Employment Agreement - Informix Software Inc. and James Foy
INFORMIX SOFTWARE, INC.
EMPLOYMENT AGREEMENT
This Agreement is entered into by and among Informix Software, Inc.
(the "Company") and James Foy (the "Employee") this 3rd day of February, 2000.
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
Software, Inc. ("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 an employment relationship by means of
this Agreement;
NOW THEREFORE 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, it is mutually covenanted and
agreed by and among the parties as follows:
1. EFFECTIVE DATE. This Agreement shall become effective
immediately prior to the effective date of the Merger (the "Effective Date").
2. POSITION AND DUTIES. Upon the Effective Date, Employee shall be
employed as the Company's Senior Vice-President, Group Executive, TransAct
Systems Group, reporting to Jean-Yves Dexmier, President and Chief Executive
Officer, and shall assume and discharge such responsibilities as are
commensurate with Employee's position. Employee shall have the additional
responsibility of ensuring a smooth, efficient and rapid transition of Ardent
to its new status as a subsidiary of Informix. Employee shall perform his
duties faithfully and to the best of his ability and shall devote his full
business time and effort to the performance of his duties hereunder. At the
Company's discretion, Employee's position and duties may be changed to the
extent the Company deems appropriate. Notwithstanding the foregoing, Employee
may serve on the boards of directors of other entities and engage in
charitable, religious or other activities outside of his employment with the
Company, so long as such activities do not materially interfere with his
duties to the Company.
3. AT-WILL EMPLOYMENT. The parties agree that the Employee's
employment with the Company shall be "at-will" and may be terminated at any
time with or without Cause (as defined in paragraph 6(b) herein) or notice.
No provision of this Agreement shall be construed as altering or modifying
the "at-will" nature of employee's employment and any representations to the
contrary are unauthorized and not valid unless obtained in writing and signed
by the President of the Company.
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4. COMPENSATION.
(a) BASE SALARY. For all services to be rendered by
Employee pursuant to this Agreement, Employee shall receive an annual base
salary from the Company of two-hundred fifty thousand dollars ($250,000),
less all applicable withholding taxes, payable in installments in accordance
with the Company's normal payroll practices.
(b) ANNUAL INCENTIVE BONUS. For each fiscal year during
the term of this Agreement, Employee shall be eligible to participate in the
Company's executive bonus plan. Employee's target incentive under the
Company's executive bonus plan for fiscal year 2000 is forty-five percent
(45%) of Employee's annual base salary for fiscal year 2000. The amount of
Employee's bonus, if any, will be based upon Company achievement for a fiscal
year measured against objectives for the fiscal year established by the
Company's Board of Directors. Each such bonus, if any, for a fiscal year will
be paid by March 31st of the following calendar year. Employee must be an
employee of the Company on the date the annual incentive bonus is paid to be
eligible to receive such bonus. The Company may change Employee's target
incentive percentage from year to year, and reserves the right to amend,
modify or terminate the Company's executive bonus plan.
(c) OPTION. As soon as practicable following the
Effective Date, Informix shall grant Employee an option under the Informix
Corporation 1994 Stock Option and Award Plan (the "Plan") to purchase
two-hundred fifty-thousand (250,000) shares of Informix Common Stock (the
"Shares"), at an exercise price per Share equal to the fair market value per
Share on the grant date (the "Option"). Such Option shall vest in four (4)
successive equal annual installments upon the Employee's completion of each
year of service with the Company measured from the grant date. The Option
shall be subject to the terms and conditions of the Plan and the stock option
agreement evidencing the Option (the "Option Agreement").
(d) VACATION. Employee shall be entitled to vacation in
accordance with Company's current policy.
5. EXPENSES. The Company shall reimburse Employee for reasonable
travel, entertainment or other expenses incurred by Employee in the
furtherance of or in connection with the performance of Employee's duties
hereunder, in accordance with the Company's expense reimbursement policy as
in effect from time to time.
6. SEVERANCE.
(a) TERMINATION WITHIN ONE YEAR OF EFFECTIVE DATE.
(i) TERMINATION BY THE COMPANY OTHER THAN FOR
CAUSE. Should Employee be terminated by the Company, including a Constructive
Termination, but not including a Termination for Cause, within one (1) year
of the Effective Date, then Employee shall be entitled to receive benefits
set forth in the Ardent Software, Inc. "Policy Regarding Termination of
Executive
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Status and Related Matters in Event of a Sale of the Company," adopted July
29, 1996, as amended on July 22, 1998 (the "Ardent Severance Policy") as
attached hereto as Exhibit A.
(ii) VOLUNTARY RESIGNATION/TERMINATION FOR
CAUSE. If, within the one year following the Effective Date, Employee's
termination of employment is pursuant to a voluntary resignation or
Termination for Cause, Employee shall not be entitled to any severance or
other benefits pursuant to either the Ardent Severance Policy or any other
plan, policy or agreement of the Company.
(iii) For sole purpose of Paragraph 6(a), the
terms "Constructive Termination" and "Termination for Cause" shall have the
same meaning as in the Ardent Severance Policy.
(b) TERMINATION AFTER ONE YEAR OF EFFECTIVE DATE.
(i) TERMINATION BY THE COMPANY WITHOUT CAUSE.
If, following the one year anniversary of the Effective Date, Employee is
terminated by the Company for reasons other than Cause (as defined in
subparagraph 6(b)(iii) below), then Employee shall be entitled to receive
severance or other benefits (if any) as may then be established under the
Company's severance and benefit plans and policies existing at the time of
such termination.
(ii) TERMINATION FOR CAUSE/VOLUNTARY
RESIGNATION. If, following the one year anniversary of the Effective Date,
Employee's employment is terminated by the Company for Cause (as defined in
subparagraph 6(b)(iii) below) or Employee voluntarily resigns, then Employee
shall not be entitled to receive severance or other benefits pursuant to this
Agreement, but may be eligible for those benefits (if any) as may then be
established under the Company's severance and benefit plans and policies
existing at the time of such termination.
(iii) For the purposes of this Paragraph 6(b),
the term "Cause" shall mean the occurrence of any one or more of the
following: (A) Employee'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 involved; (B) Employee's
misappropriation of funds or commission of an act of fraud, whether prior or
subsequent to the date hereof, upon the Company; (C) gross or willful
negligence by Employee in the scope of Employee's services to the Company as
set forth in Section 2; (D) a breach by Employee of a material provision of
this Agreement which is not cured within 30 days of notice; (E) a willful
failure of Employee to substantially perform his duties hereunder after
notice of such failure; or (F) material breach of the Company's policies.
(c) NO MODIFICATION OF "AT-WILL" NATURE OF EMPLOYMENT.
Employee acknowledges that the terms "Constructive Termination," "Termination
for Cause," and "Cause" are defined in Paragraphs 6(a) and 6(b) above for the
sole purpose of determining Employee's eligibility for severance and other
termination benefits. Employee understands that Paragraphs 6(a) and 6(b) do
not alter, modify, or otherwise change the "at-will" nature of his employment
with the Company as set forth in Paragraph 3 of this Agreement.
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7. EXECUTION OF CONFIDENTIALITY/OWNERSHIP/NONSOLICITATION
AGREEMENT. As a condition of entering into this Agreement and of receiving
the benefits hereunder, Employee agrees to execute the Informix Employee
Confidentiality/Ownership/Nonsolicitation Agreement (the "Confidentiality
Agreement").
8. EXECUTION OF RELEASE AGREEMENT UPON TERMINATION. As a condition
of entering into this Agreement and of receiving benefits hereunder, Employee
agrees to execute a release of claims agreement substantially in the form
attached hereto as Exhibit B upon the termination of his employment with the
Company.
9. NOTIFICATION OF NEW EMPLOYER. In the event that Employee leaves
the employ of the Company, Employee hereby grants consent to notification by
the Company to Employee's new employer about Employee's rights and
obligations under this Agreement.
10. REPRESENTATIONS. Employee agrees to execute any proper oath or
verify any proper document required to carry out the terms of this Agreement.
Employee represents that his performance of all the terms of this Agreement
will not breach any agreement to keep in confidence proprietary information
acquired by Employee in confidence or in trust prior to Employee's employment
by the Company. Employee has not entered into, and agrees that he will not
enter into, any oral or written agreement in conflict herewith.
11. RIGHT TO 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.
12. SUCCESSORS.
(a) COMPANY'S SUCCESSORS. Any successor to the Company
(whether direct or indirect and whether by purchase, lease, 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," as applicable, shall include any
successor to the Company's business and/or assets which executes and delivers
the assumption agreement described in this subparagraph (a) or which becomes
bound by the terms of this Agreement by operation of law.
(b) EMPLOYEE'S SUCCESSORS. Without the written consent of
the Company, Employee shall not assign or transfer this Agreement or any
right or 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, distributes, devisees and legatees.
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13. ARBITRATION.
(a) Employee agrees that any dispute or controversy
arising out of, relating to, or in connection with Employee's employment,
this Agreement, or the interpretation, validity, construction, performance,
breach, or termination thereof, shall be settled by binding arbitration to be
held in Santa Clara, California in accordance with the National Rules for the
Resolution of Employment Disputes then in effect of the American Arbitration
Association (the "Rules"). The arbitrator may grant injunctions or other
relief in such dispute or controversy. 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.
The arbitrator(s) shall apply California law to the merits of any dispute or
claim, without reference to rules of conflicts of law.
(b) EMPLOYEE HAS READ AND UNDERSTANDS THIS SECTION, WHICH
DISCUSSES ARBITRATION. EMPLOYEE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT,
EMPLOYEE AND THE COMPANY AGREE TO SUBMIT ANY 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
EMPLOYEE'S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL
DISPUTES RELATING TO ALL ASPECTS OF THE EMPLOYER/EMPLOYEE RELATIONSHIP,
INCLUDING BUT NOT LIMITED TO, DISCRIMINATION CLAIMS. EMPLOYEE AGREES THAT
EITHER PARTY MAY PETITION A COURT FOR INJUNCTIVE RELIEF WITH RESPECT TO
ALLEGATIONS OR CLAIMS THAT THE OTHER HAS VIOLATED THE CONFIDENTIALITY
AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES REGARDING TRADE SECRETS,
CONFIDENTIAL INFORMATION, NONSOLICITATION OR LABOR CODE Section 2870. IN THE
INVENT EITHER PARTY SEEKS INJUNCTIVE RELIEF, THE PREVAILING PARTY SHALL BE
ENTITLED TO RECOVER REASONABLE COSTS AND ATTORNEYS' FEES.
14. NOTICE CLAUSE.
(a) MANNER. 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.
(b) EFFECTIVENESS. Any notice or other communication
required or permitted to be given under this Agreement will be deemed given
on the day when delivered in person, or the third business day after the day
on which such notice was mailed in accordance with Paragraph 14(a).
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15. GOVERNING LAW/CONSENT TO PERSONAL JURISDICTION. This Agreement
shall be governed by and construed in accordance with the internal
substantive laws, but not the choice of law rules, of the State of
California. Employee hereby expressly consents to the personal jurisdiction
of the state and federal courts located in California for any law suit filed
there against Employee by the Company arising from or relating to this
Agreement.
16. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement, or any terms hereof, shall not affect the
validity or enforceability of any other provision or term of this Agreement.
17. INTEGRATION. This Agreement, the Confidentiality Agreement,
the Option Agreement and the Plan, represent the entire agreement and
understanding between the parties as to the subject matter herein and
supersedes all prior or contemporaneous agreements, whether written or oral.
No waiver, alteration, or modification of any of the provisions of this
Agreement shall be binding unless in writing and signed by duly authorized
representatives of the parties hereto.
18. TAXES. All payments made pursuant to this Agreement shall be
subject to withholding of applicable income and employment taxes.
IN WITNESS WHEREOF, each of the parties has executed this Agreement,
in the case of the Company by its duly authorized officers, as of the day and
year first above written.
INFORMIX SOFTWARE, INC.
By: /s/ Gary Lloyd
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Title: Vice President, General Counsel and Secretary
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EMPLOYEE
/s/ James Foy
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James Foy
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EXHIBIT A
ARDENT SEVERANCE POLICY
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ARDENT SOFTWARE
POLICY REGARDING TERMINATION OF EXECUTIVE STATUS AND
RELATED MATTERS IN THE EVENT OF
A SALE OF THE COMPANY
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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
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reasonably assigned by the CEO. Any such 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)
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continued willful failure of the Executive, after reasonable
notice, to observe the reasonable directives of the Board or (in
the case of Executives other than the CEO) the CEO.
SECTION 16 EXECUTIVES:
Peter Gyenes (CEO - 2 yrs.)
Peter Fiore
James Foy
Charles Kane
Cornelius McMullan
Jason Silvia
James K. Walsh (Founder - 2 yrs.)
EXECUTIVES FOR PURPOSES HEREOF:
Ralph Breslauer
Jeffrey Spotts
Mary Murphy
Gary Hoffman
Mikael Wipperfield
Joanne Protano
William Gendrolius
Alan Grady
Gene Faessler
Trevor Grey
Pierre Lannadere
Kim Lewin
Rodger Morrill
James Todhunter
Lee Scheffler
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EXHIBIT B
FORM RELEASE AGREEMENT
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RELEASE OF CLAIMS AGREEMENT
This Release of Claims Agreement ("Agreement") is made by and
between Informix Software, Inc. (the "Company"), and James Foy ("Employee").
WHEREAS, Employee was employed by the Company;
NOW THEREFORE, in consideration of the mutual promises made herein,
the Company and Employee (collectively referred to as "the Parties") hereby
agree as follows:
1. TERMINATION. Employee's employment from the Company terminated
on ________________.
2. CONSIDERATION. As set forth in that certain Employment
Agreement by and between the Parties dated , 2000 (the "Employment
Agreement"), the Company agreed, subject to Employee entering into this
Agreement, to provide Employee with certain benefits during and following
Employee's employment. As additional consideration for Employee entering into
this Agreement, the Company hereby agrees to pay up to ten thousand dollars
($10,000) for individual executive outplacement services performed for
Employee following Employee's termination of employment.
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
Informix Employee Confidentiality/Ownership/Nonsolicitation Agreement between
Employee and the Company (the "Confidentiality Agreement"). Employee shall
return all the Company property and confidential and proprietary information
in his possession to the Company on the Effective Date of this 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 Agreement except those benefits provided in the Employment
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 him- or herself, and
Employee'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 sue 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
Agreement 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 as to the
matters released.
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 advised by
this writing 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
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parties to revoke the Agreement; and (d) this Agreement shall not be
effective until the revocation period has expired. Any revocation should be
in writing and delivered to Mr. Wayne Page, Vice-President Human Resources,
Informix Software, Inc., by close of business on the seventh day from the
date that Employee signs this Agreement.
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 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, 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. Employee represents that
Employee 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. Employee also represents that Employee 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. Employee understands and agrees
that, as a condition of this Agreement, Employee shall not be entitled to any
employment with the Company, its subsidiaries, or any successor, and Employee
hereby waives any right, or alleged right, of employment or re-employment
with the Company. Employee 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. Employee agrees to use Employee's best
efforts to maintain in confidence the existence of this Agreement, the
contents and terms of this Agreement, and the consideration for this
Agreement (hereinafter collectively referred to as "Settlement Information").
Employee 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.
Employee 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.
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11. NO COOPERATION. Employee agrees he will not act in any manner
that might damage the business of the Company. Employee 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, 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. 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 (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.
13. COSTS. The Parties shall each bear their own costs, expert
fees, attorneys' fees and other fees incurred in connection with this
Agreement.
14. 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 Santa Clara 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. 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. 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.
16. 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.
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 Agreement shall continue in full force and effect
without said provision.
18. ENTIRE AGREEMENT. This Agreement, the Employment 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
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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
President of the Company.
19. GOVERNING LAW/CONSENT TO PERSONAL JURISDICTION. This Agreement
shall be governed by the internal substantive laws, but not the choice of law
rules, of the State of California. Employee hereby expressly consents to the
personal jurisdiction of the state and federal courts located in California
for any law suit filed there against Employee by the Company arising from or
relating to this Agreement.
20. EFFECTIVE DATE. This Agreement is effective eight (8) days
after it has been signed by both Parties.
21. 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.
22. 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;
(c) They understand the terms and consequences of this
Agreement and of the releases it contains;
(d) They are fully aware of the legal and binding effect of
this Agreement.
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<PAGE>
IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
INFORMIX SOFTWARE, INC.
Dated: By
------------------- ----------------------------------
JAMES FOY, an individual
Dated:
------------------ ------------------------------------
James Foy
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