{"id":40499,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/severance-agreement-ariba-inc-and-robert-m-calderoni.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"severance-agreement-ariba-inc-and-robert-m-calderoni","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/severance-agreement-ariba-inc-and-robert-m-calderoni.html","title":{"rendered":"Severance Agreement &#8211; Ariba Inc. and Robert M. Calderoni"},"content":{"rendered":"<pre>\n                               Severance Agreement\n\n         This Agreement is entered into as of July 18, 2001, by and between\nRobert M. Calderoni (the \"Employee\") and Ariba, Inc., a Delaware corporation\n(the \"Company\").\n\n         1.  Termination Benefits.\n\n         (a) Severance Pay. If the Company at any time terminates the Employee's\nemployment with the Company for a reason other than Cause or Permanent\nDisability, or if the Employee resigns for Good Reason within 12 months after a\nChange in Control (as defined in the Ariba, Inc. 1999 Equity Incentive Plan),\nthen the Employee shall be entitled to receive severance payments from the\nCompany for a period of 12 months following the termination of his employment\n(the \"Continuation Period\"). Such severance payments shall be made in accordance\nwith the Company's standard payroll procedures. The annual rate of such\nseverance payments shall be equal to the sum of (i) the Employee's base salary\nat the annual rate in effect at the time of the termination of his employment\nplus (ii) the most recent annual bonus paid to the Employee. In addition to any\nother remedies that may be available to the Company, severance payments shall\ncease immediately if the Employee fails to comply with the covenants set forth\nin Section 2 below.\n\n         (b) Acceleration of Vesting. If the Company at any time terminates the\nEmployee's employment with the Company for a reason other than Cause or\nPermanent Disability, then the Employee shall be entitled to have the vested\nportion of all of his equity in the Company determined after adding 12 months to\nhis actual period of Service. For this purpose, the Employee's equity in the\nCompany shall consist of all options to purchase shares of the Company's Common\nStock and all restricted shares of the Company's Common Stock held by the\nEmployee at the time of the termination of his employment.\n\n         (c) Definition of \"Cause.\" For all purposes under this Agreement,\n\"Cause\" shall mean any intentional misconduct that materially injures the\nCompany or adversely affects the business or affairs of the Company or any\nparent or subsidiary in a material manner. The foregoing shall not be deemed an\nexclusive list of all acts or omissions that the Company may consider as grounds\nfor the termination of the Employee's employment without Cause.\n\n         (d) Definition of \"Good Reason.\" For all purposes under this Agreement,\n\"Good Reason\" shall mean (i) a change in the Employee's position with the\nCompany that materially reduces his level of responsibility, (ii) a reduction in\nhis level of compensation (including base salary, fringe benefits and\nparticipation in bonus or incentive programs) or (iii) a relocation of his place\nof employment by more than 50 miles, provided and only if such change, reduction\nor relocation is effected by the Company without his consent.\n\n         (e) Definition of \"Permanent Disability.\" For all purposes under this\nAgreement, \"Permanent Disability\" shall mean that the Employee, at the time\nnotice is given, has failed to perform the duties of his position with the\nCompany for a period of not less than 90\n\n\n\nconsecutive days (or such longer period as may be required by law) as the result\nof his incapacity due to physical or mental injury, disability or illness.\n\n         (f) General Release. Any other provision of this Agreement\nnotwithstanding, Subsections (a) and (b) above shall not apply unless the\nEmployee (i) has executed a general release (in a form prescribed by the\nCompany) of all known and unknown claims that he may then have against the\nCompany or persons affiliated with the Company and (ii) has agreed not to\nprosecute any legal action or other proceeding based upon any of such claims.\n\n         2.  Covenants.\n\n         (a) Non-Solicitation. During his employment with the Company and during\nthe Continuation Period (if any), the Employee shall not directly or indirectly,\npersonally or through others, solicit or attempt to solicit the employment of\nany employee of the Company or any of the Company's affiliates, whether on the\nEmployee's own behalf or on behalf of any other person or entity. The term\n\"employment\" for purposes of this Subsection (a) means to enter into an\narrangement for services as a full-time or part-time employee, independent\ncontractor, agent or otherwise. The Employee and the Company agree that this\nprovision is reasonably enforced as to any geographic area in which the Company\nconducts its business.\n\n         (b) Non-Competition. The Employee agrees that, during his employment\nwith the Company and during the Continuation Period (if any), he shall not:\n\n             (i)   Directly or indirectly, individually or in conjunction with\n    others, engage in activities that compete with the Company or work for any\n    entity that is part of the Company's Market;\n\n             (ii)  Solicit, serve, contract with or otherwise engage any\n    existing or prospective customer, client or account of the Company on behalf\n    of any entity that is part of the Company's Market; or\n\n             (iii) Cause or attempt to cause any existing or prospective\n    customer, client or account of the Company to divert from, terminate, limit\n    or in any manner modify, or fail to enter into, any actual or potential\n    business relationship with the Company. The Employee and the Company agree\n    that this provision is reasonably enforced with reference to any geographic\n    area in which the Company maintains any such relationship.\n\nFor purposes of this Subsection (b), the Company's \"Market\" shall mean (i) all\ncompanies that derive their revenue primarily from e-procurement software sales\nand (ii) the companies listed on Exhibit A attached hereto. The Employee and the\n                                 ---------\nCompany agree that the Company's Market is global in scope.\n\n         (c) Cooperation and Non-Disparagement. The Employee agrees that, during\nthe Continuation Period, he shall cooperate with the Company in every reasonable\nrespect and shall use his best efforts to assist the Company with the transition\nof his duties to his\n\n                                       2\n\n\n\nsuccessor. The Employee further agrees that, during the Continuation Period, he\nshall not in any way or by any means disparage the Company, the members of the\nCompany's Board of Directors or the Company's officers and employees.\n\n         (d) Disclosure. The Employee agrees that, during the Continuation\nPeriod, he shall inform any new employer or other person or entity with whom the\nEmployee enters into a business relationship, before accepting employment or\nentering into a business relationship, of the existence of this Section 2.\n\n         3.  Employment at Will.\n\n         The Employee's employment with the Company shall be \"at will,\" meaning\nthat either the Employee or the Company shall be entitled to terminate the\nEmployee's employment at any time and for any reason, with or without Cause. Any\ncontrary representations that may have been made to the Employee shall be\nsuperseded by this Agreement. This Agreement shall constitute the full and\ncomplete agreement between the Employee and the Company on the \"at will\" nature\nof the Employee's employment, which may only be changed in an express written\nagreement signed by the Employee and a duly authorized officer of the Company.\n\n         4.  Successors.\n\n         (a) Company's Successors. This Agreement shall be binding upon any\nsuccessor (whether direct or indirect and whether by purchase, lease, merger,\nconsolidation, liquidation or otherwise) to all or substantially all of the\nCompany's business and\/or assets. For all purposes under this Agreement, the\nterm \"Company\" shall include any successor to the Company's business and\/or\nassets which becomes bound by this Agreement.\n\n         (b) Employee's Successors. This Agreement and all rights of the\nEmployee hereunder shall inure to the benefit of, and be enforceable by, the\nEmployee's personal or legal representatives, executors, administrators,\nsuccessors, heirs, distributees, devisees and legatees.\n\n         5.  Arbitration.\n\n         (a) Scope of Arbitration Requirement. The parties hereby waive their\nrights to a trial before a judge or jury and agree to arbitrate before a neutral\narbitrator any and all claims or disputes arising out of this Agreement and any\nand all claims arising from or relating to the Employee's employment with the\nCompany, including (but not limited to) claims against any current or former\nemployee, director or agent of the Company, claims of wrongful termination,\nretaliation, discrimination, harassment, breach of contract, breach of the\ncovenant of good faith and fair dealing, defamation, invasion of privacy, fraud,\nmisrepresentation, constructive discharge or failure to provide a leave of\nabsence, claims regarding commissions, stock options or bonuses, infliction of\nemotional distress or unfair business practices, or any tort or tort-like causes\nof action.\n\n         (b) Exceptions. The foregoing notwithstanding, the following are the\nonly claims that may be resolved in any appropriate forum (including courts of\nlaw) as required by\n\n                                       3\n\n\n\napplicable laws then in effect: (i) claims concerning workers' compensation\nbenefits, (ii) claims concerning unemployment insurance and (iii) claims\nconcerning the validity, infringement or (b) enforceability of any trade secret,\npatent right, copyright or any other trade secret or intellectual property held\nor sought by either the Employee or the Company (whether or not arising under\nthe Proprietary Information and Inventions Agreement between the Employee and\nthe Company).\n\n         (c) Procedure. The arbitrator's decision shall be written and shall\ninclude the findings of fact and law that support the decision. The arbitrator's\ndecision shall be final and binding on both parties, except to the extent\napplicable law allows for judicial review of arbitration awards. The arbitrator\nmay award any remedies that would otherwise be available to the parties if they\nwere to bring the dispute in court. The arbitration shall be conducted in\naccordance with the National Rules for the Resolution of Employment Disputes of\nthe American Arbitration Association; provided, however that the arbitrator\nshall allow the discovery authorized by the California Arbitration Act or the\ndiscovery that the arbitrator deems necessary for the parties to vindicate their\nrespective claims or defenses. The arbitration shall take place in Santa Clara\nCounty or, at the Employee's option, the county in which the Employee primarily\nworked with the Company at the time when the arbitrable dispute or claim first\narose.\n\n         (d) Costs. The parties shall share the costs of arbitration equally,\nexcept that the Company shall bear the cost of the arbitrator's fee and any\nother type of expense or cost that the Employee would not be required to bear if\nhe were to bring the dispute or claim in court. Both the Company and the\nEmployee shall be responsible for their own attorneys' fees, and the arbitrator\nmay not award attorneys' fees unless a statute or contract at issue specifically\nauthorizes such an award.\n\n         6.  Miscellaneous Provisions.\n\n         (a) Notice. Notices and all other communications contemplated by this\nAgreement shall be in writing and shall be deemed to have been duly given when\npersonally delivered or when mailed by U.S. registered or certified mail, return\nreceipt requested and postage prepaid. In the case of the Employee, mailed\nnotices shall be addressed to him at the home address that he most recently\ncommunicated to the Company in writing. In the case of the Company, mailed\nnotices shall be addressed to its corporate headquarters, and all notices shall\nbe directed to the attention of its Secretary and Chief Executive Officer.\n\n         (b) Modifications and Waivers. No provision of this Agreement shall be\nmodified, waived or discharged unless the modification, waiver or discharge is\nagreed to in writing and signed by the Employee and by an authorized officer of\nthe Company (other than the Employee). No waiver by either party of any breach\nof, or of compliance with, any condition or provision of this Agreement by the\nother party shall be considered a waiver of any other condition or provision or\nof the same condition or provision at another time.\n\n         (c) Withholding Taxes. All payments made under this Agreement shall be\nsubject to reduction to reflect taxes or other charges required to be withheld\nby law.\n\n                                       4\n\n\n\n         (d) Choice of Law and Severability. This Agreement is executed by the\nparties in the State of California and shall be interpreted in accordance with\nthe laws of such State (except their provisions governing the choice of law). If\nany provision of this Agreement (d) becomes or is deemed invalid, illegal or\nunenforceable in any jurisdiction by reason of the scope, extent or duration of\nits coverage, then such provision shall be deemed amended to the extent\nnecessary to conform to applicable law so as to be valid and enforceable or, if\nsuch provision cannot be so amended without materially altering the intention of\nthe parties, then such provision shall be stricken and the remainder of this\nAgreement shall continue in full force and effect. Should there ever occur any\nconflict between any provision contained in this Agreement and any present or\nfuture statue, law, ordinance or regulation contrary to which the parties have\nno legal right to contract, then the latter shall prevail but the provision of\nthis Agreement affected thereby shall be curtailed and limited only to the\nextent necessary to bring it into compliance with applicable law. All the other\nterms and provisions of this Agreement shall continue in full force and effect\nwithout impairment or limitation.\n\n         (e) No Assignment. This Agreement and all rights and obligations of the\nEmployee hereunder are personal to the Employee and may not be transferred or\nassigned by the Employee at any time. The Company may assign its rights under\nthis Agreement to any entity that assumes the Company's obligations hereunder in\nconnection with any sale or transfer of all or a substantial portion of the\nCompany's assets to such entity.\n\n         (f) Counterparts. This Agreement may be executed in two or more\ncounterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument.\n\n         IN WITNESS WHEREOF, each of the parties has executed this Agreement, in\nthe case of the Company by its duly authorized officer, as of the day and year\nfirst above written.\n\n\n                                            \/s\/ Robert M. Calderoni\n                                            ------------------------------\n\n\n\n                                            Ariba, Inc.\n\n                                            By: \/s\/ Keith Krach\n                                                ---------------------------\n                                            Title: Chief Executive Officer\n                                                   -----------------------\n\n\n                                       5\n\n\n\n                                    EXHIBIT A\n\n                                List of Companies\n\n                                       [*]<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6749],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9539,9551],"class_list":["post-40499","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-ariba-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-compensation","corporate_contracts_types-compensation__severance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40499","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40499"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40499"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40499"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40499"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}