EXHIBIT 10.23
INFORMATICA CORPORATION
XXXXXX XXXXXX SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release ("Agreement") is made by and between
Informatica Corporation (the "Company"), and Xxxxxx Xxxxxx ("Executive").
WHEREAS, Executive was employed by the Company as its Senior Vice
President, Marketing;
WHEREAS, Executive has resigned from all such positions, and
WHEREAS, the Executive agrees to release the Company from any claims
arising from or related to Executive's service relationship;
NOW THEREFORE, in consideration of the mutual promises made herein, the
Company and Executive (collectively referred to as "the Parties") hereby agree
as follows: 1. Termination of Employment. Executive hereby acknowledges
resignation of his employment effective upon February 2, 2004 (the "Resignation
Date").
2. Payment of Salary. Executive acknowledges and represents that the
Company has paid all salary, wages, accrued vacation and any and all other
benefits due to Executive as of the Resignation Date.
3. Consideration. As consideration for Executive entering into this
Agreement and on the Resignation Date, the Company agrees to provide Executive
with the following benefits:
(a) Lump-Sum Salary Payment. A lump-sum payment equal to six (6)
months' of Executive's annual base salary, specifically $92,000.00, less
applicable withholding.
(b) Lump-Sum Bonus Payment. A lump-sum payment of Executive's assumed
future awards during the next six months under Company bonus plans, specifically
$30,000.00, less applicable withholding.
(c) Lump-Sum Sales Performance Bonus Payment. A lump-sum payment of
$50,000.00, less applical withholding, awarded to Executive for his direct
contribution to the Company's achievement of certain sales performance
objectives in the third and fourth quarters of 2003.
(d) Stock Option Accelerated Vesting. All of Executive's outstanding
Company options (the "Options") shall, on the Effective Date, have their vesting
accelerated as to six (6) month's additional vesting. To the extent not vested
on the Effective Date and after such
acceleration, the Options shall terminate and become without further force and
effect. Following the Resignation Date, Executive shall have three months, as
specified in his individual option agreements, to exercise any vested options,
after which such Options shall, to the extent unexercised, become without
further force and effect.
(e) Lump-Sum COBRA Payment. A lump-sum payment equal to six (6)
months' COBRA premiums, specifically $ 2,358.84.
In addition, Company shall continue to pay and Executive shall continue to
be eligible to receive all salary, bonuses (including executive officer level Q3
& Q4 2003 bonus), accrued FTO and benefits (including health and dental
benefits, 401(k), ESPP, and all other Informatica employee benefits) earned,
payable or for which Executive is eligible through the Resignation Date.
4. Release of Claims. Executive agrees that the foregoing consideration
represents settlement in full of all outstanding obligations owed to Executive
by the Company. Executive, on behalf of himself and his respective heirs,
executors and assigns, hereby fully and forever releases the Company and its
officers, directors, employees, investors, shareholders, administrators,
predecessor and successor corporations, and assigns, of and from any claim,
duty, obligation or cause of action relating to any matters of any kind, whether
presently known or unknown, suspected or unsuspected, that any of them may
possess arising from any omissions, acts or facts that have occurred up until
and including the effective date of this Agreement including, without
limitation,
(a) any and all claims relating to or arising from Executive's
employment relationship with the Company and the termination of that
relationship;
(b) any and all claims relating to, or arising from, Executive's
right to purchase, or actual purchase of shares of stock of the Company;
(c) any and all claims for wrongful discharge of employment; breach
of contract, both express and implied; breach of a covenant of good faith and
fair dealing, both express and implied; negligent or intentional infliction of
emotional distress; negligent or intentional misrepresentation; negligent or
intentional interference with contract or prospective economic advantage; and
defamation;
(d) any and all claims for violation of any federal, state or
municipal statute, including, but not limited to, Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment
Act of 1967, the Americans with Disabilities Act of 1990, and the California
Fair Employment and Housing Act;
(e) any and all claims arising out of any other laws and regulations
relating to employment or employment discrimination; and
(f) any and all claims for attorneys' fees and costs.
The Company and Executive agree that the release set forth in this section shall
be and remain in effect in all respects as a complete general release as to the
matters released. This release does not extend to any obligations incurred under
this Agreement.
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The parties acknowledge that they have been advised by legal counsel and
are familiar with the provisions of California Civil Code Section 1542, 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.
The parties, being aware of said Code Section, agree to expressly waive any
rights they may have thereunder, as well as under any other statute or common
law principles of similar effect.
5. Return of Company Property. Executive agrees to return all Company
property, including all computing equipment, to the Company upon the
effectiveness of this Agreement. Company agrees to provide Executive, at no cost
to Executive, with a reconditioned laptop computer.
6. Indemnification. Executive shall be entitled to indemnification, in
accordance with the applicable provisions of the Company's articles of
incorporation and bylaws, against expense, liability and loss that Executive may
incur by reason of any action, suit or proceeding arising from or relating to
the performance of Executive's duties as an officer of the Company or any of its
subsidiaries.
7. Mutual Non-Disparagement. The Company agrees that its executive
officers will refrain from any disparagement, criticism, defamation, slander of
Executive, or tortious interference with the contracts and relationships of the
Executive. Executive agrees to refrain from any disparagement, criticism,
defamation, slander of the Company or its employees, or tortious interference
with the contracts and relationships of the Company.
8. Non-Solicitation. In consideration for the severance benefits
Executive is to receive herein Executive agrees that he will not, at any time
during the twelve (12) months following his Resignation Date, directly solicit
or cause any other individual or entity to directly solicit, any individuals to
leave the Company's employ for any reason or interfere in any other manner with
the employment relationships at the time existing between the Company and its
then current employees. The foregoing restrictions will not apply to any general
advertisements or solicitations that are published in a publicly available
medium.
9. THIS SECTION INTENTIONALLY LEFT BLANK.
10. Tax Consequences. The Company makes no representations or warranties
with respect to the tax consequences of the payment of any sums or provision of
any benefits or accelerated vesting to Executive under the terms of this
Agreement. The Company will withhold sums from Executive's compensation
hereunder sufficient to satisfy the Company's withholding obligations. Executive
agrees and understands that he is responsible for payment, if any, of local,
state and/or federal taxes on the sums paid hereunder by the Company and any
penalties or assessments thereon.
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11. No Admission of Liability. No action taken by the Parties hereto, or
either of them, either previously or in connection with this Agreement shall be
deemed or construed to be (a) an admission of the truth or falsity of any claims
heretofore made or (b) an acknowledgment or admission by either party of any
fault or liability whatsoever to the other party or to any third party.
12. Costs. The Parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Agreement.
13. Arbitration and Equitable Relief.
(a) The parties hereto agree that, 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. The parties hereto hereby expressly
consent to the personal jurisdiction of the state and federal courts located in
California for any action or proceeding arising from or relating to this
Agreement and/or relating to any arbitration in which the parties are
participants.
(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 HERETO HAVE READ AND UNDERSTAND SECTION 13, WHICH
DISCUSSES ARBITRATION. THE PARTIES HERETO 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 RELATING TO ALL ASPECTS OF THE EMPLOYER/EMPLOYEE RELATIONSHIP,
INCLUDING BUT NOT LIMITED TO, THE FOLLOWING CLAIMS:
(i) ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF EMPLOYMENT;
BREACH OF CONTRACT, BOTH EXPRESS AND IMPLIED; BREACH OF THE COVENANT OF GOOD
FAITH AND FAIR DEALING, BOTH EXPRESS AND IMPLIED; NEGLIGENT OR INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT OR INTENTIONAL MISREPRESENTATION;
NEGLIGENT OR INTENTIONAL INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC
ADVANTAGE; AND DEFAMATION.
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(ii) ANY AND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL STATE OR
MUNICIPAL STATUTE, INCLUDING, BUT NOT LIMITED TO, TITLE VII OF THE CIVIL RIGHTS
ACT OF 1964, THE CIVIL RIGHTS ACT OF 1991, THE AGE DISCRIMINATION IN EMPLOYMENT
ACT OF 1967, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE FAIR LABOR
STANDARDS ACT, THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, AND LABOR CODE
SECTION 201, ET SEQ;
(iii) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND
REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.
14. Authority. The Company represents and warrants that the undersigned
has the authority to act on behalf of the Company and to bind the Company and
all who may claim through it to the terms and conditions of this Agreement.
Executive represents and warrants that he has the capacity to act on his own
behalf and on behalf of all who might claim through his to bind them to the
terms and conditions of this Agreement.
15. No Representations. Each party represents that it has had the
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Agreement. Neither party has
relied upon any representations or statements made by the other party hereto
which are not specifically set forth in this Agreement.
16. 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.
17. Entire Agreement. This Agreement along with the previously executed
Employee Proprietary Information and Inventions Agreement represent the entire
agreement and understanding between the Company and Executive concerning
Executive's employment transition and eventual separation from the Company, and
supersedes, replaces and fully discharges all obligations under any and all
prior agreements and understandings concerning Executive's relationship with the
Company and his compensation by the Company.
18. No Oral Modification. This Agreement may only be amended in writing
signed by Executive and the Company's Chief Executive Officer or Chief Financial
Officer.
19. Effective Date. This Agreement is effective as of the date the
Agreement is executed by both Parties.
20. Counterparts. This Agreement may be executed in counterparts, and each
counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
21. Cooperation with the Company. Executive agrees to cooperate fully with
the Company, including but not limited to, responding to requests from the
Company's Chief Operating Officer, Chief Financial Officer or the Company's
legal counsel in connection with any and all existing or future litigation. The
Executive also agrees to promptly furnish information necessary in
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order to assist Company in meeting Company's reporting requirements and
Executive's continuing Section 16 reporting obligations on a timely manner and
as prescribed by the then current SEC and/or NASDAQ rules and the Company's
Section 16 reporting requirements document. Executive understands that he
remains subject to the SEC and NASDAQ prohibitions on xxxxxxx xxxxxxx even after
the Effective Date of this agreement.
22. Voluntary Execution of Agreement. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the Parties hereto, with the full intent of releasing all claims. The Parties
acknowledge that:
(a) They have read this Agreement;
(b) They have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice or that they
have voluntarily declined to seek such counsel;
(c) They understand the terms and consequences of this Agreement and
of the releases it contains;
(d) They are fully aware of the legal and binding effect of this
Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement.
Informatica Corporation
/s/ Xxxxx XxXxxx
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Date: January 30, 2004
Executive, an individual
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
Date: January 30, 2004
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