INFORMIX CORPORATION
CHANGE OF CONTROL AND SEVERANCE AGREEMENT.
This Change of Control and Severance Agreement (the "Agreement") is made
and entered into by and between Jean-Yves F. Dexmier (the "Executive") and
Informix Corporation (the "Company"), effective as of the last date set forth by
the signatures of the parties below (the "Effective Date").
RECITALS
A. It is expected that the Company from time to time will consider the
possibility of an acquisition by another company or other Change of Control (as
defined below). The Board of Directors of the Company (the "Board") recognizes
that such consideration, and the possibility that the Executive's employment
could be terminated by the Company for a reason other than for cause, can be
distractions to the Executive and can cause the Executive to consider
alternative employment opportunities. The Board has determined that it is in the
best interests of the Company and its stockholders to assure that the Company
will have the continued dedication and objectivity of the Executive,
notwithstanding the possibility, threat or occurrence of a Change of Control of
the Company or the termination by the Company of the Executive's employment for
a reason other than for cause.
B. The Board believes that it is in the best interests of the Company and
its stockholders to provide the Executive with an incentive to continue his or
her employment with the Company, or a wholly-owned subsidiary of the Company, as
the case may be, and to motivate the Executive to maximize the value of the
Company upon a Change of Control for the benefit of its stockholders.
C. The Board believes that it is imperative to provide the Executive with
certain benefits upon a Change of Control or upon the termination by the Company
of the Executive's employment for a reason other than cause, thereby encouraging
the Executive to remain with the Company notwithstanding the possibility of a
Change of Control or termination of employment for a reason other than for
cause.
The Company and the Executive hereby agree as follows:
1. TERM OF AGREEMENT. This Agreement shall terminate upon the date that all
obligations of the Company and the Executive with respect to this Agreement have
been satisfied.
2. AT-WILL EMPLOYMENT. The Company and the Executive acknowledge that the
Executive's employment is and shall continue to be at-will, as defined under
applicable law, and may be terminated at any time by either party, with or
without cause.
3. CHANGE OF CONTROL. In the event a Change of Control occurs within six
months following the effective date of options granted to the Executive to
purchase the Company's common stock, and if the Executive is employed by the
Company as of the date of the Change of Control, the Executive's stock options
shall have their vesting accelerated as to two years' additional vesting. In the
event that stock option vesting is accelerated pursuant to the preceding
sentence, the remaining stock options, if any, shall continue to vest at a
monthly rate equal to the total number of shares originally subject to the
option divided by the number of months in the original vesting schedule. In the
event a Change of Control occurs on or after six months following the effective
date of options granted to the Executive to purchase the Company's common stock,
and if the Executive is employed by the Company as of the date of the Change of
Control, the Executive's Stock Options shall have their vesting accelerated in
full so as to become 100% vested.
For the purposes of this Agreement, "Change of Control" shall mean:
(a) the approval by the stockholders of the Company 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) fifty percent (50%) or more 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
(b) any approval by the stockholders of the Company of a plan of
complete liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets; or
(c) any "person" (as that term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended) becoming the "beneficial owner"
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended), 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
(d) a change in the composition of the Board, 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 Effective Date; or (b) are elected, or nominated for election, to the
Board with the affirmative votes of at least a majority of those directors whose
election or nomination was not in connection with any transaction described in
subsections (a), (b), or (c) above, or in connection with an actual or
threatened proxy contest relating to the election of directors of the Company.
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4. SEVERANCE.
(a) If, within one year of a Change of Control, the Executive's
employment is terminated either by the Executive for any reason or by the
surviving entity for any reason other than for Cause (as defined below), the
Executive shall receive severance in the amount of two year's base salary plus
two year's on target earnings.
(b) If, following the one year anniversary of the Executive's
employment by the Company, the Executive's employment is terminated by the
Company for any reason other than for Cause, the Executive shall receive
severance in the amount of two year's base salary.
(c) If, following the one year anniversary of the Executive's
employment by the Company, the Executive's employment is terminated by the
Company for Cause, or the Executive voluntarily resigns, the Executive shall not
receive severance.
(d) For purposes of this Agreement, "Cause" shall mean the occurrence
of one or more of the following: (i) Executive's conviction by, or entry of a
plea of guilty or NOLO CONTENDRE in, a court of competent jurisdiction for any
crime which constitutes a felony in the jurisdiction in which the conduct
alleged to constitute the felony in the jurisdiction in with the conduct alleged
to constitute the felony occurred; (ii) Executive's misappropriation of funds or
property or commission of an act of fraud, whether prior or subsequent to the
Effective Date; (iii) gross negligence or recklessness by the Executive in the
scope of the Executive's services to the Company; (iv) a breach by the Executive
of a material provision of this Agreement which is not cured within 30 days of
notice; (v) a willful failure by the Executive substantially to perform his or
her duties and responsibilities as an employee after notice of such failure; or
(vi) a material breach by the Executive of the Company's policies or procedures.
5. ATTORNEY FEES, COSTS AND EXPENSES. The Company promptly shall reimburse
the Executive, on a monthly basis, for the reasonable attorney fees, costs and
expenses incurred by the Executive in connection with any action brought by
Executive to enforce his or her rights under this Agreement, regardless of the
outcome of the action.
6. SUCCESSORS.
(a) COMPANY'S SUCCESSORS. Any successor to the Company (whether direct
or indirect and whether by purchase, merger, consolidation, liquidation or
otherwise) to all or substantially all of the Company's business and/or assets
shall assume the obligations under this Agreement and agree expressly to perform
the obligations under this Agreement in the same manner and to the same extent
as the Company would be required to perform such obligations in the absence of a
succession. For all purposes under this Agreement, the term "Company" shall
include any successor to the Company's business and/or assets which executes and
delivers the assumption agreement described
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in this Section 5(a), or which becomes bound by the terms of this Agreement by
operation of law.
(b) EXECUTIVE'S SUCCESSORS. The terms of this Agreement and all rights
of the Executive hereunder shall inure to the benefit of, and be enforceable by,
the Executive's personal or legal representatives, executors, administrators,
heirs, distributees, devisees and legatees.
7. MISCELLANEOUS PROVISIONS.
(a) WAIVER. No provision of this Agreement shall be modified, waived or
discharged unless the modification, waiver or discharge is agreed to in writing
and signed by the Executive and by an authorized officer of the Company (other
than the Executive). No waiver by either party of any breach of, or of
compliance with, any condition or provision of this Agreement by the other party
shall be considered a waiver of any other condition or provision or of the same
condition or provision at another time.
(b) WHOLE AGREEMENT. No agreements, representations or understandings
(whether oral or written and whether express or implied) which are not expressly
set forth in this Agreement have been made or entered into by either party with
respect to the subject matter hereof. This Agreement represents the entire
understanding of the Company and the Executive with respect to the subject
matter of this Agreement and this Agreement supersedes all prior agreements,
arrangements and understandings regarding the subject matter of this Agreement.
If stock option vesting acceleration is triggered pursuant to this Agreement,
the Executive agrees that he or she shall not be entitled to any additional
stock option vesting pursuant to a prior agreement, arrangement or
understanding.
(c) CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California.
(d) SEVERABILITY. The invalidity or unenforceability of any provision
or provisions of this Agreement shall not affect the validity or enforceablity
of any other provision hereof, which shall remain in full force and effect.
(e) COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together will constitute
one and the same instrument.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by its duly authorized officer, as of the day and year set
forth below.
COMPANY INFORMIX CORPORATION
/s/ Gary Lloyd
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Dated: Effective December 16, 1999
EXECUTIVE /s/ Jean-Yves F. Dexmier
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Dated: Effective December 16, 1999
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