CONFIDENTIAL EXECUTIVE RESIGNATION AGREEMENT
AND GENERAL RELEASE OF CLAIMS
1. Xxxxxxxxx X. Xxxxxxxxx ("Executive") was employed by Adobe Systems
Incorporated (the "Company") on or about July 31, 1989. Executive was placed
on a medical leave of absence by the Company on or about July 17, 1998, and
remains on that leave of absence as of the date of this agreement. Executive
and the Company have now agreed to terminate his employment relationship with
the Company. It is the Company's desire to provide Executive with certain
benefits that he would not otherwise be entitled to receive upon his
termination and to resolve any claims that Executive has or may have against
the Company. Accordingly, Executive and the Company agree as set forth below.
This Agreement shall become effective on the eighth day after it is signed
by Executive, but only if Executive has not previously revoked his acceptance
of this Agreement.
2. Executive hereby resigns voluntarily from any positions that he
holds as an officer of the Company and/or any of its subsidiaries (including,
but not limited to, his position as Senior Vice President and General
Manager, Printing and Systems Division, with all such resignations effective
as of Jan. 21, 1999 (the "Resignation Date"). Executive and the Company
agree that his employment with the Company and any of its subsidiaries will
terminate effective as of the earlier of (a) July 16, 1999, or (b) the date
on which Executive's current Medical Leave of Absence ends in accordance with
the terms of the applicable Company policies governing such leave of absence
(the "Termination Date"). During the period between the Resignation Date and
the Termination Date, Executive will be eligible to receive compensation
and/or benefits in accordance with the Company's applicable leave of absence
policies and his Retention Agreement of on or about September 12, 1997
remains in full force and effect.
3. The Company will provide Executive with the following payments and
benefits when this Agreement becomes effective:
(a) The Company will provide Executive with a lump sum severance
payment of $870,000.00, less applicable withholding, to be paid to Executive
in two installments: (i) one-half of the amount will be paid to Executive on
the eighth day following his re-execution of this Agreement as described in
paragraph 4 below, and (ii) one-half of the amount will be paid to Executive
on or about the third business day after January 1, 2000. Executive will be
paid all wages that he earns through the Termination Date, and he will
receive all of his vested benefits under the Company's 401(k) and employee
stock purchase plans in accordance with the terms of those plans. Executive
will be reimbursed by the Company for any reasonable business expenses
incurred by Executive in the course of his employment with the Company,
pursuant to the Company's applicable business expense reimbursement policies.
(b) All stock option awards with the exception of grants 015446
and 015447, granted to Executive under the Adobe 1994 Stock Option Plan and
the Adobe 1984 Stock Option Plan (collectively, the "Option Plans") will vest
and become exercisable as of the Termination Date. All other terms and
conditions of the relevant stock option agreements and Option Plans
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shall continue to apply. Executive's rights with respect to any other equity
awards (such as performance share unit awards and restricted units in Adobe
Incentive Partners, L.P.) or long term incentive awards shall be determined
in accordance with the terms of the applicable equity or long term incentive
award plans and/or agreements, which are not modified in any way by this
Agreement.
(c) Executive and his eligible dependents will receive continued
group health insurance coverage in accordance with federal law (COBRA)
through payment of premiums at the Company's expense for the period starting
on the Termination Date and ending on the second anniversary of the
Termination Date; thereafter, Executive shall be entitled to elect continued
insurance coverage (COBRA), in accordance with federal law for an additional
12 (twelve) months.
(d) Executive understands and acknowledges that he shall not be
entitled to any payments or benefits (except a pro rated executive incentive
plan award for the second half of the Company's 1998 fiscal year) from the
Company other than those expressly set forth in this paragraph 3.
4. Executive and his successors release the Company, its subsidiaries
and their respective shareholders, investors, directors, officers, employees,
agents, attorneys, insurers, legal successors and assigns of and from any and
all claims, actions and causes of action, whether now known or unknown, which
Executive now has, or at any other time had, or shall or may have against the
released parties based upon or arising out of any matter, cause, fact, thing,
act or omission whatsoever occurring or existing at any time up to and
including the Termination Date, including, but not limited to, any claims of
breach of contract, wrongful termination, retaliation, fraud, defamation,
infliction of emotional distress or national origin, race, age, sex, sexual
orientation, disability or other discrimination or harassment under the Civil
Rights Act of 1964, the Age Discrimination In Employment Act of 1967, the
Americans With Disabilities Act, the Fair Employment and Housing Act or any
other applicable law. As additional consideration for the severance payment
described in paragraph 3, Executive agrees that he will reaffirm this release
of claims by re-signing this Agreement in the space provided at the end of
the Agreement on or after the Termination Date. The parties agree that the
releases of claims contained in this Agreement shall not affect Executive's
right to be indemnified by the Company in accordance with the terms of their
Indemnity Agreement of on or about May 30, 1997.
5. Executive acknowledges that he has read section 1542 of the Civil
Code of the State of California, which states in full:
A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at
the time of executing the release, which if known by him
must have materially affected his settlement with the
debtor.
Executive waives any rights that he has or may have under section 1542 to the
full extent that he may lawfully waive such rights pertaining to this general
release of claims, and affirms that he is releasing all known and unknown
claims that he has or may have against the parties listed above.
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6. Executive acknowledges and agrees that he shall continue to be
bound by and comply with the terms of the Employee Inventions and Proprietary
Rights Assignment Agreement that Executive signed in connection with his
employment by the Company.
7. Executive agrees that he shall not:
(a) for a period of six months following the Resignation Date,
directly or indirectly disclose any of the terms of this Agreement to anyone
other than his immediate family, his counsel, his financial advisors, or the
Employment Development Department, except as such disclosure may be required
for accounting or tax reporting purposes or as otherwise may be required by
law; or
(b) make any critical or disparaging statements at any time about
the Company, or any of its products or employees, unless such statements are
made truthfully in response to a subpoena or other legal process.
8. The Company agrees that it will not, through any of its officers or
directors:
(a) for a period of six months following the Resignation Date,
disclose any of the terms of this Agreement to anyone other than the
Company's legal counsel and accountants, except as such disclosure may be
required for tax or securities reporting purposes or by law; or
(b) make any critical or disparaging statements about Executive at
any time, unless such statements are made truthfully in response to a
subpoena or other legal process.
9. Following the Termination Date, Executive agrees to provide
reasonable assistance to the Company in connection with any litigation to
which the Company is or may become a party and with respect to which
Executive possesses any relevant knowledge or expertise. Executive's
assistance will be provided at mutually convenient times, and the Company
will reimburse Executive for any reasonable expenses incurred by him in
providing such assistance.
10. In the event of any legal action relating to or arising out of this
Agreement, the prevailing party shall be entitled to recover from the losing
party its attorneys' fees and costs incurred in that action.
11. This Agreement shall be governed by and construed in accordance
with the laws of the State of California. To the extent that any provision
of this Agreement is held to be invalid or unenforceable for any reason, such
provision shall be deemed stricken from this Agreement, and the remainder of
this Agreement shall continue to be in full force and effect.
12. This Agreement, along with any other agreements referenced herein,
constitute the entire agreement between the parties with respect to the
subject matter hereof and supersede all prior negotiations and agreements
between the parties. This Agreement may not be modified or amended except by
a document signed by an authorized officer of the Company and Executive.
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EXECUTIVE UNDERSTANDS THAT HE SHOULD CONSULT WITH AN ATTORNEY PRIOR TO
SIGNING THIS AGREEMENT AND THAT HE IS GIVING UP ANY LEGAL CLAIMS HE HAS
AGAINST THE PARTIES RELEASED ABOVE BY SIGNING THIS AGREEMENT. EXECUTIVE
FURTHER UNDERSTANDS THAT HE MAY HAVE UP TO 21 DAYS TO CONSIDER THIS
AGREEMENT, THAT HE MAY REVOKE IT AT ANY TIME DURING THE 7 DAYS AFTER HE SIGNS
IT, AND THAT IT SHALL NOT BECOME EFFECTIVE UNTIL THAT 7-DAY PERIOD HAS
PASSED. EXECUTIVE ACKNOWLEDGES THAT HE IS SIGNING THIS AGREEMENT KNOWINGLY,
WILLINGLY AND VOLUNTARILY IN EXCHANGE FOR THE SEVERANCE PAYMENT DESCRIBED IN
PARAGRAPH 3.
Dated: _1/14_, 1999 /s/ Xxxxxxxxx X. Xxxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxxx
Dated: _1/28_, 1999 Adobe Systems Incorporated
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
By re-signing this Agreement on or after the Termination Date, I hereby
reaffirm the release of all known and unknown claims set forth in paragraphs
4 and 5 above. I understand that I may revoke this Agreement at any time
during the 7 days after I re-sign it.
Dated: ________________, 199__ ____________________________________
Xxxxxxxxx X. Xxxxxxxxx
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