EXHIBIT 10.23
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of June 11,
2001 (this "Agreement"), by and between Sybase, Inc., a Delaware corporation
("Company") and Xxxx Xxxx ("Employee").
Recitals
A. Company and Employee entered into an Employment Agreement dated July
11, 1997 (the "Initial Agreement").
B. The Board of Directors believes it is imperative to provide Employee
with employment terms which are competitive in the market place, and accordingly
the parties desire to amend and restate the terms of Employee's employment as
follows.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Duties. Employee shall hold the title of Chairman of the Board, President and
Chief Executive Officer, and shall perform such functions and duties in such
capacity as are designated by the Board of Directors of the Company. During the
term of employment, Employee shall be employed by the Company as a regular
full-time employee, and shall carry out his duties and responsibilities in a
diligent, competent and professional manner.
2. Compensation.
(a) Base Salary. Employee receives an annual base salary which has been
established by the Board of Directors, payable on a semi-monthly basis.
Employee's base salary shall be subject to periodic review and adjustment from
time to time in accordance with the Company's then-current policies. Currently,
such review is made by the Compensation Committee of the Board of Directors on
an annual basis.
(b) Incentive Compensation. Employee is also eligible to participate in
the Company's executive incentive programs with annual target incentive
compensation established by the Board of Directors. Such target compensation is
subject to periodic review and adjustment from time to time in accordance with
the Company's then-current policies. Currently, such review is made by the
Compensation Committee of the Board of Directors on an annual basis. Such annual
incentive bonuses are paid once per year.
(c) Benefit Plans. Employee's prior employer maintained term life
insurance, AD&D insurance and long term disability policies in the name of
Employee for Employee's
-1-
benefit (the "Individual Policies"). Company shall continue to maintain such
Individual Policies during the term of Employee's employment and any
post-termination period specified in 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, paid
sabbatical leave, 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 employees in the United States. The Company may
change, amend, modify or terminate any benefit plan from time to time without
prior notice to Employee.
Sybase currently offers a cafeteria style benefits program and allocates
an amount ("Nautilus Benefit Allowance") to each employee for the employee to
allocate to various benefits that the employee can choose between. The benefit
coverages that Employee received from his prior employer are specified in that
certain "Siemens Pyramid Benefit Coverage for Xxxx Xxxx, Chairman, President and
CEO" previously provided to Xxxxxxxx Xxxxxxxx. The benefit coverages appearing
on such list, excluding the Individual Policies and those under the heading
"other", are referred to as the "Former Minimum Benefits". The Company shall
provide employee with benefits that are at least substantially comparable to the
Former Minimum Benefits (except that (i) the maximum lifetime benefit under the
group medical plan will be $1,000,000 and (ii) to the extent the employer
matching contribution under the 401(k) plan is lower than under the Former
Minimum Benefits, Employee shall be provided a bonus equivalent to such
difference, grossed up to reflect the pretax nature of a 401(k) contribution),
it being understood that the choice of benefit provider is entirely at the
discretion of the Company and, that to the extent the benefits can be covered by
the Nautilus Benefit Allowance, Employee will apply such allowance to them. Any
cost of providing the benefits substantially comparable to the Former Minimum
Benefits in excess of the Nautilus Benefit Allowance shall be the Company's
expense.
In addition, Company shall (i) reimburse employee for medical, legal,
financial planning and tax preparation expenses up to an aggregate maximum of
$10,000 per year (ii) permit Employee to fly first class on business trips
(other aspects of travel to be consistent with Company travel policies); and
(iii) provide a car allowance of $18,000 per year.
(d) Stock Option Grant. Under the Initial Agreement, Employee was
granted stock options to purchase an aggregate of 500,000 shares of the
Company's Common Stock. Subsequent option grants have been made. Future option
grants , if any, shall be entirely at the discretion of the Compensation
Committee. It is acknowledged that the Compensation Committee's current practice
is to make annual stock option grants to executive officers in connection with
its annual review of executive compensation. It is also
-2-
acknowledged that one guideline currently considered within the Compensation
Committee's current option philosophy framework regarding option grants is to
make subsequent annual grants such that the total amount of an officer's
unvested shares is comparable to the options that the Company would have to then
offer in order to recruit a new person into such officer's position. The
foregoing guideline is only one of several factors considered by the
Compensation Committee and that guideline together with any other guidelines and
factors may be changed at any time.
(e) Withholding; Deductions. Unless otherwise specified herein, the
Company shall make such deductions, withholdings and other payments from all
sums payable to Employee which Employee requests, or which are required by law
for taxes and other charges.
3. Nondisclosure Agreement. Concurrently with the execution of the Initial
Agreement, Employee executed an Employee Nondisclosure and Assignment of
Inventions Agreement ("Nondisclosure Agreement").
4. Change of Control. Concurrently with the execution of this Agreement,
Employee and the Company have entered into an Amended and Restated Change of
Control Agreement ("COC Agreement"). In the event of a Change of Control (as
defined in the COC Agreement), Employee shall be entitled to the severance
benefits specified in such COC Agreement and shall not be entitled to severance
in accordance with Section 5 below for any termination of employment occurring
within eighteen months following a Change of Control.
5. Compensation Upon Termination or Resignation.
(a) Voluntary or For Cause. Upon termination for Cause (as defined
below) or upon Employee's death, Disability (as defined below) or voluntary
resignation (except as provided in Section 5(c)), the Company shall pay to
Employee (or to his estate in the event of his death) in a lump sum all accrued
unpaid compensation earned by the Employee prior to the effective date of
termination. Employee's rights under the Company's benefit plans shall be
determined under the provisions of those plans.
(b) Termination by the Company Without Cause. In the event that the
Company terminates Employee without Cause, the Company shall (A) pay to Employee
an amount equal to the sum of (i) one and one-half times the Employee's
then-current annual base salary plus (ii) one and one-half times the Employee's
target annual cash bonus for the Company's fiscal year in effect on the date of
termination, which amount shall be payable in three installments (net of all
applicable taxes and deductions) as follows: 50% of the amount within seven days
of the date of termination, 25% on the date six months following the date of
termination and 25% on the date one year following date of termination; (B)
continue to make available, at the Company's expense, the benefits specified in
Section 2(c) above for a period of 18 months following such date of termination,
and (C) provide that
-3-
stock options held by the Employee under the Company's stock option plans, under
the Company's subsidiaries' stock option plans and under the stock option plans
of corporations that have merged with or into the Company shall automatically
have their vesting accelerated (including, for restricted stock, accelerated
lapse of a right of repurchase by the Company) as to 100% of the unvested
portion of such options, and as to 50% of the unvested portion of such
restricted stock, on the date of termination, in addition to any portion of the
restricted stock vested prior to the date of termination after taking into
account any acceleration of vesting provided in the restricted stock agreement
between the Company and the Employee pertaining to such outstanding restricted
stock. The amount of the severance payment payable pursuant to Clause A and the
continuation of benefits specified in Clause B above shall not be decreased as a
result of compensation and/or benefits received by the Employee from any
subsequent employer.
(c) Definition of Cause. For purposes of this Agreement, "Cause" shall
mean any of the following: (i) any act of personal dishonesty taken by the
Employee in connection with his or her responsibilities as an employee and
intended to result in substantial personal enrichment of the Employee, (ii) the
conviction of a felony, (iii) a willful act by the Employee which constitutes
gross misconduct and which is injurious to the Company, or (iv) continued
violations by the Employee of the Employee's obligations as an employee of the
Company which are demonstrably willful and deliberate on the Employee's part
after there has been delivered to the Employee a written demand for performance
from the Company which describes the basis for the Company's belief that the
Employee has not substantially performed his or her duties.
(d) Disability. "Disability" shall have the meaning ascribed to it in
the COC Agreement.
(e) Involuntary Termination. Employee shall be deemed to have been
terminated by the Company other than for Cause in the event of an Involuntary
Termination. "Involuntary Termination" shall mean (i) without the Employee's
express written consent, the assignment to the Employee of any duties or the
significant reduction of the Employee's duties, either of which is materially
inconsistent with the Employee's position with the Company and responsibilities
in effect immediately prior to such assignment, or the removal of the Employee
from such position and responsibilities, which is not effected for Disability or
for Cause; (ii) a material reduction by the Company in the base salary and/or
target bonus of the Employee as in effect immediately prior to such reduction;
(iii) a material reduction by the Company in the kind or level of employee
benefits to which the Employee is entitled immediately prior to such reduction
with the result that the Employee's overall benefits package is significantly
reduced (other than a nondiscriminatory reduction affecting the Company's
employees generally) ; or (iv) the relocation of the Employee to a facility or a
location more than 75 miles from San Francisco, without the Employee's express
written consent.
-4-
(f) Breach of Nondisclosure Agreement. Notwithstanding any provisions
herein to the contrary, the Company's obligations under this Section 5 to pay
any severance or otherwise extend benefits or stock option/restricted stock
vesting shall terminate immediately upon any intentional breach by Employee of
the Nondisclosure Agreement.
6. No Conflict. Employee represents and warrants that execution of this
Agreement and the Nondisclosure Agreement, and performance of Employee's
obligations hereunder and thereunder, will not conflict with, or result in a
violation or breach of any other agreement to which Employee is a party, or any
judgment, order or decree to which Employee is subject.
7. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of California.
8. Entire Agreement. This Agreement, together with the COC Agreement and
Nondisclosure Agreement, sets forth the entire agreement and understanding of
the parties with respect to the subject matter hereof, and supersedes the July
11, 1997 Employment Agreement and any other written or oral negotiations,
agreements, understandings, representations or practices. Any waiver,
modification or amendment of this Agreement shall be effective only if in
writing and signed by the parties hereto.
9. Arbitration. Any dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by arbitration in the County of
Contra Costa, California, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
EMPLOYEE: SYBASE, INC.
By:
-------------------------------- --------------------------------
Xxxx Xxxx Xxxxxx X. Xxxx
000 Xxxxxxxx Xxx Xxxxx Vice President, General Counsel
Xxxxxxxx, XX 00000 and Secretary
-5-
