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Exhibit 10.12
RETIREMENT AGREEMENT AND GENERAL RELEASE
1. This Retirement Agreement and General Release ("Agreement") is entered into
by and between Sybase, Inc., a Delaware corporation with its principal
headquarters in Emeryville, California, on behalf of itself and each of its
subsidiaries ("Sybase" or the "Company"), and Xxxxxxxx Xxxxxxxx ("Employee") for
the purpose of amicably concluding their employment relationship. By entering
into this Agreement neither party admits any deficiency, wrongdoing or
liability, expressly or by implication.
2. Employee and Sybase hereby agree as follows:
(a) Employee's last regular working day at Sybase will be November 13, 1998 (the
"Termination Date"). Employee hereby resigns as Chairman of the Board, Director
and all other offices with Sybase and its subsidiaries as of November 2, 1998.
Through the Termination Date, Employee will continue to be actively employed by
Sybase, and will be expected to be available during normal working hours and as
otherwise reasonably necessary to assist the Company in the transition of his
current work responsibilities to one or more successors. Employee further agrees
that that certain Statement of Employment Terms, as amended, entered into
between Sybase and Employee is hereby terminated. Except as expressly set forth
below, all payments and benefits which Employee is or would be entitled to
receive under this Agreement (other than amounts then accrued and owing) shall
cease as of the Termination Date, subject to COBRA conversion rights.
(b) Employee shall receive on the Termination Date a final paycheck which will
include payment for Employee's current base salary for the period November 1,
1998 through the Termination Date, payment for all of Employee's unused vacation
accrued through the Termination Date, and a refund of any unused Employee Stock
Purchase Plan (ESPP) contributions, if any.
(c) Subject to the terms and conditions contained herein, Employee shall receive
additional payments as follows:
(i) Within seven days of the date of this Agreement, Employee shall be
entitled to receive a lump sum payment equal to $91,666.67.
(ii) On January 2, 1999, Employee shall be entitled to receive a lump sum
payment equal to $183,333.33.
(iii) On December 31, 1999, Employee shall be entitled to receive a lump
sum payment equal to $91,666.67.
(d) Subject to the terms of this Agreement and notwithstanding employee's
termination of employment and the terms of the Employee's currently outstanding
stock options ("Outstanding Options"): (i) vesting of shares under the
Outstanding Options shall be immediately accelerated with respect to that number
of shares that would have vested between the Termination Date and December 31,
1998 had the Employee continued as an employee through December 31, 1998 and
there shall be no vesting after the
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Termination Date (thus, the total number of shares vested on the Termination
Date will be equal to the number of shares that would have vested through
December 31, 1998 if Employee's employment would not have terminated), and (ii)
the Outstanding Options shall remain exercisable (to the extent vested in
accordance with the preceding clause) until December 31, 1999. The exercise
restriction applicable to options repriced pursuant to the June 24, 1998
repricing program shall cease to be applicable on January 1, 1999.
(e) Unless otherwise indicated, all required and authorized payroll deductions
shall be withheld from all amounts to be paid to Employee under this Agreement.
No unearned bonuses or other incentive compensation will be due Employee. All
unreimbursed travel and business expenses to which Employee is entitled to
reimbursement as of the Termination Date will be promptly paid to Employee after
submission of expense reports in accordance with standard Sybase policy.
(f) Sybase hereby transfers to Employee all of its right, title and interest in
and to the three (3) desktop computers and one laptop computers (collectively,
"Computer Equipment"), one (1) palm pilot, and one (1) cellular phone, all of
which were originally issued to Employee for Sybase business use, and which
Employee represents are currently in his possession. Such Computer Equipment is
transferred to Employee "as is, with all faults", and no express or implied
warranties of any kind (including any warranties of merchantability or fitness
for a particular purpose) are made with respect to such Computer Equipment.
Sybase has been providing communication lines to Employee's homes and shall
continue to provide them through December 31, 1998. Except as provided in the
preceding sentence, Employee shall be solely responsible for the repair and
maintenance and all other expenses associated with such items, as well as for
payment of any and all subscription or service charges incurred by Employee in
the use of such items. Sybase shall have the right to download all Company
information stored on the Computer Equipment. Employee hereby agrees to make the
Computer Equipment available to Sybase's Corporate Information Systems
department for such purpose upon request, and agrees not to delete or copy any
such information from the Computer Equipment prior to that time. Employee agrees
and acknowledges that all such Company information stored on the Computer
Equipment is Confidential Information subject to the Employee Nondisclosure and
Assignment of Inventions Agreement previously executed by Employee, a copy of
which is attached hereto as Exhibit A ("Nondisclosure Agreement").
(g) Through December 31, 1998, Sybase shall maintain for Employee's use
employee's email account and voice mailbox. Employee shall direct all Sybase
business matters received in his email and voicemail to appropriate Sybase
employees. Employee agrees that use of such voicemail and email (as well as any
other Sybase computer systems) is subject to the Nondisclosure Agreement. If
requested, Employee agrees to create a voicemail greeting acceptable to Sybase
regarding business matters.
3. Except as may be expressly provided in Section 2 above, Employee will be
entitled to participate through the Termination Date in all employee benefit
programs and policies generally available to Sybase employees and in which
Employee is eligible to
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participate, including stock option vesting, health insurance, and participation
in the Employee Stock Purchase Plan and Sybase's 401(k) plan (if applicable),
subject to Employee's continued regular designated payroll deductions for such
items. Employee may elect optional health insurance continuation under COBRA
following the Termination Date, as well as optional continuation of certain
other insurance benefits, all at Employee's expense. Procedures for electing to
continue such benefits will be provided to Employee under separate cover by the
Human Resources Department.
4. Employee acknowledges that such payments and benefits exceed any amount to
which Employee would be entitled under Sybase's other policies, procedures and
benefit programs. In consideration for entering into this Agreement and for the
payments described herein, Employee personally and for Employee's heirs, legal
representatives, estates and successors in interest hereby releases and forever
discharges Sybase and its officers, directors, employees, affiliates, successors
and assigns (collectively, "Released Parties") from any and all claims, demands,
obligations and causes of action of any and every kind, known or unknown, which
Employee may have as of the date and time of signing this Agreement, which arise
out of Employee's employment by Sybase or the termination of that employment,
including without limitation all wrongful discharge actions; all actions arising
under the Americans with Disabilities Act, Age Discrimination in Employment Act
(if applicable), Title VII of the Civil Rights Act of 1991, California Fair
Employment and Housing Act, or any other federal or state statute which may be
held applicable; all actions for breach of contract or the covenant of good
faith and fair dealing; all tort claims; and any and all claims for
compensation, wages, bonuses, severance pay, commissions, vacation pay, or
reimbursement for expenses, attorneys' fees and costs, except for claims for
workers' compensation insurance benefits. Notwithstanding the foregoing, nothing
in this Agreement shall be construed as a waiver or release by Employee of his
right to enforce the provisions of this Agreement.
THIS MEANS THAT BY SIGNING THIS AGREEMENT, EMPLOYEE WILL HAVE WAIVED ANY RIGHT
TO BRING A LAWSUIT AGAINST ANY OF THE RELEASED PARTIES BASED ON ANY ACTIONS
TAKEN BY ANY OF THEM UP TO THE DATE AND TIME OF SIGNING THIS AGREEMENT AND THAT
EMPLOYEE WILL HAVE RELEASED EACH OF THE RELEASED PARTIES FROM ANY AND ALL CLAIMS
OF ANY NATURE RELATING TO EMPLOYEE'S EMPLOYMENT, ARISING UP TO THE DATE AND TIME
OF SIGNING THIS AGREEMENT.
5. Section 1542 of the California Civil Code may apply to this Agreement.
Section 1542 provides as follows: 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. Having been apprised of Section 1542, Employee
voluntarily elects to waive the rights described therein, and elects to assume
all risks for claims that now exist in Employee's favor, known or unknown,
arising from the subject matter of this Agreement up to the date and time of
signing of this Agreement.
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6. At no time after the execution of this Agreement will Employee file or
maintain, or cause or knowingly permit the filing or maintenance in any state or
federal court, or before any local, state or federal administrative agency, or
any tribunal, any charge, claim or action of any kind, nature or character
arising out of the matters released in Section 4 above, except for an action to
enforce the provisions of this Agreement. Employee also agrees not to initiate,
assist, support, join, participate in, encourage, or actively cooperate in the
pursuit of any employment-related legal claims against Sybase or its employees
or agents, whether the claims are brought on Employee's own behalf or on behalf
of any other person or entity. Nothing in this Section 6 will preclude Employee
from testifying truthfully in any legal proceeding pursuant to subpoena or other
legal process.
7. Employee understands and acknowledges Employee's continuing obligations
toward Sybase under the Employee Nondisclosure and Assignment of Inventions
Agreement (or any similar predecessor agreement) previously executed by
Employee, a copy of which is attached hereto as Exhibit A ("Nondisclosure
Agreement"). Employee further agrees that any and all information obtained by or
disclosed to Employee at any time during Employee's employment with Sybase which
is not generally known outside of Sybase on an unrestricted basis, including but
not limited to information concerning Sybase's customers, prospects, discounts,
unreleased products, methods of operation, processes, practices, programs and
procedures, are confidential and proprietary to Sybase and subject to protection
under the Nondisclosure Agreement and under applicable law. Further, Employee
agrees, to the extent Employee has not already so agreed in the Nondisclosure
Agreement, that for the period through December 31, 1999, Employee will not
directly or indirectly, either for Employee or for any other person or business
entity: (a) solicit or encourage any employee of the Company (whether through
recruiting, interviewing or any other means) to either: (i) terminate his
employment with the Company, or (ii) accept employment with any subsequent
employer with whom Employee is affiliated or associated in any way; (b) divert
or take away (or attempt to divert or take away) any of the Company's customers
or clients to Oracle Corporation or any other third party, except that this
provision shall not prohibit Employee from attempting to sell or license Network
Computer, Inc. ("NCI") products or services (but excluding any Oracle products);
(c) become an officer or director of Oracle Corporation or Informix Corporation
(nothing in the foregoing shall preclude Employee from becoming an officer and
director of NCI); and (d) disparage the Company, its products or its employees.
During the period through December 31, 1999, Employee also agrees to reasonably
cooperate with and assist Sybase in matters relating to, or arising in
connection with, (i) any pending or threatened litigation involving Sybase,
including securities litigation and (ii) upon the reasonable requests of Sybase,
discussions and telephonic calls with customers, analysts and press regarding
his transition from Sybase. EMPLOYEE EXPRESSLY ACKNOWLEDGES THAT THE COMPANY IS
PREPARED TO VIGOROUSLY ENFORCE THESE PROMISES, AND THAT VIOLATION OF THIS
PROVISION COULD RESULT IN THE ASSESSMENT OF DAMAGES AND OTHER LEGAL REMEDIES
AGAINST EMPLOYEE AND ANY OF EMPLOYEE'S SUBSEQUENT EMPLOYERS. ANY MATERIAL BREACH
BY EMPLOYEE OF THIS AGREEMENT SHALL RESULT IN THE IMMEDIATE RELEASE OF THE
COMPANY FROM ANY OBLIGATIONS IT MAY HAVE TO PROVIDE PAYMENTS OR BENEFITS UNDER
THIS AGREEMENT (EXCEPT AS MAY BE REQUIRED BY APPLICABLE LAW), INCLUDING BUT NOT
LIMITED TO, THE
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CONTINUATION OF OPTION VESTING AND EXERCISABILITY BEYOND THE PERIODS ORIGINALLY
SPECIFIED IN THE OPTIONS.
8. In the event Employee fails to return Company property in accordance with the
terms of the Nondisclosure Agreement, the Company shall have the right to offset
against payments or benefits owing to Employee hereunder the replacement value
of any and all such unreturned property.
9. As further mutual consideration for this Agreement, the parties agree that
each party shall bear the cost of, and shall be responsible for, its own
attorneys' and accountants' fees and costs, if any, in connection with the
negotiation and execution of this Agreement.
10. Employee further agrees that the terms and conditions of this Agreement are
strictly confidential and shall not be disclosed, discussed with or revealed to
any other persons, whether within or outside Sybase, except professional
advisors with whom Employee may consult regarding this Agreement and the
Employee's spouse, if any, unless disclosure is compelled by subpoena or other
legal process. ANY BREACH BY EMPLOYEE OF THIS PROVISION SHALL IMMEDIATELY
RELEASE THE COMPANY FROM ANY OBLIGATIONS IT MAY HAVE TO PROVIDE FURTHER PAYMENTS
OR BENEFITS UNDER THIS AGREEMENT, EXCEPT AS MAY BE REQUIRED BY APPLICABLE LAW.
11. If any prospective employer of Employee makes a request to Sybase for a
reference concerning Employee, Sybase will respond to the request by providing
only the dates of Employee's employment and the position(s) held.
12. This Agreement shall be governed by and construed in accordance with
California law.
13. The parties agree that any dispute of any kind whatsoever arising from the
subject matter of this Agreement, including claims regarding this Agreement
(other than claims for workers' compensation benefits and claims relating to
matters otherwise covered by the Severance Pay Plan), shall be resolved under
the following procedures:
A. The party claiming to be aggrieved shall furnish to the other party, within
fifteen (15) days of the disputed action, a written statement of the grievance
identifying any witnesses or documents that support the grievance and the relief
requested or proposed. Employee is required to furnish the written statement of
grievance to Sybase's Vice President and General Counsel, 0000 Xxxxxxxx Xxx.,
Xxxxxxxxxx, Xxxxxxxxxx 00000.
B. If the grievance is denied, the parties agree that the dispute shall be
resolved by final and binding arbitration. A single arbitrator shall be mutually
selected by the parties. If no agreement on the selection is reached within
fifteen (15) days, then a neutral arbitrator shall be selected under the
Expedited Labor Arbitration Rules of the American Arbitration Association,
except that the arbitrator shall be selected by alternately striking names from
the panel of five (5) neutral labor or employment arbitrators designated by the
American Arbitration Association. The arbitrator shall have the authority to
grant the requested relief if authorized by law; provided, however,
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that nothing herein shall limit the right of Sybase to obtain injunctive relief
to prevent a violation of the Nondisclosure Agreement.
C. Arbitration shall be the exclusive and final remedy for any dispute between
the parties, and the parties agree that no dispute shall be submitted to
arbitration where the party claiming to be aggrieved has not complied with the
preliminary steps provided for above.
14. This Agreement constitutes the entire understanding of the parties and
cancels and supersedes any prior or contemporaneous written or oral agreements
or understandings between them with respect to the subject matter hereof.
Employee warrants that he: (a) has read and fully understands this Agreement;
(b) has had the opportunity to consult with legal counsel of his own choosing
and have the terms of this Agreement fully explained; (iii) is not executing
this Agreement in reliance on any promises, representations or inducements other
than those contained herein; and (iv) is executing this Agreement voluntarily,
free of any duress or coercion.
15. "Employee hereby acknowledges that the terms and conditions contained in
this Agreement were offered as of November 2, 1998, and that Employee has up to
twenty-one (21) days from that date (i.e., through November 23, 1998) in which
to accept such terms and conditions in writing. If Employee does not accept such
terms and conditions by such date, then this offer shall expire at that time.
Employee is advised to consult an attorney about this Agreement. To effectively
accept this Agreement, Employee must date, sign and return two originals of this
Agreement to Sybase's Vice President and General Counsel ("General Counsel"),
0000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000. Following the date of such
acceptance, Employee shall have seven (7) days in which to revoke such
acceptance. To revoke, Employee must send to the General Counsel a written
statement of revocation. If Employee does not revoke, the eighth (8th) day after
Employee's acceptance shall be the "effective date" of this Agreement. EMPLOYEE
SHALL NOT BE ENTITLED TO ANY BENEFITS UNDER THIS AGREEMENT UNLESS AND UNTIL THE
AGREEMENT REVOCATION PERIOD HAS EXPIRED."
Dated: November 5, 1998 SYBASE, INC.
By /s/ XXXXXXXX X. XXXXXX
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Its Vice President and General Counsel
I understand that this document is of serious legal consequence and that I
should consult with someone whose opinion I trust before signing it. By my
signature, I agree to the terms set forth above.
Dated: November 17, 1998 /s/ XXXXXXXX X. XXXXXXXX
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Xxxxxxxx X. Xxxxxxxx
Exhibit A - Nondisclosure Agreement
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