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EXHIBIT 10.05
FIRST AMENDMENT TO THE
COMSHARE, INCORPORATED
CHANGE IN CONTROL SEVERANCE AGREEMENT
WITH STANLEY R. STARKEY
WHEREAS, Comshare, Incorporated (the "Company") entered into a Change
in Control Agreement with Stanley R. Starkey (the "Executive"), dated as of June
1, 1998 (the "Agreement"); and
WHEREAS, the Company and the Executive have agreed to amend the
Agreement;
NOW, THEREFORE, effective November 30, 1999, the Agreement is amended
by the deletion of paragraphs 5(a)(ii)(B), 6(a), 6(b), 9 and 13(b), and the
addition of new paragraphs 5(a)(ii)(B), 6(a), 6(b), 6(c), 9 and 13(b) as set
forth below:
5. TERMINATION OF EMPLOYMENT FOLLOWING A CHANGE IN CONTROL.
5(a)(ii)(B) Any reduction in the Executive's base salary or targeted
incentive bonus in effect immediately prior to the Change in Control, or failure
by the Company to continue any bonus, stock or other incentive plans in effect
immediately prior to the Change in Control (without the implementation of
comparable successor plans that provide the same benefits), or any removal of
the Executive from participation in such aforementioned plans;
6. SEVERANCE PAYMENT.
(a) Upon satisfaction of the requirements set forth in Section 5
or 10(a) hereof and with respect to any one or more Changes in Control that may
occur during the term of this Agreement, the Executive shall be entitled to a
cash severance benefit equal to two times the Executive's annual base salary, as
in effect at the time of the Change in Control, plus an amount equal to two
times the average of the Executive's annual incentive bonus (excluding any
special bonus payments) paid for the three fiscal years immediately preceding
the fiscal year of the Change in Control. For purposes of computing the
aforementioned average incentive bonus, bonuses paid for a period of time during
which the Executive was not a senior executive reporting to the President of the
Company shall be excluded, and bonuses paid for a partial fiscal year of service
as a senior executive reporting to the President shall be included as
proportionately increased so as to give the bonuses the effect of an amount for
a full fiscal year (e.g., a bonus paid for six months of service shall be
doubled). The severance benefit provided under this Section 6 is in lieu of cash
severance payments offered under the Company's documented severance policy.
(b) Payments under this Agreement, when aggregated with any other
"golden parachute" amounts (defined under Section 280G of the Internal Revenue
Code of 1986, as amended [the "Code"] as compensation that becomes payable or
accelerated due to a Change in Control) payable under this Agreement or any
other plans, agreements or policies of the Company, shall not be subject to the
golden parachute cap under Sections 280G and 4999 of the Code.
(c) To the extent that the Executive's aggregate parachute
payments equal or exceed the golden parachute cap set forth in Code Sections
280G and 4999, the Company shall pay the Executive an amount equal to the
federal excise tax owed by the Executive on behalf of payments under this
Agreement or other "golden parachute" amounts described under Section 6(b)
above, times 2.9. The Company shall pay such additional compensation to the
Executive at the time when the Company withholds such excise tax from any
payments to the Executive.
9. TAX WITHHOLDING. The Company may withhold from any cash
amounts payable to the Executive under this Agreement to satisfy all applicable
Federal, State, local, or other income (including excise) and employment
withholding taxes. In the event the Company fails to withhold such sums for any
reason, or withholding is required for any non-cash payments provided in
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connection with the Executive's Termination of Employment, the Company may
require the Executive to promptly remit to the Company sufficient cash to
satisfy all applicable income and employment withholding taxes.
13. LIMITATION ON RIGHTS.
(b) Subject to the exception for cash severance payments under the
Company's documented severance policy referenced in Section 6(a) above, this
Agreement shall not be construed to exclude the Executive from participation in
any other compensation or benefit programs in which the Executive is
specifically eligible to participate either prior to or following the execution
of this Agreement, or any such programs that generally are available to other
executive personnel of the Company, nor shall it affect the kind and amount of
other compensation to which the Executive is entitled.
The Parties hereto have executed this First Amendment to the Agreement
as of November 30, 1999.
COMSHARE, INCORPORATED
By /s/ Daniel T. Carroll
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Daniel T. Carroll
Chairman of the Board
/s/ Stanley R. Starkey
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STANLEY R. STARKEY, EXECUTIVE