Separation Ageement and Release of Claims - Informix Corp. and Diane L. Fraiman
SEPARATION AGREEMENT AND
RELEASE OF CLAIMS
This Separation Ageement and Release of Claims ("Release") is made by and
between Diane L. Fraiman ("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 by the Company will terminate on
December 31, 1999
2. CONSIDERATION. The Company has agreed, subject to the Employee's
execution of this Release, to provide Employee with certain payments and
benefits as described more particularly herein, conditioned upon, among other
things: (i) Employee's continued employment by the Company until the effective
date of her resignation as set forth in paragraph 1; and (ii) Employee's
performance of her duties and responsibilities as Vice President, Corporate
Marketing, as appropriate during her remaining employment by the Company.
(a) SEVERANCE. Employee shall receive a severance payment in the
amount of One Hundred Thirty-One Thousand Two Hundred and Fifty Dollars
($131,250) ("Severance Payment") which is equal to six months' base salary,
plus Twenty-five Thousand Dollars ($25,000) as certain additional consideration,
for a total of One Hundred Fifty-six Thousand Two Hundred Fifty Dollars
($156,250) ("Total Payment"), less applicable withholding for federal and state
taxes and other payroll deductions, and less any other payroll deductions that
Employee may authorize in writing. Employee shall receive a payment in the
amount of the net Total Payment , plus accrued but unused vacation, conditioned
upon the Employee's having signed this Release. The Total Payment shall be made
the later of: (i) the termination date in paragraph 1 above; or, (ii) ten (10)
business days after the Effective Date of this Release as defined in paragraph
17.
(b) INCENTIVE BONUS. The Company shall make a payment to Employee the
amount of One Hundred and Eighteen Thousand One Twenty-Five Dollars ($118,125)
("Incentive Payment") an amount equal to 100% of Employee's target incentive for
Fiscal Year 1999, as defined in Employee's Executive Incentive Compensation Plan
(the "Plan") for Fiscal Year 1999. This payment shall be made in a lump sum,
less applicable federal and state taxes and other payroll deductions, on the
regularly scheduled payment date as determined by the Company for participants
in the Plan.
(c) RELOCATION BONUS WAIVER. The Company agrees to waive its right to
repayment in the amount of Sixty-Seven Thousand Five Hundred Dollars ($67,500)
("Relocation Bonus"), an amount equal to the balance of one-half of the unvested
portion of your relocation bonus.
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(d) STOCK OPTIONS. Employee will not qualify for any stock option
vesting after the date of Emloyee's termination of employment as defined in
paragraph 1 above. In exchange for the Total Payment, Employee waives any and
all rights to any claims for continued vesting of stock options after the date
of termination of employment, and waives any claims to payment of additional
consideration for the claimed value of any unvested stock options. The period in
which Employee may exercise vested options begins on the date of Employee's
termination of employment in accordance with Employee's applicable Stock Option
Agreement, the Company's Stock Option and Award Plan, the Company's Affiliate
Agreement, and the Company's policies.
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's property, and confidential and
proprietary documents, diskettes, manuals, computer files and other information
in her possession to the Company on or before the effective date of her
resignation, including but not limited to: marketing and product data; reports
and forecasts; customer, partner and competitive data and information; customer
and/or partner lists, reports and other proprietary and confidential Company
property.
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 and Incentive Bonus payments described in paragraphs 2 (a),
2 (b) and 2 (d) of this Release.
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 herself, and her 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 or cause to be instituted any legal action or
administrative proceeding against the Company 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:
(a) any and all claims under federal and state laws and statutes, in
contract and in tort, 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;
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(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 of claims 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 obligations incurred
under this Release, the Stock Option agreement evidencing Employee's stock
options and the agreement(s) evidencing the exercise of such options, Employee's
continuing obligations pursuant to Employee's Confidentiality and
Nonsolicitation Agreement with the Company, and Employee's Affiliate Agreement.
6. ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER ADEA. Employee acknowledges
that she 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 Release . Employee acknowledges that
the consideration given for this waiver and Release 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 Release shall not be effective until the
revocation period has expired. Any revocation must be in writing and must be
hand-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.
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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 she 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 she is aware of and understands the Civil Code
Section set forth above and agrees expressly to waive any rights she 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 all 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 HER 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. In the event that Employee is in
breach of any of its obligations under this Release, nothing in this section is
to be construed as a waiver of the Company's rights to seek injunctive or
equitable relief in a court of competent jurisdiction and to recover its costs
and attorneys' fees and
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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 her 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 stock option agreements between
the parties, the Employee Confidentiality and Nonsolicitation Agreement, and the
Employee's Affiliate 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 her
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.
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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 (c) They understand the provisions and legal consequences of this Release.
IN WITNESS WHEREOF, the Parties have executed this Release on the
respective dates set forth below.
INFORMIX CORPORATION
Dated: , 1999 By
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Gary Lloyd, Vice President, Legal, and
General Counsel
Diane L. Fraiman, an individual
Dated: , 1999
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