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EXHIBIT 10.22
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is dated as of April 1, 1996 by and
between Sybase, Inc., a Delaware corporation ("Sybase" or "the Company") and
XXXXXXX X. XXXXXXX ("Employee").
A. Employee was hired by Sybase as of March 3, 1993 pursuant to the terms of an
Employment Agreement between Sybase and Employee dated January 21, 1994 ("Prior
Employment Agreement").
B. Sybase and Employee now desire to amend and restate the terms of the Prior
Employment Agreement on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, the parties hereby amend and restate in their entirety the terms
and conditions of the Prior Employment Agreement as follows:
1. Terms of Employment.
(a) Term. The term of Employee's employment shall be from April 1, 1996 through
December 31, 1997 ("Term"), unless expressly extended in a written document
signed by both parties, or sooner terminated for Cause as set forth in Section 7
below.
(b) Duties. Employee shall hold the title of Senior Vice President, Worldwide
Field Sales Operations and shall perform such functions and duties in such
capacity as designated by the Company's Executive Vice President Sales and
Marketing or in his absence by the Chief Executive Officer or his designee (the
"Company's Senior Executive Officer"). Employee shall be a regular full-time
employee and shall carry out his duties and responsibilities in a diligent,
competent and professional manner, all in accordance with the terms of this
Agreement.
2. Compensation.
(a) Employee shall be entitled to receive the following compensation:
(i) Base Salary. Employee's annual base salary shall be $370,000
($15,416.67 payable on a semi-monthly basis). Such initial base salary shall be
subject to review and adjustment in accordance with the Company's compensation
policies then in effect. Employee will receive this base salary amount
throughout the Term unless sooner terminated for "Cause" as defined in Section 7
below.
(ii) Incentive Compensation. Employee shall be eligible to receive
$200,000 in annual target incentive compensation based on achievement of
performance objectives to be mutually established by Employee and the Company's
Senior Executive Officer within 60 days of the execution of this Agreement.
(iii) Continued Vesting of Existing Stock Options. During the Term of
this Agreement, all stock options previously granted to Employee shall continue
to vest in accordance with the terms and conditions of the option agreements
under which such options were granted.
(iv) Initial Performance-Based Stock Option Grant. Employee shall be
granted an
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Incentive Stock Option (or Non-Qualified Stock Option, to the extent
required by law) to purchase One Hundred Thousand (100,000) shares of the
Company's Common Stock, pursuant to the Sybase, Inc. 1988 Stock Option Plan, as
amended from time to time. The exercise price shall be the closing price as
quoted on NASDAQ on the date the option is granted. The option described in this
subsection (a)(iv) will vest as set forth below; provided, however, that any
portion of the option which does not vest as scheduled due to the non-occurrence
of the relevant performance objective shall nevertheless vest in full on the
sixth (6th) anniversary of this Agreement, provided Employee is then an employee
in good standing of Sybase or any of its subsidiaries.
(A) The option with respect to Twenty-Five Thousand (25,000)
shares will vest on December 31, 1996 provided Employee is then an
employee in good standing of Sybase or any of its subsidiaries and the
Company has hired a replacement for Employee who is fully qualified to
perform the then-current job duties of the senior executive for ICD and
to achieve other business goals of this executive as specified by the
Company's President Enterprise Business Group.
(B) The option with respect to Twenty-Five Thousand (25,000)
shares will vest on December 31, 1996 provided Employee is then an
employee in good standing of Sybase or any of its subsidiaries and the
Objectives to be mutually determined within 60 days of the execution of
this Agreement by Employee and the Company's Senior Executive Officer
have been met or exceeded.
(C) The option with respect to Twenty-Five Thousand (25,000)
shares will vest on December 31, 1997, provided Employee is then an
employee in good standing of Sybase or any of its subsidiaries and: (i)
the option has vested as provided in subsection (a)(iv)(A); and (ii)
Employee has, on or before that date and in the Senior Executive
Officer's opinion, sufficiently trained and fully integrated Employee's
replacement as the senior executive for ICD into his or her position.
(D) The option with respect to Twenty-Five Thousand (25,000)
shares will vest on December 31, 1997 provided Employee is then an
employee in good standing of Sybase or any of its subsidiaries and the
objectives to be mutually determined within 60 days of the execution of
this Agreement by Employee and the Company's Senior Executive Officer
have been met or exceeded.
(v) Additional Performance-Based Stock Option Grant The Company's Chief
Executive Officer will recommend to the Compensation Committee of the Company's
Board of Directors that on or before [April 30, 1997], Employee be granted an
additional Incentive Stock Option (or Non-Qualified Stock Option, to the extent
required by law) to purchase Forty Thousand (40,000) shares of the Company's
Common Stock. The exercise price will be the closing price as quoted on NASDAQ
on the date the option is granted. The option described in this subsection
(a)(v) will vest as set forth below; provided, however, that any portion of the
option which does not vest as scheduled due to the non-occurrence of the
relevant performance objective shall nevertheless vest in full on the sixth
(6th) anniversary of this Agreement, provided Employee is then an employee in
good standing of Sybase or any of its subsidiaries.
(A) The option with respect to Ten Thousand (10,000) shares
will vest on December 31, 1997 provided Employee is then an employee in
good standing of Sybase or any of its subsidiaries and the Company has
hired a replacement for
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Employee who is fully qualified to perform the then-current job duties
of senior executive for worldwide field sales operations and to achieve
other business goals established for this executive as specified by the
Company's Senior Executive Officer.
(B) The option with respect to Ten Thousand (10,000) shares
will vest on December 31, 1997 provided Employee is then an employee in
good standing of Sybase or any of its subsidiaries and provided the
objectives to be mutually determined within 60 days of the execution of
this Agreement by Employee and the Company's Senior Executive Officer
have been met or exceeded.]
(C) The option with respect to Ten Thousand (10,000) shares
will vest on December 31, 1998, provided Employee is then an employee
in good standing of Sybase or any of its subsidiaries (or an
independent contractor for Sybase or any of its subsidiaries, whose
engagement commenced immediately following his employment with the
Company and in respect of which Sybase elects to expressly agree that
during such engagement vesting of this option, which may as a result of
the change in Employee's status convert to a nonqualified stock option,
would continue) and provided: (i) the option has vested as provided in
subsection (a)(v)(A); and (ii) Employee has, on or before that date and
in the opinion of the Company's Senior Executive Officer, sufficiently
trained and fully integrated Employee's replacement as senior executive
for worldwide field sales operations.
(D) The option with respect to Ten Thousand (10,000) shares
will vest on December 31, 1998 provided Employee is then an employee in
good standing of Sybase or any of its subsidiaries (or an independent
contractor for Sybase or any of its subsidiaries, whose engagement
commenced immediately following his employment with the Company and in
respect of which Sybase elects to expressly agree that during such
engagement vesting of this option, which may as a result of the change
in Employee's status convert to a nonqualified stock option, would
continue) and the objectives to be mutually determined within 60 days
of the execution of this Agreement by Employee and the Company's Senior
Executive Officer have been met or exceeded.
(b) Lump Sum Bonus. Employee will receive a special lump sum incentive bonus in
the amount of $166,657, net of all required tax withholdings, which bonus shall
constitute "Plan Compensation" as defined in the Sybase, Inc. Executive Deferred
Compensation Plan. This payment will be made within 30 days of the execution of
this Agreement.
(c) Withholding Deductions. Unless otherwise specified herein, the Company shall
make such deductions, withholdings and other payments from all sums payable
pursuant to this Agreement which Employee requests, or which are required by law
for taxes and other charges.
(d) Benefit Plans. During the entire Term, and unless otherwise expressly
provided by this Agreement, Employee will be eligible to participate in and
receive benefits under the Company's employee benefit plans and policies in
effect from time to time, subject to the terms, conditions and eligibility
requirements of the particular plans. Such plans may include stock benefit
plans, paid vacation, health care, life insurance, accidental death and
disability, short- and long-term disability, and/or savings plans provided by,
through, or on behalf of the Company to its employees in the United States. The
Company may change, amend, modify
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or terminate any benefit plan from time to time without prior notice to
Employee.
3. Employee will receive the following relocation assistance in accordance where
applicable with the Company's relocation policy:
- payment or reimbursement of all reasonable costs associated with the
sale of Employee's residence in Boulder Colorado.
- payment or reimbursement of all reasonable expenses associated with
moving and temporary storage of Employee's household goods from
Colorado to California or another domestic location designated by
Employee.
- payment or reimbursement of reasonable rental costs associated with
suitable accommodations in the San Francisco Bay Area during the Term
ending December 31, 1997, or ending at the conclusion of any extension
of the Term but no later than December 31, 1998, in the event Sybase
elects to extend the Term and Employee and the Company's Senior
Executive Officer, in his or her discretion, mutually agree to extend
such rental cost benefit through such date.
4. Extension of Time to Repay Outstanding Loans. Employee hereby agrees and
acknowledges that as of the date of this Agreement, he is the obligor on two (2)
outstanding loans payable to Sybase. Such loans are evidenced by secured
promissory notes in the remaining principal amounts of Four Hundred Seventy-Five
Thousand Five Hundred Dollars ($475,500) (the "Stock Purchase Note"), and One
Hundred Fifty-Seven Thousand Dollars ($157,000) (the "Residence Note"),
respectively. Copies of such promissory notes are attached hereto as Exhibits A
and B (the "Notes"). Employee further agrees and acknowledges that all
outstanding principal and accrued interest on the Notes was due and payable in
full as of December 31, 1995. In consideration for the promises set forth in
this Agreement, and subject to the terms of Section 4, Sybase hereby agrees to
modify the Residence Note so as to extend the date on which the entire principal
amount shall be due until July 31, 1996, provided that notwithstanding any other
provision of such Residence Note, Employee will pay Sybase, Inc. interest on the
outstanding principal amount of $157,000 from September 1, 1995, until all
amounts owing under such Note are paid in full, at the rate per annum specified
in Section 3(a) of the Residence Note. Sybase further agrees modify the payment
date provided in Section 1(a) of the Stock Purchase Note, as previously amended,
such that the payment due date shall be December 31, 1997 ("Loan Due Date"),
subject to all remaining provisions of the Stock Purchase Note. Except to the
extent expressly modified by this Agreement, all provisions of the Notes shall
remain in full force and effect. Employee and Sybase agree to execute and
deliver to each other any and all documents which are necessary to reflect the
modifications to the Notes as set forth in this Agreement or necessary with
respect to the perfection of Sybase's security interest in the shares pledged to
secure payment of Employee's obligations under the Stock Purchase Note.
5. Nondisclosure Agreement. Employee agrees and acknowledges that he shall
continue to be bound by the terms and conditions of the Employee Nondisclosure
and Assignment of Inventions Agreement which he executed as a condition of
employment with Sybase ("Nondisclosure Agreement").
6. Covenant Not to Compete. For so long as Employee remains employed by the
Company, Employee shall not, directly or indirectly, either as an officer,
employee, director, proprietor, partner, consultant or otherwise, participate or
engage in any business which is competitive in any manner whatsoever with the
business of the Company or any of its subsidiaries.
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7. Termination. Notwithstanding the provisions of Section 1(a), this Agreement
may be terminated by the Company for Cause at any time prior to expiration of
the Term. "Cause" shall mean any of the following:
(a) Employee dies during the Term;
(b) Employee conducts himself in an unprofessional, unethical, immoral or
fraudulent manner, or Employee's conduct discredits the Company or is
detrimental to the Company's business or reputation;
(c) Employee breaches in any material respect any term of this Agreement or the
Nondisclosure Agreement;
(d) Employee fails or refuses to comply with the reasonable policies, standards
or practices of the Company which may be established from time to time; or
(e) Employee commences employment with another employer while he is an employee
of the Company.
8. Compensation Upon Termination or Resignation.
(a) Upon termination for Cause, as set forth above, or upon Employee's voluntary
resignation prior to expiration of the Term, the Company shall pay to Employee
(or to his estate in the event of death) all compensation earned by the Employee
prior to the effective date of termination but not yet paid to him by the
Company, and Employee shall not be entitled to any further compensation from the
Company. Employee's rights under the Company's benefit plans shall be determined
under the provisions of those plans.
(b) If the Company elects to terminate this Agreement during the Term for any
reason other than Cause, the Company shall pay to Employee the compensation
described in subsection 2 (a)(i) above for the remainder of the Term, or for a
period of 12 months from the date of notice of termination, whichever is longer
and additionally shall give Employee three (3) months' advance notice of such
termination.
(c) If the Company elects at the conclusion of the Term not to extend the Term
beyond December 31, 1997, then provided there has been no earlier termination
for Cause, Employee shall receive severance compensation in the amount of 12
months' base salary at the then current base rate. Such amount will be paid as a
lump sum within 60 days following December 31, 1997.
(d) If the Company or its successor elects to terminate Employee's employment as
senior vice president worldwide field sales operations following an acquisition
or merger of the Company involving a change of control and such termination
occurs on or before December 31, 1996, the option vesting described in Section 2
(a)(iv)(A) and (B) shall be accelerated so as to occur automatically on the date
of such termination, without regard to the satisfaction of the conditions to
vesting that would otherwise apply.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
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10. Binding Upon Successors. This Agreement shall inure to the benefit of
Employee's heirs and Sybase's successors and assigns and be binding upon and
enforceable against any successor to Sybase.
11. Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties with respect to the subject matter hereof, and
supersedes any other written or oral negotiations, agreements (including without
limitation the Prior Employment Agreement), understandings, representations or
practices. Any waiver, modification, extension of the Term or other amendment of
this Agreement shall be effective only if in writing and signed by the parties
hereto. Notwithstanding the foregoing, the Prior Employment Agreement shall
remain in full force and effect with respect to Employee's rights and
obligations prior to April 1, 1996.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
SYBASE, INC. EMPLOYEE:
By: _____________________ __________________________
XXXX X. XXXXXXX XXXXXXX X. XXXXXXX
Chief Executive Officer
