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EXHIBIT 10.33
EMPLOYMENT AND NON-COMPETITION AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made as of the 20
day of February, 2001 by and between SYBASE, INC., a Delaware corporation
("Sybase"), and XXXX XXXX, an individual residing at Denver, Co. (the
"Employee").
BACKGROUND
The Employee is a shareholder of [NEON] and is employed by [NEON].
Sybase and [NEON] have entered into an Agreement And Plan of Reorganization
dated of even date herewith (the "Merger Agreement") which requires, among other
things, that the Employee enter into this Agreement as part of the merger
described in the Merger Agreement (the "Merger"). This Agreement is to be
effective only upon the Effective Date (as defined in the Merger Agreement) at
which time Sybase will assign all of its rights and obligations under this
Agreement to the Surviving Corporation (as defined in the Merger Agreement).
Sybase wishes to secure on behalf of the Surviving Corporation the services of
the Employee upon the terms and conditions hereinafter set forth, and the
Employee wishes to render such services to the Surviving Corporation upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
1) EMPLOYMENT BY THE SURVIVING CORPORATION. Sybase agrees to employ the
Employee as Vice President of the e-business Platform Division and the
Employee accepts such employment and agrees to perform such duties as are
consistent with his title and position. Employee's duties shall be those
customarily performed by a person holding the same title at a company of
similar size and industry as the Surviving Corporation, and he shall
report directly to the Xxx Xxxxxxx of the Surviving Corporation. The
Employee agrees to devote his full business time to the business of the
Surviving Corporation and/or its Affiliates and to faithfully, diligently
and competently perform his duties hereunder.
2) TERM OF EMPLOYMENT. The Term of this Agreement shall commence on the
Effective Date and continue until terminated as set forth herein. The
parties agree that Employee's employment will be "at will" employment and
may be terminated at any time with or without cause or notice. Employee
understands and agrees that neither his job performance nor promotions,
commendations, bonuses or the like give rise to or in any way serve as the
basis for modification, amendment or extension, by implication or
otherwise, of his employment hereunder.
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3) COMPENSATION. As compensation for all services to be rendered by the
Employee to the Surviving Corporation and/or its Affiliates in all
capacities during the Term, the Employee shall receive the following
compensation and benefits:
a) SALARY. An annual base salary of ($300,000) (the "Base Salary"), less
required withholdings, which shall be paid on a regular basis in
accordance with the Surviving Corporation's normal payroll procedures
and policies.
b) BONUS. The Employee shall be eligible to receive bonuses in accordance
with such bonus plans as are applicable to employees of the Surviving
Corporation from time to time. For calendar year 2001, the targeted
bonus is $120,000 less required withholdings (which bonus shall only be
payable to the extent earned under the terms of the applicable bonus
plan).
c) PARTICIPATION IN EMPLOYEE BENEFIT PLANS. The Employee shall be
permitted during the Term, if and to the extent eligible, to
participate in all employee benefit plans, policies and practices now
or hereafter maintained by or on behalf of the Surviving Corporation
for employees having positions with the Surviving Corporation
commensurate with the Employee's position with the Surviving
Corporation. Nothing in this Agreement shall preclude the Surviving
Corporation from terminating or amending any such plans or coverage so
as to eliminate, reduce or otherwise change any benefit payable
thereunder, so long as such change similarly affects all Surviving
Corporation employees having positions with the Surviving Corporation
that are commensurate with the Employee's position with the Surviving
Corporation.
d) EXPENSES. The Surviving Corporation shall pay or reimburse the Employee
for all reasonable expenses actually incurred or paid by the Employee
during the Term in the performance of the Employee's duties under this
Agreement, upon submission and approval of expense statements, vouchers
or other supporting information, in accordance with the then customary
practices of the Surviving Corporation.
e) VACATION. The Employee shall be entitled to vacation in accordance with
Sybase policy.
f) WITHHOLDING OF TAXES. The Surviving Corporation may withhold from any
compensation payable under this Agreement all federal, state, city and
other taxes as shall be required pursuant to any law or governmental
regulation or ruling.
g) STOCK OPTIONS. The Surviving Corporation shall grant to Employee stock
options (the "Employee Option") to acquire up to 125,000 shares of
Sybase, Inc common stock. The stock options granted to Employee shall
vest such that 1/8th of such option shares shall vest six months after
the Effective Date and 1/48th of such option shares shall vest each
month thereafter through the 48th month after the Effective Date.
Otherwise, the stock
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options granted will be upon the same terms and conditions as are
generally provided under the Sybase, Inc. Stock Plans.
4) TERMINATION.
a) TERMINATION UPON DEATH. If the Employee dies during the Term, this
Agreement shall terminate as of the date of his death.
b) TERMINATION UPON DISABILITY. If, during the Term, the Employee
becomes physically or mentally disabled, the Surviving Corporation
may, by written notice to the Employee, terminate this Agreement, in
which event the Term shall terminate 30 days after the date upon
which the Surviving Corporation shall have given notice to the
Employee of its intention to terminate this Agreement because of such
disability. Disability shall be determined in accordance with the
terms of the applicable policies and benefit plans of the Surviving
Corporation.
c) TERMINATION FOR CAUSE. The Surviving Corporation may at any time by
written notice to the Employee terminate this Agreement immediately,
and the Employee shall have no right to receive any compensation or
benefit hereunder on and after the date of such notice, in the event
that an event of "Cause" occurs. For purposes of this Agreement
"Cause" shall mean:
(i) the continuous failure by the Employee to perform the material
duties and responsibilities that are reasonably consistent with
his position which remain uncured for a period of fifteen (15)
days after receipt of notice thereof from the Surviving
Corporation;
(ii) a conviction of, a plea of nolo contendere, a guilty plea or
confession by the Employee to a felony or the committing of an
act of fraud or material dishonesty against, or the or
embezzlement, theft or misappropriation of property belonging
to, the Surviving Corporation or its Affiliates;
(iii) the Employee personally engaging in conduct that he reasonably
should know or that he intends to be seriously injurious to the
business of the Surviving Corporation or its Affiliates (it
being understood that business decisions made by the Employee
in good faith are not to be considered grounds for termination
for Cause); or
(iv) the material breach by the Employee of this Agreement or the
Nondisclosure and Assignment of Inventions Agreement which is
not cured within fifteen (15) days after receipt of notice
thereof from the Surviving Corporation (except for a breach of
Section 7 hereof or a breach of the Nondisclosure and Assignment
of Inventions Agreement for which no cure period is provided).
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d) TERMINATION WITHOUT CAUSE. The Surviving Corporation may terminate
this Agreement at any time, without cause, and the Employee shall
have no right to receive any compensation or benefit hereunder
after such termination except as set forth in Section 5 below.
Employee may terminate this Agreement without cause, and the
Employee shall have no right to receive any compensation or benefit
hereunder after such termination.
e) SURRENDER OF RECORDS AND PROPERTY. Upon termination of his
employment with the Surviving Corporation, Employee shall deliver
promptly to the Surviving Corporation all property and all tangible
forms of Confidential Information in accordance with the terms of
the Nondisclosure and Assignment of Inventions Agreement between
Sybase and the Employee.
5) SEVERANCE PAYMENTS AND OTHER RIGHTS.
a) CERTAIN SEVERANCE PAYMENTS AND OTHER RIGHTS. If, during the Term,
the Surviving Corporation terminates this Agreement pursuant to
Section 4(d), all compensation payable to the Employee under
Section 3 shall cease as of the date of termination specified in
the Surviving Corporation's notice (the "Termination Date"), and
the Surviving Corporation shall pay or provide to the Employee the
following, provided that the Employee first enters into and does
not revoke a binding written agreement releasing all claims, known
or unknown, that the Employee has or might have against the
Surviving Corporation in connection with this Agreement and other
employment arrangements with the Surviving Corporation and its
Affiliates and for wrongful discharge, and provided further that
the Employee has not violated the terms of Section 7 of this
Agreement. (Payment of the severance payments does not constitute
an acknowledgement by the Surviving Corporation of the Employee's
compliance with the terms of Section 7.) All severance payments
shall be subject to applicable tax withholding, and shall be in
lieu of any further payments under this Agreement or under any
other employment arrangements between the Employee and the
Surviving Corporation.
(i) a lump sum amount equal to the XX xxxxxxxxx package then
applicable to employees;
(ii) for a period equal to the earlier of 24 mos or (y) the date
upon which Employee and his covered dependents become covered
under comparable group health, plans of another employer,
payment of applicable premiums under COBRA for group health
coverage in order to provide the Employee and his covered
dependents equivalent coverage to that which they were
entitled to while Employee was an employee of the Surviving
Corporation immediately prior to his termination; and
(iii) all previously accrued vacation pay.
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b) PAYMENTS UPON TERMINATION FOR CAUSE, DEATH OR DISABILITY. If this
Agreement is terminated by the Surviving Corporation pursuant to
Sections 4(a), 4(b) or 4(c), the Employee shall receive only the
amounts owing through the Termination Date.
6) REPRESENTATION AND WARRANTY OF EMPLOYEE. The Employee represents and
warrants that neither the execution nor the delivery of this Agreement, nor
the employment of the Employee by the Surviving Corporation will result in
the breach of any agreement to which the Employee is a party, except where
any such breach would not have a material adverse effect on the business,
financial condition or operations of the Surviving Corporation.
7) COVENANTS. The Employee acknowledges that: (i) he is one of the limited
number of persons who will develop the business of the Surviving
Corporation; (ii) his work for the Surviving Corporation has brought him
and will continue to bring him into close contact with many confidential
affairs not readily available to the public; and (iii) the covenants
contained in this Section 7 will not involve a substantial hardship upon
his future livelihood. In light of such acknowledgement, and in partial
consideration of the several agreements made by Sybase with the Employee in
the Merger Agreement and in order to induce the Surviving Corporation to
enter into this Agreement and the Merger Agreement, the Employee covenants
and agrees that:
a) NON-COMPETE. During the period of his employment by the Surviving
Corporation under this Agreement and for 18 months following the
termination, of the Employee's employment for any reason, provided the
Surviving Corporation is not in breach of its obligations under
Section 5, the Employee shall not, directly or indirectly: (i) in any
manner whatsoever engage in any capacity with any Restricted Business
in a Restricted Territory (as such terms are defined below) for the
Employee's own benefit or for the benefit of any Person other than the
Surviving Corporation; or (ii) have any interest as owner, sole
proprietor, shareholder, partner, lender, director, officer, manager,
employee, consultant, agent or otherwise in any Restricted Business in
a Restricted Territory; provided, however, that the Employee may hold,
directly or indirectly, solely as an investment, not more than two
percent (2%) of the outstanding securities of any person or entity
which are listed on any national securities exchange or regularly
traded in the over-the-counter market notwithstanding the fact that
such person or entity is a Restricted Business in a Restricted
Territory.
"Restricted Business" shall mean (A) a business which is competitive
with the Surviving Corporation's business engaged in by the Surviving
Corporation at the date of his termination of employment (the
"Surviving Corporation's Business") and (B) Oracle Systems
Corporation, Informix Corporation, the database product groups or
organizations of Computer Associates, the database product groups or
organizations of Microsoft Corporation and the database product groups
or organizations of IBM. Notwithstanding the above, the Employee may
become an employee of or consultant to or have an interest as owner,
sole proprietor, shareholder, partner, lender, director, officer,
manager,
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employee, consultant, agent or otherwise in a business unit of a
larger enterprise which enterprise then has another business unit
engaged in a business competitive with the Surviving Corporation's
Business, provided that the business unit of the larger enterprise for
which Employee provides services or in which he has an interest is
neither (1) in a business competitive with the Surviving Corporation's
Business and is located in a geographically separate location from the
competitive business unit and the Employee has no responsibility and
has no role whatsoever in the competing business unit nor (2) a
company or business unit listed in clause B of this paragraph.
"Restricted Territory" shall mean the larger of (i) the counties,
cities and states of the United States of America and each political
subdivision of Canada, Australia, Japan, each member of the European
Economic Community and any other country in which the Surviving
Corporation's products are sold or licensed during the term of the
non-compete obligations or (ii) if (i) is found unenforceable, the
counties, cities, states and political subdivisions of any country in
which the Surviving Corporation's products are sold, distributed or
licensed during the term of the non-compete obligations.
The parties intend that the covenants contained in this Section 7(a)
shall be construed as a series of separate covenants, one for each
county, city, state and other political subdivision of each country in
the Restricted Territory. Except for geographic coverage, each
separate covenant shall be deemed identical in terms to the covenant
contained in the preceding paragraphs. If, in any judicial proceeding,
a court shall refuse to enforce any of the separate covenants (or any
part thereof) deemed included in said paragraphs, then such
unenforceable covenant (or such part) shall be deemed eliminated from
this Agreement for the purpose of those proceedings to the extent
necessary to permit the remaining separate covenants (or portions
thereof) to be enforced by such court. It is the intent of the parties
that the covenants set forth herein be enforced to the maximum degree
permitted by applicable law.
In the event that the provisions of this Section 7(a) should ever be
deemed to exceed the scope, time or geographic limitations of
applicable law regarding covenants not to compete, then such
provisions shall be reformed to the maximum scope, time or geographic
limitations, as the case may be, permitted by applicable laws.
b) NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Concurrently with the
execution of this Agreement, the Employee shall enter into a
Nondisclosure And Assignment of Inventions Agreement in the form
attached hereto.
c) NON-SOLICITATION OF EMPLOYEES OF AND CONSULTANTS TO THE SURVIVING
CORPORATION. During the period of his employment by the Surviving
Corporation under this Agreement and for 18 months following the
termination of the Employee's employment for any reason, the Employee
shall not, directly or indirectly, initiate communications with,
solicit, persuade, entice, induce or encourage any individual who is
then or who has been within
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the preceding 12-month period, an employee of or consultant to the
Surviving Corporation to terminate an employment or consulting relationship
with the Surviving Corporation, as the case may be, or to become employed
by or enter into a contract or other agreement with any other person, and
the Employee shall not approach any such employee or consultant for any
such purpose or authorize or knowingly approve the taking of any such
actions by any other person.
d) NON-SOLICITATION OF CUSTOMERS. During the period of his employment by the
Surviving Corporation under this Agreement and for 18 months following the
termination of the Employee's employment for any reason, the Employee shall
not, directly or indirectly, solicit, persuade, entice, induce, encourage
(or assist in connection with any of the foregoing) any person who is then
or has been within the preceding 24-month period a customer or account of
the Surviving Corporation, or any infomediary, affiliate, service provider
or fulfillment entity that does business with the Surviving Corporation, or
any actual customer leads whose identity the Employee learned during the
course of his employment with the Surviving Corporation, to terminate or to
adversely alter its contractual or other relationship with the Surviving
Corporation.
e) RIGHTS AND REMEDIES UPON BREACH. If the Employee breaches, or threatens to
commit a breach of, any of the provisions of this Section 7 (collectively,
the "Restrictive Covenants"), the Surviving Corporation shall have the
right and remedy to seek from any court of competent jurisdiction specific
performance of the Restrictive Covenants or injunctive relief against any
act which would violate any of the Restrictive Covenants, it being
acknowledged and agreed that any such breach or threatened breach will
cause irreparable injury to the Surviving Corporation and that money
damages will not provide an adequate remedy to the Surviving Corporation.
f) REPRESENTATION OF THE EMPLOYEE. The Employee is (i) familiar with the
covenants in this Section 7, (ii) is fully aware of his obligations
hereunder, (iii) finds the length of time, scope and geographic coverage of
these covenants to be reasonable, and (iv) is receiving specified,
bargained-for consideration for these covenants.
8) MISCELLANEOUS.
a) NOTICES. Any notice or other communication required or which may be
given hereunder shall be in writing and shall be delivered personally,
telecopied, telegraphed or telexed, or sent by certified, registered
or express mail, postage prepaid, to the parties at the following
addresses, or at such other addresses as shall be specified by the
parties by like notice, and shall be deemed given when so delivered
personally, telecopied, telegraphed or telexed, or if mailed, two (2)
days after the date of mailing, as follows:
if to the Surviving Corporation, to the officer of the Surviving Corporation
holding the title of Secretary, to him or her at the Surviving Corporation's
Principal Place of Business
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with copies to:
General Counsel
Sybase, Inc.
0000 Xxxxxxxx Xxx.
Xxxxxxxxx XX 00000
Telecopier: (000) 000-0000
if to the Employee, to him at the address set forth on the first page hereof
with copies to:
Xxxx Xxxx
0000 Xxxxxxxxx Xxxxx Xxxx.
Xxxxxxxxx XX 00000
Telecopier: 000 000 0000
b) ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof and
supersedes all prior contracts and other agreements, written or
oral, with respect thereto.
c) WAIVERS AND AMENDMENTS. This Agreement may be amended, modified,
superseded, cancelled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument
signed by the parties or, in the case of a waiver, by the party
waiving compliance.
d) GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with and subject to, the laws of the State of
California without regard to its conflicts of laws principles.
e) ASSIGNMENT. This Agreement, and the Employee's rights and
obligations hereunder, may not be assigned by the Employee. The
Surviving Corporation may assign this Agreement and its rights,
together with its obligations, hereunder only in connection with
any sale, transfer or other disposition of all or substantially all
of its assets or business, whether by merger, consolidation or
otherwise. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and any successors and permitted
assigns.
f) DEFINITIONS. For purposes of this Agreement:
(i) "Affiliate" shall mean a Person that, directly or indirectly,
controls or is controlled by, or is under common control with
the Surviving Corporation;
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(ii) "control" as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies, whether
through ownership of voting securities, by contract or
otherwise; and
(iii) "Person" means an individual, sole proprietorship, partnership,
corporation, association, joint stock Surviving Corporation,
trust, joint venture, unincorporated organization, institution,
entity or government (whether federal, state, local or otherwise
including without limitation, or any department, agency, or
political subdivision thereof).
g) COUNTERPARTS; FACSIMILE EXECUTION. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original
but all of which together shall constitute one and the same
instrument. Facsimile execution and delivery of this Agreement is
legal, valid and binding execution and delivery for all purposes.
h) HEADINGS. The headings in this Agreement are for reference purposes
only and shall in no way affect the meaning or interpretation of this
Agreement.
i) SURVIVAL. Sections 4(e),5,6,7 and this Section 8 shall survive
termination of this Agreement for any reason.
j) SEVERABILITY. To the extent any provision of this Agreement shall be
invalid or unenforceable, it shall be considered deleted herefrom and
the remainder of such provision and of this Agreement shall be
unaffected and shall continue in full force and effect. In furtherance
and not in limitation of the foregoing, should the duration of
geographical extent of, or business activities covered by any
provision of this Agreement be in excess of that which is valid and
enforceable under applicable law, then such provision shall be
construed to cover only that duration, extent or activities which may
validly and enforceably be covered.
k) ADR. Except as provided herein, no civil action with respect to any
dispute, claim or controversy arising out of or relating to this
agreement may be commenced until the matter has been submitted to
JAMS/ENDISPUTE, or its successor, for mediation. Either party may
commence mediation by providing to JAMS/ENDISPUTE and the other party
a written request for mediation, setting forth the subject of the
dispute and the relief requested. The parties will cooperate with
JAMS/ENDISPUTE and with one another in selecting a mediator from
JAMS/ENDISPUTE's panel of neutrals, and in scheduling the mediation
proceedings. The parties covenant that they shall participate in the
mediation in good faith, and that they shall share equally in its
costs. All offers, promises, conduct and statements, whether oral or
written, made in the course of the mediation by any of the parties,
their agents, employees, experts and attorneys, and by the mediator
and any JAMS/ENDISPUTE employees, are confidential, privileged and
inadmissible for any purpose, including impeachment, in any litigation
or other proceeding involving the
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parties, provided that evidence that is otherwise admissible or
discoverable shall not be rendered inadmissible or non-discoverable as a
result of its use in the mediation. Either party may seek equitable relief
prior to the mediation to preserve the status quo pending the completion of
that process. Except for such an action to obtain equitable relief, neither
party may commence a civil action with respect to the matters submitted to
mediation until after the completion of the initial mediation session, or
45 days after the date of filing the written request for mediation,
whichever occurs first. Mediation may continue after the commencement of a
civil action, if the parties so desire. The provisions of this Clause may
be enforced by any Court of competent jurisdiction, and the party seeking
enforcement shall be entitled to an award of all costs, fees and expenses,
including attorneys fees, to be paid by the party against whom enforcement
is ordered.
l) SUPERCEDES OLD AGREEMENTS. Employee agrees that the terms of this Agreement
supercede the terms of any and all employment arrangements he may have had
with the Surviving Corporation in their entirety (except that that certain
Agreement dated 2/16/01, 2001 shall survive). Employee agrees that
Employee's decision to terminate such employment arrangements and enter
into this Agreement does not constitute constructive termination of any
employment arrangement Employee had with [NEON].
m) COSTS OF ENFORCEMENT OR DEFENSE. In the event of any litigation with
respect to this Agreement, the prevailing party shall be entitled to be
paid by the other party hereto all costs of enforcement or defense, as the
case may be, paid or incurred in connection with the enforcement or
defense, including reasonable attorney fees and legal costs.
n) DELAYS OR OMISSIONS. No delay or omission to exercise any right, power or
remedy accruing to either party upon any breach or default of the other
party hereto shall impair any such right, power or remedy of such
non-defaulting party, nor shall it be construed to be a waiver of any such
breach or default or an acquiescence therein, or of or in any similar
breach or default thereafter occurring; nor shall any waiver of a breach or
default be deemed to be a waiver of any other breach or default.
o) RULES OF CONSTRUCTION. Sybase and the Employee each acknowledge that they
have been represented by competent counsel during the negotiation and
execution of this Agreement and therefore waive the application of any law,
regulation, holding or rule of construction providing that ambiguities in
any agreement will be construed against the party drafting the agreement.
p) CLOSING. This Agreement shall become effective at the time of the Closing
on the Effective Date.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
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SYBASE, INC.
By: /s/ XXXXXX X. XXXX
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President,
General Counsel
and Secretary
EMPLOYEE:
/s/ XXXX X. XXXX
-----------------------------------
Name: Xxxx X. Xxxx
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