EXHIBIT 10.74
SEPARATION AGREEMENT
This Separation Agreement ("Agreement") is made and entered into by
and between Howard A. Bain III ("Employee") and Informix Corporation and its
affiliates and subsidiaries ("Informix"), as of the Effective Date set forth
in Section 1(a) below.
1. In consideration of the promises and mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Informix and Employee agree to
the following:
(a) RESIGNATION. Employee will resign from the
position of Executive Vice President and Chief Financial Officer of Informix
effective March 20, 2000. Employee's resignation shall be announced publicly
March 20, 2000. The resignation shall be in writing and addressed to
Jean-Yves F. Dexmier, Informix's Chief Executive Officer and President. In
the absence of the receipt by Informix of Employee's written notice of
resignation, Employee will be deemed to have resigned his position effective
March 20, 2000.
(b) DUTIES AND RESPONSIBILITIES OF EMPLOYEE'S
REMAINING EMPLOYMENT. During Employee's remaining employment by Informix,
Employee shall discharge his responsibilities as Executive Vice President and
Chief Financial Officer as are commensurate with Employee's position.
Employee agrees to: (i) use his best efforts to ensure an orderly and
efficient transition of Employee's duties and responsibilities; and (ii)
devote his full time and efforts to the performance of his duties and the
discharge of his responsibilities.
(c) SEVERANCE. Employee shall receive a
severance payment in the amount equal to one year's base salary of Three
Hundred and Thirty-five Thousand Dollars ($335,000), less applicable
withholding for federal and state taxes and other payroll deductions, and
less any other payroll deductions that Employee may authorize in writing
("the net severance payment"). On the effective date of Employee's
resignation, as set forth in paragraph 1(a), Employee shall receive a payment
in the amount of the net severance payment, plus accrued but unused vacation
conditioned on Employee's having signed the Release referred to in paragraph
2 and attached hereto as Attachment A.
(d) BENEFITS. All benefits will continue until
the last day of the month in which Employee's resignation is effective.
Health insurance benefits paid by Informix will terminate on the last day of
the month in which Employee's resignation is effective.
(e) STOCK OPTIONS. Employee will not qualify for
any stock option vesting after the effective date of Employee's resignation,
as set forth in paragraph 1(a). Employee waives any and all rights to
continued vesting of stock options after the effective date of Employee's
resignation. The period during which Employee may exercise vested options
shall stock option exercise period begins on the effective date of Employee's
resignation in accordance with the Employee's applicable Stock Option
Agreement, Informix's Stock Option and Award Plan, and Informix's policies.
(f) INCENTIVE BONUS. Informix will make a
payment to Employee in the amount of One Hundred and Sixty-seven Thousand
Five Hundred Dollars ($167,500), an amount equal to 100% of Employee's target
incentive for fiscal year 1999 (50% of annual base salary), as defined in the
Informix Executive Incentive Compensation Plan for 1999. This payment shall
be paid in a lump sum, less applicable withholding for federal and state
taxes and other payroll deductions, on the regularly scheduled payment date
as determined by Informix for participants in the Plan.
(g) 401(k) CONTRIBUTIONS. Commencing on the
effective date of Employee's resignation, neither Employee nor Informix shall
make additional contributions to Employee's 401(k) plan.
(h) COMPUTER. Following the effective date of
his resignation, Employee shall be entitled to retain his Informix-issued
laptop computer; provided, however, that all confidential Informix
proprietary and business information shall be transferred to Informix's MIS
Department. Employee understands that the fair market value of the laptop
computer may, if required by applicable federal and state tax laws, be
reported as income to Employee on an IRS Form 1099 and on a comparable State
of California tax form.
(i) CELLULAR PHONE. Following the effective date
of his resignation, Employee will assume ownership of Employee's cellular
telephone and Informix will not longer pay or be responsible for any of
Employee's cellular telephone charges.
(j) COBRA. Following the effective date of his
resignation, Employee will receive, by separate cover, information regarding
Employee's rights to health insurance continuation (COBRA rights). To the
extent that Employee has rights, nothing in this Agreement will impair those
rights.
2. EXECUTION OF RELEASE AGREEMENT UPON TERMINATION. As a condition
of entering into this Agreement and of receiving the benefits hereunder,
Employee agrees to hereto as Exhibit A upon termination of his employment
from Informix.
3. OTHER TERMINATION. If Employee's employment is terminated by
Employee for any reason whether voluntary or involuntarily, prior to the
expected date of Employee's resignation as defined in paragraph 1(a), or by
Informix for Cause (as defined in paragraph 4 herein), then Employee shall
not be entitled to receive severance or other benefits pursuant to this
Agreement.
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4. DEFINITION. For purposes of this Agreement, "Cause" shall mean
the occurrence of any one of the following: (i) Employee's conviction by, or
entry of a plea of guilty or nolo contendere in, a court of competent
jurisdiction for any crime which constitutes a felony in the jurisdiction
involved; (ii) Employee's misappropriation of funds or commission of an act
of fraud, whether prior to or subsequent to the date hereof, upon Informix;
(iii) gross and willful negligence by Employee in the scope of Employee's
services to Informix as set forth in paragraph 1(b); (iv) a breach by
Employee of a material provision of this Agreement which is not cured within
ten (10) days of notice; or (v) a willful failure of the Employee to
substantially perform his duties hereunder after notice of such failure.
5. RIGHT OF ADVICE OF COUNSEL. Employee acknowledges that he has
had the right to consult with his own separate legal counsel and is fully
aware of his rights and obligations under this Agreement.
6. SUCCESSORS. Any successor to Informix (whether direct or
indirect and whether by purchase, lease, merger, consolidation, liquidation
or otherwise) to all or substantially all of Informix's business and/or
assets shall assume the obligations under this Agreement in the same manner
and to the same extent as Informix would be required to perform such
obligations in the absence of a succession. In addition, without the express
written consent of Informix, Employee shall not assign or transfer this
Agreement or any right and obligation under this Agreement to any other
person or entity. Notwithstanding the foregoing, the terms of this Agreement
and all rights of Employee hereunder shall inure to the benefit of, and be
enforceable by, Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
7. CONFIDENTIAL AND PROPRIETARY MATERIALS. Prior to the effective
date of his resignation, Employee will return to Informix all property owned
by Informix and all documents and files, including electronically stored
information, that Employee may have, including but not limited to the
following: proprietary and confidential information about Informix's
policies, practices and procedures; employees; product information, trade
secrets, customer lists, employee lists; telephone and sales directories;
Informix company data, software, sales forecasts or product marketing
pertaining to the current and anticipated business and operations of
Informix; financial forecasts, analyses and data; notebooks, bulletins, or
manuals; and/or Company pricing, cost and purchasing information. Employee
acknowledges that he previously signed an agreement with Informix regarding
Confidential Information and Trade Secrets. A copy of that agreement is
attached. Employee and Informix agree that all provisions of the agreement
shall remain in full force and effect following the effective date of
Employee's resignation including, but not limited to, confidential and
proprietary information regarding Informix's products, sales and marketing
methods or strategies, non-solicitation provisions, product development,
research and plans, personnel data regarding employees of Informix, including
salaries, and other confidential or proprietary information not readily
available to the public.
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8. CONFIDENTIALITY. Employee agrees that he will not, unless
required by law, disclose to any person any information regarding the terms
of this Agreement, or the amounts to be paid and benefits to be provided
pursuant to this Agreement, except that Employee may disclose this
information to Employee's immediate family, attorneys, accountants or other
professional advisors to whom Employee must make the disclosure in order
for them to render professional services to Employee. Any such disclosure
may be made only upon the recipient's express agreement to maintain the
confidentiality of the information.
9. NOTICE CLAUSE. Any notice hereby required or permitted to be
given shall be sufficiently given if in writing and upon mailing by
registered or certified mail, postage prepaid, to either party at the address
of such party or such other address as shall have been designated by written
notice by such party to the other party. Any notice or other communication
required or permitted to be given under this Agreement will be deemed given
when: (i) delivered in person, or; (ii) on the third business day after such
notice was mailed in compliance with this paragraph.
10. INTEGRATION. This Agreement, the attached Release, Employee's
Confidential Information and Trade Secret Agreement, Employee's Stock Option
Agreement, and Informix's Stock Option and Award Plan, represent the full
agreement between Employee and Informix regarding the terms and conditions of
Employee's termination of employment. These documents supersede and are in
lieu of all prior oral or written agreements and may not be changed except in
writing signed by Employee and Informix's Vice President, Legal, and General
Counsel, or his designee.
11. SEVERABILITY. If any provision of this Agreement is held to be
invalid, void, or unenforceable, the remaining provisions shall remain in
full force and effect.
12. NO OTHER RIGHTS. Nothing in this Agreement is intended to
create any rights to employment or employment benefits except as expressly
set forth in this Agreement.
13. GOVERNING LAW. This Agreement shall be deemed to have been
entered into and shall be construed and enforced in accordance with the laws
of the State of California as applied to contracts made and to be performed
entirely within California. Any claim for breach of this Agreement shall be
referred to the American Arbitration Association for resolution under its
National Rules for the Resolution of Employment Disputes, and any and all
arbitration or mediation shall be at the AAA offices in San Francisco County,
California, or at a mutually agreeable location in San Mateo County,
California. 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 any of obligations under this Agreement or as otherwise imposed by
law, Informix will be entitled to recover all payments paid pursuant to this
Agreement and to obtain all other relief provided by law or equity. In
addition, Informix will be entitled to recover its costs and attorneys' fees
and expenses. Nothing herein shall be construed as a
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waiver of Informix's right to seek injunctive or other equitable relief in a
court of competent jurisdiction for a breach of any of Employee's obligations
under this Agreement.
14. TAXES. All payments made pursuant to this Agreement shall be
subject to the withholding of applicable income and employment taxes.
IN WITNESS WHEREOF, the parties have executed this
Separation Agreement and Release as the date first set forth below.
Date: 1/28/00 /s/Howard A. Bain III
------------------------------ -----------------------------------
Howard A. Bain III
Date: Jan. 28, 2000 /s/Gary Lloyd
------------------------------ -----------------------------------
Gary Lloyd, Vice President
Legal, and General Counsel
Informix Corporation
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ATTACHMENT A
RELEASE OF CLAIMS AGREEMENT
This Release of Claims Agreement ("Agreement") is made by and
between Howard A. Bain III ("Employee") and Informix Corporation, its
affiliates and subsidiaries (the "Company").
In consideration of the mutual promises made herein, the Company and
Employee (collectively referred to, where appropriate as "the Parties")
hereby agree as follows:
1. TERMINATION. Employee's employment from the Company terminated
on March 20, 2000.
2. CONSIDERATION. As set forth in that certain Separation
Agreement by and between the Parties dated January 28, 2000 (the "Separation
Agreement"), the Company agreed, subject to Employee's execution of this
Release of Claims Agreement ("Release"), to provide Employee' with certain
payments and benefits, conditioned upon, among other things: (i) Employee's
continued employment by the Company until the effective date of his
resignation set forth in paragraph 1 (a) of the Separation Agreement; and
(ii) Employee's performance of his duties and responsibilities as Executive
Vice President and Chief Financial Officer as appropriate during his
remaining employment by Informix.
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. Employee shall return all the Company property and confidential and
proprietary information in his possession to the Company on or before the
effective date of his resignation, pursuant to the terms of the Separation
Agreement.
4. PAYMENT OF SALARY. Employee acknowledges and represents that
the Company has paid all salary, wages, bonuses, accrued vacation,
commissions and any and all other benefits due to Employee on the effective
date of this Release except the severance payments described in paragraphs
1(c) and 1(f) of the Separation Agreement.
5. 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 sue or otherwise institute o r cause to be
instituted any legal action or administrative proceeding 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 5he effective date of this Release including,
without limitation:
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(a) any and all claims relating to or arising from
Employee's employment relationship with the Company and the termination of
that relationship;
(b) any and all claims relating to, or arising from,
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;
(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.
Employee agrees that the release set forth in this section shall be and
remain in effect in all respects as a complete general release of claims as
to the matters released. This release does not extend to any obligations
incurred under this Release, the stock option agreement evidencing Employee's
stock options and the agreement(s) evidencing the exercise of such options.
6. 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 release
Agreement is in addition to anything of value to which Employee was already
entitled. Employee further acknowledges that Employee has been notified by
this Release that: (a) Employee should consult with an attorney PRIOR to
executing this Release; (b) Employee has at least twenty-one (21) days within
which to consider this Release; (c) Employee has seven (7) days following the
execution of this Release by the parties to revoke this Release; and (d) this
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Release shall not be effective until the revocation period has expired. Any
revocation should be in writing and delivered to Gary Lloyd, Vice President,
Legal, and General Counsel by close of business on the seventh day from the
date that Employee signs this Release.
7. 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 Release. 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.
8. CONFIDENTIALITY. Employee agrees to use Employee's best efforts
to maintain in confidence the existence of this Release, the substance of
this Release, and the consideration for this Release (collectively the
"Settlement Information"). Employee agrees to take every 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.
9. NO ADMISSION OF LIABILITY. Employee 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 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.
10. COSTS. The Parties shall each bear their own costs, expert
fees, attorneys' fees and other fees incurred in connection with this Release.
11. 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 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 its obligations under this
Release or the Separation Agreement, nothing in this section is to be
construed as a waiver of the
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Company's rights to seek injunctive or equitable relief in a court of
competent jurisdiction. In addition, the Company will be entitled to recover
its costs and attorneys' fees and expenses. 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.
12. 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 Release.
13. 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 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.
14. 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.
15. ENTIRE AGREEMENT. This Release, the Separation Agreement, the
stock option agreements between the parties, and the Confidentiality
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 Release may only be amended in writing signed by Employee
and the Company's Vice President, Legal and General Counsel.
16. GOVERNING LAW. This Release shall be governed by the internal
substantive laws, but not the choice of law rules, of the State of California.
17. EFFECTIVE DATE. This Release is effective eight (8) days after
it has been signed by both Parties.
18. 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.
19. 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; and
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(c) They understand the provisions and legal consequences of
this Release.
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
INFORMIX CORPORATION
Dated: Jan. 28, 2000 By /s/Gary Lloyd
------------------- -----------------------------------------
Gary Lloyd, Vice President, Legal, and
General Counsel
Howard A. Bain, III, an individual
Dated: Jan. 28, 2000 /s/Howard A. Bain III
------------------- -----------------------------------------
Howard A. Bain, III
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