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EXHIBIT 10.19
WITHOUT PREJUDICE
SUBJECT TO CONTRACT
COMPROMISE AGREEMENT
THIS AGREEMENT is made on 14 August 2001 between
1. RAINING DATA CORPORATION, a Delaware corporation with its principal offices
located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ("the
Company").
2. ▇▇▇▇▇▇▇ ▇▇▇▇▇ of ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇("▇▇▇ Employee").
IT IS AGREED:
1. The employment of the Employee with the Company will terminate at close of
business on 31 March 2002 ("the Termination Date"). The Company will
continue to pay the Employee her contractual salary and contractual benefits
up to the Termination Date. The Employee acknowledges that she has no
entitlement to any bonus payments.
2. From the date of this Agreement until the Termination Date the Employee:
a. shall not be required to attend work but will be available on reasonable
notice to answer questions from and provide assistance to Mr ▇▇▇ ▇▇▇▇▇▇▇
(VP of Engineering), Mr ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (VP of Finance), ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
(CEO), ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and other Mitford House staff regarding business
matters of which she has specific knowledge.
b. shall not without prior written permission of the Company contact or
attempt to contact any client, customer, supplier, officer or employee
of the Company or any Group Company save that nothing in this clause
shall prevent the Employee from having purely social contact with such
persons.
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c. shall not:
i. without prior written permission of the Company, such permission not
to be unreasonably withheld or delayed, be directly or indirectly
engaged or concerned or interested in any other trade or business or
the setting up of any business, except that:
(a) if the Employee wishes to be directly or indirectly engaged or
concerned or interested in any other trade or business or the
setting up of any business which is similar to or in any way
competitive with the business of the Company or any Group
Company or to undertake work on a consultancy basis for any
business which is similar to or in any way competitive with the
business of the Company or any Group Company, the Company may
withhold or delay its permission in its absolute discretion; and
(b) nothing in this clause shall prevent the Employee from taking up
non-executive directorships or similar appointments in any
business which is not similar to or in any way competitive with
the business of the Company or any Group Company, subject to the
Employee notifying the Company in advance of such appointment.
For the avoidance of doubt, if the Employee wishes to take up
non-executive directorships or similar appointments in any
business which is similar to or in any way competitive with the
business of the Company or any Group Company, the Employee must
obtain prior written permission of the Company and the Company
may withhold such permission in its absolute discretion.
ii. directly or indirectly and whether on her own behalf or on behalf of
any third party entice or encourage or seek to entice or encourage
any other employee of the Company or any Group Company to leave
their employment.
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For the avoidance of doubt, these obligations are without prejudice to
the Employee's implied duty of fidelity to the Company.
d. subject to paragraph 4 of this Agreement, shall take any accrued holiday
prior to the Termination Date.
3. The Employee shall immediately resign as a director and/or officer of the
Company and any Group Companies of which she is a director and/or officer.
4. The Company shall pay to the Employee on 1 April 2002 the sum of Pound
Sterling3,551.72 gross being pay in respect of 9 days holiday accrued but
untaken, less such income tax and national insurance as the Company is
obliged by law to deduct.
5. The 3,000 stock options granted to the Employee under the 1987 Raining Data
Corporation Stock Option Plan and 4,786 of the 5,000 stock options granted
to the Employee under the 1996 Raining Data Corporation Stock Option Plan
and 65,266 of the 95,000 stock options granted to the Employee under the
1999 Raining Data Corporation Stock Option Plan will vest on or before the
Termination Date in accordance with the relevant vesting schedules. 214 of
the stock options under the 1996 Raining Data Stock Option Plan and 29,734
of the stock options under the 1999 Raining Data Stock Option Plan which
will not vest on or before the Termination Date will lapse. The Employee
will be able to exercise all vested options in accordance with the terms of
the relevant Stock Option Plans.
6. Provided the Employee has complied with her obligations under paragraphs 2,
3 and 8(d) of this Agreement and has not committed any act of gross
misconduct entitling the Company to terminate her employment without notice,
the Company will pay the Employee on 1 April 2002 the sum of Pound
Sterling30,000 by way of compensation for loss of employment ("the
Termination Payment"), less such sums, if any, as are owing by the Employee
to the Company at the Termination Date. The Termination Payment will be made
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without deduction of tax. The Company believes that the Termination Payment
will not be subject to tax pursuant to section 148 of the Income &
Corporation Taxes ▇▇▇ ▇▇▇▇. The Termination Payment is made without any
admission of liability. Payment will be by way of a cheque posted to the
Employee's home address. If the Employee shall be in breach of any of the
provisions of this Agreement the Termination Payment shall cease to be
payable (without prejudice to any other rights and remedies of the Company
in respect of such breach).
7. The Employee hereby agrees to be responsible for the payment of any tax in
respect of the sums payable under this Agreement and the Employee hereby
agrees to indemnify the Company and any Group Company and keep the Company
and any Group Company indemnified on a continuing basis against any claim or
demand which is made against the Company in respect of any liability of the
Company to deduct an amount of tax or an amount in respect of tax from the
Termination Payment, including any interest, penalties, costs or expenses
imposed in connection therewith and including, without limitation, any claim
or demand made in respect of Income Tax or PAYE.
8. On or shortly after the Termination Date the Company will issue the
Employee's P45.
9. The Employee warrants and confirms that:
a. As at the date of this Agreement, to the best of her knowledge and
belief, she has returned all property in her possession, custody or
control belonging to the Company or any Group Company including but not
limited to keys, security and computer passes, computer hardware, all
documents and other records made or compiled by the Employee during her
employment with the Company and concerning the business, finances or
affairs of the Company or any Group Company or its or their clients,
customers or suppliers.
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b. As at the date of this Agreement, she has not committed any repudiatory
breach of her Service Agreement entitling the Company to terminate her
employment without notice;
c. As at the date of this Agreement, she has not taken court, tribunal or
other proceedings against the Company or any Group Company.
d. Immediately prior to payment of the Termination Payment, she will
reconfirm the above warranties and will also warrant and confirm that,
as at the date of Termination, she is accepting the Termination Payment
in full and final settlement of all claims, as set out in paragraph 10
below.
10. The arrangements set out in this letter are in full and final settlement of
all and any claims, costs, expenses or rights of action of any kind
whatsoever or howsoever arising (whether arising under common law, statute
or otherwise and whether arising in the United Kingdom or in any other
country of the world and including, but not limited to, any claims under the
Equal Pay ▇▇▇ ▇▇▇▇, the Sex Discrimination ▇▇▇ ▇▇▇▇, the Race Relations ▇▇▇
▇▇▇▇, the Trade Union and Labour Relations (Consolidation) ▇▇▇ ▇▇▇▇, the
Employment Rights ▇▇▇ ▇▇▇▇, the Disability Discrimination ▇▇▇ ▇▇▇▇, the
Working Time Regulations 1998 or in respect of which a Conciliation Officer
is authorised to act or any claims arising under any directive or other
legislation applicable in the United Kingdom by virtue of the United
Kingdom's membership of the European Union) which the Employee may have
against the Company or any Group Company or against any Third Party whether
arising directly or indirectly out of the Employee's employment with the
Company or any Group Company or directorship or office in the Company or any
Group Company or its or their termination.
11. In consideration of the payment of Pound Sterling100 (less deductions for
income tax and national insurance contributions) and in place of any and all
other post-termination obligations (except the obligations of
confidentiality contained in clause 5(a) of the Employee's Service Agreement
dated 1 April 2000 and at common law which continue in full force and
effect) to which the Employee
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may have been subject as a result of her employment with the Company from
which the Employee is hereby, for the avoidance of doubt, released, the
Employee agrees and undertakes not to:
a. so as to compete with the Company or any Group Company during the period
of six months after the Termination Date within the Territory carry on
or be directly or indirectly engaged or concerned or interested whether
as principal, agent, shareholder, investor, director, employee or
otherwise howsoever in any business or the setting up of any business
engaged in or which it is intended to be engaged in any Prohibited
Business.
b. during the period of six months after the Termination Date directly or
indirectly induce or seek to induce to leave the Company or any Group
Company any of the Omnis UK engineering staff.
12. Each party agrees to keep the terms of this Agreement confidential and not
to disclose it except as required by law or for the purpose of taking
professional advice or as required by SEC or Regulation FD rules.
13. The Employee has received advice from ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ("the Adviser"), a relevant independent
adviser for the purposes of Section 203 of the Employment Rights ▇▇▇ ▇▇▇▇,
as to the terms and effect of this Agreement and in particular its effect on
the ability of the Employee to pursue her rights before an employment
tribunal. The Adviser has signed the certificate attached hereto.
14. This Agreement satisfies the conditions for regulating compromise agreements
under the Sex Discrimination ▇▇▇ ▇▇▇▇, the Race Relations ▇▇▇ ▇▇▇▇, the
Trade Union and Labour Relations (Consolidation) ▇▇▇ ▇▇▇▇, the Employment
Rights ▇▇▇ ▇▇▇▇, the Disability Discrimination ▇▇▇ ▇▇▇▇ and the Working Time
Regulations 1998.
15. The Company agrees to pay direct to the Adviser the fees of the Adviser for
advising the Employee in respect of the termination of her employment, upon
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receipt by the Company of an invoice from the Adviser to the Employee marked
as payable by the Company, up to a maximum of Pound Sterling2,000 plus VAT.
16. The Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ shall apply to this
Agreement to the extent (but no more) set out in this paragraph. Any Third
Party shall be entitled to enforce the benefits conferred on it by
paragraphs 7, 10 and 11 of this Agreement. The consent of a Third Party
shall not be required for the variation or termination of this Agreement,
even if that variation or termination affects the benefits conferred on any
Third Party.
17. In this Agreement:
o "Group Company" shall mean any company or other organisation which is
directly controlled by the Company or which directly or indirectly
controls the Company or which is a successor or assign of the Company.
o "Prohibited Business" shall mean any business or activity carried on by
the Company or any Group Company at the Termination Date or at any time
during the two year period ending with the Termination Date in which the
Employee is or was directly concerned in the course of her employment at
any time during the two year period ending with the Termination Date.
o "Termination Date" shall mean the date on which the Employee's
employment with the Company terminates.
o "Territory" shall mean any of the countries in which the business of the
Company or any Group Company is or was carried out during the two year
period ending with the Termination Date.
o "Third Party" shall mean any Group Company or any employee, agent or
officer of the Company or any Group Company.
18. Upon completion this Agreement shall cease to be without prejudice and will
be legally binding on the parties.
Signed... /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇.........on behalf of the Company
Signed... /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇..........the Employee
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ATTACHMENT
CERTIFICATE OF RELEVANT INDEPENDENT ADVISER
I, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Solicitors, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ am a relevant independent adviser within the meaning of section 203(4)
of the Employment Rights Act and the equivalent provisions of the other statutes
referred to in the compromise agreement to which this certificate is attached
and hold a current practising certificate. I have advised ▇▇▇▇▇▇▇ ▇▇▇▇▇ on the
terms and effect of the said compromise agreement, in particular its effect on
her ability to pursue her rights before an Employment Tribunal. I confirm that
at the time of giving that advice there was a policy of insurance in place
against the risk of a claim by ▇▇▇▇▇▇▇ ▇▇▇▇▇ in respect of any loss which may
arise in consequence of this advice.
Signed /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Dated 9th August 2001
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