INFORMIX CORPORATION
XXXXXX X. XXXXXXXXX, XX. EMPLOYMENT TRANSITION AGREEMENT
WHEREAS, Xxxxxx X. Xxxxxxxxx, Xx. ("Executive") has been employed as the
President and Chief Executive Officer of Informix Corporation (the "Company")
and serves as a member and the Chairman of the Company's Board of Directors, and
WHEREAS, in addition to Executive's ongoing role as a member and Chairman
of the Company's Board of Directors, the Company desires to avail itself of
Executive's services as a part-time employee in order that Executive may assist
the Company with strategic decisions, business development and to help maintain
continuity in Company management,
NOW, THEREFORE, this Employment Transition Agreement (the "Agreement") is
made by and between the Company and Xxxxxx X. Xxxxxxxxx, Xx., effective as of
July 16, 1999 (the "Employment Transition Date").
1. DUTIES AND SCOPE OF PART-TIME EMPLOYMENT RELATIONSHIP.
(a) DURATION OF PART-TIME EMPLOYMENT. On and after the Employment
Transition Date, the Company shall employ the Executive as a common-law employee
on a part-time basis until July 31, 2000, unless Executive is terminated earlier
(the period of Executive's part-time employment hereunder is referred to as the
"Part-Time Employment Period"). In this capacity, Executive shall report to
the Board of Directors (the "Board") of the Company and shall coordinate his
activities with the Chief Executive Officer of the Company (the "CEO").
Executive's duties shall consist of, among other duties reasonably assigned by
the Board, assisting with business development, including mergers and
acquisitions, assisting with customer relations, and assisting the Company in
cooperating with the U.S. Securities & Exchange Commission during its
investigation, and assisting the Company in the settlement of the investigation,
if necessary. Executive shall perform such duties as are assigned by the Board
in the manner and at the place and time specified by the Board. Executive shall
perform such services himself and may not hire or otherwise retain anyone else
to discharge such required duties. To the extent practicable, Executive shall
use Company materials and property (and not his own materials and property) in
the discharge of all such services. To the extent directed by the Board, and to
the extent practicable, such services shall be performed on the Company
premises.
(b) OBLIGATIONS. During the Part-Time Employment Period, Executive
shall devote substantial business efforts and time (on a part-time basis) to the
Company. During the term of the Part-Time Employment Period, Executive agrees
not to actively engage in any other employment, occupation or consulting
activity for any direct or indirect remuneration without the prior approval of
the Board; provided, however, that Executive may serve in any capacity with any
civic, educational or charitable organization without the approval of the Board,
so long as such activities do not interfere with his duties and obligations
under this Agreement; provided, further that Executive may sit on the boards of
directors of corporations and committees thereof
without violating his obligations hereunder.
2. EMPLOYEE BENEFITS. During the Part-Time Employment Period, Executive
shall be eligible to participate in the employee benefit plans maintained by the
Company to the extent provided for under the terms and conditions of those
plans.
3. AT-WILL EMPLOYMENT. Executive and the Company understand and
acknowledge that Executive's employment with the Company is "at-will".
Executive and the Company acknowledge that the part-time employment relationship
may be terminated at any time, with or without good cause or for any or no
cause, at the option either of the Company or Executive.
4. COMPENSATION.
(a) BASE SALARY. During the Part-Time Employment Period, and subject
to his continued part-time employment, the Company shall pay the Executive as
compensation for his services such base salary (the "Base Salary") as is
reasonably determined by the Compensation Committee of the Board of Directors,
in its sole discretion.
(b) EICP. During the Part-Time Employment Period, and subject to his
continued part-time employment, Executive shall be eligible to receive a bonus
pursuant to the Company's Executive Incentive Compensation Plan with the target
bonus set at such percentage of Executive's Base Salary as is reasonably
determined by the Compensation Committee of the Board of Directors, in its sole
discretion.
5. SEVERANCE BENEFITS. If, while employed hereunder, Executive's
part-time employment with the Company is terminated by the Company for any
reason other than for "Cause" (as defined herein), or if Executive terminates
his employment with the Company voluntarily within twelve months following a
"Change of Control" (as defined in the Change of Control Agreement between the
Executive and the Company dated April 20, 1999), then Executive shall be
entitled to receive a lump-sum severance payment from the Company, within 30
days of such termination, equal to the amount of Base Salary and EICP bonus
(with a payout based on 100% of target) Executive would have earned had
Executive remained employed hereunder through July 31, 2000.
For the purposes of this Agreement, "Cause" shall mean (i) Executive's
engaging in willful misconduct which is materially injurious to the Company or
its affiliates; (ii) Executive's committing a felony, (iii) Executive's
committing an act of fraud against the Company or its affiliates; or (iv)
Executive's willful breaching, in any material respect, of the Employee
Confidentiality/ Ownership/Nonsolicitation Agreement (the
"Confidentiality/Ownership/Nonsolicitation Agreement") between Executive and the
Company.
6. EXPENSES. During the Part-Time Employment Period, the Company will
pay or reimburse Executive for reasonable travel, entertainment or other
expenses incurred by Executive in the furtherance of or in connection with the
performance of Executive's duties hereunder in accordance with the Company's
established policies. Executive shall furnish the Company with evidence of such
expenses within a reasonable period of time from the date that they were
incurred.
7. DEATH OF EXECUTIVE. If Executive dies or becomes permanently and
totally disabled during the term of this Agreement, this Agreement shall
terminate immediately.
8. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of (a) the heirs, executors and legal representatives of Executive upon
Executive's death and (b) any successor of the Company. Any such successor of
the Company shall be deemed substituted for the Company under the terms of this
Agreement for all purposes. As used herein, "successor" shall include any
person, firm, corporation or other business entity which at any time, whether by
purchase, merger or otherwise, directly or indirectly acquires all or
substantially all of the assets or business of the Company. None of the rights
of Executive to receive any form of compensation payable pursuant to this
Agreement shall be assignable or transferable except through a testamentary
disposition or by the laws of descent and distribution upon the death of
Executive following termination without cause. Any attempted assignment,
transfer, conveyance or other disposition (other than as aforesaid) of any
interest in the rights of Executive to receive any form of compensation
hereunder shall be null and void.
9. NOTICES. All notices, requests, demands and other communications
called for hereunder shall be in writing and shall be deemed given if delivered
personally or by facsimile or one (1) day after being sent by Federal Express
overnight service or a similar commercial delivery service, prepaid and
addressed to the parties or their successors in interest at the following
addresses:
If to the Company: Informix Corporation
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attn: General Counsel
If to Executive: Xxxxxx X. Xxxxxxxxx, Xx.
at the last residential address known by the
Company.
10. ARBITRATION.
(a) To the extent permitted by law, any dispute or controversy
arising out of,
relating to, or in connection with this Agreement, or the interpretation,
validity, construction, performance, breach, or termination thereof shall be
settled by arbitration to be held in San Mateo County, California, in accordance
with the National Rules for the Resolution of Employment Disputes then in effect
of the American Arbitration Association (the "Rules"). The arbitrator may grant
injunctions or other relief in such dispute or controversy. The decision of the
arbitrator shall be final, conclusive and binding on the parties to the
arbitration. Judgment may be entered on the arbitrator's decision in any court
having jurisdiction.
(b) The arbitrator shall apply California law to the merits of any
dispute or claim, without reference to rules of conflict of law. The
arbitration proceedings shall be governed by federal arbitration law and by the
Rules, without reference to state arbitration law. With respect to any actions
or proceedings to compel arbitration, enforce any arbitration award or appeal
any arbitration award related to this Agreement, the parties hereto expressly
consent to the personal jurisdiction of the state and federal courts located in
California.
(c) The Company and Executive shall each pay one-half of the costs
and expenses of such arbitration, and shall separately pay its counsel fees and
expenses.
(d) THE PARTIES HAVE READ AND UNDERSTAND SECTION 10, WHICH DISCUSSES
ARBITRATION. THE PARTIES UNDERSTAND THAT BY SIGNING THIS AGREEMENT, THEY AGREE,
TO THE EXTENT PERMITTED BY LAW, TO SUBMIT ANY FUTURE CLAIMS ARISING OUT OF,
RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION,
VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH, OR TERMINATION THEREOF TO BINDING
ARBITRATION, AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF THEIR
RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES, INCLUDING
AS TO DISCRIMINATION, RELATING TO ALL ASPECTS OF THE EMPLOYER/EMPLOYEE
RELATIONSHIP.
11. LEGAL FEE REIMBURSEMENT. The Company agrees to pay Executive=s
reasonable legal fees associated with entering into this Agreement up to $3,000
upon receiving an invoice for such legal services.
12. SEVERABILITY. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision.
13. ENTIRE AGREEMENT. This Agreement, the Change of Control Agreement,
the stock option agreements between Executive and the Company, the
Confidentiality/Ownership/ Nonsolicitation agreement between Executive and the
Company and the Indemnity Agreement between Executive and the Company represent
the entire agreement and understanding between
the Company and Executive concerning Executive's employment relationship with
the Company, and supersede and replace in their entirety any and all prior
agreements and understandings concerning Executive's employment relationship
with the Company, including Executive's Employment Agreement with the Company
dated July 18, 1997.
14. NO ORAL MODIFICATION, CANCELLATION OR DISCHARGE. This Agreement may
only be amended, canceled or discharged in writing signed by Executive and an
authorized officer of the Company.
15. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of California.
16. ACKNOWLEDGMENT. Executive acknowledges that he has had the
opportunity to discuss this matter with and obtain advice from his private
attorney, has had sufficient time to, and has carefully read and fully
understands all the provisions of this Agreement, and is knowingly and
voluntarily entering into this Agreement.
17. TAX TREATMENT. Payment of the compensation set forth herein shall be
subject to standard employment and income tax withholding.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
respective dates set forth below
INFORMIX CORPORATION
Date:
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Signature
EXECUTIVE
Date:
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Xxxxxx X. Xxxxxxxxx, Xx.
