EXHIBIT 10.3


 


FORM OF


 


MANAGEMENT CHANGE IN CONTROL AGREEMENT


 


THIS  MANAGEMENT CHANGE IN CONTROL AGREEMENT (the
“Agreement”) is effective as of January 1,
2008, by and between EVOLVING SYSTEMS, INC.,
a Delaware corporation (the “Company”)
and 
                                      (“Executive”).


 


WHEREAS, Executive is an executive officer of the
Company and is performing duties in such capacity as may be appropriately
designated by the Board of Directors from time to time; and


 


WHEREAS, the Board of Directors of
the Company (the “Board”)
recognizes that Executive’s desire to continue to provide such services may be
adversely affected in the event of a Change in Control of the Company, as
defined herein, or the possibility of such event happening, because of the
uncertainties inherent in such a situation; and


 


WHEREAS, the Board believes that it
is in the best interests of the Company and its stockholders to retain the
services of Executive in the event of a threat or occurrence of a Change in
Control and, accordingly, the Board caused the Company to enter into a
Management Change in Control Agreement with Executive (the “Current Agreement”).


 


WHEREAS, the Board desires to amend
and restate the Current Agreement to comply with the requirements of Section 409A
of the Internal Revenue Code of 1986, as amended (the “Code”)  and
the April 10, 2007, final regulations thereunder (collectively “Section 409A”) and to make other
changes set forth below.  This Agreement,
which amends, restates, and supersedes the Current Agreement, is intended to
comply with the requirements of Section 409A.


 


NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL TERMS AND
CONDITIONS DESCRIBED HEREIN, THE PARTIES AGREE AS FOLLOWS:


 


1.                                      CHANGE IN CONTROL.  Subject to the
terms and conditions described in this Agreement, in the event that Executive’s
employment with the Company is terminated, as defined in Section 2 below (a “Qualified Termination”), the Company shall
pay to Executive the compensation described in Section 4  below,
provide the benefits described in Section 5
below and accelerate the vesting of stock options, restricted stock
and other equity awards as described in Section 6
below (collectively referred to as the “Severance Benefits”). 
As used in this Agreement, the term “Change
in Control” means:


 


(a)                                  CHANGE IN OWNERSHIP.  The date any person or group acquires
ownership of stock of the Company that, together with stock held by the person
or group, constitutes more than 50 percent (50%) of the total fair market value
or total voting power of stock of the Company, or any other change in ownership
described in Treas. Reg. Section 1.409A-3(i)(5)(v);


 

















 


(b)                                 CHANGE IN EFFECTIVE
CONTROL.  The date of a change in the
effective control of the Company under either (i) or (ii) below:


 


(i)             the date any person or group
acquires (or has acquired during the 12-month period ending on the date of the
most recent acquisition by the person or group) ownership of stock of the
Company possessing 30 percent (30%) or more of the total voting power of the
stock of the Company; or


 


(ii)          the date a majority of
members of the Board is replaced during any 12-month period by directors whose
appointment or election is not endorsed by a majority of the members of the
Board before the date of the appointment or election;


 


or any other change in effective control described in Treas. Reg. Section 1.409A-3(i)(5)(vi);


 


(c)                                  CHANGE IN OWNERSHIP
OF A SUBSTANTIAL PORTION OF THE COMPANY’S ASSETS.  The date any person or group acquires (or has
acquired during the 12-month period ending on the date of the most recent
acquisition by the person or group) assets from the Company that have a total
gross fair market value equal to or more than 40 percent (40%) of the total
gross fair market value of all assets of the Company immediately prior to the
acquisition.  For this purpose, gross
fair market value means the value of the assets of the Company, or the value of
the assets being disposed of, determined without regard to any liabilities
associated with such assets, or any other change in ownership described in
Treas. Reg. Section 1.409A-3(i)(5)(vii); or


 


(d)                                 OTHER CHANGE
IN CONTROL EVENT.  The date of any
other change in control event described in Treas. Reg. Section 1.409A-3(i)(5) or
other applicable guidance under Section 409A(a)(2)(A)(v) of the Code.


 


The
determination of whether a Change in Control has occurred and the date
consummated shall be made by the Board, in good faith, consistent with the
requirements of Section 409A.


 


2.                                      QUALIFIED TERMINATION.  For purposes of this Agreement, Executive’s
termination of employment with the Company shall be considered a Qualified
Termination if any of the following occurs:


 


(a)                                  Termination of
Executive’s employment by the Company for any reason, other than for Cause or
Disability, as described in Section 3  below, or death (collectively “Cause”), as a result of the influence of a
person or entity seeking to cause a Change in Control.  For purposes of this Agreement, it shall be
presumed, without limitation, that a Qualified Termination occurred as a result
of such influence if any of the following occurs:


 

















 


(i)                         Executive’s
employment is terminated by the Company for any reason, other than for Cause,
within one-hundred eighty (180) days after meetings, conversations or other
discussions by officers or directors of the Company and personnel of another
entity to effect a Change in Control, provided that  (a) the Company and such other entity
have executed a written letter of intent or other memorandum of understanding
(collectively, the “LOI”) as a result
of such meetings, documenting their intent to pursue a Change in Control and
containing, at a minimum, high level terms and conditions for the proposed
Change in Control and (b) the LOI has not expired or been terminated at
the time Executive’s employment is terminated. 
The one hundred eighty (180) day period described above shall be
calculated from the effective date of the LOI; or


 


(ii)                      Executive’s
employment is terminated by the Company for any reason,  other than for Cause, within one hundred eighty
(180) days prior to any actual Change in Control (such time period being
hereinafter referred to as “Anticipation of a
Change in Control”);


 


(b)                                 Termination of
Executive’s employment by the Company for any reason, other than for Cause,
within [eighteen (18) (Moseley and Cochran) / twenty-four (24)] months (Dupper
and Ervine) following a Change in Control;


 


(c)                                  Resignation by
Executive following a change in a material condition of Executive’s employment
within eighteen (18) (Moseley and Cochran) / twenty-four (24) (Dupper and
Ervine)] months following a Change in Control. 
For purposes of this Agreement, Executive’s separation from service must
occur within [eighteen (18) (Moseley and Cochran) / twenty-four (24) (Dupper
and Ervine)] months following the initial existence of one or more of the
following conditions arising without Executive’s consent (“Change in a Material Condition”):


 


(i)                         A material
diminution (5% or more) in Executive’s base salary and annual incentive
compensation target, excluding commission targets.


 


(ii)                      A material
diminution in Executive’s authority, duties, or responsibilities (including
reporting responsibilities) or work conditions which, in Executive’s reasonable
judgment, represents a material adverse change from Executive’s authority,
duties or responsibilities.


 


(iii)                   A material diminution in the
budget over which Executive retains authority.


 


(iv)                  A material change (more than
twenty-five (25) miles) in the geographic location at which Executive must
perform his or her services for the 


 

















 


Company, except for reasonably required travel on Company business that
is not materially greater than such travel requirements prior to the change.


 


(v)                     Any other action or inaction
that constitutes a material breach by the Company or a successor entity of this
Agreement.


 


Each
of the conditions set forth in subparagraphs (i) through (v) hereof,
shall be interpreted consistent with the requirements for an involuntary
separation from service under Treas. Reg. Section 1.409A-1(n) and
other applicable guidance. Executive shall be required to provide notice to the
Company of the existence of the condition described in this Section 2(c) within 90 days of
the initial existence of the condition. 
Upon receipt of such notice, the Company shall have 30 days during which
it may remedy the condition and not be required to pay the Severance Benefits.


 


(d)                                 Resignation by Executive
following a Change in a Material Condition of Executive’s employment within 180
days prior to a Change in Control, in Anticipation of a Change in Control,
consistent with the conditions and requirements set forth in Section 2(c).


 


3.                                      TERMINATION FOR CAUSE, DISABILITY, OR DEATH.  The Company shall not be
required to pay Severance Benefits to Executive in the event Executive’s
employment with the Company is terminated for cause, evidenced by a resolution
adopted in good faith by two-thirds of the Board, Disability or death; provided, however, that if a Qualified Termination occurs,
and Executive subsequently dies or is disabled during the Severance Period,
payments described in this Agreement shall continue to be paid to Executive’s
estate (in the case of death) or to Executive or Executive’s guardian (as
applicable in the case of Disability). 
For purposes of this Agreement, cause shall be limited to mean the
following:


 


(a)                                  Willful
misfeasance or nonfeasance by Executive that materially injures the reputation,
business or business relationships of the Company or any of its officers,
directors or Executives and such action or failure is not remedied or
reasonable steps to effect such remedy are not commenced within thirty (30)
days following receipt of written notice;


 


(b)                                 Any act
involving moral turpitude or a crime other than a vehicle offense (other than
vehicular manslaughter) which could reflect in some material fashion
unfavorably upon the business or business relationships of the Company or any
of its officers, directors or Executives; or


 


(c)                                  Willful or
prolonged absence from work by Executive, other than by reason of Disability.


 


Disability
shall mean a physical or mental infirmity which impairs Executive’s ability to
substantially perform Executive’s duties with the Company for a period of one
hundred 


 

















 


eighty
(180) consecutive days, provided that Executive has not returned to Executive’s
full-time employment prior to the Qualified Termination date.


 


4.                                      COMPENSATION PAYABLE UPON QUALIFIED TERMINATION.


 


(a)                                  SEVERANCE COMPENSATION.
 Upon the occurrence of a
Qualified Termination, the Company shall pay to Executive the following amount
(“Severance Compensation”):


 


(i)                         For a Qualified Termination
determined under Section 2(a)(i), Section 2(b) or
Section 2(c), the Company shall pay to Executive all amounts
earned or accrued through the Qualified Termination date, including, without limitation
(i) base salary, (ii) a prorated portion of any earned incentive
compensation, (iii) compensation for unused paid time off, and (iv) reimbursement
for reasonable and necessary expenses incurred by Executive on behalf of the
Company during the period ending on the Qualified Termination date.  The Company shall also pay to Executive an
amount equal to:  (A) Executive’s
annual base salary, plus (B) [One Hundred Fifty Percent (150%) (Moseley &
Cochran); Two Hundred Percent (200%) (Dupper & Ervine)] of Executive’s
annual incentive compensation target (excluding commission targets) determined
at the time of the Qualified Termination as the greater of:  (X) the target amount for the calendar
year of the Qualified Termination, or (Y) the target amount for the
immediately preceding calendar year prior to the Qualified Termination.


 


(ii)                      For a Qualified Termination
determined under Section 2(a)(ii) or
Section 2(d), the Company shall pay to Executive pursuant to
this Agreement, an amount equal to:  (A) Executive’s
annual base salary (reduced by an amount equal to the number of months of
salary continuation initially payable for severance under Executive’s Annual
Compensation Plan, if any), plus (B) [One Hundred Fifty Percent (150%)
(Moseley & Cochran); Two Hundred Percent (200%) (Dupper &
Ervine)] of Executive’s annual incentive compensation target (excluding
commission targets) determined at the time of the Qualified Termination as the
greater of:  (X) the target amount
for the calendar year of Executive’s actual separation from service with the
Company, or (Y) the target amount for the immediately preceding calendar
year prior to Executive’s separation from service with the Company.


 


(b)                                 TIME AND FORM OF
PAYMENT.  The Severance
Compensation shall be paid in substantially equal pay period installments over
[an eighteen (18) (Moseley & Cochran)] [a twenty-four (24) (Dupper &
Ervine)] month period (the “Severance Period”).  Each Severance Compensation installment
payment shall constitute a separate payment for purposes of Section 409A.  Each Severance Compensation installment
payment shall be paid in accordance with the payroll payment schedule of the
Company in effect on the Qualified Termination date.  Payments 


 

















 


shall
commence on the payroll payment date for the first pay period commencing
immediately following the Qualified Termination date.


 


(c)                                  NO MITIGATION
OR OFFSET.  Executive shall
not be required to mitigate the amount of any payment provided for in this
Agreement by seeking other employment or otherwise, and no such payment shall
be offset or reduced by the amount of any compensation or benefits provided to
Executive in any subsequent employment.


 


(d)                                 DELAY IN PAYMENT.
 Notwithstanding anything
contained in this Agreement to the contrary, if Executive is deemed by the
Company at the time of Executive’s “separation from service” with the Company
to be a “specified employee,” any nonqualified deferred compensation to which
Executive is entitled under the Agreement in connection with such separation
from service shall not be paid or commence payment until the date which is the
first business day following the six (6) month period after Executive’s
separation from service (or if earlier, Executive’s death).  Such delay in payment shall only be effected
with respect to each separate payment to the extent required to avoid adverse
tax treatment to Executive under Section 409A.  Any compensation which would have otherwise
been paid during the delay period in the absence of this Section 4(d) shall be paid to
Executive or his beneficiary in a lump sum payment on the first business day
following the expiration of the delay period.


 


(e)                                  KEY DEFINITIONS.  For purposes of this Agreement, the terms “separation
from service” and “specified employee” shall have the meanings ascribed to such
terms within Section 409A and applicable guidance.


 


5.                                      BENEFITS PAYABLE UPON QUALIFIED TERMINATION.  Upon the occurrence of a Qualified
Termination, the Company shall provide the following benefits to Executive:


 


(a)                                  CONTINUED MEDICAL BENEFITS.  During the
Severance Period, the Company shall provide Executive and his family the same
level of health (i.e., medical,
dental and vision) coverage and benefits as in effect for Executive immediately
prior to the Qualified Termination date until the earliest of (i) [eighteen
(18) (Moseley & Cochran)] [twenty four (24) (Dupper &
Ervine)] months or (ii) the date or dates that Executive’s continued
participation in the Company’s medical plan is not possible under the terms of
the plan (the earliest of (i) and (ii) is referred to herein as the “Benefits Date”).  Executive shall be responsible for
contributing toward the premium the same amount as Executive was contributing
immediately prior to the Qualified Termination (or separation from service, if
applicable).  The Company shall pay the
remaining amount of the premiums during the Severance Period.  If the Company’s medical insurance plan does
not allow Executive’s continued participation in the plan, then the Company
will pay to Executive, in monthly installments, from the date on which
Executive’s participation in the medical insurance is prohibited until the date
that is [eighteen (18) (Moseley & Cochran)] [twenty four (24) (Dupper &
Ervine)] months after 


 

















 


the Qualified Termination date, an amount equal to: the monthly premium
or premiums for COBRA coverage with respect to Executive for the discontinued
medical insurance, less, the monthly premium or premiums Executive was
contributing at the time of the Qualified Termination (or separation from service,
if applicable).  Notwithstanding the
foregoing, the benefits described herein shall be terminated if Executive
subsequently joins or becomes employed by another organization which provides
Executive and his or her family with medical benefits comparable to those
provided by the Company under this paragraph.


 


(b)                                 DISABILITY AND LIFE INSURANCE.  In lieu of
providing continued disability and  life
insurance coverage in the same amount as was being provided to Executive at the
time of the Qualified Termination (or separation from service, if applicable),
the Company shall pay Executive, in monthly installments, commencing on the
calendar month immediately following the Qualified Termination Date until the
date that is [eighteen (18) (Moseley & Cochran)] [twenty four (24)
(Dupper & Ervine)] months after the Qualified Termination, an amount
equal to the monthly premium or premiums for disability and life insurance
coverage of Executive paid by the Company immediately prior to the Qualified
Termination (or separation from service, if applicable).


 


(c)                                  TAX ADVICE.  The Company
shall provide Executive with tax advice services, in an amount not to exceed
$7,500, with a mutually acceptable accounting and/or legal services
organization for the duration of the Severance Period, provided that the tax
services provided hereunder shall not extend beyond the last day of the second
calendar year following the calendar year in which Executive separates from
service with the Company.


 


In accordance with Treas.
Reg. Section 1.409A-3(i)(1)(iv), the right to reimbursement or in-kind
benefits under this Section 5
shall not be subject to liquidation or exchange for another benefit.


 


6.                                      ACCELERATION OF VESTING OF EQUITY AWARDS.  Immediately
upon the occurrence of a Change in Control, fifty percent (50%) of Executive’s
unvested options, stock appreciation rights, shares of restricted stock and any
other unvested equity awards, if any, shall vest.  In the event of a Qualified Termination, all
of Executive’s unvested options, stock appreciation rights, shares of
restricted stock and any other unvested equity awards shall vest.  The remaining provisions of Executive’s
option, stock appreciation rights, restricted stock and other equity awards, as
governed by the applicable stock or equity incentive plan of the Company, shall
continue in full force and effect, provided, however, that vested options and
stock appreciation rights shall lapse if not exercised by midnight on the last
day of the Severance Period, or earlier in accordance with the expiration of
the term of the option or stock appreciation right.  In the event of a Qualified Termination in
Anticipation of a Change in Control, the Company will pay to Executive an
amount equal to the difference between the strike price for Executive’s
unvested options that were forfeited to the Company at the time Executive’s
employment terminated and the price determined for the Company’s stock on the
date of the actual Change in Control.


 

















 


In
the event of a Qualified Termination following a Change in Control where the
Company’s stock is not publicly traded, the Company shall, upon written request
of Executive within three (3) months of the Qualified Termination,
repurchase all of the vested shares then held by Executive at a purchase price
equal to the fair market value of the shares at the time of the repurchase.


 


7.                                      NON-COMPETITION.  Executive
acknowledges that he or she has gained and will gain extensive and valuable
experiences and knowledge in the business conducted by the Company and has had
and will have extensive contacts with customers of the Company.  Accordingly, in exchange for the Severance
Benefits provided under this Agreement, Executive covenants and agrees with the
Company that in the event of a Qualified Termination he or she shall not
compete directly or indirectly with the Company during the Severance Period and
shall not during such period make public statements in derogation of the
Company.


 


Competing directly or indirectly with the Company
shall mean engaging or having a material interest, directly or indirectly, as
owner, Executive, officer, director, partner, venturer, stockholder, capital
investor, consultant, agent, principal, advisor or otherwise, either alone or
in association with others, in the operation of any entity which (a) provides
operational support systems (OSS) software solutions or services; network
management or monitoring; number inventory; service assurance; service quality
management or provisioning for telecommunications carriers similar to those
provided by the Company and/or (b) is engaged in such other businesses as
the Company is actively engaged in at the time of Executive’s termination of
employment.  Competing directly or
indirectly with the Company, as used in this Agreement, shall not include having
an ownership interest as an inactive investor, which for purposes of this
Agreement shall mean the beneficial ownership of less than five percent (5%) of
the outstanding shares of any series or class of securities of any competitor
of the Company, which shares are publicly traded in the securities
markets.  This Section 7 shall no longer apply if the Company has
obligations to provide Severance Benefits and the Company is not paying or
providing such benefits after twenty (20) days notice by Executive to the
Company.  Executive agrees that any
violation of this Section 7
by Executive which is not cured after twenty (20) days notice from the Company
shall result in termination of the Company’s obligations to provide Severance
Benefits hereunder.


 


8.                                      NON-SOLICITATION.  Executive
acknowledges that he or she has had and will have extensive contacts with
employees and customers of the Company. 
Accordingly, in exchange for the Severance Benefits provided for
hereunder, Executive covenants and agrees that in the event of a Qualified
Termination he or she will not, during the Severance Period, (i) solicit,
raid, entice or induce any employee of the Company to leave the employ of
Company; (ii) interfere with the relationship of the Company with any such
employees, including, but not limited to, hiring such employee; or (iii) personally
target or solicit customers of the Company to purchase products or services in
competition with the Company’s products or services or to terminate a
relationship with the Company.  This Section 8 shall no longer apply if the
Company has obligations to 


 

















 


provide Severance Benefits and the Company is not paying or providing
such benefits after twenty (20) days notice by Executive to the Company.  Executive agrees that any violation of this Section 8 by Executive which is not
cured after five (5) days notice from the Company shall result in
termination of the Company’s obligations to provide Severance Benefits
hereunder.


 


9.                                      CONFIDENTIALITY.  Executive
acknowledges that he or she has had and will have access to certain information
related to the business, operations, future plans and customers of the Company,
the disclosure or use of which could cause the Company substantial losses and
damages. Accordingly, Executive acknowledges and affirms the terms and
conditions of the Proprietary Information Agreement signed by Executive, a copy
of which is attached hereto as Exhibit A.


 


10.                               EXECUTION OF RELEASE/COOPERATION/EXECUTIVE AVAILABLE FOR TRANSITION
ASSISTANCE.  Notwithstanding
anything to the contrary contained herein, payment of the amounts specified in
this Agreement is conditional upon Executive (a) executing a release
provided by the Company releasing all claims against the Company arising out of
Executive’s employment or termination of employment; (b) reasonably
cooperating with the Company in connection with any Change in Control or
proposed Change in Control and all matters relating to Executive’s employment
with the Company; and (c) assisting the Company as reasonably requested in
transitioning Executive’s responsibilities to Executive’s replacement as well
as Executive making himself available to answer questions and provide
transition assistance to Company during the Severance Period. Following
Executive’s termination of employment, such assistance shall be provided at
mutually acceptable times, and in reasonable amounts, taking into account other
commitments that Executive may have. 
Executive agrees to use best efforts to minimize any conflicts with
other commitments to facilitate this assistance. Company agrees to reimburse
Executive for reasonable out of pocket, pre-approved expenses incurred in
providing such assistance.


 


11.                               RIGHT TO INJUNCTIVE RELIEF.  Executive
agrees and acknowledges that a violation of the covenants contained in Sections 7, 8 and 9 of this Agreement will
cause irreparable damage to the Company, and that it is and will be impossible
to estimate or determine the damage that will be suffered by the Company in the
event of breach by Executive of any such covenant.  Therefore, Executive further agrees that, in
the event of any violation or threatened violation of such covenants, the
Company shall be entitled as a matter of course to an injunction out of any
court of competent jurisdiction restraining such violation or threatened
violation by Executive, such right to an injunction to be cumulative and in
addition to whatever other remedies the Company may have.


 


12.                               PARTIAL INVALIDITY/SEVERABILITY/NO AMENDMENT OF EXISTING AGREEMENTS. Executive
acknowledges that the periods of time and geographic area of restriction
imposed by Section 7 and Section 8 are fair and reasonable and
are reasonably required for the protection of the Company.  If any part of parts of Section 7 or Section 8 shall be held to be
unenforceable or invalid, the remaining parts thereof shall nevertheless
continue to be valid and enforceable as though the invalid portion or portions
were not a 


 

















 


part hereof.  If any of the
provisions of Section 7 or Section 8 relating to the scope of
restrictions, periods of time or geographic area of restriction shall be deemed
to exceed the scope of restrictions, maximum periods of time or area which a
court of competent jurisdiction would deem enforceable, the scope of
restrictions, time and area shall, for purposes of Section 7 and Section 8,
be deemed to be the maximum scope, time periods and area which a court of
competent jurisdiction would deem valid and enforceable in any state in which
such court of competent jurisdiction shall be convened.  If any other paragraph or subparagraph of
this Agreement shall be unenforceable under any applicable law, the remainder
of this Agreement shall remain in full force and effect. Except as specifically
provided herein, nothing in this Agreement is intended to modify any existing
agreements between the Company and Executive with regard to the matters in Sections 7, 8 or 9.


 


13.                               EMPLOYMENT AT WILL/RELEASES/OTHER BENEFIT POLICIES.  The provisions of this Agreement shall govern
the parties’ relationship only in the event of a Change in Control, or an event
in Anticipation of a Change in Control, as defined herein. Nothing in this
Agreement shall alter Executive’s status as an “at will” employee of the
Company.  The Company may condition the
payment to Executive of the severance amounts described in this Agreement upon
Executive’s delivery of a reasonable form of release in favor of the Company
containing customary terms and conditions for the release of employment related
claims.  The severance pay and benefits
provided for in this Agreement shall be in lieu of any other severance or
termination pay to which Executive may be entitled under any Company severance
or termination plan, program, practice or arrangement.


 


14.                               EXCISE TAX PAYMENTS.


 


(a)                                  In the event
that any payment or benefit (within the meaning of Section 280G(b)(2) of
the Code to Executive or for Executive’s benefit, paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise in connection with, or arising out of, Executive’s employment with
the Company or a Change in Control (a “Payment”
or “Payments”), would be subject to the excise tax imposed by Code Section 4999,
or any interest or penalties are incurred by Executive with respect to such
excise tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the “Excise
Tax”), then Executive will be entitled to receive an additional
payment (a “Gross-Up Payment”) in
an amount such that after payment by Executive of all taxes (including any
interest or penalties (other than interest and penalties imposed by reason of
Executive’s failure to file timely a tax return or pay taxes shown due on
Executive’s return) imposed with respect to such taxes and the Excise Tax),
including any Excise Tax imposed upon the Gross-Up Payment, Executive retains
an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments.


 


(b)                                 An initial
determination as to whether a Gross-Up Payment is required pursuant to this
Agreement and the amount of such Gross-Up Payment shall be made by the
Company.  The Company shall provide its
determination (the “Determination”),



 

















 


together with detailed
supporting calculations and documentation, to Executive within fifteen (15)
days of the Qualified Termination date, if applicable. If requested by
Executive, the Company shall furnish Executive, at the Company’s expense,
calculations or other information reasonably acceptable to Executive from an
independent public accounting firm designated by the Company (or an accounting
firm of equivalent stature reasonably acceptable to Executive) that there is a
reasonable basis for the Determination. Any Gross-Up Payment determined
pursuant to this Section 14(b) shall
be paid by the Company to Executive within five (5) days of receipt of the
Determination.


 


(c)                                  As a result of
the uncertainty in the application of Sections 4999 and 280G of the Code, it is
possible that a Gross-Up Payment (or a portion thereof) will be paid which
should not have been paid (an “Excess Payment”)
or a Gross-Up Payment (or portion thereof) which should have been paid will not
have been paid (an “Underpayment”).


 


(i)                         An Underpayment
shall be deemed to have occurred (1) upon notice (formal or informal) to
Executive from any governmental taxing authority that Executive’s tax liability
(whether in respect of Executive’s current taxable year or in respect of any
prior taxable year) may be increased by reason of the imposition of the Excise
Tax on a Payment or Payments with respect to which the Company has failed to
make a sufficient Gross-Up Payment, (2) upon a determination by a court,
or (3) by reason of determination by the Company (which shall include the
position taken by the Company, on its federal income tax return). If an
Underpayment occurs, Executive shall promptly notify the Company and the
Company shall promptly, but in any event at least five (5) days prior to
the date on which the applicable government taxing authority has requested
payment, pay to Executive an additional Gross-Up Payment equal to the amount of
the Underpayment plus any interest and penalties (other than interest and
penalties imposed by reason of Executive’s failure to file timely a tax return
or pay taxes shown due on Executive’s return) imposed on the Underpayment.


 


(ii)                      An Excess
Payment shall be deemed to have occurred upon a Final Determination (as
hereinafter defined) that the Excise Tax shall not be imposed upon a Payment or
Payments (or portion thereof) with respect to which Executive had previously
received a Gross-Up Payment. A “Final
Determination” shall be deemed to have occurred when Executive has
received from the applicable government taxing authority a refund of taxes or
other reduction in Executive’s tax liability by reason of the Excise Payment
and upon either (1) the date a determination is made by, or an agreement
is entered into with, the applicable governmental taxing authority which
finally and conclusively binds Executive and such taxing authority, or in the
event that a claim is brought before a court of competent jurisdiction, the
date upon which a final determination has been made by such court and either
all appeals have been taken and finally resolved or the time for all 


 

















 


appeals has expired or (2) the
statute of limitations with respect to Executive’s applicable tax return has
expired. If an Excess Payment is determined to have been made, the amount of
the Excess Payment shall be treated as a loan by the Company to Executive,
which loan Executive must repay to the Company together with interest at the
applicable federal rate under Code Section 7872(f)(2); provided, that no
loan shall be deemed to have been made and no amount will be payable by
Executive to the Company unless, and only to the extent that, the deemed loan
and payment would either reduce the amount on which Executive is subject to tax
under Code Section 4999 or generate a refund of tax imposed under Code Section 4999.


 


(d)                                 Notwithstanding
anything contained in this Agreement to the contrary, in the event that,
according to the Determination, an Excise Tax will be imposed on any Payment or
Payments, the Company shall pay to the applicable government taxing
authorities, as Excise Tax withholding, the amount of the Excise Tax that the
Company has actually withheld from the Payment or Payments.


 


15.                               GOVERNING LAW.  This
Agreement shall be governed by the laws of Colorado. Any litigation regarding
this Agreement shall only be brought and heard in the federal or state courts
located in the Denver metropolitan area.


 


16.                               FEES AND EXPENSES.  In
the event a party seeks the assistance of counsel or otherwise pursues legal
action to enforce the provisions of this Agreement, the prevailing party shall
be entitled to reimbursement for reasonable costs of experts, evidence and
counsel.


 


17.                               SURVIVAL.  Terms which by
their terms or sense are to survive termination hereof shall so survive.


 


18.                               SECTION 409A.  The
Company and Executive intend that any amounts payable and benefits provided
under this Agreement and the exercise of authority or discretion hereunder by
the Company or by Executive (i) shall be eligible for certain regulatory
exceptions to the limitations imposed on deferred compensation by Section 409A;
or (ii) shall comply with the provisions of Section 409A, in both
cases so as not to subject Executive to the payment of additional taxes and
interest that may be imposed under Section 409A.  To the extent that any amount payable or
benefit provided under this Agreement would trigger the additional tax or
interest imposed under Section 409A, the Company and Executive agree to
work together to modify the Agreement to the minimum extent necessary to
reasonably comply with the requirements of Section 409A, provided that the
Company shall not be required to assume any increased economic burden.


 


19.                               NOTICE.  Notices
hereunder shall be in writing and sent to the residence address of Executive
last provided to the Company, and to the then current address of the Company.
Notices shall be served by personal service or by mail or via telecopier, with
a confirmation copy sent via overnight mail. All notices or demands by mail
shall be by 


 

















 


certified or registered mail, return receipt requested, or by
nationally recognized private express courier, and shall be deemed completed
upon receipt; notices sent via telecopier shall be deemed completed upon
transmission, provided that confirmation of overnight delivery is received.


 


                IN
WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.


 


	
  EVOLVING SYSTEMS, INC.

  	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BY:

  	
   

  	
   

  	
   

  
	
  TITLE:

  	
   

  	
   

  	
  SIGNATURE

  
	
  DATE:

  	
   

  	
   

  	
  DATE:

  	
   

  
						



 

















 


EXHIBIT A


 


PROPRIETARY
INFORMATION AGREEMENT