Exhibit 10.4
EXECUTIVE
SEVERANCE AGREEMENT
AND GENERAL
RELEASE OF CLAIMS
1. Ivan Koon
(“Executive”) was employed by Adobe Systems
Incorporated (the “Company”) on or about
August 12, 2002. The Company has determined to eliminate
Executive’s position, effective December 3, 2005 (the
“Termination Date”). It is the Company’s
desire to provide Executive with certain severance benefits that he
would not otherwise be entitled to receive upon his termination 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 be 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’s employment with the Company and any of its
subsidiaries will terminate effective as of the Termination Date.
During the period between the date of this Agreement and the
Termination Date, if any: (a) Executive will provide
transition assistance as requested by the Company, and will take
all available paid time off in accordance with the Company’s
paid time off policies; and (b) the Company will continue to
provide Executive with the same base salary and employee benefits
that he was receiving immediately prior to his execution of this
Agreement.
3. In
addition, the Company shall provide Executive with the following
benefits:
(a)
a lump sum severance payment of
$350,000, less applicable withholding;
(b)
in the event that Executive elects
to obtain continued group health insurance coverage for himself and
his eligible dependents in accordance with federal law (COBRA)
following the Termination Date, the Company will pay the premiums
for such coverage through the earlier of November 30,
2006 or the date on which Executive first becomes eligible for
other group health insurance coverage; thereafter, Executive may
elect to purchase continued group health insurance coverage at his
own expense in accordance with COBRA;
(c)
the Company hereby assigns to
Executive all right, title and interest in and to the laptop
computer that was provided to Executive by the Company, and the
Company also assigns to Executive any Adobe software that is on the
computer; by signing this Agreement, Executive agrees that his use
of such software shall be solely in accordance with the terms of
the Company’s end user license agreements that apply to such
software, which license agreements are hereby incorporated by
reference into this Agreement; Executive must remove all non-Adobe
software and all Adobe
confidential or proprietary
information, including all financial information, from the computer
on or before the Termination Date;
(d)
the Company agrees that it will not
contest any claim for unemployment benefits that may be filed by
Executive after the Termination Date; and
(e)
payment for 2005 profit sharing and
Annual Incentive Plan earned by Executive, if any, through the
Termination Date, per the terms of all applicable plan
documents.
By signing (or re-signing, as the
case may be) this Agreement on or after the Termination Date,
Executive acknowledges that he was paid all wages and accrued,
unused PTO that Executive earned during his employment with the
Company. Executive will be reimbursed by the Company for any
reasonable business expenses incurred by Executive in the course of
his employment with the Company, pursuant to the Company’s
applicable business expense reimbursement policies.
Executive’s rights with respect to any equity awards (such as
stock options) 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 from the Company other than those expressly
set forth in this paragraph 3. The Company shall provide the
severance payment in paragraph 3(a) to Executive within 15
days of the date this Agreement is (i) signed by Executive (if
such execution occurs on or after the Termination Date), or
(ii) re-signed by Executive (if his original execution of this
Agreement occurs prior to the Termination Date), in either case
provided Executive has not revoked the Agreement prior to the
eighth day following such signing or re-signing, and provided that
if either Executive or the Company reasonably determines that
Executive is a key employee as defined in Section 409A and
that payment deferral is required according to Section 409A
rules, payment will be made in accordance with those
rules.
4. Executive
and his successors release the Company and its shareholders,
investors, officers, directors, affiliates, 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 Executive signs this Agreement, including,
but not limited to, any claims of breach of contract, wrongful
termination, retaliation, fraud, defamation, infliction of
emotional di
