Workday, Inc 8-K, filed May 25, 2023
Workday, Inc. (WDAY)
8-K
2023-05-25
For: 2023-05-19
View Original
Added on
April 11, 2026
About this 8-K
Workday, Inc filed this 8-K on May 25, 2023, reporting on events of May 19, 2023.
Items reported
- Item 5.02: Director or officer change, or executive pay
- Item 7.01: Regulation FD disclosure
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported): May 19, 2023
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction of incorporation) | (Commission File Number) | (I.R.S. Employer Identification No.) | ||||||
(Address of principal executive offices)
Registrant’s telephone number, including area code: (925 ) 951-9000
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |||||
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |||||
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |||||
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) | |||||
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||||||
| (Nasdaq Global Select Market) | ||||||||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.02 - Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
On May 19, 2023, the Board of Directors (the “Board”) of Workday, Inc. (“Workday”) appointed Zane Rowe as Chief Financial Officer of Workday, effective June 12, 2023 (the “Transition Date”). Barbara Larson, Workday’s current Chief Financial Officer, will step down from that role effective June 12, 2023, and continue as an Executive Vice President of Workday through November 1, 2023, and then serve as a consultant to Workday through July 8, 2024.
Mr. Rowe, 52, served as VMware’s Chief Financial Officer and Executive Vice President from March 2016 to June 2023. Mr. Rowe also served as VMware’s interim Chief Executive Officer from February 2021 through May 2021. Prior to VMware, he served as Executive Vice President and Chief Financial Officer of EMC Corporation, a data storage and management company, from October 2014 until February 2016. Prior to that, Mr. Rowe led North America sales for Apple, Inc. and began his executive career in the airline industry. Mr. Rowe currently serves on the board of directors of Sabre Corporation. Mr. Rowe received a bachelor’s degree from Embry-Riddle Aeronautical University and a master’s degree in business administration from San Diego State University.
Rowe Offer Letter
In connection with his appointment as Chief Financial Officer, pursuant to the terms of an offer letter dated May 23, 2023, between Mr. Rowe and Workday (the “Offer Letter”), Mr. Rowe will receive an annual base salary of $700,000, a one-time signing bonus of $2,000,000 payable in two installments and subject to repayment if Mr. Rowe is terminated by Workday for Cause (as defined in Workday’s Change in Control Policy) or resigns his employment without Good Reason (as defined in Workday’s Change in Control Policy) within a year of his start date, and will be eligible to participate in the Workday cash incentive plan with a 50% target bonus. Pursuant to the Offer Letter, in accordance with Workday’s standard grant practices, Mr. Rowe will be granted an equity award consisting of restricted stock units with a grant date value of $18,000,000 (the “RSU Award”) and an additional equity award consisting of restricted stock units with a grant date value of $18,000,000 (the “Sign-On Award”). The RSU Award will be subject to a vesting term of four years with one-fourth of the total shares subject to the RSU Award vesting on the first anniversary of the vesting start date (the “Vesting Start Date”) and the balance of the award vesting in equal quarterly installments over the following three years. The Sign-On Award will be subject to a vesting term of two years with one-eighth of the total shares subject to the Sign-On Award vesting three months from the Vesting Start Date and the balance of the award vesting in equal quarterly installments thereafter. Vesting is subject to Mr. Rowe’s continuous service with Workday.
Mr. Rowe will participate in Workday’s Change in Control Policy. In addition, the Offer Letter provides that if at any time during the next four years Mr. Rowe’s then outstanding equity awards are not assumed, continued, or substituted in connection with a Change in Control (as defined in Workday’s 2022 Equity Incentive Plan), then he will be entitled to receive accelerated vesting of all such outstanding equity awards immediately prior to the Change in Control.
If Mr. Rowe’s employment is terminated without Cause within two years following the Transition Date, other than in connection with a Change in Control, and Mr. Rowe delivers a general release of claims in favor of Workday, he will be entitled to receive: (i) 12 months of his base salary; (ii) a cash incentive plan payout equal to 50% of his base salary; and (iii) accelerated vesting of such number of shares subject to any then outstanding equity awards that would have vested in the 12 months following such termination.
The foregoing description of the Offer Letter is qualified in its entirety by reference to the full text of the Offer Letter, which is filed hereto as Exhibit 10.1.
There are no arrangements or understandings between Mr. Rowe and any other persons pursuant to which he was selected as an officer, he has no family relationships with any of the Workday’s directors or executive officers, and he has no direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K. Mr. Rowe is expected to enter into Workday’s standard form of indemnity agreement filed as Exhibit 10.1 to Workday’s Registration Statement on Form S-1 (File No. 333-183640) filed with the SEC on August 30, 2012.
Larson Transition Agreement
Workday has entered into a Separation and Transition Services Agreement (the “Transition Agreement”) with Ms. Larson, dated May 24, 2023 (the “Agreement Date”) setting forth the terms of Ms. Larson’s transition arrangements. Ms. Larson will continue to serve as an employee of Workday from the Agreement Date through November 1, 2023 (the “Transition Period”). Ms. Larson’s employment with Workday will terminate on the final day of the Transition Period, unless terminated on an earlier date (such date, the “Separation Date”). The Transition Period may be terminated earlier by Workday for Cause, as defined in the Transition Agreement, or due to Ms. Larson’s breach of the Transition Agreement, or by Ms. Larson for any reason upon ten days’ written notice. During the Transition Period, Ms. Larson’s cash compensation will be comprised of her current base salary and she will remain eligible to receive a cash bonus with respect to the first half of fiscal 2024 with the individual performance component deemed to be achieved at 100%, pursuant to the terms and conditions of the Workday cash bonus plan. During the Transition Period, previously granted equity awards will continue to vest in accordance with their terms, other than a restricted stock award for 51,258 shares granted in 2023 that Ms. Larson has agreed to forfeit as of the Agreement Date. The Transition Agreement provides for a customary release of claims by Ms. Larson and reaffirmation of her obligations under an employee inventions and proprietary rights assignment agreement.
Ms. Larson is expected to continue to provide services to Workday as a consultant through July 8, 2024 (the “Consulting Period”), pursuant to the terms of a consulting agreement between Workday and Ms. Larson, dated May 24, 2023 (the “Consulting Agreement”), subject to delivery by Ms. Larson of a second release of claims. In consideration for Ms. Larson’s services as a consultant, Ms. Larson’s then outstanding previously granted equity awards will continue to vest in accordance with their terms during the Consulting Period. Workday may terminate the Consulting Period for Cause (as defined in the Transition Agreement) or due to Ms. Larson’s breach of the Consulting Agreement, and the Consulting Period will terminate automatically in the event Ms. Larson commences any Conflicting Work (as defined in the Consulting Agreement). Ms. Larson may terminate the Consulting Period for any reason upon ten days’ written notice.
The foregoing descriptions of the Transition Agreement and the Consulting Agreement are qualified in their entirety by reference to the text of the Transition Agreement and the Consulting Agreement, which are filed hereto as Exhibit 10.2.
Item 7.01 – Regulation FD Disclosure
A copy of the press release announcing Mr. Rowe’s appointment is attached hereto as Exhibit 99.1. The information in the press release attached hereto shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act.
Item 9.01 – Financial Statements and Exhibits
(d) Exhibits
| Exhibit Number | Description | |||||||
| 10.1 | ||||||||
| 10.2 | ||||||||
| 99.1 | ||||||||
| 104 | Cover Page Interactive Data File (the cover page XBRL tags are embedded within the inline XBRL document) | |||||||
Signature
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: May 25, 2023
| Workday, Inc. | |||||
/s/ Richard H. Sauer | |||||
Richard H. Sauer | |||||
Chief Legal Officer, Head of Corporate Affairs, and Corporate Secretary | |||||
Exhibit 10.1
May 23, 2023
DELIVERY VIA EMAIL
Zane Rowe
c/o Workday, Inc.
6110 Stoneridge Mall Road
Pleasanton, CA 94588
Dear Zane,
Workday, Inc. (“Workday”) is happy to offer you a position as Chief Financial Officer reporting to Workday’s Co-CEO, Carl Eschenbach. Your planned start date is June 12, 2023.
Your role will be based in the Pleasanton, California office. For most roles, Workday has a flexible work model which allows office-based employees to divide their time working between their assigned office and working remotely. We expect that you and your manager will determine a schedule that meets both business and individual needs in line with our flexible work model, to the fullest extent allowed by applicable law. Subject to Conflict of Interest and related policies, you may manage personal investments, participate in civic, charitable, professional and academic activities (including serving on boards and committees), and serve on the board of directors (and any committees) of up to two (2) noncompetitive companies (subject to prior approval of the co-CEO), provided that such activities do not at the time the activity or activities commence or thereafter (at Workday’s sole discretion): (i) create an actual or potential business or fiduciary conflict of interest or (ii) individually or in the aggregate, interfere materially with the performance of your duties to the Company.
Your annualized starting salary is $700,000, which is payable according to Workday’s payroll cycle, and subject to applicable federal and state taxes.
You are eligible to participate in a variable (“incentive”) compensation plan, targeted at 50% of your annualized base pay. This plan, including terms and conditions, shall be provided shortly after commencing employment.
Workday will offer you a one-time hiring bonus of $2,000,000. This will be paid out in two installments. The first installment of $1,000,000 will be paid out within your first 30 days of employment, while the second installment of $1,000,000 will be paid approximately 12 months after your hire date in accordance with the Company’s standard payroll procedures. To receive either installment of the bonus, you must be employed by Workday and in good standing on the day of the payment. Your bonus payments will be subject to applicable federal and state taxes, and any other applicable withholdings. Receipt of this bonus, however, is conditioned on your remaining with Workday for at least one year. By signing below you expressly agree to repay Workday the after tax amount of any hiring bonus that has been paid to you if you are terminated by the Company for Cause (as defined in the Company’s Change in Control Policy) or you resign your employment without Good Reason (as defined in the Company’s Change in Control Policy) within a year of your start date.
In accordance with Workday’s standard grant practices, you will be granted restricted stock units (RSUs) of the Company’s Class A Common Stock with an approximate value of $18,000,000 USD. The number of shares will be determined by dividing the USD value above by the trailing simple moving average stock price of Workday Class A common stock for the 20 day period immediately preceding the Date of Grant. You will vest in these shares at the rate of 1/4 of the RSU shares after 12 months of continuous service from your vesting start date, then in equal quarterly installments of 1/16th of the total RSU shares, fully vesting in 4 years from your vesting start date. Assuming your start date remains June 12th, your vesting start date and Date of Grant are expected to be on or about July 5, 2023. Your RSU grant will be subject to the terms and conditions applicable to stock granted under the Company’s 2022 Equity Incentive Plan, as in effect on the date of grant, (the “Plan”), as described in the Plan and the applicable Restricted Stock Unit Agreement.
Additionally, in accordance with Workday’s standard grant practices, you will be granted restricted stock units (RSUs) of the Company’s Class A Common Stock with an approximate value of $18,000,000 USD. The number of shares will be determined by dividing the USD value above by the trailing simple moving average stock price of Workday Class A common stock for the 20 day period immediately preceding the Date of Grant. You will vest in these shares at the rate of 1/8 of the RSU shares after 3 months of continuous service from your vesting start date, then in equal quarterly installments of 1/8th of the total RSU shares, fully vesting in 2 years from your vesting start date. Assuming your start date remains June 12th, your vesting start date and Date of Grant are expected to be on or about July 5, 2023. Your RSU grant will be subject to the terms and conditions applicable to stock granted under the Plan, as described in the Plan and the applicable Restricted Stock Unit Agreement.
Under Workday’s Total Rewards program, high performing employees are eligible to receive additional equity grants during their employment (“refresh grants”), at the sole discretion of the Company and subject to approval by the Company’s Board of Directors or its Compensation Committee. Employees hired on or before October 31st are eligible for, but not guaranteed, a refresh grant in the next fiscal year. Refresh grant targets vary by the employee’s role and location, and receipt of a grant and actual grant amounts are based on each employee’s contributions, skills, and future potential.
You shall be eligible for the Workday Change in Control Policy for the next four years, so long as your remain employed by Workday and if at any time during the next four years your then outstanding equity awards are not assumed, continued, or substituted in a Change in Control (as defined in the Plan), then the vesting of all unvested equity awards will accelerate immediately prior to the Change in Control. After such time, you will be subject to the eligibility requirements, terms, and conditions of the Workday Change in Control Policy, as amended from time to time.If your employment is involuntarily terminated by Workday without Cause (as defined in the Change in Control Policy) within two years after your Start Date (other than in connection with Change in Control), you will be entitled to the following severance payments and acceleration benefits (“Severance Benefits”): (1) twelve months’ base salary in a single lump sum on the sixtieth (60th) day following termination of employment; (2) an Incentive Plan payout equal to 50% of your annual base salary in a single lump sum on the sixtieth (60th) day following termination of employment; and (3) accelerated vesting of the unvested shares that would have vested in the next 12 months following your termination. Receipt of the Severance Benefits in this paragraph are contingent on your execution and delivery of a signed general release of claims in favor of the Company in substantially the form attached hereto as Schedule A (the “Release”) and satisfying all conditions to make the Release effective, within 45 days after your termination date. A termination or resignation due to your death or disability shall not constitute a termination without Cause.
Your employment with Workday is “at-will”, meaning either you or Workday may terminate your employment at any time, for any reason or no reason, with or without notice. There is no promise by Workday that your employment will continue for a set period of time or that your employment will be terminated only under particular circumstances. Any exception to this at-will employment policy can only be made in writing by the Chief People Officer of Workday. In particular, this at-will employment policy cannot be modified by any statements, express or implied, contained in any employment handbook, application, memoranda, policy, procedure, or other materials or statements provided to you in connection with your employment.
Workday has its own way of doing business and its own unique, independently developed proprietary technology. We have neither the need nor desire to make any unauthorized use of any intellectual property or confidential information belonging to or developed by others. Workday understands the importance of protecting its own intellectual property and confidential information and respects the intellectual property and confidential information developed by other companies. We fully expect that each person who accepts a position with us will hold themselves to these same standards. No employee should reference, use or bring into the workplace any material that contains intellectual property or confidential information belonging to a previous employer or any other third party.
You will enter into an Indemnification Agreement with Workday and will be covered by the director and officer liability insurance policy currently maintained by the Company, or as may be maintained by the Company from time to time.
The offer of employment set forth in this Letter is contingent upon: (i) your execution of Workday’s Proprietary Information and Inventions Agreement prior to your start date; (ii) your consent to, successful completion of, and passing of all applicable background checks; and (iii) your presentation of satisfactory documentary evidence of your identity and authorization to work in the U.S. within three (3) days of your date of hire. In addition, this offer of employment supersedes and replaces all prior verbal or written agreements between you and Workday, including, but not limited to, all prior offer letters. Like all Workday employees, you are also required, as a condition of your continued employment, to comply with Workday’s Employee Handbook and Code of Conduct as they may be updated and/or revised periodically.
Sincerely,
/s/ Ashley Goldsmith | ||
Ashley Goldsmith | ||
Chief People Officer | ||
By providing my signature below, I accept this offer of employment.
Signature: | /s/ Zane Rowe | ||||
| Name: | Zane Rowe | ||||
Schedule A
General Release of Claims
CONFIDENTIAL
[Month] [Day], [20___]
DELIVERY VIA EMAIL
Zane Rowe
Re: General Release
This letter confirms the agreement (“Agreement”) between Zane Rowe (“You,” “Your” or “Yourself”) and Workday, Inc. (the “Company” or “Workday”) concerning the terms of your termination and offers you with the separation compensation (the “Separation Benefits”) as provided under the offer letter by and between you and the Company dated [Month] [Day], [20___], (the “Offer Letter”) in exchange for a general release of claims and covenant not to sue.
You and the Company agree as follows:
1. Termination Date.
[Month] [Day], [20___]_is your last day of employment with the Company (the “Termination Date”).
2. Acknowledgment of Payment of Wages.
By your signature below, you acknowledge that on [Month] [Day], [20___], we provided you one or more final paychecks for all wages, salary, bonuses, commissions, reimbursable expenses previously submitted by you, accrued vacation (if applicable) and any similar payments due you from the Company as of the Termination Date. By signing below, you acknowledge that the Company does not owe you any other amounts of a similar nature.
Please promptly submit for reimbursement all final outstanding expenses, if any and such business expenses required to be reimbursed as a matter of Workday policy or governing law will be promptly reimbursed. Similarly, even if You do not sign this Agreement, You will be offered benefits to which You are entitled, if any, under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”).
3. Separation Compensation.
In exchange for your agreement to the general release and waiver of claims and covenant not to sue set forth below and your other promises herein, and provided that You sign this Agreement and return it per the timeline and terms set out below, without revocation or rescission by You, the Company agrees to provide you with the Separation Benefits.
4. Release and Waiver
4.1 By signing this Agreement, You release and waive all claims of any kind whatsoever which You have or may have against Workday and its parent, subsidiary, and affiliated companies, and all related entities, and assigns and all of their officers, agents, employees, shareholders, members, managers, trustees, joint venturers, partners, directors and anyone claiming through them (hereinafter “Releasees” collectively), relating to or arising out of Your employment with Workday or termination therefrom or any and every other matter, event, act and/or omission. This release and waiver includes, but is not limited to:
(i)any claims for wrongful termination, defamation, or any other common law claims;
(ii)any claims for the breach of any implied, written or oral contract (excluding any contract claim resulting from a breach of this Agreement by Workday);
(iii)any claims of discrimination, harassment or retaliation based on such things as age, national origin, race, religion, gender, sexual orientation, pregnancy, parental or marital status, physical or mental disability, or medical condition, or any other form of legally prohibited conduct, discrimination or retaliation; and
(iv)to the greatest extent allowed by law, any claims for any compensation of any sort, including but not limited to salary, severance pay and benefits, including unused vacation accrual, leaves, equity compensation/options, commissions, wage differentials and bonuses.
4.2 On behalf of Yourself and anyone claiming through You, You irrevocably and unconditionally agree to release, acquit and forever discharge, to the greatest extent allowed by law, Releasees in each’s individual and/or corporate capacities, from any and all claims, liabilities, promises, actions, damages and the like, known or unknown, which You ever had against any of the Releasees arising out of or relating to Your employment with the Company and/or the termination of Your employment with the Company and/or any and every other matter, event, act and/or omission. Said claims include, but are not limited to: (1) employment discrimination (including claims of sex discrimination and/or sexual harassment, age discrimination, disability discrimination) and retaliation under Title VII (42 U.S.C.A. 2000e etc.) and under 42 U.S.C.A. section 1981 and section 1983, age discrimination under the Age Discrimination in Employment Act (29 U.S.C.A. sections 621-634), the Older Workers Benefit Protection Act (OWBPA), under the State Constitution, and/or any relevant state statutes or municipal ordinances; (2) disputed wages; (3) wrongful discharge and/or breach of any alleged employment contract; and (4) claims based on any tort or alleged wrong, such as but not limited to negligence, invasion of privacy, defamation, fraud and infliction of emotional distress.
4.3 This release and waiver by You includes, to the fullest extent legally permissible, all claims relating to or arising out of Your employment with Workday or Your termination therefrom that may arise under the common law and all federal, state and local statutes, ordinances, rules, regulations and orders, including but not limited to any claim or cause of action based on the National Labor Relations Act, the Age Discrimination in Employment Act, the OWBPA, the Americans with Disabilities Act, the Civil Rights Acts of 1964, the Family and Medical Leave Act, the Employee Retirement Income Security Act of 1974, the Equal Pay Act, all state wage and hour laws, all laws relating to discrimination of any sort, and/or any other provision of federal, state or local statutory or common law or regulation. This release and waiver by You also includes, to the fullest extent legally permissible, all claims that may arise under the California Constitution, the California Labor Code, any applicable California Industrial Welfare Commission order, the California Fair Employment and Housing Act, the California Ralph Civil Rights Act, and the California Tom Bane Civil Rights Act, the San Francisco Paid Sick Leave Ordinance, the San Francisco Health Care Security Ordinance, the San Francisco Fair Chance Ordinance, the San Francisco Family Friendly Workplace Ordinance, and any and all claims under any other federal or California statute or regulation, or any local ordinance, law or regulation, or any claim that was or could have been asserted under common law.
4.4 Except as provided in Section 20, below, you agree that this release and waiver is effective for all claims relating to or arising out of Your employment with Workday or Your termination therefrom without regard to the legal nature of the claim alleged and without regard to whether any such claim is based upon tort, equity, implied or express contract, discrimination of any sort, or any federal, state or local law, statute or regulation or any claim for attorney’s fees.
4.5 You warrant that, to the extent not prohibited by applicable law, You have not and will not institute any lawsuit, claim, action, charge, complaint, petition, appeal, accusatory pleading, or proceeding of any kind against Workday relating to or arising out of any of the claims which are released and waived in this Section 4, and You waive, or at a minimum assign to Workday, any and all rights to any and all forms of recovery or compensation from any legal action brought by You or on Your behalf in connection with Your employment or the termination of Your employment with Workday. To the extent not prohibited by applicable law, in the event that a lawsuit or any of the foregoing actions are filed by You in breach of this covenant, it is expressly understood and agreed that this covenant shall constitute a complete defense to any such lawsuit or action. Although You are releasing claims that You may have under the OWBPA and the ADEA, nothing in this agreement limits You from bringing a claim to challenge this Agreement itself under the Age Discrimination in Employment Act and Older Workers Benefit Protection Act.
4.6 Further, it is understood and agreed that this is a full and final release applying not only to all claims as defined in these paragraphs which are presently known, anticipated, or disclosed to You, but also to all claims as defined in these paragraphs which are presently unknown, unanticipated, and undisclosed to You. You hereby waive any and all rights or benefits which You may now have, or may have in the future.
4.7. In addition, You are waiving the protection of §1542 of the California Civil Code, which states as follows:
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
4.8. This release and waiver does not include any rights or benefits (i) that may not be waived pursuant to applicable law including, without limitation, any right to indemnification pursuant to California Labor Code Section 2800 or Section 2802, or (ii) any right to indemnification under the indemnification agreement between You and the Company, any organizational document of the Company, for directors’ and officers’ insurance coverage, any worker’s compensation claims that You may possess or claim that cannot be released as a matter of law, although You represents that You are not currently aware of any such claim. Moreover, You will continue to be indemnified for Your actions taken while employed by the Company to the same extent as other former and officers of the Company under the Company’s Certificate of Incorporation and Bylaws and the indemnification agreement between You and the Company, if any, and You will continue to be covered by the Company’s directors and officers liability insurance policy as in effect from time to time to the same extent as other former officers of the Company, each subject to the requirements of the laws of the State of Delaware.
5. Confidentiality
Except as provided in Section 20, below, and for a purpose permitted by the National Labor Relations Act (such as the right of employees to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection), You agree that You will keep the fact, amount, and terms of this Agreement completely confidential and shall not disclose any information concerning this Agreement to anyone, provided that: (a) You may make such disclosures as are required by law, including as necessary for legitimate enforcement or compliance purposes; (b) You may disclose the fact, amount and terms of this Agreement to Your attorneys and tax advisors, when necessary for legitimate legal or financial reasons; and (c) You may disclose the fact, amount and terms of this Agreement to Your spouse, but only after You first obtain that person’s written agreement to maintain the information in strict confidence.
6. Mutual Non-Disparagement
6.1 Further, and except as provided in Section 20, below, and for a purpose permitted by the National Labor Relations Act (such as the right of employees to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection), You agree not to make any written, oral or electronic statement about Workday or any Releasee which You know or reasonably should know to be untrue and agree not to make any negative or disparaging statement about Workday (including but not limited to its officers, directors, employees, agents, financial condition, business methods, products, and services) or the Releasees that is intended to or is reasonably likely to cause any form of injury or harm.
6.2 The Company agrees that neither it formally nor its current Chief Executive Officer or other current members of the Board of Directors will make, directly or indirectly, any negative or disparaging statements or comments, either as fact or as opinion, about you. Nothing in this paragraph shall prohibit you or the Company from providing truthful information in response to a subpoena or other legal process.
7. Knowing and Voluntary Release
You acknowledge that Your signing of and Your agreement to this Agreement is knowing, voluntary and deliberate, that You have been provided with all information needed to make an informed decision to enter this Agreement, and that You have not been coerced or threatened.
8. Return of Workday Property
You agree that You have returned all of Workday’s property in Your possession including, but not limited to, any phone cards, cellular phone, computer equipment and all of the tangible and intangible property belonging to the Company and relating to Your employment with the Company. You further represent and warrant that You have not retained any copies, electronic or otherwise, of such property. Workday shall have no obligation to provide You with the Severance Payment described in Section 3 until You have returned to Workday Your Workday laptop and work badge. If You have not returned to Workday Your Workday laptop and work badge by the Effective Date identified in Section 16, then Workday shall have no obligation to provide You with the Severance Payment described in Section 3 until 10 business days after You have returned the Workday laptop and work badge.
9. Continued Compliance with Proprietary and Confidentiality Agreement
9.1 You will continue to comply with the terms of the Proprietary Information and Inventions Agreement between You and the Company and know and understand that the obligations contained in that agreement survive execution of this Agreement and Your termination of employment. In particular, You shall not disclose any confidential or proprietary information (specifically including pricing, margins, key customer contacts and their profiles) that You acquired as an employee or agent of the Company to any other person or entity, or use such information in any manner that is detrimental to the interest of the Company.
9.2 Nevertheless, nothing in this Agreement prohibits You from reporting an event that You reasonably and in good faith believes is a violation of law to the relevant law-enforcement agency (such as the SEC, EEOC, or NLRB), from testifying truthfully under oath in any court, arbitration or administrative agency proceeding, from providing truthful information in the course of a government investigation or from cooperating in an investigation conducted by such a government agency. This may include disclosure of trade secret or confidential information within the limitations permitted by the 2016 Defend Trade Secrets Act (DTSA). You are hereby provided notice that under the DTSA, (1) no individual will be held criminally or civilly liable under federal or state trade secret law for the disclosure of a trade secret (as defined in the Economic Espionage Act) that (A) is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and made solely for the purpose of reporting or investigating a suspected violation of law; or, (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal so that it is not made public; and, (2) an individual who pursues a lawsuit for retaliation by an employer for reporting a suspected violation of the law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal, and does not disclose the trade secret, except as permitted by court order.
10. Entire Agreement and Severability
10.1 The parties agree that, except as is expressly provided herein, this Agreement sets forth the entire agreement between them as to the matters set forth herein and supersedes any other written promises or oral understandings between the parties as to such matters, if any. The parties also agree and acknowledge that no other verbal or written promises or agreements have been offered for this Agreement (other than those described herein) and that no other promises or agreements between the parties related to the matters set forth herein will be binding unless they have been reduced to writing and signed by the parties and expressly referencing this Agreement.
10.2 You and Workday further agree that, if any portion of this Agreement is held to be invalid or legally unenforceable, such portion will be enforced to the greatest extent permitted by law and the remaining portions of this Agreement will not be affected and will be given full force and effect. The provisions of Sections 5 and 6 shall survive and continue in full force and effect in accordance with their respective terms notwithstanding any alleged breach of this Agreement. You acknowledge and agree that, in the event that the provisions of Sections 5 and/or 6 shall be deemed by a court of competent jurisdiction to be unenforceable, then the court is to modify such provisions to the minimum extent necessary to render the provisions valid and enforceable.
11. No Admission
The parties acknowledge that this Agreement does not constitute any admission by You or Workday of any wrongdoing or liability whatsoever, but results from the desire of the parties to resolve any actual and potential disputes between them. Nothing contained in this Agreement, or the fact of its submission to You, shall be admissible evidence in any judicial, administrative or other legal proceeding, of any liability or wrongdoing on the part of Workday or any related party of any violation of federal, state or local law.
12. Applicable Law
All provisions of this Agreement will be construed and governed by the laws in the state where You are principally employed without regard to choice of law principles or laws of any other jurisdiction. Any suit, claim or other legal proceeding brought by You and arising out of or relating to Your employment, termination of employment, or this Agreement shall be brought exclusively in the federal or state courts located in the state where You are principally employed, and You and Workday hereby submit to personal jurisdiction in the state where You are principally employed, and to venue in such courts. You acknowledge that a breach of the provisions of Sections 5 and 6 above by You will cause irreparable harm to Workday, and Workday shall be entitled to injunctive relief to restrain such breach or threatened breach by You or any person acting with You in any capacity whatsoever and to pay Workday’s legal expenses and costs incurred in bringing such actions against You. The language of this Agreement shall be construed according to its fair meaning, and not for or against any particular party.
13. Resolution of All Matters
This Agreement resolves all matters and claims You have or may have against Workday and the Releasees relating to Your employment and the termination of Your employment with Workday; it is and shall be binding upon and inure to the benefit of the parties and their respective heirs, legatees, personal representatives, successors and assigns. Upon execution, this Agreement becomes effective and binding on the parties as of the Effective Date. This Agreement may not be modified, altered or changed except by an express written document signed by all parties hereto, wherein specific reference is made to this Agreement.
14. No Pending Claims
You hereby represent and warrant that You do not currently have pending any claims, charges, lawsuits, or other proceedings against Workday concerning any of the claims released by this Agreement, including but not limited to any claims for unlawful workplace harassment or discrimination, failure to prevent an act of workplace harassment or discrimination, or act of retaliation against a person for reporting or opposing harassment or discrimination whether or not filed in court, before an administrative action, or through an internal complaint process against Employer or the Releasees. You further represent and warrant that You have not heretofore assigned any claims that You have or may have against Workday covered by this Agreement.
15. Review and Revocation
You understand that You have been given a period of at least twenty-one (21) days from the date this Agreement was provided to You to review and consider this Agreement before signing it. Any changes to this document, whether material or immaterial, do not restart the running of this twenty-one (21) day consideration period. You further understand that You may use as much of this twenty-one (21) day period as You wish prior to signing. You may revoke this Agreement within seven (7) calendar days of signing it. Revocation can be made by delivering a written notice of revocation to [•], at 6110 Stoneridge Mall Road, Pleasanton, CA 94588. For this revocation to be effective, written notice must be received by [•] no later than the seventh (7th) day after You sign this Agreement. If You revoke this Agreement, it shall not be effective or enforceable and You will not receive the severance benefits described in this document. By signing this Agreement, You agree that You have carefully read and fully understand all of its provisions. The Company hereby advises You in writing to consult with Your attorney before executing this Agreement, and You acknowledge and agree that You have been so advised. You further understand that rights or claims that may arise after the date You sign this Agreement are not waived.
16. Effective Date
This Effective Date of this Agreement occurs eight (8) calendar days after it is signed and delivered to the Company, provided that the Agreement has not been timely revoked as set forth in Section 15.
17. Stock Option Plans
If You have any vested stock options, You may have a period of time following the Termination Date during which You may exercise them. The specific period of time shall be as stated in the Company’s 2022 Equity Incentive Plan, as appropriate, and as set forth in the applicable stock option agreements. You acknowledge that You will refer to these applicable plan documents to confirm the period during which You may exercise vested stock options. This Agreement shall not be construed to amend, modify or supersede any of the provisions of any Workday stock option plan that may be applicable to You.
18. Successors and Assigns
This Agreement may be assigned or transferred to, and shall be binding upon and shall inure to the benefit of, any successor or assign of Workday, and any such successor or assign shall be deemed substituted for all purposes for Workday under the terms of this Agreement.
19. Counterparts
This Agreement may be executed in counterparts, and a facsimile or electronic signature shall be deemed to be an original signature for all purposes.
20. No Interference with Rights
Nothing in this Agreement is intended to waive claims (i) for unemployment or workers’ compensation benefits, (ii) for vested rights under ERISA-covered employee benefit plans as applicable on the date You sign this Agreement, or (iii) which cannot be released by private agreement. In addition, nothing in this Agreement, including but not limited to the release of claims, proprietary information, confidentiality, cooperation, and non-disparagement provisions: (a) waives Your right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or alleged sexual harassment on the part of Workday, or on the part of the agents or employees of Workday, when You have been required or requested to attend such a proceeding pursuant to a court order, subpoena, or written request from an administrative agency or the legislature; (b) prevents You from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that You have reason to believe is unlawful; (c) prevents You from filing a charge or complaint with, providing information or documents to, and/or from participating in an investigation or proceeding conducted by the Equal Employment Opportunity Commission (EEOC), National Labor Relations Board (NLRB), the Securities and Exchange Commission (SEC), or any other any federal, state or local agency charged with the enforcement of any laws, or (d) prevents You from exercising rights under Section 7 of the National Labor Relations Act (NLRA) to engage in joint activity with other employees or individuals, provided that by signing this Agreement You are waiving the right to individual relief based on claims asserted in such a charge or complaint, or asserted by any third-party on Your behalf, except where such a waiver of individual relief is prohibited and except for any right You may have to receive a payment from a government agency (and not Workday) for information provided to a government agency.
21. Not Signed Before Termination Date
Regardless of when this Agreement was provided to You, You may not sign this Agreement prior to Your Termination Date. By signing below, You affirm that You did not sign this Agreement prior to Your Termination Date.
By signing this Agreement below, You represent that You fully understand and voluntarily agree to be bound by all of its terms. Accepted and agreed to on this ___ day of _________________, ______, which is a date on or after Your Termination Date.
| Workday Inc. | |||||||||||
Zane Rowe | Ashley Goldsmith | ||||||||||
| Chief People Officer | |||||||||||
Exhibit 10.2
Separation and Transition Services Agreement
This Separation and Transition Services Agreement (this “Agreement”) is entered into by and between Barbara Larson (“Executive”) and Workday, Inc. (the “Company”), each individually referred to as a “Party” and collectively referred to as the “Parties”. This Agreement will become effective on the date that it is signed by both Parties (the “Agreement Date”).
RECITALS
WHEREAS, Executive is currently the Chief Financial Officer (“CFO”) of the Company.
WHEREAS, Executive is a party to that certain offer letter with the Company dated June 30, 2014 (the “Offer Letter”) and is currently a participant under the Company’s Change in Control Policy (the “CIC Policy”).
WHEREAS, Executive and the Company wish to provide for the orderly transition of Executive’s responsibilities throughout the Transition Period (as defined below).
WHEREAS, the Company is willing to extend to Executive, and Executive is willing to accept, certain benefits in exchange for an initial, and second, release of claims, covenant not to sue and certain other undertakings, all on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the promises and covenants set forth in this Agreement, and for good and valuable consideration, the sufficiency of which is hereby acknowledged by both Parties, the Parties agree as follows:
1.Continued Employment; Separation from Employment
In consideration for Executive’s executing this Agreement and the undertakings described herein, including delivery of an effective release of claims as set forth in Section 3 below (the “Release”), the Company agrees to continue Executive’s employment on the following terms and subject to the following conditions:
a.Transition Services. Beginning on the Agreement Date and continuing until the start date of the Company’s new CFO, anticipated to be no later than July 31, 2023 (as applicable, the “CFO Transition Date”), Executive agrees to continue to serve as the Company’s CFO and provide services consistent with Executive’s role as CFO, including, but not limited to, the execution of the Company’s financial documents and certifications required to be filed with the Securities Exchange Commission, subject to customary standards, and reasonable transition services to the Company, or such other reasonable services as the Company may request, including, but not limited to, the transitioning of Executive’s responsibilities in good faith. Executive confirms that Executive’s decision to enter into this Agreement is not the result of any disagreement regarding the Company’s financial statements or disclosures, and that as of the date hereof, Executive is not aware of any reason Executive would not be able to sign any documents or certifications required to be filed with the Securities and Exchange Commission or that may become required to be so filed. Further, Executive agrees that Executive will inform the Company promptly if at any time while providing services to the Company Executive becomes aware of any reason why, had Executive remained Chief Financial Officer, Executive would not have been able to sign any applicable documents or certifications required to be filed with the Securities and Exchange Commission.
Executive will cease to serve as the Company’s CFO on the CFO Transition Date and, as of such date, will no longer be considered a Section 16 Executive Officer. Executive will continue in full-time employment with the Company as an Executive Vice President of Workday, subject to applicable policies, through and including July 31, 2023 (or such earlier date as determined by the Company’s Chief People Officer) and thereafter will be regularly available to provide reasonable transition services to the Company, or such other reasonable services as the Company may request, through and including November 1, 2023. Executive’s period of employment from the Agreement Date through November 1, 2023 is referred to herein as the “Transition Period”, and the services provided during such period are referred to herein as the “Transition Services”. Executive’s employment with the Company will terminate on the final day of the Transition Period, unless terminated on an earlier date pursuant to the terms of this Agreement (the “Separation Date”).
b.Compensation during Transition Period. During the Transition Period, Executive will continue to (a) be paid Executive’s current base salary, subject to applicable withholdings or deductions, in accordance with Company’s normal payroll policies and practices, (b) be eligible to participate in employee benefits and (c) participate in the CIC Policy. In addition, Executive will remain eligible to earn and receive a cash bonus with respect to the first half of the Company’s current fiscal year (the “First Half Bonus”) under the Company’s FY24 Bonus Plan (the “Bonus Plan”), subject to its terms and conditions, provided, however, that Executive’s individual performance component with respect thereto shall be deemed achieved at 100% of target, subject to Executive’s continued employment through the payment date of the First Half Bonus, if any. Executive shall not be eligible to earn or receive any bonus payment with respect to the second half of the Company’s current fiscal year under the Bonus Plan. On the Separation Date, Executive shall cease to be a participant in the CIC Policy.
c.Continued Equity Vesting. During the Transition Period, outstanding Company restricted stock units (“RSUs”) Executive holds, if any, will continue to vest in accordance with the vesting schedule set forth in the applicable award agreement and the Company’s 2012 Equity Incentive Plan (the “2012 Plan”) or 2022 Equity Incentive Plan (the “2022 Plan”), as applicable, subject to Executive’s continued employment or other qualifying service on each applicable vesting date. This Agreement shall not be construed to amend, modify or supersede any of the provisions of the 2012 Plan or 2022 Plan, as applicable, or any Company RSU award agreement that may be applicable to Executive, except as provided in the following Section 1(d).
d.Forfeiture of April 2023 RSU Award. Executive hereby relinquishes and agrees to the immediate termination and forfeiture of the RSU award for 51,258 shares of Company common stock granted to Executive on April 20, 2023 (the “Forfeited RSUs”). Executive acknowledges and agrees that Executive shall have no right or entitlement to the Forfeited RSUs, including as to any continued vesting thereof or shares subject thereto, as of the Agreement Date.
e.Term; Termination. This Agreement will commence on the Agreement Date and Executive’s employment shall continue through and including November 1, 2023, unless terminated earlier in accordance with the terms of this Agreement. The Company may terminate this Agreement and Executive’s employment hereunder immediately without notice for Cause (as defined below) or upon Executive’s breach of any provision of this Agreement. Executive may terminate this Agreement and Executive’s employment hereunder for any reason upon ten (10) days written notice. The Parties may otherwise terminate this Agreement only by mutual agreement set forth in writing signed by both Parties. If the Company terminates Executive’s employment for Cause or Executive terminates Executive’s employment for any reason prior to the Separation Date, Executive will no longer be eligible to receive the salary, bonuses, benefits or continued equity vesting provided herein for the remainder of the Transition Period, and the Company will not be obligated to offer Executive the Consulting Agreement and continued equity vesting.
For purposes of this Agreement, “Cause” will mean (i) Executive’s failure to substantially perform Executive’s duties to the Company, as requested by management (other than as a result of total or partial incapacity due to disability), (ii) theft or embezzlement of property of the Company or dishonesty or disloyalty in the provision of Executive’s services to the Company; (iii) an act or acts constituting a felony under the laws of the United States or any state thereof, an act comparable to a felony, a crime involving moral turpitude, or a serious regulatory violation under any applicable laws; (iv) Executive’s willful malfeasance or misconduct in connection with Executive’s duties; (v) any intentional act or omission that is injurious to the financial condition or business reputation of the Company or its affiliates other than business decisions which are made in good faith by Executive while providing services to the Company; (vi) conduct that violates the Company’s Code of Conduct; (vii) material breach of the provisions of any written agreements between Executive and the Company; or (viii) provision of services, whether as a consultant, employee, contractor, etc., to a competitor of the Company, without prior approval from the Company’s General Counsel.
f.Final Pay. On Executive’s final day of employment with the Company, and even if Executive does not sign this Agreement or the Second Release, the Company will pay Executive the compensation that Executive earned through Executive’s final date of employment, any accrued but unused vacation benefits, and any business expenses required to be reimbursed as a matter of Company policy or governing law. Similarly, even if Executive does not sign the Second Release, Executive will be offered benefits to which Executive is entitled, if any, under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”).
2.Post-Employment Arrangement
In consideration for Executive’s delivery of a second effective release of claims set forth as Exhibit A to this Agreement (the “Second Release”), to be signed no earlier than the Separation Date, and subject to Executive’s satisfactory provision of the Transition Services, the Company agrees to the following:
a.Consulting and Continued Vesting. The Company will continue Executive’s service as a consultant to the Company (the “Consulting Services”) pursuant to the Consulting Agreement attached hereto as Exhibit B (the “Consulting Agreement”) commencing the day following the Executive’s Separation Date and continuing through and including July 8, 2024, or such earlier date pursuant to the terms of the Consulting Agreement (the “Consulting Period”), during which Consulting Period Executive’s RSUs will continue to vest in accordance with the vesting schedule set forth in the applicable award agreement and 2012 Plan or the 2022 Plan, as applicable, subject to Executive’s continued service on each applicable vesting date (such offer of continued service and continued vesting of equity awards, the “Continued Service and Vesting Benefit”).
b.COBRA Payment. The Company will pay Executive the gross amount of $13,092 (the “COBRA Payment”), which represents six (6) months of Executive’s estimated monthly COBRA premium, payable in a cash lump sum, less applicable withholdings and deductions, within 10 business days after the effectiveness of the Second Release.
The Continued Service and Vesting Benefit together with the COBRA Payment are referred to herein as the “Separation Benefits”.
3.Release and Waiver
a.By signing this Agreement, Executive releases and waives all claims of any kind whatsoever which Executive has or may have against the Company and its parent, subsidiary, and affiliated companies, and all related entities, and assigns and all of their current and former officers, agents, employees, shareholders, members, managers, trustees, joint venturers, partners, directors and anyone claiming through them (hereinafter “Releasees” collectively), relating to or arising out of Executive’s employment with the Company or termination therefrom or any and every other matter, event, act and/or omission. This release and waiver includes, but is not limited to: any claims for wrongful termination, defamation, or any other common law claims; any claims for the breach of any implied, written or oral contract (excluding any contract claim resulting from a breach of this Agreement by the Company); any claims of discrimination, harassment or retaliation based on such things as national origin, race, religion, gender, sexual orientation, pregnancy, parental or marital status, physical or mental disability, or medical condition, or any other form of legally prohibited conduct, discrimination or retaliation; and, to the greatest extent allowed by law, any claims for any compensation of any sort, including but not limited to salary, severance pay and benefits, including unused vacation accrual, leaves, equity compensation/stock/options, commissions, wage differentials and bonuses.
b.On behalf of Executive and anyone claiming through Executive, Executive irrevocably and unconditionally agrees to release, acquit and forever discharge, to the greatest extent allowed by law, Releasees in each’s individual and/or corporate capacities, from any and all claims, liabilities, promises, actions, damages and the like, known or unknown, which Executive ever had against any of the Releasees arising out of or relating to Executive’s employment with the Company and/or the termination of Executive’s employment with the Company and/or any and every other matter, event, act and/or omission. Said claims include, but are not limited to: (1) employment discrimination (including claims of sex discrimination and/or sexual harassment, disability discrimination) and retaliation under Title VII (42 U.S.C.A. 2000e etc.) and under 42 U.S.C.A. section 1981 and section 1983, under the State Constitution, and/or any relevant state statutes or municipal ordinances; (2) disputed wages; (3) wrongful discharge and/or breach of any alleged employment contract; and (4) claims based on any tort or alleged wrong, such as but not limited to negligence, invasion of privacy, defamation, fraud and infliction of emotional distress.
c.This release and waiver by Executive includes, to the extent legally permissible, all claims relating to or arising out of Executive’s employment with the Company or Executive’s termination therefrom that may arise under the common law and all federal, state and local statutes, ordinances, rules, regulations and orders, including but not limited to any claim or cause of action based on the National Labor Relations Act, the Americans with Disabilities Act, the Civil Rights Acts of 1964, the Family and Medical Leave Act, the Employee Retirement Income Security Act of 1974, the Equal Pay Act, all state wage and hour laws, all laws relating to discrimination of any sort, and/or any other provision of federal, state or local statutory or common law or regulation.
d.Executive agrees that this release and waiver is effective, to the extent legally permissible, for all claims relating to or arising out of Executive’s employment with the Company or Executive’s termination therefrom without regard to the legal nature of the claim alleged and without regard to whether any such claim is based upon tort, equity, implied or express contract, discrimination of any sort, or any federal, state or local law, statute or regulation or any claim for attorney’s fees.
e.Executive warrants that, to the extent not prohibited by applicable law, Executive has not and will not institute any lawsuit, claim, action, charge, complaint, petition, appeal, accusatory pleading, or proceeding of any kind against the Company relating to or arising out of any of the claims which are released and waived in this Section 3, and Executive waives, or at a minimum assigns to the Company, any and all rights to any and all forms of recovery or compensation from any legal action brought by Executive or on Executive’s behalf in connection with Executive’s employment or the termination of Executive’s employment with the Company. To the extent not prohibited by applicable law, in the event that a lawsuit or any of the foregoing actions are filed by Executive in breach of this covenant, it is expressly understood and agreed that this covenant shall constitute a complete defense to any such lawsuit or action. Nothing in this agreement limits Executive from bringing a claim to challenge this Agreement itself under the Age Discrimination in Employment Act and Older Workers Benefit Protection Act.
f.Further, it is understood and agreed that this is a full and final release applying not only to all claims as defined in these paragraphs which are presently known, anticipated, or disclosed to Executive, but also to all claims as defined in these paragraphs which are presently unknown, unanticipated, and undisclosed to Executive. Executive hereby waives any and all rights or benefits which Executive may now have, or may have in the future under the terms of §1542 of the California Civil Code, which provides as follows:
“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
4.Non-Disparagement
Subject to Section 17, below, and otherwise to the fullest extent permitted by applicable law, Executive agrees that during Executive’s employment and following Executive’s termination of employment, Executive will not, directly or indirectly, make any negative or disparaging statements or comments, either as fact or as opinion, about the Company, its employees, officers, directors, shareholders, vendors, products or services, business, technologies, market position or performance. Nothing in this paragraph shall prohibit Executive or the Company from providing truthful information in response to a subpoena or other legal process. Further, nothing in this Agreement prevents Executive from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that Executive has reason to believe is unlawful.
5.Knowing and Voluntary Release
Executive acknowledges that Executive’s signing of, and Executive’s agreement to, this Agreement is knowing, voluntary and deliberate, that Executive has been provided with all information needed to make an informed decision to enter this agreement, and that Executive has not been coerced or threatened.
6.Return of Company Property
Executive agrees that Executive will return all of the Company’s property in Executive possession including, but not limited to, any phone cards, cellular phone, computer equipment and all of the tangible and intangible property belonging to the Company and relating to Executive’s employment with the Company on the Separation Date. Executive further represents and warrants that Executive will not retain any copies, electronic or otherwise, of such property. Executive must return to the Company Executive’s Company laptop and work badge no later than on the Separation Date.
7.Continued Compliance with Proprietary and Confidentiality Agreement
a.Executive will continue to comply with the terms of the Proprietary Information and Inventions Agreement between Executive and the Company and know and understand that the obligations contained in that agreement survive execution of this Agreement and Executive’s termination of employment. In particular, Executive shall not disclose any confidential or proprietary information (specifically, but not limited to, pricing, margins, key customer contacts and their profiles) that Executive acquired as an employee or agent of the Company to any other person or entity, or use such information in any manner that is detrimental to the interest of the Company.
b.Nevertheless, nothing in this Agreement prohibits Executive from reporting an event that Executive reasonably and in good faith believes is a violation of law to the relevant law-enforcement agency (such as the SEC, EEOC, or NLRB), from testifying truthfully under oath in any court, arbitration or administrative agency proceeding from providing truthful information in the course of a government investigation or from cooperating in an investigation conducted by such a government agency. This may include disclosure of trade secret or confidential information within the limitations permitted by the 2016 Defend Trade Secrets Act (DTSA). Executive is hereby provided notice that under the DTSA, (1) no individual will be held criminally or civilly liable under federal or state trade secret law for the disclosure of a trade secret (as defined in the Economic Espionage Act) that (A) is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and made solely for the purpose of reporting or investigating a suspected violation of law; or, (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal so that it is not made public; and, (2) an individual who pursues a lawsuit for retaliation by an employer for reporting a suspected violation of the law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal, and does not disclose the trade secret, except as permitted by court order.
8.Entire Agreement and Severability
a.The Parties agree that, except as is expressly provided herein, this Agreement sets forth the entire agreement between them as to the matters set forth herein and supersedes any other written promises or oral understandings between the Parties as to such matters, if any, including but not limited to Executive’s Offer Letter. Executive agrees that the payments and consideration set forth in this Agreement are in lieu of any severance payment Executive may have been entitled to pursuant to Company policy or practice and Executive is entitled to no further payment from the Company other than as set forth in this Agreement. The Parties also agree and acknowledge that no other verbal or written promises or agreements have been offered for this Agreement (other than those described herein) and that no other promises or agreements between the Parties related to the matters set forth herein will be binding unless they have been reduced to writing and signed by the Parties and expressly referencing this Agreement.
b.The Parties agree that, as of November 2, 2023, Executive will no longer be eligible to participate in the Company’s Change in Control Policy.
c.Executive and the Company further agree that, if any portion of this Agreement is held to be invalid or legally unenforceable, such portion will be enforced to the greatest extent permitted by law and the remaining portions of this Agreement will not be affected and will be given full force and effect. The provisions of Sections 3, 4 and 7 shall survive and continue in full force and effect in accordance with their respective terms notwithstanding any alleged breach of this Agreement. Executive acknowledges and agrees that, in the event that the provisions of Sections 3, 4, and/or 7 shall be deemed by a court of competent jurisdiction to be unenforceable, then the court is to modify such provisions to the minimum extent necessary to render the provisions valid and enforceable.
9.No Admission
The Parties acknowledge that this Agreement does not constitute any admission by Executive or the Company of any wrongdoing or liability whatsoever, but results from the desire of the Parties to resolve any actual and potential disputes between them. Nothing contained in this Agreement, or the fact of its submission to Executive, shall be admissible evidence in any judicial, administrative or other legal proceeding, of any liability or wrongdoing on the part of the Company or any related party of any violation of federal, state or local law.
10.Applicable Law
All provisions of this Agreement will be construed and governed by the laws in the state where Executive is principally employed without regard to choice of law principles or laws of any other jurisdiction. Any suit, claim or other legal proceeding brought by Executive and arising out of or relating to Executive’s employment, termination of employment, or this Agreement shall be brought exclusively in the federal or state courts located in the state where Executive is principally employed, and Executive and the Company hereby submit to personal jurisdiction in the state where Executive is principally employed, and to venue in such courts. Executive acknowledges that a breach of the provisions of Section 4 above by Executive will cause irreparable harm to the Company, and the Company shall be entitled to injunctive relief to restrain such breach or threatened breach by Executive or any person acting with Executive in any capacity whatsoever and to pay the Company’s legal expenses and costs incurred in bringing such actions against Executive. The language of this Agreement shall be construed according to its fair meaning, and not for or against any particular Party.
11.Resolution of All Matters
This Agreement resolves all matters and claims Executive has or may have against the Company and the Releasees relating to Executive's employment and the termination of Executive's employment with the Company; it is and shall be binding upon and inure to the benefit of the Parties and their respective heirs, legatees, personal representatives, successors and assigns. Upon execution, this Agreement becomes effective and binding on the Parties. This Agreement may not be modified, altered or changed except by an express written document signed by all Parties hereto, wherein specific reference is made to this Agreement.
12.No Pending Claims
Executive’s hereby represents and warrants that Executive does not currently have pending any claims, charges, lawsuits, or other proceedings against the Company concerning any of the claims released by this Agreement, including but not limited to any claims for unlawful workplace harassment or discrimination, failure to prevent an act of workplace harassment or discrimination, or act of retaliation against a person for reporting or opposing harassment or discrimination whether or not filed in court, before an administrative action, or through an internal complaint process against the Company or the Releasees. Executive further represents and warrants that Executive has not heretofore assigned any claims that Executive has or may have against the Company covered by this Agreement. Executive acknowledges that Executive has no claim against the Company or the Releasees for sexual assault; sexual harassment; or unlawful workplace harassment or discrimination, failure to prevent an act of workplace harassment or discrimination, or act of retaliation against a person for reporting or opposing harassment or discrimination whether or not filed in a court or government agency proceeding, in an alternative dispute resolution forum, or through the Company’s internal complaint process.
13.Review and Revocation
Executive understands that this Agreement will be effective upon Executive signing it. By signing this Agreement, Executive agrees that Executive has carefully read and fully understand all of its provisions. The Company hereby advises Executive in writing to consult with Executive’s attorney before executing this Agreement, and Executive acknowledges and agrees that Executive has been so advised. Executive further understands that rights or claims that may arise after the latest date Executive signs this Agreement are not waived. Executive acknowledges, understands and agrees that Executive must sign this Agreement to obtain the payments and benefits provided by the terms of this Agreement. For the avoidance of doubt, Executive’s entry into this Agreement and the Second Release are independent of each other, such that if Executive does not sign the Second Release, or revokes the Second Release, said revocation shall not cause the revocation of this Agreement, and the terms of this Agreement shall remain binding upon Executive.
14.Effective Date
The effective date of this Agreement occurs on the Agreement Date, the date it is signed and delivered to the Company.
15.Successors And Assigns
This Agreement may be assigned or transferred to, and shall be binding upon and shall inure to the benefit of, any successor or assign of the Company, and any such successor or assign shall be deemed substituted for all purposes for the Company under the terms of this Agreement.
16.Counterparts
This Agreement may be executed in counterparts, and a facsimile or electronic signature shall be deemed to be an original signature for all purposes.
17.No Interference with Rights
Nothing in this Agreement is intended to waive claims (i) for unemployment or workers’ compensation benefits, (ii) for vested rights under ERISA-covered employee benefit plans as applicable on the date Executive signs this Agreement, or (iii) which cannot be released by private agreement.
In addition, nothing in this Agreement, including but not limited to the release of claims, proprietary information, confidentiality, cooperation, and non-disparagement provisions: (a) waives Executive’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or alleged sexual harassment on the part of the Company, or on the part of the agents or employees of the Company, when Executive has been required or requested to attend such a proceeding pursuant to a court order, subpoena, or written request from an administrative agency or the legislature; (b) prevents Executive from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that Executive has reason to believe is unlawful; (c) prevents Executive from filing a charge or complaint with, providing information or documents to, and/or from participating in an investigation or proceeding conducted by the Equal Employment Opportunity Commission (EEOC), National Labor Relations Board (NLRB), the Securities and Exchange Commission (SEC), or any other any federal, state or local agency charged with the enforcement of any laws, or (d) prevents Executive from exercising rights under Section 7 of the National Labor Relations Act (NLRA) to engage in joint activity with other employees, provided that by signing this Agreement Executive is waiving the right to individual relief based on claims asserted in such a charge or complaint, or asserted by any third-party on Executive’s behalf, except where such a waiver of individual relief is prohibited and except for any right Executive may have to receive a payment from a government agency (and not the Company) for information provided to a government agency.
Executive and the Company do not intend to release claims that Executive may not release as a matter of law, including but not limited to claims for indemnity under California Labor Code Section 2802, under the indemnification agreement between Executive and the Company, indemnification under any organizational document of the Company, directors’ and officers’ insurance coverage, although Executive represents that Executive she is not currently aware of any such claim, or any claims for enforcement of this Agreement.
18.Taxes
All payments made under this Agreement, including settlement of RSUs, will be subject to reduction to reflect taxes or other charges required to be withheld by law.
To the extent (i) any payments to which Executive becomes entitled under this Agreement, or any agreement or plan referenced herein, in connection with Executive’s termination of employment with the Company constitute deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) Executive is deemed at the time of such termination of employment to be a “specified” employee under Section 409A of the Code, then such payment or payments shall not be made or commence until the earlier of (i) the expiration of the six (6)‑month period measured from the date of Executive’s “separation from service” (as such term is at the time defined in regulations under Section 409A of the Code) with the Company; or (ii) the date of Executive’s death following such separation from service; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to Executive, including (without limitation) the additional twenty percent (20%) tax for which Executive would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to Executive or Executive’s beneficiary in one lump sum (without interest). Except as otherwise expressly provided herein, to the extent any expense reimbursement or the provision of any in‑kind benefit under this Agreement (or otherwise referenced herein) is determined to be subject to (and not exempt from) Section 409A of the Code, the amount of any such expenses eligible for reimbursement, or the provision of any in‑kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement or in kind benefits to be provided in any other calendar year, in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in‑kind benefit be subject to liquidation or exchange for another benefit. To the extent that any provision of this Agreement is ambiguous as to its exemption or compliance with Section 409A, the provision will be read in such a manner so that all payments hereunder are exempt from Section 409A to the maximum permissible extent, and for any payments where such construction is not tenable, that those payments comply with Section 409A to the maximum permissible extent. To the extent any payment under this Agreement may be classified as a “short‑term deferral” within the meaning of Section 409A, such payment shall be deemed a short‑term deferral, even if it may also qualify for an exemption from Section 409A under another provision of Section 409A. Payments pursuant to this Agreement (or referenced in this Agreement), and each installment thereof, are intended to constitute separate payments for purposes of Section 1.409A‑2(b)(2) of the regulations under Section 409A. Any termination of Executive’s employment is intended to constitute a separation from service and will be determined consistent with the rules relating to a “separation from service” as such term is defined in Treasury Regulation Section 1.409A‑1.
[Signature Page to Separation and Transition Services Agreement Follows]
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the dates shown below.
EXECUTIVE
SIGNED: /s/ Barbara Larson | DATE: May 24, 2023 | ||||
Barbara Larson | |||||
WORKDAY, INC.
SIGNED: /s/ Ashley Goldsmith | DATE: May 23, 2023 | ||||
BY: Ashley Goldsmith | |||||
TITLE: Chief People Officer | |||||
[Signature Page to Separation and Transition Services Agreement]
EXHIBIT A
General Release of All Claims and Covenant Not to Sue
This General Release of All Claims and Covenant Not to Sue (the “Second Release”) is entered into between Barbara Larson (“Employee”) and Workday, Inc. (the “Company”) (collectively, the “parties”).
WHEREAS, Employee and the Company entered into an agreement regarding Employee’s transition and separation from employment with the Company (the “Separation Agreement,” to which this Second Release is attached as Exhibit A).
WHEREAS, on November 1, 2023, Employee’s employment with the Company terminated (the “Separation Date”).
WHEREAS, the Company has determined that Employee cooperatively and diligently provided the Transition Services (as defined in the Separation Agreement).
WHEREAS, this agreement serves as the Second Release, pursuant to the Separation Agreement.
WHEREAS, Employee and the Company desire to mutually, amicably and finally resolve and compromise all issues and claims surrounding Employee’s employment and separation from employment with the Company.
NOW THEREFORE, in consideration for the mutual promises and undertakings of the parties as set forth below and the Company’s agreement to engage Employee as a consultant pursuant to the terms of the Consulting Agreement, Employee and the Company hereby enter into this Second Release.
Regardless of when this Second Release was provided to Employee, Employee may not sign this Second Release prior to the Separation Date. By signing below, Employee affirms that Employee did not sign this Second Release prior to the Separation Date.
1.Acknowledgment of Payment of Wages. By Employee’s signature below, Employee acknowledges that, on the Separation Date, the Company paid Employee for all wages, salary, accrued vacation (if applicable), bonuses, commissions, reimbursable expenses previously submitted by Employee, and any similar payments due Employee from the Company as of the Separation Date. By signing below, Employee acknowledges that the Company does not owe Employee any other amounts, except as may become payable under the Separation Agreement and the Second Release. Please promptly submit for reimbursement all final outstanding expenses, if any.
2.Consideration. In exchange for Employee’s agreement to this Second Release and Employee’s other promises in the Separation Agreement and herein, the Company agrees to provide Employee with the Separation Benefits set forth in Section 2 of the Separation Agreement. By signing below, Employee acknowledges that Employee is receiving the foregoing consideration in exchange for waiving Employee’s rights to claims referred to in this Second Release and Employee would not otherwise be entitled to the consideration.
3.Release and Waiver.
a.By signing this Second Release, Employee releases and waives all claims of any kind whatsoever which Employee has or may have against the Company and its parent, subsidiary, and affiliated companies, and all related entities, and assigns and all of their current and former officers, agents, employees, shareholders, members, managers, trustees, joint venturers, partners, directors and anyone claiming through them (hereinafter “Releasees” collectively), relating to or arising out of Employee’s employment with the Company or termination therefrom or any and every other matter, event, act and/or omission. This release and waiver includes, but is not limited to: any claims for wrongful termination, defamation, or any other common law claims; any claims for the breach of any implied, written or oral contract (excluding any contract claim resulting from a breach of this Second Release by the Company); any claims of discrimination, harassment or retaliation based on such things as age, national origin, race, religion, gender, sexual orientation, pregnancy, parental or marital status, physical or mental disability, or medical condition, or any other form of legally prohibited conduct, discrimination or retaliation; and, to the greatest extent allowed by law, any claims for any compensation of any sort, including but not limited to salary, severance pay and benefits, including unused vacation accrual, leaves, equity compensation/stock/options, commissions, wage differentials and bonuses.
b.On behalf of Employee and anyone claiming through Employee, Employee irrevocably and unconditionally agrees to release, acquit and forever discharge, to the greatest extent allowed by law, Releasees in each’s individual and/or corporate capacities, from any and all claims, liabilities, promises, actions, damages and the like, known or unknown, which Employee ever had against any of the Releasees arising out of or relating to Employee’s employment with the Company and/or the termination of Employee’s employment with the Company and/or any and every other matter, event, act and/or omission. Said claims include, but are not limited to: (1) employment discrimination (including claims of sex discrimination and/or sexual harassment, age discrimination, disability discrimination) and retaliation under Title VII (42 U.S.C.A. 2000e etc.) and under 42 U.S.C.A. section 1981 and section 1983, age discrimination under the Age Discrimination in Employment Act (29 U.S.C.A. sections 621-634), the Older Workers Benefit Protection Act (OWBPA), under the State Constitution, and/or any relevant state statutes or municipal ordinances; (2) disputed wages; (3) wrongful discharge and/or breach of any alleged employment contract; and (4) claims based on any tort or alleged wrong, such as but not limited to negligence, invasion of privacy, defamation, fraud and infliction of emotional distress.
c.This release and waiver by Employee includes, to the extent legally permissible, all claims relating to or arising out of Employee’s employment with the Company or Employee’s termination therefrom that may arise under the common law and all federal, state and local statutes, ordinances, rules, regulations and orders, including but not limited to any claim or cause of action based on the National Labor Relations Act, the Age Discrimination in Employment Act, the OWBPA, the Americans with Disabilities Act, the Civil Rights Acts of 1964, the Family and Medical Leave Act, the Employee Retirement Income Security Act of 1974, the Equal Pay Act, all state wage and hour laws, all laws relating to discrimination of any sort, and/or any other provision of federal, state or local statutory or common law or regulation.
d.Employee agrees that this release and waiver is effective, to the extent legally permissible, for all claims relating to or arising out of Employee’s employment with the Company or Employee’s termination therefrom without regard to the legal nature of the claim alleged and without regard to whether any such claim is based upon tort, equity, implied or express contract, discrimination of any sort, or any federal, state or local law, statute or regulation or any claim for attorney’s fees.
e.Employee warrants that, to the extent not prohibited by applicable law, Employee has not and will not institute any lawsuit, claim, action, charge, complaint, petition, appeal, accusatory pleading, or proceeding of any kind against the Company relating to or arising out of any of the claims which are released and waived in this Section 3, and Employee waives, or at a minimum assigns to the Company, any and all rights to any and all forms of recovery or compensation from any legal action brought by Employee or on Employee’s behalf in connection with Employee’s employment or the termination of Employee’s employment with the Company. To the extent not prohibited by applicable law, in the event that a lawsuit or any of the foregoing actions are filed by Employee in breach of this covenant, it is expressly understood and agreed that this covenant shall constitute a complete defense to any such lawsuit or action. Although Employee is releasing claims that you may have under the OWBPA and the ADEA, nothing in this agreement limits Employee from bringing a claim to challenge this Second Release itself under the Age Discrimination in Employment Act and Older Workers Benefit Protection Act.
f.Further, it is understood and agreed that this is a full and final release applying not only to all claims as defined in these paragraphs which are presently known, anticipated, or disclosed to Employee, but also to all claims as defined in these paragraphs which are presently unknown, unanticipated, and undisclosed to Employee. Employee hereby waives any and all rights or benefits which Employee may now have, or may have in the future under the terms of §1542 of the California Civil Code, which provides as follows:
“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
4.Review and Revocation
a.Employee understands that Employee has been given a period of at least twenty-one (21) days from the date this Second Release was provided to Employee to review and consider this Second Release before signing it. Any changes to this document, whether material or immaterial, do not restart the running of this twenty-one (21) day consideration period. Employee further understands that Employee may use as much of this twenty-one (21) day period as Employee wishes prior to signing. Employee may revoke this Second Release within seven (7) calendar days of signing it. Revocation can be made by delivering a written notice of revocation to Scott. D. Helsinger, Deputy General Counsel, Legal, Compliance & Corporate Affairs, at 6110 Stoneridge Mall Road, Pleasanton, CA 94588. For this revocation to be effective, written notice must be received by Scott D. Helsinger no later than the seventh (7th) day after Employee signs this Second Release. If Employee revokes this Second Release, it shall not be effective or enforceable, except as provided below in Section 4(b), and Employee will not receive the benefits described in this document. By signing this Second Release, Employee agrees that Employee has carefully read and fully understand all of its provisions. The Company hereby advises Employee in writing to consult with Employee’s attorney before executing this Second Release, and Employee acknowledges and agrees that Employee has been so advised. Employee further understands that rights or claims that may arise after the latest date Employee signs this Second Release are not waived.
b.Employee acknowledges, understands and agrees that Employee must sign this Second Release to obtain the payments and benefits provided by the terms of this Second Release. For the avoidance of doubt, Employee’s entry into this Second Release is independent of the Separation Agreement, such that if Employee does not sign this Second Release, or revokes this Second Release, said revocation shall not cause the revocation of the Separation Agreement, and the terms of the Separation Agreement shall remain binding upon Employee.
5.Effective Date. The Effective Date of this Second Release occurs eight (8) calendar days after it is signed and delivered to the Company, provided that this Second Release has not been timely revoked as set forth in Section 4 above.
6.Section 3 of Separation Agreement Incorporated Herein. By Employee’s signature below, Employee hereby agrees to the release and waiver of claims and all other covenants and representations set forth in Section 3 above. If Employee agrees to the terms outlined in this Second Release, please sign and return this Second Release to Shruti Jana (via hardcopy or via electronic copy to ) no later than November 22, 2023.
7.Other Terms of Separation Agreement Incorporated Herein. All other terms of the Separation Agreement to the extent not inconsistent with the terms of this Second Release are hereby incorporated in this Second Release as though fully stated herein and apply with equal force to this Second Release.
[Signature Page to General Release of All Claims and Covenant Not to Sue Follows]
IN WITNESS WHEREOF, the undersigned have executed this Second Release on the dates shown below.
EXECUTIVE
SIGNED: | DATE: | |||||||||||||
Barbara Larson | ||||||||||||||
WORKDAY, INC.
SIGNED: | DATE: | |||||||||||||
BY: | ||||||||||||||
TITLE: | ||||||||||||||
[Signature Page to General Release of All Claims and Covenant Not to Sue]
Exhibit B
CONSULTING AGREEMENT
Workday, Inc. (“Workday”) is pleased to offer Barbara Larson (“Consultant” or “You”) a position as a consultant, subject to the terms and conditions set forth below in this Consulting Agreement (“Agreement”) and subject to the execution of a Separation and Transition Services Agreement (the “Separation Agreement”) and a second General Release of All Claims and Covenant Not to Sue, which are not revoked pursuant to their terms and which provide for the cessation of your employment with Workday on or about November 1, 2023 (“Termination Date”). The start date of your consulting arrangement will be the calendar day immediately following your last day of employment with Workday (the “Effective Date”). The consulting arrangement will continue from the Effective Date through and including July 8, 2024 (the “Consulting Term”), unless terminated earlier pursuant to the below terms.
Now, therefore, in consideration of the terms and conditions set forth in this Agreement, Workday and Consultant agree as follows:
1.SERVICES
Consultant agrees to be regularly available, at least monthly, during the Consulting Term to meet and confer with members of Workday leadership on all topics related to finance, accounting, product development, technology, business strategy, organizational growth, venture capital, mergers & acquisitions, and also to provide and share ideas, insights, analysis, advice and impressions concerning Workday’s strategic development efforts, obligations, and interests (“Services”). Consultant understands that Workday respects the intellectual property and confidential information of other persons and entities and fully expects everyone who consults with it also to respect the intellectual property and confidential information of other persons and entities. Workday takes these obligations very seriously. Consultant therefore agrees that they will not bring onto Workday’s premises, or otherwise expose Workday’s employees, to any intellectual property or confidential information of any other person or entity. Contractor agrees that the Contracting Consideration provided to Contractor herein provides more than ample consideration for the Services. If Contractor refuses or fails to perform the above Services, then Workday’s obligation to provide for the Contracting Consideration, as stated in Section 2.1, shall immediately cease.
2.CONSIDERATION
2.1As consideration for the Services, during the Consulting Term, Workday restricted stock units (“RSUs”) Consultant holds, if any, will continue to vest in accordance with the vesting schedule set forth in the applicable award agreement and the 2012 Workday, Inc. Stock Option Plan (the “2012 Plan”) or the 2022 Workday, Inc. Equity Incentive Plan (the “2022 Plan”), as applicable, subject to Consultant’s continued provision of Service on each applicable vesting date (the “Contracting Consideration”). This Agreement shall not be construed to amend, modify or supersede any of the provisions of the 2012 Plan or 2022 Plan, as applicable, or any Company RSU award agreement that may be applicable to Consultant.
2.2By mutual written agreement, the Consulting Term described above may be extended for additional time periods, provided that the parties execute a separate written agreement. The terms and conditions of this Agreement will apply to all additional time periods of Service, unless otherwise agreed. If no corresponding equity vest falls within an extended time period, Workday and Consultant can agree in writing to a fixed monthly fee as consideration for the extended time period during which Services are to be provided (“Fixed Fee”). Within ten (10) days after the end of each month for which a Fixed Fee is earned and due, Consultant will invoice Workday for Services performed pursuant to this Agreement during the preceding month. The terms and conditions of this Agreement will apply to all additional time periods of Service.
2.3In addition to the consideration described herein, Workday will reimburse Consultant for reasonable expenses Consultant incurs in connection with providing Services, including reasonable expenses for travel, lodging, meals and other costs as agreed.
2.4All remuneration, if any, contemplated herein may be subject to applicable withholding taxes. Consultant accepts responsibility for and should consult a tax advisor concerning all tax obligations associated with the consideration provided under this agreement, including, but not limited to, the equity vesting under this agreement.
3.WARRANTIES
Consultant represents and warrants:
3.1Entering into and performing under this Agreement will not conflict with any obligation Consultant has under terms of any contract or obligation to an employer or other person or entity, or any law, regulation or ordinance to which Consultant is or becomes subject, and Consultant agrees to inform Workday promptly and in writing if any such conflict arises.
3.2For the duration of the Consulting Term, Consultant agrees that Consultant will at all times devote Consultant’s best efforts to the interests of Workday, and will not, without prior approval from Workday’s General Counsel, engage in, or encourage or assist others to engage in, any other service, employment or activity that (a) would divert from Workday any business opportunity in which Workday can reasonably be expected to have an interest, (b) would directly compete with, or involve preparation to compete with, the current or future business of Workday, or (c) would otherwise conflict with Workday’s interests or could cause a disruption of its operation or prospects. Furthermore, prior to engaging in a potentially conflicting activity pursuant to the foregoing, Consultant agrees to provide Workday’s General Counsel with a written request for its approval, to which a prompt reply shall be made.
3.3In order to avoid any conflicts of interest, Consultant agrees that this Agreement shall automatically terminate if Consultant accepts or enters into any employment or consultancy role with any other entity engaged in development, marketing, implementation, sale, resale, licensing, distribution or servicing of any product, software, platform or solution, or the provision of any service, that relates to the business of the Company, which includes, without limitation, the provision of software and services for Human Capital Management, Business Planning, Professional Services Automation, Student, Financial Management, or Data Analytics prior to July 8, 2024 which would require Consultant to provide strategic or tactical advice or expertise (any such work as described pursuant to the foregoing paragraph, “Conflicting Work”), unless Consultant obtains prior approval from Workday’s General Counsel. Consultant shall notify Workday’s General Counsel in writing immediately upon accepting or entering into any Conflicting Work.
3.4For the duration of the Consulting Term, Consultant will undertake no employment or consultancy role with any other entity where, in connection with that employment or consultancy role, Consultant would be required and/or called-upon to use Workday’s confidential information as defined herein.
3.5Entering into and performing under this Agreement will not infringe any privacy or intellectual property right of a third party.
3.6Consultant will not assert moral rights (personal rights associated with authorship of a work under applicable law) with respect to ideas, insights, analysis and impressions Consultant provides concerning Workday’s product and technology directions or other subjects discussed by or with Workday, to the extent permitted by law.
3.7Consultant will not use, disclose, or transfer across borders any information that is processed for Workday that may identify an individual (Personal Data).
3.8Consultant will comply with all applicable data privacy laws and regulations and will implement and maintain appropriate technical and other protections for the Personal Data.
4.OWNERSHIP/INTELLECTUAL PROPERTY
4.1Workday has its own way of doing business and its own unique, independently developed proprietary technology. We have neither the need nor desire to make any unauthorized use of any intellectual property or confidential information belonging to or developed by others. Workday understands the importance of protecting its own intellectual property and confidential information, and respects the intellectual property and confidential information developed by other companies. We fully expect that each person who provides consulting Services to us will hold themselves to these same standards. No consultant should reference, use or bring into the workplace any material that contains intellectual property or confidential information belonging to a previous employer (other than Workday) or any other third party.
4.2All sales and/or marketing strategies, products, potential products and product ideas discussed by and with Workday belong exclusively to Workday and Consultant will not claim any rights or ownership in any such strategies or products by virtue of Consultant’s provision of Services hereunder, nor in any ideas, insights, analysis and impressions that Consultant provides to Workday. Consultant will not knowingly include intellectual property of others in any ideas, insights, analysis and impressions concerning Workday’s sales, marketing, product and/or technology directions Consultant provides to Workday. With respect to ideas, insights, analysis and impressions concerning Workday’s sales, marketing, product and technology directions Consultant provides to Workday that contain intellectual property belonging to Consultant or other third parties, Consultant will, prior to disclosure, identify the intellectual property rights and the owner of such rights. If Consultant delivers ideas, insights, analysis and impressions that contain intellectual property belonging to Consultant or entities Consultant controls or is affiliated with, and Consultant fails to identify the intellectual property rights, then Consultant grants or will obtain for Workday a nonexclusive, worldwide, perpetual, irrevocable, paid-up, license to prepare and have prepared derivative works of such intellectual property and to use, execute, reproduce, transmit, display, perform, transfer, distribute, and sublicense such intellectual property or their derivative works, and to grant others the rights granted in this subsection.
4.3Inventions. Consultant assigns to Workday all of Consultant’s right, title and interest in Inventions. “Inventions” means ideas, analysis, impressions, designs, concepts, techniques, discoveries or improvements, conceived or produced by Consultant in performance of this Agreement.
4.4Works Made for Hire. All Deliverables belong exclusively to Workday and are works made for hire. If any Deliverables are not works made for hire owned by operation of law, Consultant hereby irrevocably assigns ownership of copyrights in such works to Workday. “Deliverables” means items that Consultant prepares for or provides to Workday under this Agreement, including, but not limited to, software, all work products, logos, presentable works, documentation, and the like.
4.5Joint Invention Rights. Consultant assigns all of their right, title and interest in co-developed Deliverables to Workday.
4.6Perfection of Copyrights and Invention Rights. Upon request, Consultant will provide to Workday documentation to verify authorship of Deliverables. Consultant will assist Workday, at Workday’s expense, to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce and defend any rights assigned. Consultant hereby irrevocably designates and appoints Workday as its agent and attorney-in-fact, coupled with an interest, to act for and on Consultant’s behalf to execute and file any document and to do all other lawfully permitted acts to further the foregoing with the same legal force and effect as if executed by Consultant.
4.7Trademarks. Consultant will not use the name, trademarks, logos, copyrighted works, or other proprietary material of Workday in publicity releases, advertising or similar activity without Workday’s prior written consent.
5.7CONFIDENTIALITY
5.1“Confidential Information” means this Agreement, all Workday software, documentation, information, data, drawings, benchmark tests, specifications, trade secrets, object code, source code relating to Workday, Workday customer information, Workday sales and/or marketing strategies, and any other proprietary information supplied to Consultant that has not been disclosed publicly.
5.2Consultant acknowledges that the Confidential Information constitutes valuable information and Consultant agrees to use Confidential Information solely in Consultant’s capacity as a Consultant and in accordance with the provisions of this Agreement and all applicable Workday policies, including but not limited to its data security policies. Consultant agrees not to use Confidential Information for personal advantage or disclose Confidential Information directly or indirectly to any third party without Workday’s prior written consent. Consultant agrees to use best efforts to protect the Confidential Information from unauthorized use and disclosure. However, Consultant bears no responsibility for safeguarding information that is publicly available, already in Consultant’s possession, obtained from third parties without restrictions on disclosure, independently developed by Consultant without reference to Confidential Information, or to the extent required to be disclosed by order of a court or other governmental entity.
5.3Upon Workday’s request, Consultant will immediately return to Workday all Confidential Information, as well as any and all copies of Confidential Information.
5.4In the event of actual or threatened breach of the provisions of this Section of the Agreement, Workday and/or Consultant will have no adequate remedy at law and will be entitled to immediate and injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
5.5As additional protection for Confidential Information, and in no way limiting Consultant’s obligations contained elsewhere in this Agreement, Consultant agrees not to use, disclose or describe any information or idea learned at Workday to, or for the benefit of, any competitor of Workday or to participate in the development of substantially similar product features, functions or technology for any competitor of Workday. Without limiting the foregoing, Consultant may perform services for other persons, provided that such services do not represent a conflict of interest or a breach of Consultant’s obligation under this Agreement or otherwise.
5.6Pursuant to the Defend Trade Secrets Act of 2016, Consultant shall have no criminal or civil liability under any Federal or State trade secret law for the disclosure of a trade secret that: (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, if Consultant files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Consultant may disclose the trade secret to Consultant’s attorney and may use the trade secret information in the court proceeding, if Consultant: (X) files any document containing the trade secret under seal and (Y) does not disclose the trade secret, except pursuant to court order.
6.INDEPENDENT CONSULTANT
Consultant will serve as an independent Consultant and not as an employee or agent of Workday. Nothing in this Agreement will be construed as creating a joint venture relationship or an employer/employee relationship.
7.ADDITIONAL OBLIGATIONS
If Consultant’s employment with Workday is not terminated for any reason whatsoever on the Termination Date, then this agreement will be automatically null and void and will have no effect. Consultant is required to comply with Workday’s Code of Conduct as it may be updated and/or revised periodically.
8.TERM AND TERMINATION
In the event this Agreement is signed after the Effective Date (defined above as the calendar day immediately following Consultant’s last day of employment with Workday), the parties agree that all terms and conditions of this Agreement will be retroactive to the Effective Date (i.e., the start date of the Consulting Term). This Agreement will commence on the Effective Date and continue through and including July 8, 2024, at which time it will automatically expire, unless terminated earlier in accordance with the terms of this Agreement. The Company may terminate this Agreement and Consultant’s Services hereunder immediately without notice for Cause (as defined in the Separation Agreement) or upon Consultant’s breach of any provision of this Agreement. Consultant may terminate this Agreement and Consultant’s Services hereunder for any reason upon ten (10) days written notice. This Agreement will terminate automatically in the event Consultant commences any Conflicting Work as described in Section 3.3 above. The parties may otherwise terminate this Agreement only by mutual agreement set forth in writing signed by both parties.
In the event of any termination of this Agreement, the parties agree that the Consideration, Warranties, Indemnities, Ownership of Materials, Confidentiality, Independent Consultant, and Miscellaneous sections will survive such termination.
9.INDEMNIFICATION
Workday agrees to indemnify, defend, and hold Consultant harmless from and against any claims, demands, and actions, and any liabilities, damages, or expenses relating to or arising out of the Services Consultant provides, including court costs and reasonable attorney fees to the extent such claims, demands, and actions, and any liabilities, damages, or expenses are not caused by Consultant’s gross negligence or willful misconduct. Consultant agrees to give Workday prompt notice of any claim, demand, or action and cooperate fully with Workday in the defense and settlement of such a dispute.
10.MISCELLANEOUS
Failure by a party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed to be a waiver of such party's rights under this Agreement. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable, the remaining provisions of this Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements. This Agreement may not be amended, except by a writing signed by both parties. No exercise or enforcement by either party of any right or remedy under this Agreement, including termination, will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce. This Agreement may be executed in counterparts, such counterparts together will constitute one and the same agreement. This Agreement will be governed exclusively by the laws of the State of California, without regard to its conflicts of laws rules. The state and federal courts located nearest to Alameda County, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Consultant without the prior written consent of Workday. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate, or (c) sent by overnight courier.
[Signature Page to Consulting Agreement Follows]
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the dates shown below.
CONSULTANT
SIGNED: /s/ Barbara Larson | DATE: May 24, 2023 | ||||
Barbara Larson | |||||
WORKDAY, INC.
SIGNED: /s/ Ashley Goldsmith | DATE: May 23, 2023 | ||||
BY: Ashley Goldsmith | |||||
TITLE: Chief People Officer | |||||
[Signature Page to Consulting Agreement]
Exhibit 99.1
Workday Names Zane Rowe Chief Financial Officer
PLEASANTON, Calif., May. 25, 2023 -- Workday, Inc. (NASDAQ:WDAY), a leader in enterprise cloud applications for finance and human resources, today announced the appointment of Zane Rowe to chief financial officer (CFO), effective June 12, 2023. Rowe will oversee the company’s overall finance and accounting functions, internal audit, and investor relations, and advise on Workday’s business strategy and product development. Workday’s current CFO, Barbara Larson, will be stepping back to spend more time with her family, after a transition period.
Rowe brings more than twenty years of experience scaling and leading fast-growing organizations, including most recently as CFO of VMware, where he oversaw the company’s finance and accounting functions for seven years. Rowe also served as interim CEO of VMware from February 2021 to May 2021. Prior to his time at VMware, Rowe served as CFO at EMC, CFO at United Airlines, and led North America sales for Apple.
“Zane’s experience with scaling high-growth organizations, coupled with his deep financial expertise, make him the perfect leader to support Workday’s continued momentum as more and more organizations turn to us to help them navigate the changing world of work,” said Carl Eschenbach, co-CEO, Workday. “As we look forward, we also extend our deepest gratitude to Barbara for her many contributions, which are felt across the company. We thank her and wish her well in her next chapter.”
“I am thrilled to be joining Workday at this exciting time in its growth journey,” said Rowe. “I have known Aneel, Carl, and many members of the Workday team for a long time, and look forward to working with them to continue to drive the company forward.”
Rowe holds a bachelor of science degree from Embry-Riddle Aeronautical University and an MBA from San Diego State University.
About Workday
Workday is a leading provider of enterprise cloud applications for finance and human resources, helping customers adapt and thrive in a changing world. Workday applications for financial management, human resources, planning, spend management, and analytics are built with artificial intelligence and machine learning at the core to help organizations around the world embrace the future of work. Workday is used by more than 10,000 organizations around the world and across industries – from medium-sized businesses to more than 50% of the Fortune 500. For more information about Workday, visit workday.com.
© 2023 Workday, Inc. All rights reserved. Workday and the Workday logo are registered trademarks of Workday, Inc. All other brand and product names are trademarks or registered trademarks of their respective holders.
Forward-Looking Statements
This press release contains forward-looking statements including, among other things, statements regarding Workday’s CFO transition, growth, and momentum. These forward-looking statements are based only on currently available information and our current beliefs, expectations, and assumptions. Because forward-looking statements relate to the future, they are subject to inherent risks, uncertainties, assumptions, and changes in circumstances that are difficult to predict and many of which are outside of our control. If the risks materialize, assumptions prove incorrect, or we experience unexpected changes in circumstances, actual results could differ materially from the results implied by these forward-looking statements, and therefore you should not rely on any forward-looking statements. Risks include, but are not limited to, risks described in our filings with the Securities and Exchange Commission (“SEC”), including our Form 10-Q for the fiscal quarter ended April 30, 2023, and other reports that we have filed and will file with the SEC from time to time, which could cause actual results to vary from expectations. Workday assumes no obligation to, and does not currently intend to, update any such forward-looking statements after the date of this release.
Any unreleased services, features, or functions referenced in this document, our website, or other press releases or public statements that are not currently available are subject to change at Workday’s discretion and may not be delivered as planned or at all. Customers who purchase Workday services should make their purchase decisions based upon services, features, and functions that are currently available.
For further information:
Investor Relations: ir@workday.com
Media Inquiries: media@workday.com