Separation Agreement and Release - Informix Software Inc. and Leonard Palomino
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release ("Agreement") is made and entered into
by and between Leonard Palomino ("Employee") and Informix Software, Inc.
("Informix"), as of the Effective Date set forth in Section 10 below.
1. In consideration of Employee's acceptance of this Agreement, and in
exchange for the release and promises described below, Informix agrees to the
following:
(a) That Employee's last day of work with Informix will be July 30,
1999.
(b) To pay Employee six (6) months base salary at Employee's current
rate ("Severance Payment") less customary payroll deductions. Should Employee
accept this Agreement, Employee's Severance Payment will be paid in a lump
sum on the Effective Date set forth in Section 10 below or on his termination
date, which ever is later. Informix paid health insurance benefits will
terminate on the last day of the month in which Employee's employment is
terminated.
(c) Should Employee be the recipient of any stock option grants,
Employee will not qualify for any stock option vesting after July 30, 1999.
The stock option exercise period commences on July 30, 1999.
2. Employee has received or 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.
3. Employee agrees to the following:
(a) Employee has returned or will return to Informix by the date of
termination of employment all Informix owned property and any information
Employee may have, including but not limited to the following: property and
information about Informix's practices and procedures; product information,
trade secrets, customer 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; notebooks
bulletins, or manuals; and/or Informix pricing, cost and purchasing
information. Employee has previously signed an agreement regarding
Confidential Information and Trade Secrets. A copy of that agreement is
attached. Terms of the agreement remain in effect after Employee leaves
Informix. This includes, and is not limited to, confidential and proprietary
information regarding Informix's products, sales and marketing methods or
strategies, 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.
(b) Employee agrees to cooperate fully in an orderly transition of
his duties and responsibilities.
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4. Employee waives and releases and promises never to assert any and all
claims that Employee has or might have against Informix and its
predecessors, subsidiaries, related entities, officers, directors,
shareholders, agents, attorneys, employees, successors, or assigns, arising
from or related to Employee's employment with Informix and/or the termination
of Employee's employment with Informix including claims in contract, tort or
under any statute, law or regulation. These claims include, but are not
limited to, claims for discrimination arising under federal, state and local
statutory or common law, such as the Age Discrimination in Employment Act,
Title VII of the Civil Rights Act of 1964 (as amended), the California Fair
Employment and Housing Act, the Americans with Disabilities Act, the Employee
Retirement Income Security Act, the Fair Labor Standards Act and the
California Labor Code.
5. Employee confirms that Employee expressly waives and releases and
promises never to assert any such claims that Employee has or may have, known
or unknown, even if Employee does not believe that Employee has such claims.
Employee therefore waives any and all rights under in section 1542 of the
Civil Code of California and any analogous or similar provision applicable
under state or local statutes which states:
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.
6. Employees will not, unless required by law, disclose to others any
information regarding the terms of this Agreement, the money and/or benefits
being paid under it or the fact of its payment, except that Employee may
disclose this information to Employee's immediate family, attorney,
accountant or other professional advisor to whom Employee must make the
disclosure in order for them to render professional services to Employee.
Employee will instruct them and they must agree, however, to maintain the
confidentiality of this information just as Employee must.
7. This Agreement represents the full agreement between Employee and
Informix regarding termination of employment. This Agreement supercedes and
is in lieu of all prior oral or written agreements and may not be changed
except in writing signed by Employee and the Vice President, Human Resources
or that Vice President's delegee.
8. If any provision of this Agreement is held to be invalid, void, or
unenforceable, the remaining provisions shall remain in full force and effect.
9. Nothing in this Agreement is intended to create any rights to
employment or employment benefits except as expressly set forth in this
Agreement.
10. The following is required by the Older Workers Benefit Protection Act.
Employee will have up to 21 days after receipt of this Agreement to
accept the terms of this Agreement, although Employee may accept it at any
time within those 21 days. Employee is advised to consult an attorney about
the Agreement.
To accept the Agreement, please return to the Vice President, Human
Resources two signed originals of this Agreement. Employees will still have
an additional 7 days in which to
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revoke the acceptance. To revoke, Employee must send a written statement of
revocation to the Vice President, Human Resources. If Employee does not
revoke, the eighth day after the date of Employee's acceptance will be the
Effective Date of the Agreement.
11. 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 rules for
resolution of commercial 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. In the event
that Employee is in breach of any of the obligations under this Agreement or
as otherwise imposed by law, Informix will be entitled to recover the benefit
paid under the Agreement and to obtain all other relief provided by law or
equity. In addition, Informix will be entitled to recover its fees and costs.
12. It is understood and agreed by the parties that this Agreement
represents a compromise settlement, and that the promises and payments in
consideration of this Agreement shall not be construed to be an admission of
any liability or obligation by either party to the other party or to any other
person. Employee acknowledges that Employee has read and fully understands
this Agreement; that Employee has been given at least twenty-one (21) days to
consider this Agreement; that Employee has been advised to consult an
attorney before signing this Agreement; and the Employee is not executing
this Agreement in reliance upon any representations, promises or inducements
other than those contained in this Agreement; and, Employee acknowledges
signing this Agreement voluntarily.
IN WITNESS WHEREOF, the parties have executed this Separation Agreement and
Release as the date first set forth below.
Date: 7/14/99 /s/ Leonard Palomino
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Leonard Palomino
On behalf of Informix Software, Inc.
Date: 7/14/99 By: /s/ Susan Daniel
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Susan Daniel
Vice President, Human Resources