Offer Letter between Zynga Inc. and Barry Cottle



 Exhibit 10.28 

 
 January 5, 2012 

 
 Barry Cottle 

Via email 
  

Re:    Offer of Employment by Zynga Inc. 

 
 Dear Barry: 

 
 I am very pleased to confirm our offer to you of full-time
employment with Zynga Inc., a Delaware corporation (the “Company”), in the position of Executive Vice President, Business and Corporate Development. You will initially report to the Company’s Chief Operating Officer,
John Schappert. The terms of our offer and the benefits currently provided by the Company are as follows: 
  

1.    Starting Salary. Your starting salary will be $300,000 per year (as adjusted from time to time,
your “Salary”), less all applicable deductions required by law, which shall be payable at the times and in the installments consistent with the Company’s then current payroll practice. Your Salary is subject to periodic
review and adjustment in accordance with the Company’s policies as in effect from time to time. 
  

2.    Signing Bonus. Provided you accept this offer on or before January 10, 2012, and provided you
commence employment on or before February 14, 2012, the Company will pay you a one-time signing bonus in the amount of $2,000,000, less deductions required by law (the “Signing Bonus”). This Signing Bonus will be paid on
the first regularly scheduled payroll date in March 2012, but in all cases not later than March 15, 2012. Should the Company terminate your employment for Cause (as defined in the CIC Plan, described below) or should you choose to leave the
Company for any reason, in either case prior to the one-year anniversary of your start date, you will be required to repay the Company a pro-rated share of the Signing Bonus not earned based on time served. Should the Company terminate your
employment without Cause (as defined in the CIC Plan), or if your employment terminates as a result of your death or disability, and provided you sign and allow to become effective the release of claims on the terms set forth in Section 3
below, no repayment of the Signing Bonus shall be required. 
  
 3.    Incentive Compensation. In lieu of participation in our quarterly performance bonus program for each of the first four full quarters after your start date, and
subject to your continued employment through each such quarter, you will earn a guaranteed quarterly bonus of $250,000 per quarter for each of the first four full quarters after your start date. By way of example, if your start date is
February 14, 2012, your first guaranteed bonus would be for the Company’s second fiscal quarter of 2012 (April 1, 2012 – June 30, 2012) and your last guaranteed bonus would be for the Company’s first fiscal quarter of 2013
(January 1, 2013 – March 31, 2013), subject to your continued employment through each full quarter. These bonuses will be paid not later than the month following the end of the applicable quarter. Should the Company terminate your
employment for Cause (as defined in the CIC Plan, described below), should your employment terminate as a result of death or disability, or should you choose to leave the Company for any reason, in any such case within one of the first four full
quarters of your employment, you will not earn and you will not be paid any bonus for the quarter of termination or any quarter thereafter. Should the Company terminate your employment without Cause (as defined in the CIC Plan), within the first
four full fiscal quarters after your start date, and conditioned on you executing and not revoking a general release of all claims so that it is effective not later than the 60th day following your “separation from service” (as defined under Treasury Regulation Section 1.409A-1(h),
without regard to any alternative definition thereunder), the Company will pay you the remaining portion of the first four guaranteed quarterly bonuses which have not already been earned and paid in a single lump sum on the 60th day following your separation from service.









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Following the end of these first four full quarters, and conditioned on your continued employment, you will be eligible to earn incentive compensation under the Company’s then-applicable
performance bonus program for similarly situated executive officers. 
  
 4.    Benefits. You will be eligible to participate in the health, life and disability insurance programs and the other employee benefit plans established by the Company
for its employees from time to time in accordance with the terms of those programs and plans. The Company reserves the right to change the terms of its programs and plans at any time. 
  
 5.    Confidentiality. As an employee of the Company, you will have access to
certain confidential information of the Company and you may, during the course of your employment, develop certain information or inventions that will be the property of the Company. To protect the interests of the Company, this offer of employment
is contingent upon your signing the Company’s standard Employee Invention Assignment and Confidentiality Agreement in the form attached hereto as Exhibit A. We wish to impress upon you that we do not want you to, and we hereby direct you
not to, bring with you any confidential or proprietary material of any former employer or other entity or to violate any other obligations you may have to any former employer or other entity. You represent that your signing of this offer letter, the
agreement concerning equity awards granted to you, if any, under the Plan (as defined below) and the Company’s Employee Invention Assignment and Confidentiality Agreement, and your commencement of employment with the Company, will not violate
any agreement currently in place between yourself and current or past employers or other entities. 
  

6.    Zynga Stock Units. Subject to approval of the Company’s Board of
Directors or a committee appointed by the Board, you will be eligible to receive an award of Zynga stock units (“ZSUs”) representing the opportunity to acquire 2,000,000 shares of the Company’s common stock subject to
the terms and conditions of the Company’s applicable equity incentive plan in effect at the time of grant (the “Plan”), and a ZSU agreement between you and the Company in the form approved by the Board or a committee
appointed by the Board. The right to settlement of a ZSU award will be subject to your continued service over the vesting period (with 25% of the ZSUs vesting after one year, and the balance vesting in equal quarterly installments over the following
three years), the restrictions set forth in the Plan and the ZSU agreement, and compliance with applicable securities and other laws. Each installment of the ZSUs that vests is a “separate payment” for purposes of Treasury Regulations
Section 1.409A-2(b)(2). Settlement of any vested ZSUs will occur no later than the 15th day of the third calendar month of the year following the year in which the installment of ZSUs is no longer subject to a “substantial risk of forfeiture” (within the meaning of Treasury
Regulations Section 1.409A-1(d)) or, if required for compliance with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), by no later than December 31 of the calendar year in which the
installment of ZSUs are no longer subject to a substantial risk of forfeiture (subject to any delay in payment required by upon a separation from service). 
  

7.    Executive Severance Plan. You will be eligible to participate in the Zynga Inc. Change in Control
Severance Benefit Plan (the “CIC Plan”), subject to the terms and conditions thereof. 
  

8.    Conflict of Interest. Prior to starting employment, you will disclose to the Company in writing
any other gainful employment, business or activity that you are currently associated with or participate in that competes, directly or indirectly, with the Company. During the period that you render services to the Company, you agree to not engage
in any employment, business or activity that is in any way competitive with the business or proposed business of the Company or that is reasonably likely to materially interfere with the performance of your job duties or create a conflict of
interest. You will not assist any other person or organization in competing with the Company or in preparing to engage in competition with the business or proposed business of the Company. We have included with this letter an Outside Activity
Disclosure Form. Please complete the form, and disclose any outside employment, business or activity in which you intend to engage during employment with Zynga. Failure to make disclosures is considered a material representation that you are not
engaged or associated with any such 








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outside activities at the beginning of employment. You will be responsible to comply with Zynga’s Conflict of Interest Policy including updated disclosures of such outside activities, at all
times during employment. 
  

9.    At Will Employment. While we look forward to a long and profitable relationship, should you decide
to accept our offer, you will be an at-will employee of the Company, which means the employment relationship can be terminated by either of us for any reason, at any time, with or without prior notice and with or without cause. In addition, the
Company may change your compensation, benefits, duties, assignments, responsibilities, location of your position, and any other terms and conditions of your employment, at any time to adjust to the changing needs of our dynamic company. Any
statements or representations to the contrary (and any statements contradicting any provision in this letter) are ineffective. Further, your participation in any stock incentive or benefit program is not to be regarded as assuring you of continuing
employment for any particular period of time. Any modification or change in your at will employment status may only occur by way of a written employment agreement signed by you and a duly authorized member of the Board. 

 
 10.    Background Check.
This offer of employment is contingent upon successful completion of a background check. 
  
 11.    Authorization to Work. This offer is also contingent upon proof of identity and work eligibility. Please note that because of employer regulations adopted in the
Immigration Reform and Control Act of 1986, within three (3) business days of starting your new position you will need to present documentation demonstrating that you have authorization to work in the United States. If you have questions about
this requirement, which applies to U.S. citizens and non-U.S. citizens alike, you may contact our personnel office. 
  

12.    Section 409A. Notwithstanding anything to the contrary in this letter, it is intended that
the benefits and payments provided in this letter satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code provided under Treasury Regulations Sections 1.409A-1(b)(4), 1.409A-1(b)(5), and
1.409A-(b)(9) and will be construed to the greatest extent possible as consistent with those provisions. For purposes of Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar effect
(collectively, “Section 409A”), all payments made under this letter will be treated as a right to receive a series of separate payments and, accordingly, each installment payment will at all times be considered a separate and
distinct payment. It is intended that any payments or benefits provided under this letter that are not exempt from application of Section 409A will be interpreted and administered so as to comply with the requirements of Section 409A to
the greatest extent possible, including the requirement that, notwithstanding any provision to the contrary in this letter, if you are deemed by the Company at the time of your separation from service to be a “specified employee” for
purposes of Section 409A(a)(2)(B)(i) of the Code, and to the extent payments due to you upon a separation from service are deemed to be “deferred compensation,” then to the extent delayed commencement of any portion of such payments
(or delayed issuance of any shares subject to equity awards that are not themselves exempt from Section 409A) is required to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code and the related adverse taxation under
Section 409A, such payments will not be provided to you (or such shares issued) prior to the earliest of (a) the expiration of the six month period measured from the date of your separation from service with the Company, (b) the date
of your death or (c) such earlier date as permitted under Section 409A without the imposition of adverse taxation, and on the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all
payments deferred pursuant to this paragraph will be paid in a lump sum to you, and any remaining payments due will be paid as otherwise provided in this letter or in the applicable agreement, without interest. 

 
 13.    Entire Agreement.
This offer letter and the documents referred to herein constitute the entire agreement and understanding of the parties with respect to the subject matter of this offer, and 








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supersede any and all prior understandings and agreements, whether oral or written, between or among the parties hereto with respect to the specific subject matter hereof. If any term herein is
unenforceable in whole or in part, the remainder shall remain enforceable to the extent permitted by law. 
  

14.    Acceptance. This offer will remain open until January 10, 2012. Your anticipated start date
will be February 14, 2012. If you decide to accept our offer, and I hope you will, please sign the enclosed copy of this letter in the space indicated and return it to me. Your signature will acknowledge that you have read and understood and
agreed to the terms and conditions of this offer letter and the attached documents, if any. 
  
 Should you have anything else that you wish to discuss, please do not hesitate to call me. We look forward to the opportunity to welcome you to the Company. 

 

	
	 Very truly yours,

 
 ZYNGA INC.

	
	 /s/ Colleen McCreary

	 Colleen McCreary, Chief People Officer



  
 I have read and understood this offer
letter and hereby acknowledge, accept and agree to the terms as set forth above and further acknowledge that no other commitments were made to me as part of my employment offer except as specifically set forth herein. 

 

									
		 		 	
				
	 /s/ Barry Cottle
	 		 	Date signed: 	 	 Jan 10, 2012

	 Barry Cottle
	 		 		 	

  

Attachments: 
  

Exhibit A        Employee Invention Assignment and Confidentiality Agreement

 Background check notice and consent forms 

Outside activity disclosure form