form8kempagreement10_1.htm


    

      EXHIBIT
        10.1

      


      


      November
        12, 2007

      


      Kenneth
        D. Denman

      3800
        Bridge Parkway

      Redwood
        Shores, CA 94065

      


      Re:           Amendment
        of Offer Letter Agreement

      


      Dear
        Ken:

      


      As
        we
        have discussed, this letter agreement confirms an amendment (the
“Amendment”) to the terms of your employment offer
        letter agreement with iPass Inc. (the “Company”) dated
        November 13, 2001 (the “Offer Letter”).  The
        Amendment is effective as of the date that you sign and return it (the
“Effective Date”).

      


      Pursuant
        to this Amendment:

      


      (1)           the
        ninth paragraph of the Offer Letter (for purposes of clarity, the paragraph
        beginning with “Your employment
        with the Company is at the will of each party . . ..”) is superseded in
        its entirety and replaced with the following new paragraph:

      


      Your
        employment with the Company is at the will of each party, is not for a specific
        term and can be terminated by you or by the Company at any time, with or
        without
        Cause (as defined in Appendix A), and with or without advance
        notice.  Subject to satisfaction of the conditions set forth in
        Appendix A hereto, you shall be entitled to such severance benefits and change
        in control benefits, as applicable, as are set forth in Appendix A
        hereto.

      


      (2)           There
        is added to the Offer Letter Appendix A hereto.

      


      Except
        as
        modified herein, all other terms of the Offer Letter shall remain in full
        force
        and effect.  This Amendment, together with the Offer Letter and your
        Employee Proprietary Information and Inventions Agreement, constitutes the
        entire agreement between you and the Company regarding the terms of your
        employment.  It supersedes any prior statements, representations or
        promises made to you concerning the subjects contained in this Amendment
        and the
        Offer Letter, and only can be modified in a writing signed by you and a duly
        authorized member of the Company’s Board of Directors.  This Amendment
        will bind the heirs, personal representatives, successors and assigns of
        both
        you and the Company, and inure to the benefit of both you and the Company,
        their
        heirs, successors and assigns.  If any provision of this Amendment is
        determined to be invalid or unenforceable, in whole or in part, this
        determination shall not affect any other provision of this Amendment and
        the
        provision in question shall be modified so as to be rendered enforceable
        in a
        manner consistent with the intent of the parties insofar as possible under
        applicable law.  This Amendment shall be construed and enforced in
        accordance with the laws of the State of California without regard to conflicts
        of law principles.  Any ambiguity in this Amendment shall not be
        construed against either party as the drafter.  Any waiver of a breach
        of this Amendment, or rights hereunder, shall be in writing and shall not
        be
        deemed to be a waiver of any successive breach or rights
        hereunder.  This Amendment may be executed in counterparts which shall
        be deemed to be part of one original, and facsimile signatures shall be
        equivalent to original signatures.

      


      Please
        sign below to indicate your understanding and acceptance of these new
        terms.

       

      Sincerely,

      


      
        	iPass
                Inc.
	 	 
	
                By:
                  

              	/s/ John
                D. Beletic
	 	John
                D. Beletic -
	 	Member
                of the Board of Directors


      

       

       

      Understood
        and Accepted By:

       

      
        	/s/ Kenneth
                D. Denman
	Kenneth
                D. Denman


      

       

      
        
          	 Date:	12/20/07


        

        


         

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      Appendix
        A

      


      I.           Severance
        Benefits.

      


      If
        the
        Company terminates your employment without Cause or if you resign for Good
        Reason (as defined below) (each, a "Covered
        Termination"), and you sign, date, return to the Company and allow
        to become effective a general release of all known and unknown claims in
        the
        form provided to you by the Company (which may, at the Company’s election, be
        contained in a separation agreement) (the “Release”),
        then you will be eligible for the following as your sole severance benefits
        (the
“Severance Benefits”):

      


      (1)           Base
        Salary Severance Payment. You will receive a severance payment equal to
        nine (9) months of your base salary in effect as of the employment termination
        date (the “Termination Date”), subject to required
        payroll deductions and withholdings and paid in a lump sum within ten (10)
        business days after the effective date of the Release.

      


      (2)           Prorated
        Bonus Severance Payment.  You will receive an additional
        severance payment in an amount up to nine-twelfths (9/12) of your annual
        performance bonus target amount in effect as of the Termination Date, with
        the
        specific amount of the additional severance payment to be determined by the
        Compensation Committee of the Board of Directors, in its sole discretion
        (the
“Prorated Bonus Severance Payment”).  The
        Prorated Bonus Severance Payment will be subject to required payroll deductions
        and withholdings and paid in a lump sum within ten (10) business days after
        the
        effective date of the Release.

      


      (3)           Health
        Insurance. If you timely elect continued group health insurance
        coverage pursuant to federal COBRA law or comparable state insurance laws
        (collectively, “COBRA”), the Company will pay your
        COBRA premiums sufficient to continue group health insurance coverage for
        you
        and your covered dependents (if applicable) at the level of coverage in effect
        as of the Termination Date, through the earlier of either (i) eighteen (18)
        months after the Termination Date, or (ii) the date that you become eligible
        for
        group health insurance coverage through another employer.  In the
        event you receive the Severance Benefits, you must promptly notify the Company
        in writing if you become eligible for group health insurance coverage through
        another employer within eighteen (18) months after the Termination
        Date.

      


      (4)           Equity
        Award Acceleration.   You will receive accelerated
        vesting of any equity awards (including but not limited to restricted stock)
        which are not fully vested as of the Termination Date (collectively, the
        “Equity Awards”), as follows:  (i) if the
        Covered Termination does not occur within eighteen (18) months after the
        consummation of a Corporate Transaction (as defined below), the Equity Awards
        shall receive nine (9) months of vesting acceleration, effective as of the
        Termination Date, and (ii) if the Covered Termination occurs within eighteen
        (18) months after the consummation of a Corporate Transaction, the Equity
        Awards
        will receive full vesting acceleration, effective as of the Termination
        Date.

      


      II.           Corporate
        Transaction Benefits.

      


      Immediately
        upon the consummation of a Corporate Transaction, any specified performance
        target or vesting condition determined by reference to performance targets
        or
        operations of the Company or an Affiliate in any restricted stock award issued
        to you pursuant to any equity incentive plan of the Company shall immediately
        be
        deemed satisfied.  Accordingly, such performance targets or conditions
        need not be satisfied following the Corporate Transaction in order for you
        to
        remain eligible to vest in such restricted stock.  However, any
        requirement specified in such restricted stock award that you continue to
        render
        services for the Company or an Affiliate following the Corporate Transaction
        shall remain in effect, and you shall not vest in such restricted stock unless
        and until such post-Corporate Transaction service requirement (if any) has
        been
        satisfied.

      


      III.           Definitions.

      


      For
        purposes of the Amendment, the following definitions will apply:

      


      (1)           Definition
        of Affiliate.  “Affiliate”
means a “parent corporation” of the Company or
        a “subsidiary
        corporation” of the Company (whether now or hereafter existing), as those terms
        are defined in Sections 424(e) and (f), respectively, of the Internal Revenue
        Code of 1986, as amended (the “Code”).

      


      (2)           Definition
        of Cause. “Cause” shall mean the occurrence
        of any of the following (and only the following): (i) your conviction of
        any
        felony involving fraud or act of dishonesty against the Company or its
        Affiliates; (ii) conduct by you which, based upon good faith and reasonable
        factual investigation and determination of the Company’s Board of Directors,
        demonstrates gross unfitness to serve; or (iii) intentional, material violation
        by you of any contractual, statutory, or fiduciary duty owed by you to the
        Company or its Affiliates.

      


      (3)           Definition
        of Good Reason. “Good Reason” shall mean any
        of the following actions or events: (i) the Company requires you to relocate
        to
        a worksite that is more than sixty (60) miles from its principal executive
        office as of the Effective Date; (ii) the Company materially reduces your
        base
        salary below its then-existing gross rate; or (iii) following a Corporate
        Transaction, you are not the Chief Executive Officer of the combined business
        entity (unless you agree in writing not to be the Chief Executive Officer
        of the
        combined business entity).  Notwithstanding the foregoing, in order to
        qualify as “Good Reason,” you must submit to the Company or its successor (as
        applicable) a written notice, within ninety (90) days after the initial
        occurrence of any of the actions or events described in the preceding sentence,
        describing the applicable actions or events, and provide the Company or its
        successor with at least thirty (30) days from its receipt of your written
        notice
        in which to cure such actions or events prior to termination of your employment,
        and provided that, your employment must terminate no later than twelve
        (12) months after the applicable actions or events described in (i), (ii)
        and
        (iii) above.

      


      (4)           Definition
        of Corporate Transaction.  “Corporate
        Transaction” shall mean the occurrence of either of the following
        events: (i) the sale of all or substantially all of the assets of the Company;
        or (ii) a merger of the Company with or into another entity in which the
        stockholders of the Company immediately prior to the closing of the transaction
        own less than a majority of the ownership interest of the Company immediately
        following such closing; provided, however, for purposes of determining
        whether the stockholders of the Company prior to the occurrence of a transaction
        described above own less than fifty percent (50%) of the voting securities
        of
        the relevant entity afterwards, only the lesser of the voting power held
        by a
        person either before or after the transaction shall be counted in determining
        that person’s ownership afterwards.  Once a Corporate Transaction has
        occurred, no future events shall constitute a Corporate Transaction for purposes
        of this Amendment.

      


      IV.           Parachute
        Payments and Deferred Compensation.

      


      (1)           Parachute
        Payments.  If any payment or benefit that you would receive
        in connection with a Corporate Transaction from the Company or otherwise
        (“Corporate Transaction 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 the Company shall
        cause to be determined, before any amounts of the Corporate Transaction Payment
        are paid to you, which of the following two alternatives would maximize your
        after-tax proceeds: (i) payment in full of the entire amount of the Corporate
        Transaction Payment (a “Full Payment”), or (ii)
        payment of only a part of the Corporate Transaction Payment so that you receive
        the largest payment possible without the imposition of the Excise Tax (a
        “Reduced Payment”).  Following such
        determination, whichever amount results in your receipt, on an after-tax
        basis,
        of the greater amount of the Corporate Transaction Payment notwithstanding
        that
        all or some portion of the Corporate Transaction Payment may be subject to
        the
        Excise Tax, shall be the amount paid to you.  For purposes of
        determining whether to make a Full Payment or a Reduced Payment, the Company
        shall cause to be taken into account all applicable federal, state and local
        income and employment taxes and the Excise Tax (all computed at the highest
        applicable marginal rate, net of the maximum reduction in federal income
        taxes
        which could be obtained from a deduction of such state and local taxes).
        If a
        Reduced Payment is made, (i) the Corporate Transaction Payment shall be paid
        only to the extent permitted under the Reduced Payment alternative, and you
        shall have no rights to any additional payments and/or benefits constituting
        the
        Corporate Transaction Payment, and (ii) reduction in payments and/or benefits
        shall occur in the following order unless you elect 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
        Corporate Transaction Payment occurs): (1) reduction of cash payments; (2)
        cancellation of accelerated vesting of equity awards other than stock options;
        (3) cancellation of accelerated vesting of stock options; and (4) reduction
        of
        other benefits paid to you. In the event that acceleration of compensation
        from
        your equity awards is to be reduced, such acceleration of vesting shall be
        cancelled by first cancelling such acceleration for the vesting installment
        that
        will vest last and continuing by cancelling as a priority such acceleration
        for
        vesting installments with the latest vesting, unless you elect in writing
        a
        different order for cancellation prior to the event triggering the Corporate
        Transaction Payment.

      


      (2)           Deferred
        Compensation. Any cash severance payments provided under
        Sections I(1) and I(2) above shall be paid no later than the later of: (i)
        December 31st of the calendar year in which the Covered Termination occurs,
        or
        (ii) the fifteenth (15th) day of the third calendar month following the date
        of
        the Covered Termination.  It is the intention of the preceding
        sentence to apply the “short-term deferral” rule set forth in Treasury
        Regulation Section 1.409A-1(b)(4) to such
        payments.