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EXHIBIT 10.17
Date: February 16, 2001
To: Fred Horn
From: Rick Adam
The following represents the agreement between you and New Era of Networks,
Inc. ("NEON") regarding the Change of Control Severance Agreement between you
and NEON dated 9/25/00 attached hereto (the "COC Agreement"), and any and all
other terms of employment that may exist between you and NEON.
1. If a Change of Control (as defined below) is effected with Sybase, Inc. on
or before June 21,2001, you hereby release NEON (and its successors) from,
and you hereby waive all terms, conditions and aspects of, the COC
Agreement and any and all other employment arrangements that you have with
NEON, "Change of Control" shall mean that Sybase, Inc. acquires a majority
of the total voting power represented by NEON's then outstanding voting
securities (i.e., Sybase, Inc. accepts under its tender offer at least a
majority of the total voting power represented by NEON).
2. In consideration of your waiving the COC Agreement, you will receive a cash
payment of $1,092,000 (the "COC Payment") provided that you are employed by
Sybase, Inc. or one of its subsidiaries at the time of the payment. 5/13 on
the 12th month anniversary, 3/13 on the 18th month anniversary and 5/13 on
the 24th month anniversary of the date that the Change of Control occurs
(the "COC Event"). Notwithstanding the foregoing, if you are terminated
involuntarily by Sybase without Cause (as defined below) prior to the
second year anniversary of the COC Event, then (a) the balance of the COC
Payment which has not been paid will be payable to you at the time of such
termination, and (b) you shall be entitled for a period equal to the
earlier of 24 months from the date of your termination or the date upon
which you and your covered dependents become covered under comparable group
health plans of another employer, to payment of applicable premiums under
COBRA for group health coverage in order to provide you and your covered
dependents equivalent coverage to which they were entitled to while you
were an employee of Sybase, Inc. or any of its subsidiaries (together
"Sybase"). You will also receive a 6-week sabbatical to be taken in June
and completed in July of 2001, thereafter the Sybase vacation policy will
apply. You will not be forced to relocate outside of Denver.
As used herein "Cause" shall mean:
(i) the continuous failure by you to perform the material duties and
responsibilities that are reasonably consistent with your
position which remain uncured for a period of fifteen (15) days
after receipt of notice thereof from Sybase;
(ii) a conviction of, a plea of nolo contendere, a guilty plea or
confession by you to a felony or the committing of an act of
fraud or material dishonesty against, or the embezzlement,
theft or misappropriation of property belonging to, Sybase;
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(iii) you personally engaging in conduct that you reasonably should
know or that you intend to be seriously injurious to the
business of Sybase (it being understood that business decisions
made by you in good faith are not to be considered grounds for
termination for Cause); or
(iv) the material breach by you of this Agreement or the
Nondisclosure and Assignment of Inventions Agreement attached
hereto which is not cured within fifteen (15) days after receipt
of notice thereof from Sybase (except for a breach of the
Nondisclosure and Assignment of Inventions Agreement for which
no cure period is provided).
3. As further consideration for this release and waiver, all stock options
granted to you prior to the date of this Agreement will fully vest upon
the COC Event. All restrictions on restricted stock granted or purchased
prior to the date of this Agreement will lapse upon the COC Event.
4. This Agreement will not be effective unless and until the COC Event occurs.
If the COC Event does not occur prior to June 21, 2001, the COC Agreement
shall remain in full force and effect.
5. You are solely responsible for all taxes in connection with any payments
made to you under this Agreement. Employee place of employment for the term
of this agreement shall be Denver, Colorado.
6. This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supercedes the COC Agreement in
its entirety, that certain memorandum agreement dated 2/12/2001 between
NEON and you, and all other employment arrangements that you have with
NEON.
By accepting this release and waiver to the COC Agreement, you have freely and
voluntarily accepted its terms and conditions and have consulted with or had the
opportunity to consult advisors of your choice.
NEON
Accepted: /s/ FREDERICK T. HORN By: /s/ LEONARD GOLDSTEIN
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Leonard Goldstein
Senior Counsel