Exhibit 10.83
SEPARATION AGREEMENT
This Separation Agreement ("Agreement") is made by and between F. Xxxxxx
Xxxxx ("Employee") and Informix Corporation, its affiliates and subsidiaries
(the "Company") as of the Effective Date set forth in Paragraph 16 below.
1. In consideration of the mutual promises made herein, the Company and
Employee (collectively referred to, where appropriate, as "the Parties")
hereby agree as follows:
(a). RESIGNATION. Employee will resign from the position of Senior
Vice President effective September 30, 2000 ("Termination Date"). The
resignation shall be in writing and addressed to Xx. Xxxxx Xxxxxx, Informix'
President and Chief Executive Officer. In the absence of the Company's
receipt of such resignation, Employee will be deemed to have resigned his
position effective September 30, 2000. Employee agrees to participate in the
orderly transition of Employee's duties and responsibilities as requested by
executive management. Employee and the Company agree that neither will
disparage the other, and that Employee's termination of employment will be
characterized as a voluntary resignation.
2. CONSIDERATION. The Company has agreed, subject to the Employee's
execution of this Agreement, to provide Employee with certain payments and
benefits as described below:
(a). PAYROLL CONTINUATION. Until September 30, 2000, Employee shall
remain on the Company's payroll, and shall receive salary at his current
annual base salary of Four Hundred Thousand Dollars ($400,000.00) payable in
equal semi-monthly installments in accordance with the Company's usual
payroll practices ("Payroll Continuation Period"). Except as otherwise
specified in this Agreement, Employee shall not be eligible to receive any
bonuses, or any other incentive compensation payments effective as of
September 30, 2000. Employee will be eligible to continue to participate in
the Company's benefits through September 30, 2000. Employee shall receive all
accrued but unused vacation with Employee's final paycheck on September 30,
2000.
(b). SEVERANCE. Employee shall receive a lump-sum severance payment
in the amount of Six Hundred and Sixty Thousand Dollars ($660,000.00)
("Severance Payment") which is equal to the total of: (i) Employee's base
salary for twelve months in the amount of Four Hundred Thousand Dollars
($400,000.00); (ii) a retention bonus in the amount of Two Hundred and Twenty
Five Thousand Dollars ($225,000.00); and (iii) an EICP payment of 25% for six
months for Fiscal Year 2000 in the amount of Thirty-Five Thousand Dollars
($35,000.00). The Severance Payment will be paid less applicable withholding
for federal and state taxes and other payroll deductions, and less any other
payroll deductions that Employee may authorize in writing. Employee shall
receive a payment in the amount of the net Severance Payment, plus accrued
but unused vacation, conditioned upon the Employee's having signed this
Agreement. The payment shall be within ten (10) business days after the
Effective Date of this Agreement as defined in Paragraph 16 below.
(c). STOCK OPTIONS. Notwithstanding any other provision of the
applicable Informix Corporation Stock Option and Award Plans, and
notwithstanding Employee's termination of employment as provided herein, all
of Employee's unvested options shall continue to vest and become exercisable
in accordance with their original vesting schedules, and all vested options,
and all unvested options which become exercisable by virtue of this
Agreement, shall continue to be exercisable up to December 31, 2001, at which
time all unvested and vested but unexercised options
shall expire. By virtue of this Agreement, the provisions entitled: Section
3. CHANGE OF CONTROL and Section 4. GOLDEN PARACHUTE EXCISE TAXES which
provisions are contained in the Informix Corporation Change of Control and
Severance Agreement ("COC Agreement") previously entered into between
Employee and the Company shall continue in full force and effect up to
December 31, 2001. Except for Sections 3 and 4 referred to above, the COC
Agreement is terminated as of the Effective Date of this Agreement.
(d). 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 COBRA
rights, nothing in this Agreement will impair those rights. Should Employee
elect health insurance continuation through COBRA, the Company agrees to pay
the Employee and Informix' portion of COBRA insurance continuation for
Employee and his covered dependents through September 30, 2001. Thereafter,
Employee shall pay for all costs of any COBRA continuation.
3. CONFIDENTIAL INFORMATION. Employee 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
Employee Inventions and Confidentiality Agreement between Employee and the
Company, including continuing obligations of non-solicitation. Employee shall
return all the Company's property, and confidential and proprietary
documents, diskettes, manuals, computer files and other information in his
possession to the Company on or before the effective date of his resignation,
including but not limited to: marketing and product data; reports and
forecasts; customer, partner and competitive data and information; customer
and/or partner lists, reports and other proprietary and confidential Company
property.
4. RELEASE OF CLAIMS. Employee agrees that the foregoing consideration
represents settlement in full of all outstanding obligations owed to Employee
by the Company. Employee, on behalf of himself, and his heirs, family
members, executors and assigns, hereby fully and forever releases the Company
and its past, present and future officers, agents, directors, employees,
investors, stockholders, administrators, affiliates, divisions, subsidiaries,
parents, predecessor and successor corporations, and assigns, from, and agrees
not to xxx or otherwise institute or cause to be instituted any legal action
or administrative proceeding against the Company 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 Employee 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 under federal and state laws and statutes,
in contract and in tort, relating to or arising from Employee's employment
relationship with the Company and the termination of that relationship;
(b) any and all claims arising out of or in connection with
Employee'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;
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(c) any and all claims for wrongful discharge of 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, 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 Family
Medical and Leave Act, the California Fair Employment and Housing Act, and
Labor Code section 201 ET SEQ. and section 970 ET SEQ. and all amendments to
and regulations issued thereunder;
(e) any and all claims for violation of the federal, or any state,
constitution;
(f) any and all claims arising out or in connection with of any
other laws and regulations relating to employment or employment
discrimination; and
(g) any and all claims for attorneys' fees and costs.
Employee agrees that the release of claims 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 created by
or incurred under this Agreement, the Stock Option agreement evidencing
Employee's stock options and the agreement(s) evidencing the exercise of such
options and Employee's continuing obligations pursuant to Employee's
Confidentiality and Nonsolicitation Agreement with the Company. Released
claims shall include any and all claims to continued stock option vesting,
exercise and acceleration of stock option vesting under the terms of the COC
Agreement, and any other agreement, written or oral, including any applicable
Stock Option agreement, except as specified in Paragraph 2 (c) above.
5. ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER ADEA. Employee acknowledges
that he is waiving and releasing any rights Employee may have under the Age
Discrimination in Employment Act of 1967 ("ADEA") and that this waiver and
release is knowing and voluntary. Employee and the Company agree that this
waiver and release does not apply to any rights or claims that may arise
under the ADEA after the effective date of this Agreement. Employee
acknowledges that the consideration given for this waiver and Agreement is in
addition to anything of value to which Employee was already entitled.
Employee further acknowledges that Employee has been notified by this
Agreement that: (a) Employee should consult with an attorney PRIOR to
executing this Agreement; (b) Employee has at least twenty-one (21) days
within which to consider this Agreement; (c) Employee has seven (7) days
following the execution of this Agreement by the parties to revoke this
Agreement; and (d) this Agreement shall not be effective until the revocation
period has expired. Any revocation must be in writing and must be
hand-delivered to Xxxx Xxxxx, Vice President, Legal, and General Counsel, by
close of business on the seventh day from the date that Employee signs this
Agreement.
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6. CIVIL CODE SECTION 1542. Employee represents that Employee is not
aware of any claims against the Company other than the claims that are
released by this Agreement. Employee acknowledges that he has been advised by
legal counsel and is 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.
Employee acknowledges that he is aware of and understands the Civil Code
Section set forth above and agrees expressly to waive any rights he may have
thereunder, as well as under any other statute or common law principles of
similar effect.
7. CONFIDENTIALITY. Employee agrees to use Employee's best efforts to
maintain in confidence the existence of this Agreement, the substance of this
Agreement, and the consideration for this Agreement (collectively, the
"Settlement Information"). Employee agrees to take all reasonable
precautions to prevent disclosure of any Settlement Information to third
parties, and agrees that there will not cause any public disclosure, directly
or indirectly, of any Settlement Information. Employee agrees to disclose
Settlement Information only to those attorneys, accountants, governmental
entities, and family members who have a reasonable need to know the
information.
8. NO ADMISSION OF LIABILITY. Employee understands and acknowledges that
this Agreement constitutes a compromise and settlement of disputed claims. No
action taken by the Company, either previously or in connection with this
Agreement shall be deemed or construed to be either: (a) an admission of the
truth or falsity of any claims heretofore made; or (b) an acknowledgment or
admission by the Company of any fault or liability whatsoever to the Employee
or to any third party.
9. COSTS. The Parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Agreement.
10. 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, including any potential claims of harassment, discrimination
or wrongful termination, shall be subject to binding arbitration, to the
extent permitted by law, in its offices in San Francisco County, California,
or at a mutually agreeable location in San Mateo County, California, before
the American Arbitration Association under its National Rules for the
Resolution of Employment Disputes. EMPLOYEE AGREES AND HEREBY WAIVES HIS
RIGHT TO JURY TRIAL AS TO MATTERS ARISING OUT OF THE TERMS OF THIS AGREEMENT
AND ANY MATTERS HEREIN RELEASED TO THE EXTENT PERMITTED BY LAW. In the event
that Employee is in breach of any of his obligations under this Agreement,
nothing in this section is to be construed as a waiver of the Company's
rights to seek injunctive or equitable relief in a court of competent
jurisdiction and to seek to recover all monies and/or benefits paid pursuant
to this Agreement, as well as its costs and attorneys' fees and expenses. The
Parties agree that the prevailing party in any arbitration shall be entitled
to all reasonable costs and attorneys' fees incurred in connection with the
arbitration
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proceeding, and that the prevailing party is entitled to seek injunctive
relief in any court of competent jurisdiction to enforce the arbitration
award.
11. AUTHORITY. Employee represents and warrants that Employee has the
capacity to act on his own behalf and on behalf of all who might claim
through Employee to bind them to the terms and conditions of this Agreement.
12. NO REPRESENTATIONS. Employee represents that Employee 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.
13. 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.
14. ENTIRE AGREEMENT. This Agreement, the stock option agreements between
the parties, and the Employee Confidentiality and Nonsolicitation Agreement
represent the entire agreement and understanding between the Company and
Employee concerning Employee's separation from the Company, and supersede and
replace any and all prior agreements and understandings concerning Employee's
relationship with the Company and his compensation by the Company. This
Agreement may only be amended in writing signed by Employee and the Company's
Vice President, Legal, and General Counsel.
15. GOVERNING LAW. This Agreement shall be governed by the internal
substantive laws, but not the choice of law rules, of the State of California.
16. EFFECTIVE DATE. This Agreement is effective eight (8) days after it
has been signed by both Parties.
17. 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.
18. 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; and (c) They understand the provisions and
legal consequences of this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
INFORMIX CORPORATION
Dated: September 18, 2000 By /s/ Xxxx Xxxxx
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Xxxx Xxxxx, Vice President, Legal,
and General Counsel
F. XXXXXX XXXXX
Dated: September 15, 2000 /s/ F. Xxxxxx Xxxxx
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