EXHIBIT 10.17
INFORMATICA CORPORATION
DIAZ NESAMONEY SEVERANCE AGREEMENT AND MUTUAL RELEASE
This Severance Agreement and Mutual Release ("Agreement") is made by
and between Informatica Corporation (the "Company"), and Xxxx Nesamoney
("Executive").
WHEREAS, Executive was employed by the Company as its President and
Chief Operating Officer;
WHEREAS, Executive has served as a member of the Company's Board of
Directors;
WHEREAS, Executive has resigned from all such positions, and
WHEREAS, the Executive agrees to release the Company from any claims
arising from or related to Executive's service relationship;
NOW THEREFORE, in consideration of the mutual promises made herein, the
Company and Executive (collectively referred to as "the Parties") hereby agree
as follows:
1. Resignation of Employment and Board Membership. Executive hereby
acknowledges resignation of his employment and his membership on the Company's
Board of Directors effective upon the close of business on July 29, 2002 (the
"Resignation Date").
2. Payment of Salary. Executive acknowledges and represents that the
Company has paid all salary, wages, accrued vacation and any and all other
benefits due to Executive as of the Resignation Date.
3. Consideration. As consideration for Executive entering into this
Agreement, the Company agrees to provide Executive with the following benefits:
(a) Lump-Sum Salary Payment. A lump-sum payment of Executive's
annual base salary, specifically $275,000, less applicable withholding.
(b) Lump-Sum Bonus Payment. A lump-sum payment of Executive's
assumed future awards under Company bonus plans, specifically $125,000, less
applicable withholding.
(c) Stock Option Accelerated Vesting. All of Executive's
outstanding Company options (the "Options) shall, on the Effective Date, have
their vesting accelerated as to one year's additional vesting. To the extent not
vested on the Effective Date and after such acceleration, the Options shall
terminate and become without further force and effect.
(d) Post-Termination Exercisability Period Extension for
Options Granted After January 1, 2000. With respect to Options that were
initially granted to Executive after January 1, 2000, all such Options shall
have their post-termination exercisability period extended from three
months to six months. With respect to Options initially granted to Executive on
or prior to January 1, 2000, following the Resignation Date, Executive shall
have three months, as specified in his individual option agreements, to exercise
any vested options, after which such Options shall, to the extent unexercised,
become without further force and effect.
(e) Lump-Sum COBRA Payment. A lump-sum payment equal to twelve
months' COBRA premiums, specifically $10,379.64.
4. Mutual Release of Claims. Executive agrees that the foregoing
consideration represents settlement in full of all outstanding obligations owed
to Executive by the Company. Executive and the Company, on behalf of themselves
and their respective heirs, executors, officers, directors, employees,
investors, shareholders, administrators, predecessor and successor corporations,
and assigns, hereby fully and forever release each other and their respective
heirs, executors, officers, directors, employees, investors, shareholders,
administrators, predecessor and successor corporations, and assigns of and from
any claim, duty, obligation or cause of action relating to any matters of any
kind, whether presently known or unknown, suspected or unsuspected, that any of
them 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,
(a) any and all claims relating to or arising from Executive's
employment relationship with the Company and the termination of that
relationship;
(b) any and all claims relating to, or arising from,
Executive's right to purchase, or actual purchase of shares of stock of the
Company;
(c) any and all claims for wrongful discharge of employment;
breach of contract, both express and implied; breach of a covenant of good faith
and fair dealing, both express and implied; negligent or intentional infliction
of emotional distress; negligent or intentional misrepresentation; negligent or
intentional interference with contract or prospective economic advantage; and
defamation;
(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, and the California
Fair Employment and Housing Act;
(e) any and all claims arising out of any other laws and
regulations relating to employment or employment discrimination; and
(f) any and all claims for attorneys' fees and costs.
The Company and Executive agree 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. This release does not extend to any obligations incurred under
this Agreement.
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The parties acknowledge that they have been advised by legal counsel
and are 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.
The parties, being aware of said Code Section, agrees to expressly
waive any rights they may have thereunder, as well as under any other statute or
common law principles of similar effect.
5. Return of Company Property. Executive agrees to return all Company
property, including all computing equipment, to the Company upon the
effectiveness of this Agreement. Notwithstanding the above, Executive may retain
Executive's Company issued laptop computer and the Company hereby transfers
ownership of such equipment to Executive.
6. Indemnification. Executive shall be entitled to indemnification, in
accordance with the applicable provisions of the Company's articles of
incorporation and bylaws (or, if greater indemnification rights are provided
thereby, to the fullest extent allowed by law), and under any applicable policy
of insurance secured by the Company, against expense, liability and loss that
Executive may incur by reason of any demand, claim, action, suit or proceeding
arising from or relating to the performance of Executive's duties as an officer
or director of the Company or any of its subsidiaries.
7. Mutual Non-Disparagement. The Company agrees that its executive
officers will refrain from any disparagement, criticism, defamation, slander of
Executive, or tortious interference with the contracts and relationships of the
Executive. Executive agrees to refrain from any disparagement, criticism,
defamation, slander of the Company or its employees, or tortious interference
with the contracts and relationships of the Company. The foregoing restrictions
will not apply to any statements that are made truthfully in response to a
subpoena or other compulsory legal process.
8. Non-Solicitation. In consideration for the severance benefits
Executive is to receive herein Executive agrees that he will not, at any time
during the twelve months following his Resignation Date, directly solicit or
cause any other individual or entity to directly solicit, any individuals to
leave the Company's employ for any reason or interfere in any other manner with
the employment relationships at the time existing between the Company and its
then current employees. The foregoing restrictions will not apply to any general
advertisements or solicitations that are published in a publicly available
medium.
9. Tax Consequences. The Company makes no representations or warranties
with respect to the tax consequences of the payment of any sums or provision of
any benefits, accelerated vesting or extension of the post-termination
exercisability period of the Options to Executive under the terms of this
Agreement. The Company will withhold sums from Executive's compensation
hereunder sufficient to satisfy the Company's withholding obligations. Executive
agrees and
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understands that he is responsible for payment, if any, of his portion (but not
any employer portion) of the local, state and/or federal taxes on the sums paid
hereunder by the Company and any penalties or assessments thereon.
10. No Admission of Liability. No action taken by the Parties hereto,
or either of them, 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 either party of
any fault or liability whatsoever to the other party or to any third party.
11. Costs. The Parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Agreement.
12. Arbitration and Equitable Relief.
(a) The parties hereto agree that, to the extent permitted by
law, any dispute or controversy arising out of, relating to, or in connection
with this Agreement, or the interpretation, validity, construction, performance,
breach, or termination thereof shall be settled by arbitration to be held in San
Mateo County, 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.
(b) The arbitrator shall apply California law to the merits of
any dispute or claim, without reference to rules of conflict of law. The
arbitration proceedings shall be governed by federal arbitration law and by the
Rules, without reference to state arbitration law. The parties hereto hereby
expressly consent to the personal jurisdiction of the state and federal courts
located in California for any action or proceeding arising from or relating to
this Agreement and/or relating to any arbitration in which the parties are
participants.
(c) The Company will pay the costs and expenses of such
arbitration, and each party shall pay its own counsel fees and expenses incurred
in connection with such arbitration.
(d) THE PARTIES HERETO HAVE READ AND UNDERSTAND SECTION 12,
WHICH DISCUSSES ARBITRATION. THE PARTIES HERETO UNDERSTAND THAT BY SIGNING THIS
AGREEMENT, THEY AGREE, TO THE EXTENT PERMITTED BY LAW, TO SUBMIT ANY FUTURE
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 THEIR 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, THE FOLLOWING CLAIMS:
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(i) ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF
EMPLOYMENT; BREACH OF CONTRACT, BOTH EXPRESS AND IMPLIED; BREACH OF THE COVENANT
OF GOOD FAITH AND FAIR DEALING, BOTH EXPRESS AND IMPLIED; NEGLIGENT OR
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT OR INTENTIONAL
MISREPRESENTATION; NEGLIGENT OR INTENTIONAL INTERFERENCE WITH CONTRACT OR
PROSPECTIVE ECONOMIC ADVANTAGE; AND DEFAMATION.
(ii) 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 CALIFORNIA FAIR EMPLOYMENT AND HOUSING
ACT, AND LABOR CODE SECTION 201, et seq;
(iii) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER
LAWS AND REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.
13. Authority. The Company represents and warrants that the undersigned
has the authority to act on behalf of the Company and to bind the Company and
all who may claim through it to the terms and conditions of this Agreement.
Executive represents and warrants that he has the capacity to act on his own
behalf and on behalf of all who might claim through him to bind them to the
terms and conditions of this Agreement.
14. No Representations. Each party represents that it 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.
15. 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.
16. Entire Agreement. This Agreement along with the previously executed
Employee Proprietary Information and Inventions Agreement and any applicable
stock option agreements between the parties (as modified in Section 3 above)
represent the entire agreement and understanding between the Company and
Executive concerning Executive's employment transition and eventual separation
from the Company, and supersedes, replaces and fully discharges all obligations
under any and all prior agreements and understandings concerning Executive's
relationship with the Company and his compensation by the Company.
17. No Oral Modification. This Agreement may only be amended in writing
signed by Executive and the Company's Chief Executive Officer.
18. Effective Date. This Agreement is effective as of the Resignation
Date.
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19. 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.
20. Cooperation with the Company. Executive agrees to cooperate fully
with the Company, including but not limited to, responding to reasonable
requests from the Company's Chairman of the Board, Chief Financial Officer or
the Company's legal counsel in connection with any and all existing or future
litigation or procedures to perfect the Company's intellectual property rights.
The Executive also agrees to furnish upon reasonable request, information
necessary in order to assist Company in meeting Company's reporting requirements
and Executive's continuing Section 16 reporting obligations on a timely manner
and as prescribed by the then current SEC and/or NASDAQ rules. Executive
understands that he remains subject to the SEC and NASDAQ prohibitions on
xxxxxxx xxxxxxx even after the Effective Date of this agreement. Executive shall
not be required to spend more than four hours per month (except as reasonably
needed to prepare for and/or attend his deposition in any litigation matter)
responding to such requests. In the event that Executive is requested to spend
more than four hours per month responding to any such requests which do not
involve the preparation for or his attendance at his deposition, the parties
agree to negotiate in good faith reasonable compensation for Executive's time in
excess of the four hours committed to responding to such requests.
21. Status of Executive's Administrative Assistant. In the event that
Executive's Administrative Assistant is terminated by the Company for any reason
during the next 12 months, the Company shall honor Executive's request that she
receive a termination package that includes at least two months' severance.
Additionally, in the event that Executive's Administrative Assistant is
terminated by the Company for any reason or terminates her employment with the
Company for any reason, the Company agrees to fully forgive any then outstanding
repayment obligation with respect to the signing bonus she received upon her
hiring.
22. Public Communication of Executive's Separation from Company.
Company shall issue a press release and a general Company employee communication
on Monday, July 29, 2002, announcing Executive's departure from the Company and
resignation from the Board. Prior to release, Executive shall have the right to
review such communications for factual inaccuracies and shall have the right to
submit editorial comments and suggestions for the Company's consideration.
Executive shall have the right to issue his own email communication to the
Company employees regarding his departure, which communication shall be
generally consistent with the communications planned by the Company. Prior to
the release of such email communication, the Company's Chief Executive Officer
and Chief Financial Officer shall have the right to review such communication
for factual inaccuracies and shall have the right to submit editorial comments
and suggestions for Executive's consideration.
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23. 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.
IN WITNESS WHEREOF, the Parties have executed this Agreement.
Informatica Corporation
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Xxxx Xxx
Date: July 29, 2002
Executive, an individual
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Xxxx Nesamoney
Date: July 29, 2002
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