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EXHIBIT (e)(9)
Amended New Era of Networks Change of Control Severance Agreement
The following represents the agreement between undersigned employee and New Era
of Networks, Inc. ("NEON") regarding the Change of Control Severance Agreement
dated 9/25/00 attached hereto (the "COC Agreement"), and any and all other
terms of employment that may exist between you and NEON.
1. If a Change of Control (as defined below) is effected with Sybase, Inc. on
or before June 21, 2001, you hereby release NEON (and its successors)
from, and you hereby waive all terms, conditions and aspects of, the COC
Agreement and any and all other employment arrangements that you have with
NEON. "Change of Control" shall mean that Sybase, Inc. acquires a majority
of the total voting power represented by NEON's then outstanding voting
securities (i.e., Sybase, Inc. accepts under its tender offer at least a
majority of the total voting power represented by NEON).
2. In consideration of your waiving the COC Agreement, you will receive a
cash payment of $390,000 (the "COC Payment") provided that you are
employed by Sybase, Inc. or one of its subsidiaries at the time of the
payment. 5/13 on the 12th month anniversary, 3/13 on the 18th month
anniversary and 5/13 on the 24th month anniversary of the date that the
Change of Control occurs (the "COC Event"). Notwithstanding the foregoing,
if you are terminated by Sybase for any reason except for Cause (as
defined below) prior to the second year anniversary of the COC Event, then
(a) the balance of the COC Payment which has not been paid will be payable
to you at the time of such termination, and (b) you shall be entitled for
a period equal to the earlier of 24 months from the date of your
termination of the date upon which you and your covered dependents become
covered under comparable group health plans of another employer, to
payment of applicable premiums under COBRA for group health coverage in
order to provide you and your covered dependents equivalent coverage to
which they were entitled to while you were an employee of Sybase, Inc. or
any of its subsidiaries (together "Sybase").
As used herein "Cause" shall mean:
(i) the continuous failure by you to perform the material duties
and responsibilities that are reasonably consistent with your
position which remain uncured for a period of fifteen (15) days
after receipt of notice thereof from Sybase;
(ii) a conviction of, a plea of nolo contendere, a guilty plea or
confession by you to a felony or the committing of an act of
fraud or material dishonesty against, or the embezzlement,
theft or misappropriation of property belonging to, Sybase;
(iii) you personally engaging in conduct that you reasonably should
know or that you intend to be seriously injurious to the
business of Sybase (it being understood that business
decisions made by you in good faith are not to be considered
grounds for termination for Cause); or
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(iv) the material breach by you of this Agreement or the Nondisclosure and
Assignment of Inventions Agreement attached hereto which is not cured
within fifteen (15) days after receipt of notice thereof from Sybase
(except for a breach of the Nondisclosure and Assignment of Inventions
Agreement for which no cure period is provided).
3. As further consideration for this release and waiver, all stock options
granted to you prior to the date of this Agreement will fully vest upon the
COC Event. All restrictions on restricted stock granted or purchased prior
to the date of this Agreement will lapse upon the COC Event.
4. This Agreement will not be effective unless and until the COC Event
occurs. If the COC Event does not occur prior to June 21, 2001, the COC
Agreement shall remain in full force and effect.
5. You are solely responsible for all Employee taxes in connection with any
payments made to you under this Agreement. Employee's place of employment
for the term of this agreement shall be Denver, Colorado.
6. This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supercedes the COC Agreement in
its entirety, that certain memorandum agreement dated 2/12/2001 between
NEON and you, and all other employment arrangements that you have with
NEON.
By accepting this release and waiver to the COC Agreement, you have freely
and voluntarily accepted its terms and conditions and have consulted with
or had the opportunity to consult advisors of your choice.
Accepted: /s/ XXXXX X. XXXXXXXXX NEON
February 19, 2001 By: /s/ XXXXXXX X. XXXXXXX
-------------------------------- Xxxxxxx X. Xxxxxxx
President, NEON
