EXHIBIT 10.25
INFORMATICA CORPORATION
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release ("Agreement") is made by and between
Informatica Corporation (the "Company"), and Xxxxxx X. Xxxxxxx ("Executive")
(jointly referred to as the "Parties").
WHEREAS, Executive was employed by the Company as its President and Chief
Executive Officer ("CEO");
WHEREAS, Executive served as a member of the Company's Board of Directors;
WHEREAS, the Company and Executive entered into an Employee Proprietary
Information and Inventions Agreement (the "Confidentiality Agreement");
WHEREAS, the Company and Executive have entered into Stock Option
Agreements dated March 18, 1997, February 12, 1998, February 5, 1999, February
16, 2000, March 11, 2001, March 18, 2002, and May 8, 2003, granting Executive
the option to purchase shares of the Company's common stock subject to the terms
and conditions of the Company's 1999 Stock Incentive Plan and the Stock Option
Agreement (the "Stock Option Agreements");
WHEREAS, the Executive wishes to resign his employment with the Company,
and his position as Director of the Company, and the Company and Executive wish
to provide for Executive's orderly transition from the position of President,
CEO, and member of the Company's Board of Directors; WHEREAS, the Parties wish
to resolve any and all disputes, claims, complaints, grievances, charges,
actions, petitions and demands that the Executive may have against the Company,
including, but not limited to, any and all claims arising or in any way related
to Executive's employment with or employment separation from the Company;
NOW THEREFORE, in consideration of the mutual promises made herein, the
Parties hereby agree as follows:
1. Resignation. The Parties agree that Executive will voluntarily
resign from his current position as President and CEO effective July 19, 2004
(the "Separation Date"). In addition, Executive resigns his position as a member
of the Company's Board of Directors, and all other positions as board member,
officer or employee of the Company, or any of its affiliates or subsidiaries.
Executive will cooperate in filing the necessary forms indicating such
resignation with any governmental agency or body that may require such a filing,
or as the Company may otherwise deem necessary. Upon the resignation from
Executive's position as CEO, Executive's employment with the Company shall cease
and Executive will no longer have the responsibilities or authority of
that position and will not exercise any such responsibilities or authority in
connection with such position.
2. Consideration. As consideration for Executive entering into this
Agreement, the Company agrees to provide Executive with the following benefits:
(a) Salary Continuation. The Company agrees to pay Executive at
the rate of Twenty-Two Thousand Nine Hundred Sixteen Dollars And Sixty-Seven
Cents ($22,916.67) per month, less applicable withholding, representing
Executive's regular salary, for twelve (12) months from the first regular
payroll date following the Separation Date (the "Payment Period"), in accordance
with the Company's regular payroll practices, for a total of Two Hundred
Seventy-Five Thousand Dollars ($275,000). During the Payment Period, Executive
will not be entitled to accrual of any additional compensation, including, but
not limited to, vacation benefits or bonuses.
(b) Lump-Sum Bonus Payment. The Company agrees to pay Executive a
lump-sum target bonus payment of Two Hundred Seventy-Five Thousand Dollars
($275,000), less applicable withholding. This payment will be made to Executive
on January 3, 2005.
(c) COBRA Reimbursement. Executive's health insurance benefits
will cease as of July 31, 2004, subject to Executive's right to continue his
health insurance under COBRA. The Company agrees that in the event Executive
elects COBRA continuation coverage, the Company shall pay any COBRA premiums for
a period not to exceed twelve (12) months, unless Executive obtains comparable
coverage with a new employer prior to the expiration of said twelve (12) months
(in which event Executive shall immediately notify Company of said event).
(d) Stock Option Vesting. The Parties agree that for purposes of
determining the number of shares of the Company's common stock which Executive
is entitled to purchase from the Company, pursuant to the exercise of
outstanding options, the Executive will be considered to have vested only up to
the Separation Date. Notwithstanding, the Parties agree that for purposes of
determining the number of shares of the Company's common stock which Executive
is entitled to purchase from the Company pursuant to the exercise of outstanding
options, the Executive shall, as of the Separation Date, be vested as to that
number of option shares as to which Executive would have been vested under the
Stock Option Agreements had Executive remained employed with the Company an
additional twelve (12) months following the Separation Date (through and
including July 19, 2005) (collectively, the "Vested Option Shares"). Executive
acknowledges that as of the Separation Date, he will have vested in One Million
Six Hundred Sixty-Five Thousand, Eight Hundred Eighty-Nine (1,665,889) options
(which includes the additional twelve months of vesting described in the
preceding sentence) and no more. To the extent option shares are not vested on
the Separation Date, they shall be immediately forfeited back to the Company's
Stock Option Plan upon the Separation Date. The exercise of any vested stock
options shall continue to be subject to the terms and conditions of the Stock
Agreements, except that with respect to Vested Option Shares that were initially
granted to Executive after January 1, 2000, all such Vested Option Shares will
remain exercisable until twelve (12) months following the Separation Date. With
respect to Vested Option Shares initially granted to Executive on or prior to
January 1, 2000, following the Separation Date, Executive shall have, as
specified in his Stock Option Agreements, three (3) months to exercise said
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Vested Option Shares, and such Vested Option Shares will expire on such date if
not previously exercised. Notwithstanding the preceding sentence, in no event
may Executive exercise a stock option after the expiration of the maximum term
stated in the applicable Stock Option Agreements.
3. Payment of Salary. Executive acknowledges and represents that the
Company has paid all salary, wages, bonuses, accrued vacation and any and all
other benefits due to Executive as of the Separation Date, once the payments in
Section 2 above have been made.
4. Confidential Information. Executive shall continue to maintain the
confidentiality of all confidential and proprietary information of the Company
and shall continue to comply with the terms and conditions of the
Confidentiality Agreement between Executive and the Company. Executive shall
return all of the Company's property, including all computer equipment, and
confidential and proprietary information in his possession to the Company upon
the Effective Date of this Agreement.
5. Release of Claims. Executive agrees that the foregoing consideration
represents settlement in full of all outstanding obligations owed to Executive
by the Company and its officers, managers, supervisors, agents and employees.
Except as provided in Paragraph 17 below, Executive, on his own behalf, and on
behalf of his respective heirs, family members, executors, agents, and assigns,
hereby fully and forever releases the Company and its officers, directors,
employees, agents, investors, shareholders, administrators, affiliates,
divisions, subsidiaries, predecessor and successor corporations, and assigns,
from, and agree not to xxx concerning, any claim, duty, obligation or cause of
action relating to any matters of any kind, whether presently known or unknown,
suspected or unsuspected, that Executive 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,
including, without limitation, any claims for fraud, misrepresentation, breach
of fiduciary duty, breach of duty under applicable state corporate law, and
securities fraud under any state or federal law;
(c) any and all claims under the law of any jurisdiction
including, but not limited to, wrongful discharge of employment, constructive
discharge from employment, termination in violation of public policy,
discrimination, breach of contract, both express and implied, breach of a
covenant of good faith and fair dealing, both express and implied, promissory
estoppel, negligent or intentional infliction of emotional distress, negligent
or intentional misrepresentation, negligent or intentional interference with
contract or prospective economic advantage, unfair business practices,
defamation, libel, slander, negligence, personal injury, assault, battery,
invasion of privacy, false imprisonment, and conversion;
(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,
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the Age Discrimination in Employment Act of 1967, the Americans with
Disabilities Act of 1990, the Fair Labor Standards Act, the Employee Retirement
Income Security Act of 1974, the Worker Adjustment and Retraining Notification
Act, the Older Workers Benefit Protection Act, the California Fair Employment
and Housing Act, and the California Labor Code;
(e) any and all claims for violation of the federal, or any state,
constitution;
(f) any and all claims arising out of any other laws and
regulations relating to employment or employment discrimination;
(g) any claim for any loss, cost, damage, or expense arising out
of any dispute over the non-withholding or other tax treatment of any of the
proceeds received by Executive as a result of this Agreement; and
(h) 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.
Executive acknowledges and agrees that any breach of any provision of this
Agreement shall constitute a material breach of this Agreement and shall entitle
the Company immediately to recover and cease the benefits provided to Executive
under this Agreement.
6. Civil Code Section 1542. The Parties represent that they are not
aware of any claim by either of them other than the claims that are released by
this Agreement. Executive and the Company 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.
Executive and the Company, 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.
7. No Pending or Future Lawsuits. The Parties represent that they have
no lawsuits, claims, or actions pending in their name, or on behalf of any other
person or entity, against the other party or any other person or entity referred
to herein. The Parties also represents that they do not intend to bring any
claims on their own behalf or on behalf of any other person or entity against
the other party or any other person or entity referred to herein.
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8. Confidentiality. The Parties acknowledge that their agreement to
keep the terms and conditions of this Agreement confidential was a material
factor on which all parties relied in entering into this Agreement. The Parties
hereto agree to use their best efforts to maintain in confidence the existence
of this Agreement, the contents and terms of this Agreement, the consideration
for this Agreement, and any allegations relating to the Company or Executive's
employment with the Company except as otherwise provided for in this Agreement
(hereinafter collectively referred to as "Settlement Information"). The Parties
agree to take every reasonable precaution to prevent disclosure of any
Settlement Information to third parties, and agree that there will be no
publicity, directly or indirectly, concerning any Settlement Information, except
as required by law. The Parties agree to take every precaution to disclose
Settlement Information only to those attorneys, accountants, governmental
entities, and family members who have a reasonable need to know of such
Settlement Information. Not withstanding the foregoing, the Parties agree that
nothing in this Agreement shall restrict the Company from complying with its
obligations under applicable law, including its disclosure obligations under the
Securities Exchange Act of 1933, as amended, the Securities Exchange Act of
1943, as amended, and the rules and regulations of any applicable exchange, even
if complying with such disclosure obligations would otherwise violate the
provisions of this paragraph (and the provisions of this Agreement, generally).
The Parties agree that if a party proves that the other party breached this
confidentiality provision, it shall be entitled to an award of its costs spent
enforcing this provision, including all reasonable attorneys' fees associated
with the enforcement action without regard to whether the actual damages can be
established from the breach.
9. No Cooperation. Each Party agrees it will not act in any manner that
might damage the other party. The Parties agree that they will not counsel or
assist any attorneys or their clients in the presentation or prosecution of any
disputes, differences, grievances, claims, charges, or complaints by any third
party against the other party and/or any officer, director, employee, agent,
representative, shareholder or attorney of the Company, unless under a subpoena
or other court order to do so. The Parties further agree both to immediately
notify the other party upon receipt of any court order, subpoena, or any legal
discovery device that seeks or might require the disclosure or production of the
existence or terms of this Agreement, and to furnish, within three (3) business
days of its receipt, a copy of such subpoena or legal discovery device to the
other party.
10. Cooperation with the Company. Executive agrees to cooperate fully
with the Company, including but not limited to, responding to reasonable
requests from the Company's Board of Directors, Chief Executive Officer, Chief
Financial Officer, or the Company's legal counsel in connection with any and all
existing or future litigation or procedures to perfect the Company's
intellectual property rights. The Executive also agrees to furnish upon
reasonable request, information necessary in order to assist the Company in
meeting the 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 applicable exchange rules. Executive understands that he
remains subject to any SEC and exchange prohibitions on xxxxxxx xxxxxxx even
after the Separation Date.
11. Non-Disparagement. The Company agrees that its then-current
executive officers and members of the Board of Directors will refrain from any
disparagement, criticism, defamation, slander of Executive, or tortious
interference with the contracts and relationships of Executive for so
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long as they are employees or Directors of the Company. 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. The foregoing restrictions will not apply to any statements that
are made truthfully in response to a subpoena or other compulsory legal process.
12. Non-Solicitation. In consideration for the benefits Executive is to
receive herein, Executive agrees that he will not, at any time during the twelve
months following the Separation Date, directly or indirectly 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 current or
prospective employees. The foregoing restrictions will not apply to any general
advertisements or solicitations that are published in a publicly available
medium.
13. No Admission of Liability. The Parties understand and acknowledge
that this Agreement constitutes a compromise and settlement of disputed claims.
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.
14. No Knowledge of Wrongdoing. Executive represents that he has no
knowledge of any wrongdoing involving improper or false claims against a federal
or state governmental agency, or any other wrongdoing that involves Executive or
other present or former Company employees.
15. Tax Consequences. The Company makes no representations or warranties
with respect to the tax consequences of the payment of any sums to Executive
under the terms of this Agreement. 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.
Executive further agrees to indemnify and hold the Company harmless from any
claims, demands, deficiencies, penalties, assessments, executions, judgments, or
recoveries by any government agency against the Company for any amounts claimed
due on account of Executive's failure to pay federal or state taxes or damages
sustained by the Company by reason of any such claims, including reasonable
attorneys' fees.
16. Costs. The Parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Agreement.
17. Indemnification. Each party agrees to indemnify and hold harmless
the other party from and against any and all loss, costs, damages or expenses,
including, without limitation, attorneys' fees or expenses incurred by the
non-breaching party arising out of the breach of this Agreement by the other
party, or from any false representation made herein by the other party, or from
any action or proceeding which may be commenced, prosecuted or threatened by the
other party or for that party's benefit, upon that party's initiative, or with
that party's aid or approval, contrary to the provisions of this Agreement. Each
party further agrees that in any such action or proceeding,
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this Agreement may be pled by a party as a complete defense, or may be asserted
by way of counterclaim or cross-claim. Further, Executive shall be entitled to
indemnification, in accordance with the applicable provisions of the Company's
articles of incorporation and bylaws or any indemnification agreement between
Executive and the Company (or, if greater indemnification rights are provided
thereby, to the fullest extent allowed by law), 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
or director of the Company or any of its subsidiaries.
18. Arbitration. The Parties agree that any and all disputes arising out
of the terms of this Agreement, their interpretation, and any of the matters
herein released, shall be subject to binding arbitration in San Mateo County
before the American Arbitration Association under its National Rules for the
Resolution of Employment Disputes, supplemented by the California Code of Civil
Procedure. The Parties agree that the prevailing party in any arbitration shall
be entitled to injunctive relief in any court of competent jurisdiction to
enforce the arbitration award. The Parties agree that the prevailing party in
any arbitration shall be awarded its reasonable attorneys' fees and costs. THE
PARTIES HEREBY AGREE TO WAIVE THEIR RIGHT TO HAVE ANY DISPUTE BETWEEN THEM
RESOLVED IN A COURT OF LAW BY A JUDGE OR JURY. This paragraph will not prevent
either party from seeking injunctive relief (or any other provisional remedy)
from any court having jurisdiction over the Parties and the subject matter of
their dispute relating to Executive's obligations under this Agreement and the
Confidentiality Agreement.
19. 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 him to bind them to the
terms and conditions of this Agreement. Each party warrants and represents that
there are no liens or claims of lien or assignments in law or equity or
otherwise of or against any of the claims or causes of action released herein.
20. 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. In entering into 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.
21. Severability. In the event that any provision, or any portion
thereof, 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 or portion of said provision.
22. Entire Agreement. This Agreement represents the entire agreement and
understanding between the Company and Executive concerning the subject matter of
this Agreement and Executive's relationship with the Company, and supersedes and
replaces any and all prior agreements and understandings between the Parties
concerning the subject matter of this Agreement and Executive's relationship
with the Company, with the exception of the Confidentiality Agreement , any
indemnification agreement between Executive and the Company, and the Stock
Option Agreements.
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23. No Waiver. The failure of either party to insist upon the
performance of any of the terms and conditions in this Agreement, or the failure
to prosecute any breach of any of the terms and conditions of this Agreement,
shall not be construed thereafter as a waiver of any such terms or conditions.
This entire Agreement shall remain in full force and effect as if no such
forbearance or failure of performance had occurred.
24. No Oral Modification. This Agreement may only be amended in a
writing signed by Executive and the Chief Financial Officer of the Company.
25. Governing Law. This Agreement shall be construed, interpreted,
governed, and enforced in accordance with the laws of the State of California,
without regard to choice-of-law provisions. Executive hereby consents to
personal and exclusive jurisdiction and venue in the State of California.
26. Effective Date. This Agreement is effective after it has been signed
by both parties.
27. 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.
28. 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; and
(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
Dated: July 20, 2004 By /s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
Chairman of the Compensation Committee
Member of the Informatica Board of
Directors
Xxxxxx X. Xxxxxxx, an individual
Dated: July 21, 2004 By /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
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