EXHIBIT 10.73
PART-TIME EMPLOYMENT
AND TRANSITION AGREEMENT
WHEREAS, ▇▇▇▇▇ ▇▇▇▇▇▇ ("Executive") has been employed as the
President and Chief Executive Officer of Ardent Software, Inc. ("Ardent") and
serves as a member and the Chairman of Ardent's Board of Directors, and
WHEREAS, upon the effectiveness of the merger of Iroquois
Acquisition Corporation, a wholly-owned subsidiary of Informix Corporation
("Informix"), with and into Ardent Software, Inc. (the "Merger"), Ardent will
become a wholly-owned subsidiary of Informix; and
WHEREAS, in connection with the effectiveness of the merger, the
parties desire and agree to enter into a part-time employment relationship by
means of this Agreement;
NOW, THEREFORE, this Employment Transition Agreement ("Agreement")
is made by and between Informix Software, Inc. (the "Company"), a
wholly-owned subsidiary of Informix, and the Executive effective on the
effective date of the merger (the "Employment Transition Date") as defined in
the Agreement and Plan of Reorganization, effective as of November 30, 1999,
among Informix, Ardent, and Iroquois Acquisition Corporation.
1. DURATION AND OBLIGATIONS OF PART-TIME EMPLOYMENT RELATIONSHIP.
(a) DURATION OF PART-TIME EMPLOYMENT. On and after the
Employment Transition Date, the Company agrees to employ the Executive as a
common-law employee on a part-time basis for the period of one year from the
Employment Transition Date, unless Executive is terminated earlier (the
period of Executive's part-time employment hereunder is referred to as the
"Part-Time Employment Period"). In this capacity, Executive shall report to
the Chief Executive Officer of the Company (the "CEO"). Executive's duties
shall consist of, among other duties reasonably assigned by the CEO,
including assisting with the integration of Ardent into Informix and related
matters.
(b) OBLIGATIONS. During the Part-Time Employment Period,
Executive shall devote substantial business efforts and time (on a part-time
basis) to the Company. During the Part-Time Employment Period, Executive
agrees to comply with the standard and policies contained in the Informix
Worldwide Ethics Policy (the "Policy") and not to engage actively in any
other employment, occupation or consulting activity for any direct or
indirect remuneration without the prior approval of the CEO which approval
shall be consistent with the Policy; provided, however, that Executive may
serve in any capacity with any civic, educational or charitable organization
without the approval of the CEO, so long as such activities do not interfere
with his duties and obligations under this Agreement; provided, further that
Executive may sit on the boards of directors of corporations and committees
thereof without violating his obligations hereunder, and consistent with the
Policy, a copy of which has been provided to Executive.
2. EMPLOYEE VACATION AND BENEFITS. During the Part-Time Employment
Period, Executive shall be entitled to vacation in accordance with the
Company's current policies, and shall be eligible to participate in the
employee benefit plans maintained by the Company to the extent provided for
full-time employees of the Company as permitted by applicable law and
pursuant to the terms and conditions of those plans.
3. AT-WILL EMPLOYMENT. Executive and the Company understand and
acknowledge that Executive's employment with the Company is "at-will."
Executive and the Company acknowledge that the part-time employment
relationship may be terminated at any time, with or without good cause or for
any or no cause, at the option either of the Company or Executive.
4. COMPENSATION.
During the Part-Time Employment Period, and subject to his
continued part-time employment, the Company shall pay the Executive as
compensation for his services an annual base salary in the amount of One
Hundred and Fifty-Thousand Dollars ($150,000), paid bimonthly according to
the Company's usual payroll practices, less all applicable withholding taxes.
5. SEVERANCE BENEFITS WITHIN OR AT THE CONCLUSION OF ONE YEAR OF
EFFECTIVE DATE.
Executive shall be entitled to receive benefits set forth
in Ardent's "Policy Regarding Termination of Executive Status and Related
Matters in the Event of a Sale of the Company," adopted July 29, 1996, as
amended on July 22, 1998 (the "Ardent Severance Policy"), a copy of which is
Attachment A to this Agreement, on the first to occur of (i) termination for
any reason by either Executive or the Company of Executive's employment
during the Part-Time Employment Period or (ii) at the end of the one year
period hereunder.
6. EXPENSES. During the Part-Time Employment Period, the Company
will pay or reimburse Executive for reasonable travel, entertainment or other
expenses incurred by Executive in the furtherance of or in connection with
the performance of Executive's duties hereunder in accordance with the
Company's established policies. Executive shall furnish the Company with
evidence of such expenses within a reasonable period of time from the date
that they were incurred.
7. DEATH OR DISABILITY OF EXECUTIVE. If Executive dies or becomes
permanently and totally disabled during the term of this Agreement, this
Agreement shall terminate immediately.
8. EXECUTION OF CONFIDENTIALITY/OWNERSHIP/NONSOLICITATION
AGREEMENT. As a condition of entering into this Agreement and of receiving
the benefits hereunder, Executive agrees to execute the Informix Employee
Confidentiality/Ownership/Nonsolicitation Agreement.
9. EXECUTION OF RELEASE AGREEMENT UPON TERMINATION. As a condition
of entering into this Agreement and of receiving benefits hereunder,
Executive agrees to execute a release of claims agreement substantially in
the form of Attachment B to this Agreement upon the termination of his
employment with the Company.
-2-
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. None of the rights of Executive to receive any form of
compensation payable pursuant to this Agreement shall be assignable or
transferable except through a testamentary disposition or by the laws of
descent and distribution upon the death of Executive following termination
without cause. Any attempted assignment, transfer, conveyance or other
disposition (other than as aforesaid) of any interest in the rights of
Executive to receive any form of compensation hereunder shall be null and
void.
11. NOTICES. All notices, requests, demands and other
communications called for hereunder shall be in writing and shall be deemed
given if delivered personally or by facsimile or one (1) day after being sent
by Federal Express overnight service or a similar commercial delivery
service, prepaid and addressed to the parties or their successors in interest
at the following addresses:
If to the Company: Informix Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
If to Executive: ▇▇▇▇▇ ▇▇▇▇▇▇
at the last residential address
known by the Company.
12. ARBITRATION.
(a) 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 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.
-3-
(d) THE PARTIES HAVE READ AND UNDERSTAND SECTION 12, WHICH
DISCUSSES ARBITRATION. THE PARTIES 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, INCLUDING AS TO DISCRIMINATION, RELATING TO ALL ASPECTS OF THE
EMPLOYER/EMPLOYEE RELATIONSHIP.
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 Ardent Severance Policy,
and the Confidentiality/Ownership/ Nonsolicitation agreement between
Executive and the Company, represent the entire agreement and understanding
between the Company and Executive concerning Executive's employment
relationship with the Company, and supersede and replace in their entirety
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 officer of the Company.
16. GOVERNING LAW. This Agreement shall be governed by the laws of
the State of California.
17. ACKNOWLEDGMENT. Executive acknowledges that he has had the
opportunity to discuss this matter with and obtain advice from his private
attorney, has had sufficient time to, and has carefully read and fully
understands all the provisions of this Agreement, and is knowingly and
voluntarily entering into this Agreement.
18. TAX TREATMENT. Payment of the compensation set forth herein
shall be subject to standard employment and income tax withholding.
-4-
IN WITNESS WHEREOF, the undersigned have executed this Agreement on
the respective dates set forth below
INFORMIX SOFTWARE, INC
Date: 3/28/2000 /s/▇▇▇▇ ▇▇▇▇▇
-------------------------- ---------------------------
EXECUTIVE
Date: /s/▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------- ---------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
-5-
ATTACHMENT A
(Ardent Software Policy Regarding Termination of Executive Staff
and Related Matters in the Event of a Sale of the Company)
-6-
ARDENT SOFTWARE
POLICY REGARDING TERMINATION OF EXECUTIVE STATUS AND
RELATED MATTERS IN THE EVENT OF
A SALE OF THE COMPANY
----------
The Company believes that, in the current environment of
acquisitions and consolidation within the software industry, it is in its
best interest to have a policy regarding termination of executive status and
related matters which is designed, in the event of a Sale of the Company, to
maintain the services of key executives during the negotiation process and
thereafter. Accordingly, the Company first adopted a policy on July 29, 1996
and revised the policy on July 22, 1998. The policy, as revised, is as
follows:
In the event of a Sale of the Company, then:
1. All shares under stock options held by an Executive
shall become exercisable immediately following the
closing of the Sale.
2. In the event the executive status of an Executive is
terminated by the Company, including a Constructive
Termination, but not including a Termination for
Cause, within one year following the closing of the
Sale:
a) The Company shall continue to employ the
former Executive for a period of one year
(two years in the case of the CEO)
thereafter at an annual salary, payable not
less frequently than twice per month for the
one or two year period as applicable, in an
amount equal to the aggregate of (i) the
Executive's annual salary rate at the time
of the termination and (ii) the amount of
bonus, if any, paid to the executive in
respect of the most recently completed
fiscal year.
b) The Company's obligation to make premium
payments under the Split Dollar Life
Insurance Agreement with the Executive, if
any such Agreement exists shall continue
regardless of the provisions of Section 2(a)
of that Agreement.
c) During the employment specified in a. above,
the Former Executive shall be on special
assignment to the CEO of the Company and
shall have no duties other than those
reasonably assigned by the CEO. Any such
-7-
assignments shall involve no more than five
hours in any month. During such employment,
the Executive shall not accrue any
additional vacation time but shall be
entitled to a lump sum payment for any
unused vacation time accrued in accordance
with the Company's policy prior thereto.
d) Except as specifically set forth above, all
agreements, policies and practices in
connection with employment and termination
thereof, including policies and practices
relating to exercise of options,
participation in the stock purchase plan,
and use of confidential information, shall
be applicable.
For purposes of the foregoing:
"Sale" of the Company shall refer to any transfer of stock or
assets, merger, or other transaction or series of transactions
which result in (i) the disposition by the Company of
substantially all its business (other than in connection with a
mere change of place of incorporation or business form) or (ii)
the acquisition of two-thirds or more of the voting power of the
Company by a person, entity or group.
"Executive" shall refer from time to time to any officer employed
by the Company who is deemed by the Company to be subject to the
requirements of Section 16 of the Securities Exchange Act of 1934
or otherwise designated by the Board of Directors as an Executive
for purposes hereof.
"Constructive Termination" of executive status shall refer to the
termination of such status by the Executive as a result of a
material reduction in salary, benefits or level of
responsibilities, a material increase in travel requirements, or a
material change of assigned office to another geographic location.
"Termination for Cause" shall refer to a termination of executive
status by the Company for (i) the material falsification of
records, embezzlement of funds or similar fraudulent acts by the
Executive against the Company or its customers, (ii) the
conviction of the Executive of, or the entry of a pleading of
guilty or nolo contendere by the Executive to, any felony or any
other crime involving fraud, deceit, dishonesty or moral
turpitude, (iii) a material violation by the Executive of the
Company's published policies from time to time regarding
confidentiality and compliance with various laws, or (iv)
continued willful failure of the Executive, after reasonable
notice, to
-8-
observe the reasonable directives of the Board or (in the case
of Executives other than the CEO) the CEO.
SECTION 16 EXECUTIVES:
▇▇▇▇▇ ▇▇▇▇▇▇ (CEO - 2 yrs.)
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇ (Founder - 2 yrs.)
EXECUTIVES FOR PURPOSES HEREOF:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
Mikael Wipperfield
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
Pierre Lannadere
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
-9-
ATTACHMENT B
(Release of Claims Agreement)
-10-
RELEASE OF CLAIMS AGREEMENT
This Release of Claims Agreement ("Release") is made by and between
Informix Software, Inc. (the "Company"), and ▇▇▇▇▇ ▇▇▇▇▇▇ ("Executive").
WHEREAS, Executive was employed by the Company;
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. Executive's employment from the Company terminated
on ________________.
2. CONSIDERATION. As set forth in that certain Part-Time
Employment and Transition Agreement by and between the Parties dated
________________ (the "Agreement"), the Company agreed, subject to Executive
entering into this Release, to provide Executive with certain payments and
benefits during and following Executive's employment. As additional
consideration for Executive entering into this Release, the Company hereby
agrees to pay up to ten thousand dollars ($10,000) for individual executive
outplacement services performed for Executive following Executive's
termination of employment.
3. 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
Informix Employee Confidentiality/Ownership/Nonsolicitation Agreement between
Executive and the Company (the "Confidentiality Agreement"). Executive shall
return all the Company property and confidential and proprietary information
in his possession to the Company on the Effective Date of this Release.
4. PAYMENT OF SALARY. Executive acknowledges and represents that
the Company has paid all salary, wages, bonuses, accrued vacation,
commissions and any and all other benefits due to Executive on the Effective
Date of this Release except those benefits provided in the Agreement,
including those benefits set forth in the Ardent Severance Policy, a copy of
which is Attachment A to the 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. Executive, on behalf of himself, and
Executive's respective heirs, family members, executors and assigns, hereby
fully and forever releases the Company and its past, present and future
officers, agents, directors, employees, investors, shareholders,
administrators, affiliates, divisions, subsidiaries, parents, predecessor and
successor corporations, and assigns, from, and agrees not to ▇▇▇ or otherwise
institute or cause to be instituted any legal or administrative proceedings
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
Release including, without limitation,
-11-
(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 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 each such
Act as well as the regulations issued thereunder;
(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; and
(g) any and all claims for attorneys' fees and costs.
Executive agrees 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 of the Company's
obligations incurred under the Transition Employment Agreement.
6. ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER ADEA. Executive
acknowledges that he is waiving and releasing any rights Executive may have
under the Age Discrimination in Employment Act of 1967 ("ADEA") and that this
waiver and release is knowing and voluntary. Executive 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 Release. Executive
acknowledges that the consideration given for this waiver and Release is in
addition to anything of value to which Executive was already entitled.
Executive further acknowledges that Executive has been advised by this
writing that (a) Executive should consult with an attorney PRIOR to executing
this Release; (b) Executive has at least twenty-one (21) days within which to
consider this Release; (c) Executive has seven (7) days following the
execution of this Release by the parties to revoke the Release; and (d) this
Release shall not be effective until the revocation period has expired. Any
revocation should be
-12-
in writing and delivered to ▇▇▇▇ ▇▇▇▇▇, Vice-President, Legal and General
Counsel, Informix Software, Inc., by close of business on the seventh day
from the date that Executive signs this Release.
7. CIVIL CODE SECTION 1542. Executive represents that he is not
aware of any claims against the Company other than the claims that are
released by this Release. Executive 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.
Executive, being aware of said code section, agrees to expressly
waive any rights he may have thereunder, as well as under any other statute
or common law principles of similar effect.
8. NO PENDING OR FUTURE LAWSUITS. Executive represents that
Executive has no lawsuits, claims, or actions pending in his name, or on
behalf of any other person or entity, against the Company or any other person
or entity referred to herein. Executive also represents that Executive does
not intend to bring any claims on his own behalf or on behalf of any other
person or entity against the Company or any other person or entity referred
to herein.
9. APPLICATION FOR EMPLOYMENT. Executive understands and agrees
that, as a condition of this Release, Executive shall not be entitled to any
employment with the Company, its subsidiaries, or any successor, and
Executive hereby waives any right, or alleged right, of employment or
re-employment with the Company. Executive further agrees that he will not
apply for employment with the Company, its subsidiaries, its parents, or
related companies, or any successor and will not apply to work as an
independent contractor for the Company, its parents, its subsidiaries or any
successor.
10. CONFIDENTIALITY. Executive agrees to use Executive's best
efforts to maintain in confidence the existence of this Release, the contents
and terms of this Release, and the consideration for this Release
(hereinafter collectively referred to as "Settlement Information"). Executive
agrees to take every reasonable precaution to prevent disclosure of any
Settlement Information to third parties, and agrees that there will be no
publicity, directly or indirectly, concerning any Settlement Information.
Executive agrees 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.
11. NO COOPERATION. Executive agrees he will not act in any manner
that might damage the business of the Company. Executive agrees that he 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 Company and/or any officer,
director,
-13-
employee, agent, representative, shareholder or attorney of the Company,
unless under a subpoena or other court order to do so.
12. NO ADMISSION OF LIABILITY. Executive understands and
acknowledges that this Release constitutes a compromise and settlement of
disputed claims. No action taken by the Company, either previously or in
connection with this Release 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 the Company of any fault or liability
whatsoever to the Executive or to any third party.
13. COSTS. The Parties shall each bear their own costs, expert
fees, attorneys' fees and other fees incurred in connection with this Release.
14. ARBITRATION. The Parties agree that any and all disputes
arising out of the terms of this Release, 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 Santa ▇▇▇▇▇ County,
California, before the American Arbitration Association under its National
Rules for the Resolution of Employment Disputes. EXECUTIVE AGREES AND HEREBY
WAIVES HIS RIGHT TO JURY TRIAL AS TO MATTERS ARISING OUT OF THE TERMS OF THIS
RELEASE AND ANY MATTERS HEREIN RELEASED TO THE EXTENT PERMITTED BY LAW. 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.
15. AUTHORITY. Executive represents and warrants that Executive
has the capacity to act on his own behalf and on behalf of all who might
claim through Executive to bind them to the terms and conditions of this
Release.
16. NO REPRESENTATIONS. Executive represents that Executive has
had the opportunity to consult with an attorney, and has carefully read and
understands the scope and effect of the provisions of this Release. Neither
party has relied upon any representations or statements made by the other
party hereto which are not specifically set forth in this Release.
17. 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 Release shall continue in full force and effect
without said provision.
18. ENTIRE AGREEMENT. This Release, the Employment Transition
Agreement, and the Confidentiality Agreement represent the entire agreement
and understanding between the Company and Executive concerning Executive's
separation from the Company, and supersede and replace any and all prior
agreements and understandings concerning Executive's relationship with the
Company and his compensation by the Company. This Release may only be amended
in writing signed by Executive and the President of the Company.
19. GOVERNING LAW/CONSENT TO PERSONAL JURISDICTION. This Release
shall be governed by the internal substantive laws, but not the choice of law
rules, of the State of California. Executive hereby expressly consents to the
personal jurisdiction of the state and federal courts located in
-14-
California for any law suit filed there against Executive by the Company
arising from or relating to this Release.
20. EFFECTIVE DATE. This Release is effective eight (8) days after
it has been signed by both Parties.
21. COUNTERPARTS. This Release 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.
22. VOLUNTARY EXECUTION OF RELEASE. This Release 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 Release;
(b) They have been represented in the preparation,
negotiation, and execution of this Release 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
Release and of the releases it contains;
(d) They are fully aware of the legal and binding effect
of this Release.
IN WITNESS WHEREOF, the Parties have executed this Release on the respective
dates set forth below.
INFORMIX SOFTWARE, INC.
Dated: , 2000 By
---------------------- -----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, an individual
Dated: , 2000
---------------------- -------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
-15-
