<PAGE>
EXHIBIT 10.12
SYBASE, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
Amended and Restated Effective as of December 5, 2003
<PAGE>
EXHIBIT 10.12
SYBASE, INC. EXECUTIVE DEFERRED COMPENSATION PLAN
(AS ADOPTED BY
THE BOARD OF DIRECTORS ON 2/4/03)
ARTICLE 1
INTRODUCTION
1.1
ESTABLISHMENT OF PLAN. Sybase, Inc. established the Sybase,
Inc. Executive Deferred Compensation Plan
("Plan") effective as of January 1,
1994. Sybase amended and restated the Plan
effective as of January 1, 1995,
January 1, 1997, May 1, 1998, January 1,
2002, and January 1, 2003. Sybase
hereby again amends and restates this Plan
effective as of December 5, 2003.
1.2 PURPOSE OF
PLAN. Sybase has established this Plan to provide
select executives and non-employee members
of its Board of Directors with the
opportunity to defer the receipt of
compensation. Sybase intends to maintain the
Plan primarily for the purpose of providing
deferred compensation for a select
group of management or highly compensated
employees, within the meaning of ERISA
Sections 201(2), 301(a)(3), and 401(a)(1).
The Plan shall be interpreted in a
manner that comports with these
intentions.
ARTICLE 2
DEFINITIONS
2.1
DEFINITIONS are contained in this article and throughout other
sections of the Plan. The location of a
definition is for convenience only and
should not be given any significance. A
word or term defined in this article (or
in any other article) will have the same
meaning throughout the Plan unless the
context clearly requires a different
meaning.
2.2
BENEFICIARY means the individual(s) or entity designated by a
Participant to receive any benefit payable
upon the death of a Participant.
A Beneficiary designation must be signed by the Participant
and delivered to the Committee on such form
as specified by the Committee. In
the absence of a valid or effective
Beneficiary designation, the Beneficiary
shall be the Participant's surviving
spouse, or if there is no surviving spouse,
the Participant's estate.
2.3 BOARD
means the Board of Directors of Sybase, Inc.
2.4 CHANGE OF
CONTROL means the occurrence of any of the following
events:
(a) Any
"person" (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of
1934, as amended (the "Act") is or
becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Act),
directly or indirectly, of
Amended EDCP
Page 1
<PAGE>
securities of Sybase representing fifty
percent (50%) or more of the total
voting power represented by Sybase's then
outstanding voting securities whether
by tender offer, or otherwise; or
(b) A change
in the composition of the Board, as a result
of which less than a majority of the Board
are Incumbent Board Members.
"Incumbent Board Members " shall mean
members of the Board who either (i) are
members of the Board as of the date
immediately preceding the date of change, or
(ii) are elected, or nominated for
election, to the Board with the affirmative
votes of at least a majority of the
Incumbent Board Members at the time of such
election or nomination (but shall not
include an individual whose election or
nomination is in connection with an actual
or threatened proxy contest relating
to the election of Sybase Board members );
or
(c) The
consummation of (i) a merger or consolidation of
Sybase with any other corporation, other
than a merger or consolidation which
would result in the voting securities of
Sybase outstanding immediately prior
thereto continuing to represent (either by
remaining outstanding or by being
converted into voting securities of the
surviving entity) at least fifty percent
(50%) of the total voting power represented
by the voting securities of Sybase
or such surviving entity outstanding
immediately after such merger or
consolidation, (ii) the liquidation of
Sybase, or (iii) the sale or disposition
by Sybase of all or substantially all of
Sybase's assets.
2.5 CODE means
the Internal Revenue Code of 1986, as amended from
time to time.
2.6 COMMITTEE
means the committee appointed by Sybase to
administer the Plan in accordance with
Article 7.
2.7
COMPENSATION means either Director Compensation or Employee
Compensation, as applicable.
2.8 DIRECTOR
means a non-employee member of the Sybase Board who
is eligible to defer compensation to an
Elective Contribution Account under
Article 3 for a Plan Year. A Director's
eligibility to participate in the Plan
for a Plan Year does not guarantee
continued eligibility to participate in any
future Plan Year.
2.9 DIRECTOR
COMPENSATION means a Director's annual retainer
(including annual retainers for committee
chairmanship or lead outside
directorship) and attendance fees for Board
and committee meetings during a Plan
Year, and excludes all other amounts
including without limitation: the proceeds
from the exercise of stock options or stock
appreciation rights, reimbursement
for out-of-pocket travel expenses, or other
amounts included in a Director's
taxable income that are not compensation
for services to Sybase. Director
Compensation may be deferred to an Elective
Contribution Account, but no portion
of such Director Compensation may be
deferred to an Employer Contribution
Account
2.10
DIRECTOR RETIREMENT means termination of service on the Board
for any reason.
Amended EDCP
Page 2
<PAGE>
2.11
DISABILITY means any physical or mental condition arising from
an illness, pregnancy or injury which
renders a Participant incapable of
performing the material duties of his or
her regular occupation or any
reasonably related occupation, as defined
in the Sybase, Inc. Long Term
Disability Insurance Plan. An Employee will
not be considered to have sustained
a Disability if he or she is performing
work of any kind for compensation from
Sybase or any Subsidiary, unless such work
is done with the prior approval of
the Committee.
2.12
ELECTIVE CONTRIBUTION ACCOUNT means a bookkeeping account
established for and maintained on behalf of
a Participant to which the
Participant's elective and "catch-up"
contributions under Article 3, and any
earnings thereon, are credited, as
applicable.
2.13
ELIGIBLE EMPLOYEE means a regular employee of an Employer
identified by the Committee, who is
eligible (a) to defer compensation under
Article 3 of the Plan for a Plan Year,
and/or (b) for a discretionary employer
contribution under Article 4 of the Plan.
The group of Eligible Employees for
any Plan Year will be limited to, and may
be more restrictive than, the group of
employees who are members of a select group
of management or highly compensated
employees (within the meaning of ERISA
Sections 201(2), 301(a)(3) and
401(a)(1)). An employee's eligibility to
participate in the Plan for a Plan Year
does not guarantee continued eligibility to
participate in any future Plan Year.
In the event that an Eligible Employee
transfers employment from one Employer to
another, his or her ability to continue to
defer Compensation under Article 3 or
to be eligible for a discretionary employer
contribution under Article 4 shall
be governed by such rules and procedures as
established by the Committee in its
sole discretion.
2.14
ELIGIBLE PERSON means a Director or an Eligible Employee.
2.15
EMPLOYEE COMPENSATION means an Eligible Employee's base
salary, incentive bonuses (including any
extraordinary lump sum payments) and
commission payments for a Plan Year, and
excludes any other form of
compensation, including without limitation:
extraordinary payments, such as
payroll advances, the proceeds from the
exercise of stock options or stock
appreciation rights, severance payments
following a formal termination of
employment, moving expenses, car or other
special allowances, or other amounts
included in an Eligible Employee's taxable
income that are not compensation for
employment services. An Eligible Employee's
Compensation shall be determined
before taking into account any reduction in
taxable income by salary deferral
contribution under Code Sections 125 or
401(k), or under this Plan.
2.16
EMPLOYEE RETIREMENT means termination of employment with
Sybase and all other Employers on or after
age 50 or as a result of Disability.
2.17
EMPLOYER means Sybase or any Subsidiary.
2.18
EMPLOYER CONTRIBUTION ACCOUNT means a bookkeeping account
established for and maintained on behalf of
an Eligible Employee to which
discretionary
Amended EDCP
Page 3
<PAGE>
employer contributions are made under
Article 4, and any earnings thereon, are
credited.
2.19
ERISA means the Employee Retirement Income Security Act of
1974, as amended.
2.20
HARDSHIP means an unforeseeable and unanticipated emergency
which is caused by an event beyond the
control of the Participant or
Beneficiary, and which would result in
severe financial hardship to the
Participant or Beneficiary if a revocation
of a deferral election, or a
distribution (as the case may be), were not
permitted. Hardship conditions will
be evaluated in accordance with the terms
of Code Section 1.457-2(h)(4). The
Committee shall have the sole discretion to
determine whether a Hardship
condition exists.
2.21
INSOLVENT means (a) the inability to pay debts as they become
due, or (b) being subject to a pending
proceeding as a debtor under the U.S.
Bankruptcy Code.
2.22
INVESTMENT FUNDS OR FUNDS mean the investment funds designated
by the Committee as the basis for
determining the hypothetical investment return
to be credited in accordance with Article
5.5 to Participant contributions made
under Article 3 and vested discretionary
employer contributions made under
Article 4, as applicable. Initially, the
Investment Funds shall mirror the
available investment funds under the
Sybase, Inc. 401(k) Plan. Thereafter, the
Committee may change the Investment Funds
at such times as it deems appropriate.
2.23
PARTICIPANT means either (a) a current or former Eligible
Employee who has been designated by the
Committee as eligible to participate in
the Plan and who has an Elective
Contribution Account balance and/or Employer
Contribution Account balance, or (b) a
current or former Director who has an
Elective Contribution Account balance.
2.24
PLAN means the Sybase, Inc. Executive Deferred Compensation
Plan, as set forth in this document, and as
amended from time to time.
2.25
PLAN YEAR means the calendar year.
2.26
RETIREMENT means either Director Retirement or Employee
Retirement.
2.27
SUBSIDIARY means any corporation (other than Sybase) in which
Sybase or a Subsidiary owns directly or
indirectly fifty percent (50%) or more
of the total combined voting power of all
classes of stock.
2.28
SYBASE means Sybase, Inc., a Delaware corporation, or its
successor.
2.29
TIER A elections shall apply to the base salary portion of
Employee Compensation, including base
salary continuation payments made while an
employee is absent from work, and shall not
include any portion of incentive
bonus or commission payments or other
extraordinary portions of Employee
Compensation.
Amended EDCP
Page 4
<PAGE>
2.30
TIER B elections shall apply to the incentive bonus and
commission portions of Employee
Compensation contributed to an Eligible
Employee's Employer Contribution Account,
and shall not include any portion of
an Eligible Employee's base salary.
2.31
TIER C elections shall apply to Director Compensation only.
2.32
VALUATION DATE means the date on which the Investment Funds
are valued and the Elective Contribution
Account and/or Employer Contribution
Account of each Participant (or the
Participant's Beneficiary) are adjusted. The
Committee shall determine the Valuation
Date and such date shall be at least
once every calendar year.
ARTICLE 3
ELECTIVE CONTRIBUTIONS
3.1
PARTICIPATION. Subject to the terms of Section 3.3, an
Eligible Person may elect to defer the
receipt of a portion of his or her
Employee Compensation or Director
Compensation, as applicable, by completing a
deferred compensation agreement on such
form and in such manner as prescribed by
the Committee.
(a) ELIGIBLE
EMPLOYEES. An Eligible Employee may elect to
defer Employee Compensation in accordance
with this Section 3.1(a) under one or
both of two tiers, as follows:
(i) TIER A. An
Eligible Employee may elect to
defer a percentage of his or her base
salary so that, when added to the Eligible
Employee's 401(k) and "catch-up" elections
under the Sybase, Inc. 401(k) Plan,
the total percentage of base salary
deferred under both plans does not exceed
seventy-five percent (75%). The deferral
elections made under this Subsection
3.1(a)(i) must be made in whole
percentages. Under a Tier A election, an
Eligible Employee's election to defer base
salary under this Plan automatically
begins when an Eligible Employee reaches
the Code Section 402(g) limit and, if
applicable, the Code Section 414(v) limit
(as periodically indexed for
inflation), or is otherwise limited because
of the Code limitations from making
pre-tax salary deferrals under the Sybase,
Inc. 401(k) Plan.
(ii)
TIER B. In addition to, or in lieu of, a
Tier A election, an Eligible Employee may
also elect to defer the receipt of
all, or any whole percentage or dollar
amount, of any or all of his/her
incentive, bonus or commission compensation
for the Plan Year, including a
percentage above a threshold amount (e.g.,
25% of bonus in excess of $10,000).
(iii) An
Eligible Employee's election to defer
Employee Compensation under an available
Tier is unrelated to, and shall not be
affected by, any election to defer Employee
Compensation under another available
Tier. To the extent that an Eligible
Employee elected to defer amounts under
Tiers 1, 2 or 3 under the Plan in effect
prior to May 1,1998, such elections
shall continue in effect. Tier 1 and Tier 2
amounts shall be credited as Tier A
amounts. Tier 3 amounts shall be credited
as Tier
Amended EDCP
Page 5
<PAGE>
B amounts. For administrative convenience
only, the Committee may provide
reports to Eligible Employees reflecting
balances under such old Tier names for
past contributions.
(b) DIRECTORS.
For each Plan Year, a Director may elect
to defer up to one hundred percent (100%)
of his or her Director Compensation
under TIER C to an Elective Contribution
Account. Deferral elections must be
made in whole percentages.
3.2 ELECTION
PROCEDURES. An Eligible Person who elects to defer
Compensation in accordance with Section 3.1
must do so in accordance with such
procedures as shall be established by the
Committee including, where permitted
by applicable law, election by telephonic
or other non-written means. Each such
election must specify the form and timing
of distribution of such amounts in the
future, and such other matters specified by
the Committee.
3.3 TIMING OF
ELECTIONS. In order to be effective, an election to
defer Compensation must be made before the
Eligible Person has earned the right
to receive the Compensation to be deferred,
as indicated below.
(a) TIER A
ELECTIONS. Tier A elections must be made
before the start of the Plan Year in which
the Eligible Employee earns the base
salary that he/she wishes to defer. At the
discretion of the Committee, Tier A
elections may be made by newly-hired
Eligible Employees for the Plan Year in
which they commence employment, provided
(i) such elections are made within
thirty (30) days of their date of hire, and
(ii) no Employee Compensation earned
for services performed prior to the making
of such election shall be eligible
for contribution to the Plan.
(b) TIER B
ELECTIONS. Tier B elections must be made
before the start of the Plan Year in which
the incentive, bonus and commission
payment(s) are earned by the Eligible
Employee. At the discretion of the
Committee, Tier B elections for a Plan Year
may be made during the Plan Year to
which the bonus and/or commissions relate
(rather than before the beginning of
the Plan Year), provided that any elections
made after the beginning of the Plan
Year shall apply only to bonuses and
commissions: (1) which have not yet been
earned by the Eligible Employee and, (2)
for which it is not possible to
determine whether any payment will be made
or the amount of payment, and (3) for
which the Eligible Employee has not yet had
the opportunity to make a deferral
election.
(c) TIER C
ELECTIONS. A Director must make his or her
election before the start of the Plan Year
in which the Director earns the
Director Compensation that he/she wishes to
defer. At the discretion of the
Committee, Tier C elections may be made by
newly-elected Directors for the Plan
Year in which they commence service,
provided that (i) such elections are made
within thirty (30) days of their date of
election, and (ii) no Director
Compensation earned prior to the making of
such election shall be eligible for
contribution to the Plan. Notwithstanding
the foregoing, for the 2003 Plan Year,
Directors may make their election to defer
a specified percentage or amount of
their unearned 2003 Director Compensation
up to thirty (30) days after the Plan
is initially approved to permit the
participation of Directors, provided no
Director
Amended EDCP
Page 6
<PAGE>
Compensation earned prior to a Director's
effective Plan election date shall be
eligible for contribution to the Plan.
(d) EVERGREEN
PROVISION. Unless otherwise required by
applicable law, an Eligible Person's
elections under this Section 3.3 shall
remain in effect from year-to-year unless
(i) the Eligible Person elects to
change his or her election during the
annual enrollment period, or (ii) the
Eligible Person elects during the annual
enrollment period to terminate his or
her participation in the Plan during a
future annual enrollment period.
(e) COMMITTEE.
The Committee may specify such deadlines
and advance notice requirements as it deems
necessary to administer the Plan in
accordance with this Section 3.3.
3.4
IRREVOCABLE ELECTIONS. Except as otherwise provided herein, an
Eligible Person's election under Section
3.1 is irrevocable and cannot be
amended. Notwithstanding the foregoing, a
Participant may request to revoke an
election under Section 3.1 in the event of
a Hardship in accordance with Section
6.1.
ARTICLE 4
DISCRETIONARY EMPLOYER CONTRIBUTIONS
4.1
PARTICIPATION. An Employer may designate, in its sole
discretion, certain Eligible Employees to
be eligible for a discretionary
employer contribution if certain target
goals are met in such amount as shall be
determined and payable by the Employer in
accordance with the terms of this
Plan. The identity of the Eligible
Employees, the amount of the discretionary
employer contribution and the target goals
that must be reached in order to earn
such discretionary employer contribution
(subject to any further vesting period,
as set forth in Section 4.2) shall be
established by the Employer in its sole
discretion and communicated to each such
Eligible Employee prior to
