INFORMIX CORPORATION
EMPLOYMENT AGREEMENT
This Agreement is made by and between Informix Corporation (the "Company"),
and Xxxxxx X. Xxxxxxxxx, Xx. ("Executive"), effective as of the last date signed
below (the "Effective Date").
1. DUTIES AND SCOPE OF EMPLOYMENT.
(a) POSITION; EMPLOYMENT COMMENCEMENT DATE. The Company shall employ
the Executive as the President and Chief Executive Officer of the Company
reporting to the Board of Directors of the Company (the "Board") to perform the
duties and responsibilities commensurate with such positions. Upon the
Effective Date, Executive shall be appointed as a member of the Board.
Additionally, subject to continued election to the Board by the vote of the
stockholders of the Company, Executive shall serve as a member of the Board
during the period of his employment hereunder. Executive's employment with the
Company and tenure as a member of the Board pursuant to this Agreement shall
commence as of July 22, 1997 (the "Employment Date"). It is the intention of
the Board to appoint two additional members to the Board in addition to
Executive's Board membership, after due consideration of Executive's
recommendations.
(b) OBLIGATIONS. Executive shall devote his full business efforts
and time to the Company; provided, however, that notwithstanding the foregoing,
Executive may remain as a non-operating employee, without meaningful cash
compensation, of 3Com Corporation through October 1, 1997. 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 and may
serve on the board of directors of Latitude Communications and on any other
boards of directors so long as such service does not give rise to any conflict
with the Company's interests and so long as Executive provides advance notice of
such service to the Board.
2. EMPLOYEE AND FRINGE BENEFITS. During his employment hereunder,
Executive shall be eligible to participate in the employee benefit and fringe
benefit plans and programs maintained by the Company for its senior executives
at a level comparable to that of other senior executives of the Company.
3. COMPENSATION AND STOCK OPTIONS.
(a) BASE SALARY. While employed by the Company pursuant to this
Agreement, the Company shall pay the Executive as compensation for his services
a base salary at the minimum annualized rate of $460,000 (the "Base Salary").
Such salary shall be paid periodically in accordance with normal Company payroll
practices and subject to the usual, required withholding. Executive's salary
shall be reviewed annually for possible raises in light of Executive's
performance of his duties, as determined by the Board. It is understood that
Executive will not participate in the Company's current 1997 executive bonus
plan.
(b) STOCK OPTIONS. On the Employment Date, Executive shall be
granted stock options (the "Stock Options") to purchase a total of one million
five hundred thousand (1,500,000) shares of Company Common Stock with a per
share exercise price equal to 100% of the "Fair Market Value," as determined
under the Informix Corporation 1994 Stock Option and Award Plan (the "Stock
Option Plan"). The Stock Options shall be for a term of ten years (or shorter,
as described below, upon termination of Executive's employment (or, with the
approval of the Board, Executive's consulting relationship) with the Company)
and, subject to accelerated vesting as set forth in the Company's standard form
of stock option agreement and as set forth elsewhere herein, shall vest as to
25% of the shares originally subject to the Stock Options on each anniversary of
the date of grant, so as to be 100% vested four years from the date of grant,
conditioned upon Executive's continued employment (or, with the approval of the
Board,
Executive's consulting relationship) with the Company as of each vesting date.
Except as specified otherwise herein, these option grants are in all respects
subject to the terms, definitions and provisions of the Stock Option Plan and
the standard form of stock option agreement thereunder to be entered into by and
between Executive and the Company (the "Option Agreements"); provided, however,
that to the extent that the Stock Options may not be granted under the Stock
Option Plan by virtue of the limitation on the number of shares subject to
option that may be granted thereunder in any fiscal year of the Company, they
shall be granted outside of the Stock Plan pursuant to a written option
agreement containing the same terms and conditions as the option granted under
the Stock Option Plan. Any such non-Stock Option Plan stock option shall be
registered by the Company on Form S-8 prior to any vesting of such option. All
stock options granted to Executive pursuant to this Section 3(b) shall remain
exercisable (to the extent vested upon the date of termination) for twelve
months following Executive's termination of employment (or, with the approval of
the Board, Executive's consulting relationship) with the Company in the event
that Executive is terminated by the Company other than for "Cause," (as defined
in Section 4 hereof), or if Executive's employment (or, with the approval of the
Board, Executive's consulting relationship) with the Company terminates due to
Executive's death or "Total Disability" (as defined in Section 7 hereof)
otherwise, such options shall remain exercisable (to the extent vested upon the
date of termination) for three months following Executive's termination of
employment with the Company; provided, however, that in no event shall any stock
option granted pursuant to this Section 3(b) remain exercisable longer than its
original ten-year term.
4. SEVERANCE BENEFITS. If, while employed hereunder, Executive's
employment with the Company terminates involuntarily 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
herein), then Executive shall be entitled to receive a lump-sum severance
payment from the Company, within 30 days of such termination, equal to twelve
months' of Executive's Base Salary as in effect as of the date of such
termination.
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 (attached hereto as EXHIBIT
A) (the "Confidentiality/Ownership/Nonsolicitation Agreement") between Executive
and the Company.
For the purposes of this Agreement, "Change of Control" shall mean:
(i) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended) becomes the
"beneficial owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing 50% or more of the total
voting power represented by the Company's then outstanding voting securities; or
(ii) A change in the composition of the Board occurring within a
two-year period, as a result of which fewer than a majority of the directors
are Incumbent Directors. "Incumbent Directors" shall mean directors who either
(A) are directors of the Company as of the Employment Date, or (B) are elected,
or nominated for election, to the Board with the affirmative votes of at least a
majority of the Incumbent Directors at the time of such election or nomination
(but shall not include an individual whose election or nomination is in
connection with an actual or threatened proxy contest relating to the election
of directors to the Company); or
(iii) The consummation of a merger or consolidation of the Company
with any other corporation other than a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least fifty percent
(50%) of the total voting power represented by the voting securities of the
Company or such surviving entity outstanding immediately after such merger or
consolidation; or
-2-
(iv) The consummation of the sale or disposition by the Company
of all or substantially all of the Company's assets.
5. CHANGE OF CONTROL. In the event a Change of Control occurs within six
months following the Effective Date, then, if Executive is employed by the
Company as of the date of such Change of Control, Executive's Stock Options
shall have their vesting accelerated as to two years' additional vesting, and in
the event a Change of Control occurs on or after six months following the
Effective Date, if Executive is employed by the Company as of the date of such
Change of Control, then Executive's Stock Options shall have their vesting
accelerated in full so as to become 100% vested.
6. TOTAL DISABILITY OR DEATH OF EXECUTIVE.
(a) TOTAL DISABILITY. Upon Executive's becoming "Totally Disabled"
(as defined herein) while employed hereunder, employment hereunder shall
automatically terminate, and all payments of compensation by the Company to
Executive hereunder shall immediately terminate, except for any amounts earned
by Executive as of the date of such employment termination, which shall be paid
to Executive. Executive shall be deemed to be "Totally Disabled" ninety (90)
days following written notice by the Company to Executive of such determination
by an independent physician acceptable to the Board and Executive (which
acceptance will not be unreasonably withheld); provided, however, that if
Executive resumes work on a regular basis prior to the end of such 90 day
period, Executive shall not be deemed to be "Totally Disabled."
(b) DEATH OF EXECUTIVE. If Executive dies while employed hereunder,
this Agreement shall terminate immediately and all payments of compensation by
the Company to the Executive hereunder shall immediately terminate, except for
any amounts earned by Executive as of the date of Executive's death, which shall
be paid to Executive's estate.
7. ARBITRATION.
(a) 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 7, WHICH DISCUSSES
ARBITRATION. THE PARTIES UNDERSTAND THAT BY SIGNING THIS AGREEMENT, THEY AGREE
TO SUBMIT ANY FUTURE CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH
THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE,
BREACH, OR
-3-
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/EXECUTIVE RELATIONSHIP.
8. AT-WILL EMPLOYMENT. The Company and Executive acknowledge that
Executive's employment is and shall continue to be at-will, as defined under
applicable law, notwithstanding that Executive may become eligible for severance
benefits in accordance with the provisions of Section 4 hereof. If Executive's
employment terminates for any reason, Executive shall not be entitled to any
payments, benefits, damages, awards or compensation other than as provided by
this Agreement or other written Company benefit plans.
9. INDEMNIFICATION. The Company shall indemnify Executive to the same
extent as other senior executives and directors of the Company are indemnified
and the Company and Executive shall enter into the Indemnity Agreement set forth
as EXHIBIT B hereto (the "Indemnity Agreement"). The foregoing indemnification
shall not limit any other right which Executive may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation or Bylaws,
agreement, vote of stockholders or disinterested directors or otherwise. The
foregoing indemnification shall not be deemed to affect any rights to
subrogation which may exist in any policy of directors and officers liability.
10. 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.
11. LEGAL FEE REIMBURSEMENT. The Company agrees to pay Executive's legal
fees associated with entering into this Agreement up to $5,000 upon receiving an
invoice for such legal services.
12. NOTICES. All notices, requests, demands and other communications
called for hereunder shall be in writing and shall be deemed given if delivered
personally or three (3) days after being mailed by registered or certified mail,
or sent by Federal Express or a similar private delivery company, return receipt
requested, prepaid and addressed to the parties or their successors in interest
at the following addresses, or at such other addresses as the parties may
designate by written notice in the manner aforesaid:
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 to the
Company
13. SEVERABILITY. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction or an arbitrator to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision.
14. ENTIRE AGREEMENT. This Agreement, the Stock Option Plan, the
Confidentiality/
-4-
Ownership/Nonsolicitation Agreement, the Indemnity Agreement and the Option
Agreements represent the entire agreement and understanding between the Company
and Executive concerning Executive's employment relationship with the Company,
and supersedes and replaces any and all prior agreements and understandings
concerning Executive's employment relationship with the Company.
15. NO ORAL MODIFICATION, CANCELLATION OR DISCHARGE. This Agreement may
only be amended, canceled or discharged in writing signed by Executive and an
authorized representative of the Board.
16. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of California.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on
the respective dates set forth below
INFORMIX CORPORATION
By: Xxxxxxx Xxxxx /s/ Xxxxxxx Xxxxx
Signature
Date: 7-18-97
XXXXXX X. XXXXXXXXX, XX.
Date: 7-18-97 /s/ Xxxxxx X. Xxxxxxxxx, Xx.
Signature
-5-
