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EXHIBIT 10.21
FORM OF AGREEMENT ENTERED INTO BETWEEN SYBASE AND EACH OF XXXXXXXX XXXXXXXX,
XXXX XXXX, XXXX XXXXXX AND XXXXXXXX XXXXXX
AMENDMENT NO. 1 TO STATEMENT OF EMPLOYMENT TERMS
This Amendment No. 1 ("Amendment") to the Statement of Employment
Terms dated ______________________________ (the "Statement") is effective as of
July 7, 1998 (the "Amendment Date") by and between _________________________
(the "Employee") and Sybase, Inc., a Delaware corporation (the "Company").
R E C I T A L S
A. The Board previously determined that it is in the best interests
of the Company and its stockholders to assure that the Company will have the
continued dedication and objectivity of the Employee, notwithstanding the
possibility, threat or occurrence of a Change of Control (as defined below) of
the Company.
B. In that regard, the Board previously directed the Company to enter
into the Statement with Employee to provide the Employee with certain severance
and other benefits in connection with an "Involuntary Termination" following a
Change of Control which provide the Employee with enhanced financial security
and provide sufficient incentive and encouragement to the Employee to remain
with the Company prior to, during and following a Change of Control.
C. The Statement provided that the significant reduction of the
Employee's duties constituted an Involuntary Termination.
D. The Board believes that any ambiguity over the possible
interpretation of the definition of "Involuntary Termination" or the
determination of the occurrence of a "significant reduction of the Employee's
duties" reduces the effectiveness of the Statement and the achievement of its
objectives.
E. The Board has determined that it is in the best interests of the
Company and its stockholders to amend the Statement to provide for the payment
of benefits upon a Change of Control, regardless of whether there is a
termination of Employee's employment.
In consideration of the mutual covenants herein contained, and in
consideration of the continuing employment of Employee by the Company, the
parties agree as follows:
1.1. Amendment of Section 2. Section 2 of the Statement is amended to
read in its entirety as follows:
"1. Change of Control Benefits.
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(a) Upon the occurrence of a Change of Control, and
regardless of whether Employee has been terminated, the Employee
shall be entitled to receive pay in an amount equal to the sum of (A)
twice the Employee's annual base salary at the time of the Change of
Control, plus (B) one times the average of (x) the annual cash bonus,
if any, received or deferred by the Employee in respect of the most
recently completed fiscal year (or, if such bonus, if any, has been
earned but not yet received or deferred, the annual cash bonus, if
any, to be received or deferred with respect to such fiscal year),
and (y) the annualized annual cash bonus that Employee is then
eligible to receive for the Company's fiscal year in effect on the
date of the Change of Control (which shall be calculated by
annualizing the objective performance milestones based on the
completed fiscal quarters in such fiscal year, and by assuming 100%
"on target" satisfaction of any subjective performance milestones);
provided, however, that if such Change in Control occurs prior to the
completion of the first fiscal quarter, then, subject to the minimum
payment obligation set forth below, Employee shall receive pay in the
amount described in subsection (A) above plus one times the average
of the annual cash bonuses, if any, received or deferred by the
employee in respect of the two most recently completed fiscal years
(or, if such bonus, if any, has been earned but not yet received or
deferred with respect to the most recently completed fiscal year, the
average of the prior fiscal year's annual cash bonus and the annual
cash bonus, if any, to be received or deferred with respect to the
most recently completed fiscal year); provided further, however, that
in any event, the amount relating to the annual cash bonus shall not
be less than 50% of the Employee's target annual incentive
compensation at the time of the Change of Control. If Employee did
not receive an annual cash bonus in respect of any fiscal year or
years required to be averaged for purposes of computing amounts due
pursuant to the preceding sentence by virtue of not being employed
with the Company or by virtue of not yet being eligible to receive an
annual cash bonus due to his or her prior position with the Company,
then Employee's annual cash bonus for such fiscal year or years shall
be deemed to be an amount equal to the annualized annual cash bonus
that Employee is then eligible to receive for the Company's fiscal
year in effect on the date of the Change of Control (which shall be
calculated by annualizing the objective performance milestones based
on any completed fiscal quarters (following Employee's employment
with the Company) in such fiscal year, and by assuming 100% "on
target" satisfaction of any subjective performance milestones or, if
no such fiscal quarters have been completed, then such bonus shall be
equal to Employee's target incentive compensation at the time of the
Change of Control). Any payments to which the Employee is entitled
pursuant to this section shall be paid in a lump sum within thirty
(30) days of the Change of Control unless (A) the preceding sentence
applies to Employee, and (B) the Change of Control is prior to the
completion of the first fiscal quarter, in which event such payment
shall be paid in a lump sum within thirty (30) days of the completion
of such fiscal quarter. In addition, if within the eighteen (18)
month period following any Change of Control the Employee's
employment terminates for any reason other than Cause, the Company
shall be obligated for the twenty -four (24) month period following
the date of termination to continue to make available to the Employee
and to pay for all health, dental, vision, life, dependent life,
long-term disability, accidental death and dismemberment and other
similar insurance plans existing on the date of termination, or to
provide comparable coverage. The
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Company shall "gross-up" Employee for any income required to be
imputed by virtue of providing the benefits set forth in the
preceding sentence, such that the net economic result to the Employee
will be as if such benefits were provided on a tax-free basis. In
addition, subject to Section 8 below, any outstanding stock option or
restricted stock held by the Employee under the Company's stock
option plans and under the stock option plans of corporations that
have merged with or into the Company shall automatically have its
vesting accelerated (including, for restricted stock, accelerated
lapse of a right of repurchase by the Company) as to 50% of the
unvested portion of such option or restricted stock on the date of
the Change of Control, in addition to any portion of the option or
restricted stock vested prior to the date of the Change of Control
after taking into account any acceleration of vesting provided in the
option agreement or restricted stock agreement between the Company
and the Employee pertaining to such outstanding stock option or
restricted stock.
(a) Termination Apart from Change of Control. Aside from
the amounts specified above payable in the event of a Change of
Control, if the Employee's employment is terminated for any reason,
then the Employee shall be entitled to receive severance and any
other benefits only as may then be established under the Company's
existing written severance and benefit plans and written policies and
written agreements at the time of such termination."
1.2 Other Amendments. Sections 3(b) and 7(c) of the Agreement are
hereby deleted and shall be of no further force and effect. In the first
sentence of Section 7(b) of the Agreement the words "within eighteen (18) months
following a Change of Control" are hereby deleted. In Section 8 of the Agreement
the words "Section 2(a)(i)" are hereby amended to read as "Section 2(a)" and the
words "one year of the date of the Agreement" are amended to read as "one year
of the original date of the Agreement".
1.3 Amendment. Except as expressly amended herein, all terms and
conditions of the Statement remain unchanged and in full force and effect.
1.4 Counterparts. This Amendment may be executed in counterparts,
each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Amendment,
in the case of the Company by its duly authorized officer, as of the Amendment
Date.
SYBASE, INC.
____________________ By
(EMPLOYEE NAME) ------------------------------
Xxxxxxxx X. Xxxxxx
Vice President and General Counsel
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