Confidential Executive Resignation Agreement and General Release of Claims - Adobe Systems Inc. and P. Jackson Bell
CONFIDENTIAL EXECUTIVE RESIGNATION AGREEMENT
AND GENERAL RELEASE OF CLAIMS
1. P. Jackson Bell ("Executive") was employed by Adobe Systems
Incorporated (the "Company") on or about November 11, 1996. Executive has
now decided to resign from his employment with the Company. It is the
Company's desire to provide Executive with certain benefits that he would not
otherwise be entitled to receive upon his resignation and to resolve any
claims that Executive has or may have against the Company. Accordingly,
Executive and the Company agree as set forth below. This Agreement shall
become effective on the eighth day after it is signed by Executive, but only
if Executive has not previously revoked his acceptance of this Agreement.
2. Executive hereby resigns from (a) his employment with the Company and
any of its subsidiaries, and (b) any positions that he holds as an officer of
the Company and/or any of its subsidiaries (including, but not limited to,
his positions as Executive Vice President, Chief Administrative Officer,
Chief Financial Officer and Assistant Secretary of the Company), with all
such resignations effective as of August 11, 1998 (the "Resignation Date").
3. The Company will provide Executive with the following payments and
benefits when this Agreement becomes effective:
(a) a lump sum severance payment of $750,000.00, less applicable
withholding (provided that if such payment and/or any other benefits that
Executive receives under this Agreement constitute an "excess parachute
payment" within the meaning of Section 280G of the Internal Revenue Code,
then such payment and/or benefits shall be reduced to the amount that has the
maximum value to Executive without causing any such payment to be
nondeductible by the Company under Section 280G); this severance payment will
be made to Executive within five business days following the date on which
this Agreement becomes effective; and
(b) Executive and his eligible dependents will receive continued
group health insurance coverage in accordance with federal law (COBRA) at the
Company's expense for the period starting on the Resignation Date and ending
on the earlier of (i) February 11, 2000, or (ii) the date on which Executive
first becomes eligible to obtain other group health insurance coverage
through another employer.
Executive will be (or has been) paid all wages and accrued, unused vacation
that he earns through the Resignation Date, and he will receive all of his
vested benefits under the Company's 401(k) and employee stock purchase plans
in accordance with the terms of those plans. Executive's rights with respect
to any equity awards (such as stock options, performance share unit awards
and restricted units in Adobe Incentive Partners, L.P.) shall be determined
in accordance with the terms of the applicable equity award plans and/or
agreements, which are not modified in any way by this Agreement. Executive
understands and acknowledges that he shall not be entitled to any payments or
benefits (including, but not limited to, any bonus for the second half of the
Company's 1998 fiscal year) from the Company other than those expressly set
forth in this paragraph 3.
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4. Executive and his successors release the Company, its subsidiaries and
their respective shareholders, investors, directors, officers, employees,
agents, attorneys, insurers, legal successors and assigns of and from any and
all claims, actions and causes of action, whether now known or unknown, which
Executive now has, or at any other time had, or shall or may have against the
released parties based upon or arising out of any matter, cause, fact, thing,
act or omission whatsoever occurring or existing at any time up to and
including the date on which this Agreement becomes effective, including, but
not limited to, any claims of breach of contract, wrongful termination,
retaliation, fraud, defamation, infliction of emotional distress or national
origin, race, age, sex, sexual orientation, disability or other
discrimination or harassment under the Civil Rights Act of 1964, the Age
Discrimination In Employment Act of 1967, the Americans With Disabilities
Act, the Fair Employment and Housing Act or any other applicable law. The
parties agree that this release of claims shall not affect Executive's right
to be indemnified by the Company in accordance with the terms of their
Indemnity Agreement of May 30, 1997.
5. Executive acknowledges that he has read section 1542 of the Civil Code
of the State of California, which states in full:
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.
Executive waives any rights that he has or may have under section 1542 to the
full extent that he may lawfully waive such rights pertaining to this general
release of claims, and affirms that he is releasing all known and unknown
claims that he has or may have against the parties listed above.
6. Executive acknowledges and agrees that he shall continue to be bound by
and comply with the terms of the Employee Inventions and Proprietary Rights
Assignment Agreement that Executive signed in connection with his employment
by the Company.
7. Prior to the Resignation Date, the Company will provide Executive with
a form of press release announcing the termination of their employment
relationship. The Company will consider any reasonable revisions that
Executive may propose to the press release, but the Company will determine,
in its sole discretion, whether any such revisions are made to the press
release. The press release will be issued by the Company no later than
August 11, 1998.
8. Executive agrees that he shall not:
(a) for a period of six months following the Resignation Date,
directly or indirectly disclose any of the terms of this Agreement to anyone
other than his immediate family or counsel, except as such disclosure may be
required for accounting or tax reporting purposes or as otherwise may be
required by law;
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(b) make any critical or disparaging statements at any time about the
Company, or any of its products or employees, unless such statements are made
truthfully in response to a subpoena or other legal process; or
(c) make any comments at any time concerning the termination of
Executive's employment relationship with the Company that are inconsistent
with the press release described in paragraph 7.
9. The Company agrees that it will not, through any of its officers or
directors:
(a) for a period of six months following the Resignation Date,
disclose any of the terms of this Agreement to anyone other than the
Company's legal counsel and accountants, except as such disclosure may be
required for tax or securities reporting purposes or by law;
(b) make any critical or disparaging statements about Executive at
any time, unless such statements are made truthfully in response to a
subpoena or other legal process; or
(c) make any comments at any time concerning the termination of
Executive's employment relationship with the Company that are inconsistent
with the press release described in paragraph 7.
10. Executive agrees that in the event of his breach of any of the
provisions of paragraph 8, it will be impractical and extremely difficult to
determine the actual damages suffered by the Company as a result of that
breach. Accordingly, Executive agrees that if he breaches any provision of
paragraph 8, he shall repay the Company 30% of the net sum (that is, after
deducting all taxes and other withholdings) that he receives pursuant to
paragraph 3(a) as liquidated damages. If the Company breaches any of the
provisions of paragraph 9, then the corresponding provision(s) of paragraph 8
shall be cancelled and of no further force or effect.
11. Following the Resignation Date, Executive agrees to provide
reasonable assistance to the Company in connection with any litigation to
which the Company is or may become a party and with respect to which
Executive possesses any relevant knowledge or expertise. Executive's
assistance will be provided at mutually convenient times, and the Company
will reimburse Executive for any reasonable expenses incurred by him in
providing such assistance.
12. In the event of any legal action relating to or arising out of this
Agreement, the prevailing party shall be entitled to recover from the losing
party its attorneys' fees and costs incurred in that action.
13. This Agreement shall be governed by and construed in accordance with
the laws of the State of California. To the extent that any provision of
this Agreement is held to be invalid or unenforceable for any reason, such
provision shall be deemed stricken from this Agreement, and the remainder of
this Agreement shall continue to be in full force and effect.
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14. This Agreement, along with any other agreements referenced herein,
constitute the entire agreement between the parties with respect to the
subject matter hereof and supersede all prior negotiations and agreements
between the parties (including the parties' Retention Agreement of on or
about September 12, 1997, which is of no further force or effect). This
Agreement may not be modified or amended except by a document signed by an
authorized officer of the Company and Executive.
EXECUTIVE UNDERSTANDS THAT HE SHOULD CONSULT WITH AN ATTORNEY PRIOR TO
SIGNING THIS AGREEMENT AND THAT HE IS GIVING UP ANY LEGAL CLAIMS HE HAS
AGAINST THE PARTIES RELEASED ABOVE BY SIGNING THIS AGREEMENT. EXECUTIVE
FURTHER UNDERSTANDS THAT HE MAY HAVE UP TO 45 DAYS TO CONSIDER THIS
AGREEMENT, THAT HE MAY REVOKE IT AT ANY TIME DURING THE 7 DAYS AFTER HE SIGNS
IT, AND THAT IT SHALL NOT BECOME EFFECTIVE UNTIL THAT 7-DAY PERIOD HAS
PASSED. EXECUTIVE ACKNOWLEDGES THAT HE IS SIGNING THIS AGREEMENT KNOWINGLY,
WILLINGLY AND VOLUNTARILY IN EXCHANGE FOR THE COMPENSATION AND BENEFITS
DESCRIBED IN PARAGRAPH 3.
Dated: August 10, 1998 /s/ P. Jackson Bell
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P. Jackson Bell
Dated: August 20, 1998 Adobe Systems Incorporated
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By: /s/ John Warnock
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