Exhibit 10.61
SEPARATION AGREEMENT AND MUTUAL RELEASE
This Separation Agreement and Mutual Release ("Agreement") is made and
entered into by and between Xxxxx X. Xxxxxx ("Employee") and Informix
Software, Inc. ("Informix"), as of the Effective Date set forth in Section 10
below.
1. In consideration of Employee's acceptance of this Agreement, and in
exchange for the release and promises described below, Informix and Employee
agree to the following:
(a) Resignation. Employee will resign from the position of Vice
President, Human Resources, of Informix effective Friday, July 23, 1999. Such
resignation shall be in writing and addressed to Informix's Chief Executive
Officer. In the absence of receipt of a resignation notice, Employee will be
deemed to have resigned her position effective Friday, July 23, 1999. A
mutually agreeable announcement of Employee's resignation shall be
communicated to all Informix employees no later than close of business on
Friday, July 23, 1999. Employee agrees to participate in the orderly
transition of Employee's duties and responsibilities as requested by
executive management.
(b) Termination of Employment. Employee's resignation from the
position of Vice President, Human Resources shall not terminate her
employment. Her employment shall terminate on the earlier of January 3, 2000
or the date on which she accepts other employment. If Employee secures other
employment before the end of the payroll continuation period, as defined in
Paragraph 1(c), Employee shall immediately notify the Chief Executive
Officer. The parties agree that Employee's engagement in occasional
consulting work for other employers shall not be considered sufficient to
constitute acceptance of other employment or termination of her employment
with Informix.
(c) Payroll Continuation. Except as set forth in Paragraph 1(d),
Employee will remain on the Informix payroll from July 23, 1999 until
January 3, 2000, (the "payroll continuation period").
(d) Severance. Employee shall receive severance in the amount of Two
Hundred Forty One Thousand Five Hundred Dollars ($241,500), less applicable
federal and state tax withholdings and less any other payroll deductions that
Employee may authorize in writing. Informix shall pay the severance amount
through payroll continuation as follows. The first two weeks of the payroll
continuation period, July 23, 1999 through August 7, 1999, shall not count
towards the payment of severance. Commencing August 8, 1999 through the
remainder of the payroll continuation period, each payroll check shall reduce
the severance obligation of the Employer, dollar for dollar. At the end of
the payroll continuation period, whether on January 3, 2000 or
earlier through acceptance of other employment and termination of her
employment with Informix, Employee shall receive the balance of her severance
in a lump sum (the "final payment"), and all other benefits will end.
(e) Benefits. All benefits will continue during the payroll
continuation period, except as follows. Employee will discontinue her
participation in the Employee Stock Purchase Plan (ESPP) on or before August
7, 1999. In addition, Employee will not accrue any additional vacation during
the payroll continuation period. Employee's final payment will include all of
Employee's accrued vacation through August 7, 1999. Health insurance benefits
paid by Informix will terminate on the last day of the month in which the
Employee's employment is terminated, which occurs on the date Employee
receives the final payment.
(f) Work Assignments. During the payroll continuation period,
Employee will have no work assignments, will not come to the office, and will
have no authority to act on behalf of Informix.
(g) Stock Options. Employee will not qualify for any stock option
vesting after August 7, 1999. Employee hereby waives any and all right to
continued vesting of stock options after August 7, 1999. The stock option
exercise period begins on Employee's last day on the Informix payroll in
accordance with the Employee's applicable Stock Option Agreement, Informix's
Stock Option and Award Plan, and Informix's policies.
(h) Hire-On Bonus. Informix waives any right to recover all or any
portion of Employee's hire-on bonus.
(i) Outplacement. Informix will provide Employee with individual
executive outplacement assistance with Right Management Consultants at a cost
not to exceed $10,000.
(j) Incentive Bonus. Informix will make a payment to Employee in the
amount of Seventy Six Thousand Seventy Two Dollars and Fifty Cents
($76,072.50). That payment represents 70% of Employee's current incentive
target (45% of Employee's current base salary) under the terms of the
Informix Executive Incentive Compensation Plan. This payment shall be made as
follows: 50% will be paid in a lump sum, less applicable payroll deductions,
on or before August 7, 1999; and the remaining 50% will be paid in a lump
sum, less applicable payroll deductions, on or before October 7, 1999.
(k) 401(k) Contributions. Commencing August 8, 1999, neither Employee
nor Informix may make contributions to Employee's 401(k) plan.
(l) Computer. No later than Friday, August 6, 1999, Employee shall
return to Informix her laptop computer. Employee may, at Employee's
discretion, arrange for Informix's MIS Department to purchase a replacement
computer for Employee valued at no more than $4,600, which after purchase by
Informix, will become Employee's personal property. If Employee chooses not
to arrange for Informix's MIS Department to purchase a computer for Employee,
then, no later than 10 days following the return of the laptop computer,
Informix shall pay Employee $4,600 which shall be reported as income on an
IRS Form 1099 and on a comparable California state form.
(m) Cellular Phone. Employee will assume ownership of Employee's
cellular telephone. However, as of August 8, 1999, Informix will not longer
pay for or be responsible for any of Employee's cellular telephone charges.
(n) COBRA. Following termination of employment, Employee will
receive, by separate cover, information regarding Employee's rights to health
insurance continuation (COBRA rights). To the extent that Employee has
rights, nothing in this Agreement will impair those rights. Should Employee
enroll to obtain health insurance continuation pursuant to COBRA, Informix
will pay both Employee's and Informix's portions for such coverage for the
remainder of the calendar year in which Employee's employment is terminated.
2. Employee has returned or will immediately return to Informix all
property owned by Informix and any documents, computer disks or files that
Employee may have, including but not limited to the following: property and
information about Informix's practices and procedures; employees; product
information, trade secrets, customer lists, employee lists; telephone and
sales directories; Informix company data, software, sales forecasts or
product marketing pertaining to the current and anticipated business and
operations of Informix; notebooks bulletins, or manuals; and/or Informix
pricing, cost and purchasing information. Employee has previously signed an
agreement regarding Confidential Information and Trade Secrets. A copy of
that agreement is attached. All provisions of the agreement remain in effect
after Employee leaves Informix, including, but not limited to, confidential
and proprietary information regarding Informix's products, sales and
marketing methods or strategies, product development, research and plans,
personnel data regarding employees of Informix, including salaries, and other
confidential or proprietary information not readily available to the public.
3. Employee and Informix, and her and its representatives, heirs,
successors, and assigns, do hereby completely release and forever discharge
each other, any Affiliate, and its and their present and former shareholders,
officers, directors, agents, employees, attorneys, successors, and assigns
(collectively, "Released Parties") from all claims, rights, demands, actions,
obligations, liabilities, and causes of action of every kind and character,
known or unknown, mature or unmatured, which Employee and Informix may have
now or in the future arising from any act or omission or condition occurring
on or prior to the date of execution of this Agreement (including, without
limitation, the future
effects of such acts, omissions, or conditions), whether based on tort,
contract (express or implied), or any federal, state, or local law, statute,
or regulation (collectively, the "Released Claims"). By way of example and
not in limitation of the foregoing, Released Claims shall include any claims
arising under Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act, and the California Fair Employment and Housing Act, as well
as any claims asserting wrongful termination, harassment, breach of contract,
breach of the covenant of good faith and fair dealing, negligent or
intentional infliction of emotional distress, negligent or intentional
misrepresentation, negligent or intentional interference with contract or
prospective economic advantage, defamation, invasion of privacy, and claims
related to disability. Notwithstanding the foregoing, Released Claims shall
not include any claims based on obligations created by or reaffirmed in this
Agreement.
4. Informix's and Employee's agreement in Paragraph 3 expressly covers
all claims or possible claims by the parties, and confirms that Informix and
Employee expressly waive and release and promise never to assert any such
claims described in Paragraph 3, even if Informix and Employee do not believe
that they have such claims. Informix and Employee therefore waive the rights
described in section 1542 of the Civil Code of California, and elect to
assume all risks for claims that now exist in either Informix's or Employee's
favor, whether known or unknown. Informix and Employee hereby waive any and
all rights under section 1542 of the Civil Code of California and any
analogous or similar provision applicable under state or local statutes which
provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
5. Employee will not, unless required by law, disclose to others any
information regarding the terms of this Agreement, the money and/or benefits
being paid under it or the fact of its payment, except that Employee may
disclose this information to Employee's immediate family, attorneys,
accountants or other professional advisors whom Employee must make the
disclosure in order for them to render professional services to Employee.
Employee will instruct them and they must agree, however, to maintain the
confidentiality of this information just as Employee must.
6. Employee and Informix agree that neither will disparage the other
Employee's termination of employment will be characterized as a voluntary
resignation, and Informix will provide Employee with mutually agree-upon
references.
7. This Agreement, Employee's Confidential Information and Trade Secret
Agreement, Employee's Stock Option Agreement, and Informix's Stock Option and
Award Plan, represent the full agreement between Employee and Informix
regarding the terms and conditions of Employee's termination of employment.
These documents supersede and are in lieu of all prior oral or written
agreements and may not be changed except in writing signed by Employee and
the Vice President, Legal, and General Counsel or that Vice President's
delegee.
8. If any provision of this Agreement is held to be invalid, void, or
unenforceable, the remaining provisions shall remain in full force and effect.
9. Nothing in this Agreement is intended to create any rights to
employment or employment benefits except as expressly set forth in this
Agreement.
10. The following is required by the Older Workers Benefit Protection Act:
Employee will have up to 21 days after receipt of this Agreement to
accept the terms of this Agreement, although Employee may accept it at any
time within those 21 days. Employee has been advised to consult an attorney
about the Agreement.
To accept the Agreement, Employee must date and sign this Agreement
and return it to the Vice President, Legal, and General Counsel. Employee
will have an additional 7 days following her execution of the Agreement in
which to revoke the acceptance. To revoke, Employee must send a written
statement of revocation to the Vice President, Legal, and General Counsel. If
Employee does not revoke, the eighth day after the date of Employee's
acceptance will be the Effective Date of the Agreement.
11. This Agreement shall be deemed to have been entered into and shall be
construed and enforced in accordance with the laws of the State of California
as applied to contracts made and to be performed entirely within California.
Any claim for breach of this Agreement shall be referred to the American
Arbitration Association for resolution under its rules for resolution of
commercial disputes, and any and all arbitration or mediation shall be at the
AAA offices in San Francisco County, California, or at a mutually agreeable
location in San Mateo County, California. In the event that Employee is in
breach any of obligations under this Agreement or as otherwise imposed by
law, Informix will be entitled to recover all payments paid pursuant to this
Agreement and to obtain all other relief provided by law or equity. In
addition, Informix will be entitled to recover its costs and attorney's fees
and expenses.
12. It is understood and agreed by the parties that this Agreement
represents a compromise settlement, and that the promises and payments in
consideration of this Agreement shall not be construed to be an admission of
any liability or obligation by either party to the other party or to any
other person. Employee acknowledges that Employee has read and fully
understands this Agreement; that Employee has been given at least twenty-one
(21) days to consider this Agreement; that Employee has been advised to
consult an attorney before signing this Agreement; Employee has received
consideration in an amount above that to which she was otherwise entitled;
and that Employee is not executing this Agreement in reliance upon any
representations, promises or inducements other than those contained in this
Agreement, Employee's Confidentiality and Trade Secret Agreement, Employee's
applicable Stock Option Agreement, and Informix's Stock Option and Award
Plan; and, Employee acknowledges signing this Agreement voluntarily.
IN WITNESS WHEREOF, the parties have executed this Separation Agreement and
Release as the date first set forth below.
Date: 7/29/99 /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Date: 7/29/99 /s/ Xxxx Xxxxx
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Xxxx Xxxxx, Vice President
Legal, and General Counsel
Informix Corporation
