  $
	  225,000


 
If your employment is
terminated other than for Cause, prior to January 1, 2004, you will receive 12 months’ base salary (currently, equal to $310,000), 12 months target incentive compensation (currently equal to $310,000), any remaining retention bonus payments set
forth above that have not yet been made, and 12 months of COBRA payments to maintain health insurance coverage as then in force for you and your immediate family members insured under the Company’s health insurance policy. If your employment is
terminated other than for Cause, after January 1, 2004 but before January 1, 2005, you will receive severance payments equal to 12 months of your base salary (currently, equal to $310,000) and 12 months of COBRA payments to maintain health insurance
coverage as then in force for you and your immediate family members insured under the Company’s health insurance policy. If your employment is terminated other than for Cause, after January 1, 2005, you will receive severance payments and COBRA
benefits in accordance with the Executive Severance Policy as then in effect. 
 
Severance benefits (excluding the payment of any of the remaining retention bonus payments listed above) payable under this letter agreement shall coordinate with any severance, change of control, or termination benefits payable to
you under any other agreement, policy, practice or arrangement of the Company to which you are entitled, including with the 
 









 
Change of Control Severance
Agreement and the Executive Severance Policy. This means that if you become entitled to cash payments, or any other benefits from the Company in connection with the occurrence of a change of control or the termination of your employment, then the
severance benefits received by you under this letter agreement shall be reduced by the like-kind (more specifically, cash severance payments based upon your base salary, cash severance based upon our target incentive compensation, and COBRA
payments) benefits received by you from the Company under such other plans, programs, arrangements or agreements (or vice versa, depending upon the order of their occurrence). 
 
As an employee, you will also continue to be eligible to receive our standard employee benefits except for matters that this
letter provides you with more valuable benefits than the Company’s standard policies. 
 
You should be aware that your employment with the Company is for no specified period and constitutes “at will” employment. As a result, you are free to resign at any time, for any reason or
for no reason. Similarly, the Company is free to conclude its employment relationship with you at any time, with or without cause, subject to the severance obligations under this letter. 
 
In consideration of the foregoing, you hereby reconfirm your obligations under the Confidentiality and Invention Assignment
Agreement. 
 
Please review these terms to make sure they are
consistent with your understanding. If so, please send the original signed offer letter in the provided envelope to Tim Silvera no later than five days after your receipt of this letter. 
 

	  	  	  	  	  Accepted by:

	
	   

	  	  	  	   


	  Kevin Kennedy
  COO
	  	  	  	  Allen Snyder


 









 
EXHIBIT
A 
 
DEFINED TERMS 
 
“Cause” shall mean (i) gross negligence or willful misconduct
in the performance of your duties to the Company; (ii) repeated unexplained or unjustified absences from the Company; (iii) a material and willful violation of any federal or state law which if made public would injure the business or reputation of
the Company as reasonably determined by the Board of Directors of the Company; (iv) refusal or willful failure to act in accordance with any specific lawful direction or order of the Company or stated written policy of the Company; (v) commission of
any act of fraud with respect to the Company; or (vi) conviction of a felony or a crime involving moral turpitude causing material harm to the standing and reputation of the Company, in each case as reasonably determined by the Board of Directors of
the Company. 
 
“Change of Control” shall mean the
occurrence of any of the following events: 
 
(i)
The sale, exchange, lease or other disposition of all or substantially all of the assets of the Company to a person or group of related persons (as such terms are defined or described in Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”)) that will continue the business of the Company in the future; 
 
(ii) A merger or consolidation involving the Company in which the voting securities of the Company owned by the shareholders of the
Company immediately prior to such merger or consolidation do not represent, after conversion if applicable, more than fifty percent (50%) of the total voting power of the surviving controlling entity outstanding immediately after such merger or
consolidation; provided that any person who (1) was a beneficial owner (within the meaning of Rules 13d-3 and 13d-5 promulgated under the Exchange Act) of the voting securities of the Company immediately prior to such merger or consolidation, and
(2) is a beneficial owner of more than 20% of the securities of the Company immediately after such merger or consolidation, shall be excluded from the list of “shareholders of the Company immediately prior to such merger or consolidation”
for purposes of the preceding calculation); or 
 
(iii) The direct or indirect acquisition of beneficial ownership of at least fifty percent (50%) of the voting securities of the Company by a person or group of related persons (as such terms are defined or described in Sections
3(a)(9) and 13(d)(3) of the Exchange Act); provided, that “person or group of related persons” shall not include the Company, a subsidiary of the Company, or an employee benefit plan sponsored by the Company or a subsidiary of the Company
(including any trustee of such plan acting as trustee).