Exhibit 10.48
LETTER OF RELEASE AND XXXXXX
(XXXXXXX XXXXXX)
1. Upon signing this Letter of Release and Waiver (the "Letter"), each of the
parties hereto accepts and acknowledges all the terms and conditions
described herein.
2. Adobe Systems Incorporated, a corporation incorporated under the laws of
the state of DELAWARE with its head office at 000 Xxxx Xxxxxx, Xxx Xxxx,
XX 00000, XXX ("Adobe Inc.") and Adobe Systems Co., Ltd., a wholly-owned
Japanese subsidiary of Adobe Inc., incorporated under the laws of Japan
with its registered office at Xxxxxx Xxxxxx Xxxxx Xxxxx, 0-00-0 Xxxxx,
Xxxxxxx-xx, Xxxxx 000 Xxxxx ("Adobe Japan") (or both Adobe Inc. and Adobe
Japan collectively as the "Company"), and Xx. Xxxxxxx Xxxxxx, a corporate
officer of Adobe Inc. and the president, resident representative director
and director of Adobe Japan (the "Director") hereby acknowledge the
termination of (i) Director's corporate officership with Adobe Inc. as of
October 29, 1998 and (ii) Director's engagement as the
president/representative director/director of Adobe Japan as of December 1,
1998 (the "Effective Date"). The Director further acknowledges that he
voluntarily accepts such termination.
3. During the period from October 29, 1998 to December 1, 1998 ("Transition
Period"), the parties hereto agree that the Director will take a personal
leave of absence with payment of his usual salary in the ordinary course
and thus the parties hereto will not de-register the Director's name as the
president/representative director of Adobe Japan from its commercial
register, and will permit the Director to maintain the status thereof;
provided however, that the Director shall have no authority whatsoever to
represent or bind Adobe Japan but for specific matters which are explicitly
authorized in writing from time to time by an officer of Adobe Inc., and
shall not use the title of "Representative Director", "President",
"Director" or "Officer" of Adobe Japan or Adobe Inc. in such manner as
would lead third parties to believe that the Director has such authority.
4. The Company shall pay the Director, within 30 days of the Effective Date,
an amount of Y104,723,710 subject to his execution of this Letter. This
amount includes compensation for payment of two months base salary after
the Effective Date in lieu of notice as contractually required under the
offer letter between Adobe Inc. and the Director dated November 16, 1993;
payment of base salary through the remaining current term of office of the
Director which is set to expire on January 31, 1999 (approximately 2 months
after the Effective Date; payment of accrued, earned vacation in the
amount of 1.32 months base salary; payment of 20 months base salary for a
retirement allowance (4 months per year x 5 years of service x final
monthly base salary) as contractually required under the offer letter
between Adobe Inc. and the Director dated November 16, 1993 and later
revised by a resolution of the Executive Compensation Committee; and 4
additional months of base salary in consideration for execution of this
agreement. Director's executive bonus for second half fiscal 1998, if any,
will be paid in the ordinary course solely as earned. In order to
determine the length of service for the purpose of calculation of the
retirement allowance provided in this Article, the parties hereto agree
that "a year" means a full year.
5. The Company and the Director acknowledge that the payment set out in
Article 4, and the Director's rights set forth in the Adobe Stock Option
Plan and any agreements issued thereunder to exercise his vested stock
options within 90 days of the Effective Date (the "Stock Option Rights")
are in full and final satisfaction and discharge all of claims and
entitlements which may arise out of his Director's directorship and officer
positions and the termination thereof against the Company (Japanese
subsidiary Adobe Japan and US parent Adobe Inc.) or any affiliated and
related organizations of the Company in Japan, the U.S.A., or anywhere else
in the world with respect to any past, present, or future liabilities and
obligations whether pursuant to the offer letter dated November 16, 1993
between Adobe Inc. and the Director, any other contractual engagement,
directorship or employment agreement between the Company and the Director,
statute, contract, common law or otherwise, including without limitation,
unpaid remuneration, housing allowance, annual leave, pay in lieu of
notice, retirement allowances, incentive or bonus payments, financial
accommodation and any other form of allowances.
6. In consideration of the payment provided hereunder, the Director hereby
waives and forever quits all claims, suits, causes of action, debts,
damages, and expenses which he has or may have had with respect to the
Company (Japanese subsidiary Adobe Japan and US parent Adobe Inc.) arising
out of his directorship and officer position and the termination thereof.
The Director agrees that if he breaches any of his duties set out in this
Letter, Adobe Inc., or Adobe Japan is entitled to claim damages from the
Director suffered due to his breach, and further acknowledges that Adobe
Inc. or Adobe Japan may offset their claims against the payment to be made
to the Director provided in Article 4 if necessary.
7. The Director warrants that he has notified the Company of all charges or
expenses incurred by him in the name of the Company, or on its behalf,
prior to the Effective Date.
8. Each party warrants that it shall not, presently or in the future, assert
any claims or causes of action against, defame, injure or damage the good
name or reputation of, or obstruct or interfere with the business
operations of the other or of any related organizations, their employees,
directors, officers, agents, affiliates and related organizations, in
Japan, the U.S.A., or anywhere in the world, in connection with the
Director's engagement at the Company or the termination thereof.
9. "Confidential Information" means all business, financial, technical and
other information (i) concerning the business (including without
limitation, business plans, research, development, manufacture or sale of
the products) of the Company, which is not generally known and proprietary
to the Company or which is treated by the Company as being confidential in
nature, including without limitation all formulas, processes, customer
lists, computer user identifiers and passwords, and all purchasing,
engineering, accounting, marketing and other information, drawings,
specifications, trade secrets, know-how and other data, or (ii) received by
the Company from third parties under an obligation of secrecy. All
information disclosed to the Director or to which the Director had access
during the period of his engagement, which the Director has reasonable
basis to believe is Confidential Information, or which is treated by the
Company as being Confidential Information, shall be presumed to be
Confidential Information. Confidential Information shall expire one (1)
year from the Effective Date.
10. This imposes no obligation on the Directors with respect to Confidential
Information which (a) was in the possession of, or was known by the
Director without an obligation to maintain its confidentiality prior to its
receipt from the Company, (b) is or becomes generally known to the public
without violation of this agreement, (c), is obtained from a third party,
without an obligation to keep such information confidential, (d) is
independently developed without use of the Confidential Information (e)
the communication was in response to valid order by a court or other
governmental body, was otherwise required by law or was necessary to
establish the rights of the Director.
11. No later than the Effective Date, the Director shall return to the Company
all Confidential Information, including all copies, excerpts, and summaries
of such information in his possession or control, regardless of by whom
such Confidential Information was prepared, as well as the Company's seal,
purchasing forms and records, keys, name cards, bank books, bank signature
cards, customer lists, signature registers and/or other documents that the
Director may have acquired during his tenure with the Company, or that may
indicate that he is a director or agent of the Company or has authority to
represent the Company in any way.
12. The Director agrees that he will not, at any time before or after the
termination of his directorship and officer position, divulge in any way
whatsoever or publish or otherwise reveal or use for his own or any other
person's benefit any Confidential Information, including any intellectual
property/capital which belongs to the Company, that he has acquired or
encountered during his engagement in connection with the Companies,
including but not limited to any information relating to marketing, the
customers of the Company, customer lists, ideas, know-how, etc.
13. This Letter, Directors' Employee Inventions and Proprietary Rights
Assignment Agreement dated November 17, 1994 and Director's Indemnity
Agreement dated May 30, 1997 with Adobe Inc. constitute the entire
agreement and understanding between the Director and the Company such that
no rights or obligations are reserved by either party hereto, except as
specifically set forth herein.
Date: October 29, 1998
Signature: Stamp (XXXXX):
/s/ Xxxxxxx Xxxxxx
---------------------
Xxxxxxx Xxxxxx
The Director
7-12-13 Xxxxxxxxxxx
Xxxxxxx-ku, Kawasaki-shi
213 Japan
Acknowledged and accepted by:
The Company:
Adobe Systems Incorporated
Signature:
/s/ Xxxxxxx Xxxxxxx
-------------------------------
Xxxxxxx Xxxxxxx
President and Chairman, Adobe Systems, Inc.
Adobe Systems Co., Ltd.
Signature:
/s/ Xxxxxxx Xxxxxxx
------------------------------
Xxxxxxx Xxxxxxx
Director, Adobe Systems Co., Ltd.
