AMENDMENT TO EXECUTIVE SEVERANCE AGREEMENT
EXHIBIT
10.21
AMENDMENT
TO EXECUTIVE SEVERANCE AGREEMENT
This
amendment (the “Amendment”)
is made by and between _________ (the “Executive”)
and Informatica Corporation (the “Company”
and together with the Executive hereinafter collectively referred to as the
“Parties”).
WHEREAS, the Parties
previously entered into an Executive Severance Agreement effective ___________,
as amended (the “Prior
Agreement”); and
WHEREAS, the Parties wish to
amend the Prior
Agreement in order to bring such terms into compliance with Section 409A
of the Internal Revenue Code of 1986, as amended and the final regulations and
other official guidance thereunder, as set forth below.
NOW, THEREFORE, for good and
valuable consideration, the Parties agree as follows:
1. Section
3(a) shall be deleted in its entirety and replaced with
“Termination Without Cause
or Resignation for Good Reason in Connection with a Change of
Control. If Executive’s employment is terminated by the
Company without Cause or by Executive for Good Reason, and the termination is in
connection with a Change of Control, then, subject to Section 4, Executive
will receive: (i) continued payment of his or her base salary for a period
of the period of 12 months following the date of the termination (the
“Continuance Period”) (such that the amount paid in each month shall be the same
but if the separation agreement and release of claims are not complete within
the first sixty (60) days that the initial payment shall include any other
payments that would have been made prior to the completion of the separation
agreement and release of claims), if Executive is entitled to receive payments
under this Section 3(a)), (iii) reimbursement for any applicable
premiums to continue coverage for Executive and Executive’s eligible dependents
under the Company’s Benefit Plans for the Continuance Period, or, if earlier,
until Executive is eligible for similar benefits from another employer (provided
Executive validly elects to continue coverage under applicable law),
(iv) twelve months accelerated vesting of equity awards (whether such
equity awards were granted prior to or on or after the Effective Date); and (iv)
a lump sum payment equal to Executive’s annual on-target bonus, commissions or
variable earnings, assuming Company performance at 100% of target for Company
bonus or commissions determination.”
2. Section 4(a) shall be
deleted in its entirety and replaced with:
“Separation Agreement and
Release of Claims. The receipt of any severance pursuant to
Section 3 will be subject to Executive signing and not revoking a separation
agreement and release of claims in a form reasonably acceptable to the
Company, and provided further that separation
agreement and release of claims are
executed and become effective no later than
sixty (60) days following the termination date. No severance
will be paid or provided until the separation agreement and release agreement
becomes effective.”
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3.
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A new paragraph is
added to become Section 4(b) as follows and the existing Sections 4(b),
4(c), 4(d) and 4(e) become Sections (4(c), 4(d), 4(e) and 4(f)
respectively:
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“Timing of Payments. Any severance payments
or benefits under this Severance Agreement that would be considered Deferred
Compensation Separation Benefits (as defined in Section 5) shall be paid on, or,
in the case of installments, shall not commence until, the sixtieth
(60th) day following Executive’s separation from service, or,
if later, such time as required by Section 5. Any installment
payments that would have been made to Executive during the sixty (60) day period
immediately following the Executive’s separation from service but for the
preceding sentence shall be paid to Executive on the sixtieth (60th) day following the Executive’s separation from service
and the remaining payments shall be made as provided in this Severance
Agreement.”
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4.
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A new section is added
to become Section 5 as follows and the existing Sections 6 through 17
become Sections 7 through 18
respectively:
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“Section 5. Section 409A.
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a.
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Notwithstanding anything to the contrary in this
Severance Agreement, no severance payable to Executive, if any, pursuant
to this Agreement, when considered together with any other severance
payments or separation benefits that are considered deferred compensation
under Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”) and the final regulations and any guidance promulgated thereunder
(“Section 409A”) (together, the “Deferred Compensation Separation
Benefits”) shall be payable until Executive has a “separation from
service” within the meaning of Section 409A.
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b.
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Notwithstanding anything to the contrary in this
Severance Agreement, if Executive is a “specified employee” within the
meaning of Section 409A at the time of Executive’s termination (other than
due to death), then the Deferred Compensation Separation Benefits that are
payable within the first six (6) months following Executive’s separation
from service shall become payable on the first payroll date that occurs on
or after the date six (6) months and one (1) day following the date of
Executive’s separation from service but in
no event later than thirty (30) days after the date six (6) months and one
(1) day following the date of Executive’s separation from
service. All subsequent
Deferred Compensation Separation Benefits, if any, shall be payable in
accordance with the payment schedule applicable to each payment or
benefit. Notwithstanding anything herein to the contrary, if
Executive dies following Executive’s separation from service but prior to
the six (6) month anniversary of the separation, then any payments delayed
in accordance with this paragraph shall be payable in a lump sum as soon
as administratively practicable after the date of Executive’s death and
all other Deferred Compensation Separation Benefits shall be payable in
accordance with the payment schedule applicable to each payment or
benefit but in no event later than thirty (30) days after
the date of
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Executive’s death. Each payment and benefit payable under this
Severance Agreement is intended to constitute separate payments for purposes of
Section 1.409A-2(b)(2) of the Treasury Regulations.
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c.
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Any amount paid under this Severance Agreement
that satisfies the requirements of the “short-term deferral” rule set
forth in Section 1.409A-1(b)(4) of the Treasury Regulations shall not
constitute Deferred Compensation Separation Benefits for purposes of
clause (b) above.
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d.
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Any amount paid under this Severance Agreement
that qualifies as a payment made as a result of an involuntary separation
from service pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury
Regulations that do not exceed the Section 409A Limit (as defined below)
shall not constitute Deferred Compensation Separation Benefits for
purposes of clause (b)
above.
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e.
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The foregoing provisions are intended to comply
with the requirements of Section 409A so that none of the severance
payments and benefits to be provided hereunder shall be subject to the
additional tax imposed under Section 409A, and any ambiguities herein
shall be interpreted to so comply. The Company and Executive
agree to work together in good faith to consider amendments to this
Severance Agreement and to take such reasonable actions which are
necessary, appropriate or desirable to avoid imposition of any additional
tax or income recognition prior to actual payment to Executive under
Section 409A.”
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5. New Section 6 (f) shall be
deleted and replaced with the following:
“Good
Reason. For purposes of this Severance Agreement, with respect
to a termination that occurs on or following the date three months preceding a
Change of Control, “Good Reason” means the occurrence of any of the following
without Executive’s express written consent: (i) a material reduction in
Executive’s position or duties other than a reduction where Executive assumes
similarly functional duties on a divisional basis following a Change of Control
due to the Company becoming part of a larger entity, (ii) a reduction (or series
of reductions) of Executive's Base Salary or Target Bonus that singly or in the
aggregate constitute a material reduction, other than a one-time reduction of up
to 10% that also is applied to substantially all of the Company's other senior
executives, (iii) a material reduction in the aggregate level of benefits made
available to Executive other than a reduction that also is applied to
substantially all of the Company’s other executive officers, or (iv) relocation
of Executive’s primary place of business for the performance of his duties to
the Company to a location that is more than 35 miles from its prior
location. In order for a resignation to
qualify as for “Good Reason,” the Executive must provide the Company with
written notice within ninety
(90) days of the event that Executive
believes constitutes “Good Reason” specifically identifying the acts or
omissions constituting the grounds for Good Reason and the Company must have
failed to cure such Good Reason condition within thirty (30) days following the
date of such notice.”
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6. New Section 6 shall have (h)
added as follows:
“(h) Section 409A Limit. For purposes of this
Severance Agreement, “Section 409A Limit” means the lesser of two (2) times: (i)
Executive’s annualized compensation based upon the annual rate of pay paid to
Executive during Executive’s taxable year preceding the taxable year of
Executive’s termination of employment as determined under Treasury Regulation
1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue Service guidance issued with
respect thereto; or (ii) the maximum amount that may be taken into account under
a qualified plan pursuant to Section 401(a)(17) of the Internal Revenue Code for
the year in which Executive’s employment is terminated.”
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7.
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This
Amendment, taken together with the Prior Agreement,
supersedes any and all previous contracts, arrangements or understandings
between the parties with respect to the subject hereof, and may not be
amended adversely to Employee’s interest except by mutual written
agreement of the Parties. To the extent not amended hereby, the
Prior Agreement
remains in full force and effect.
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8.
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This
Amendment will become effective on the date that it is signed by both
Parties (the “Effective
Date”).
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IN WITNESS WHEREOF, each of
the Parties has executed this Amendment, in the case of the Company by its duly
authorized officer, as of this 31st day of December of the year
2008.
| INFORMATICA CORPORATION | ||
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| By: Xxxxxx Xxxxxx | ||
| Title: Chairman & CEO | ||
ACCEPTED
AND AGREED TO this
31st day
of December 2008.
________________________________
Executive
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