AMENDMENT TO SOHAIB ABBASI EMPLOYMENT AGREEMENT
EXHIBIT
10.20
AMENDMENT
TO ▇▇▇▇▇▇ ▇▇▇▇▇▇ EMPLOYMENT AGREEMENT
This
amendment (the “Amendment”)
is made by and between ▇▇▇▇▇▇
▇▇▇▇▇▇ (the “Executive”)
and Informatica Corporation (the “Company”
and together with the Executive hereinafter collectively referred to as the
“Parties”).
WHEREAS, the Parties
previously entered into an Employment Agreement effective July 19, 2004, as
amended (the “Prior
Agreement”); and
WHEREAS, the Parties wish to
amend the Prior
Agreement in order to bring such terms into compliance with Section 409A
of the Internal Revenue Code of 1986, as amended and the final regulations and
other official guidance thereunder, as set forth below.
NOW, THEREFORE, for good and
valuable consideration, the Parties agree as follows:
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1.
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Section 3(b) shall be
deleted in its entirety and replaced
with:
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“(b) Annual
Bonus. Executive’s annual target bonus will be 200% of Base
Salary (“Target Bonus”). Executive’s annual bonus will be determined
based upon achievement of performance goals established by the
Committee. Executive will have the opportunity to discuss the nature
of such performance goals with the Committee prior to such performance goals
being established. The actual bonus paid may be an amount up to 300%
of Base Salary for overachievement of Executive’s performance goals, as
determined by the Committee, and similarly may be reduced to $0 for
underachievement. Bonuses, if any, will accrue and become payable in
accordance with the Committee’s standard practices for paying executive
incentive compensation; provided, however, Executive’s actual bonus will be paid
no later than two and one-half (2 1/2) months following the end of the
performance year.”
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2.
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Section 6(a) shall be
deleted in its entirety and replaced
with:
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“(a) Termination Without Cause or
Resignation for Good Reason. If Executive’s employment is
terminated by the Company without Cause or by Executive for Good Reason, then,
subject to Section 7 and 8, Executive will
receive: (i) continued payment of Base Salary for the period of 12 months
following the date of the termination (the “Continuance Period”) (such that the
amount paid in each month shall be the same but if the separation agreement and
release of claims are not complete within the first sixty (60) days that the
initial payment shall include any other payments that would have been made prior
to the completion of the separation agreement and release of claims), (ii) a
lump-sum payment equal to Executive’s then current
Target Bonus, paid at the time fiscal year bonuses are paid to other
executives, but in no event later than two and
one-half (2-1/2) months following the end of the performance year in which the
Executive’s employment is terminated, (iii) reimbursement for any
applicable premiums Executive pays to continue coverage for Executive and
Executive’s eligible dependents under the Company’s Benefit Plans for the
Continuance Period, or, if earlier, until Executive is eligible for similar
benefits from another employer (provided Executive validly elects to continue
coverage under applicable law), and (iv)
immediate
vesting of all unvested equity awards that would have vested had Executive
otherwise remained an employee for the 12 month period commencing on his
termination date. Notwithstanding clause (iv) of the preceding
sentence, if a termination described in the preceding sentence occurs within the
period beginning three months prior to a Change of Control and ending 12 months
following a Change of Control, Executive will receive immediate vesting with
respect to all unvested equity awards that would have vested had Executive
otherwise remained an employee for an additional 24 months instead of 12
months. Executive’s vested equity awards will remain exercisable in
accordance with the terms of the applicable Company equity compensation plan and
the corresponding award agreements and thereafter will expire to the extent not
exercised. If Executive is terminated prior to a Change of Control
and Executive is entitled to receive severance under this Section 6(a),
Executive’s unvested equity awards will remain outstanding for three months
(subject to the maximum term stated in the applicable award
agreement).”
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3.
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Section 6(a)(i) shall
be deleted in its entirety and replaced
with:
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“(a)(i)
Section 280G
Gross-up. If any payment or benefit Executive would receive
pursuant to Section 6(a), but determined without regard to any additional
payment required under this Section 6(a)(i), (collectively, the “Payment”) would
(x) constitute a “parachute payment” within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the “Code”), and (y) be subject to
the excise tax imposed by Section 4999 of the Code or any interest or penalties
payable with respect to such excise tax (such excise tax, together with any such
interest and penalties, are hereinafter collectively referred to as the “Excise
Tax”), then Executive will be entitled to receive from the Company an additional
payment (the “Gross-Up Payment,” and any iterative payments pursuant to this
paragraph also shall be “Gross-Up Payments”) in an amount that shall fund the
payment by Executive of any Excise Tax on the Payment, as well as all income and
employment taxes on the Gross-Up Payment, any Excise Tax imposed on the Gross-Up
Payment and any interest or penalties imposed with respect to income and
employment taxes imposed on the Gross-Up Payment. For this purpose,
all income taxes will be assumed to apply to Executive at the highest marginal
rate. Notwithstanding the foregoing, the total amount paid as
Gross-Up Payments will not exceed $1,000,000. Any Gross-Up Payment
shall be paid to Executive, or for his benefit, within 15 days following receipt
by the Company of the report of the accounting firm described below, and in any event
within thirty (30) days of the due date when the excise tax is to be remitted to
the taxing authority.
The
accounting firm engaged by the Company for general audit purposes as of the day
prior to the effective date of the Change of Control shall perform the foregoing
calculations. If the accounting firm so engaged by the Company is
also serving as accountant or auditor for the individual, entity or group which
will control the Company upon the occurrence of a Change of Control, the Company
shall appoint a nationally recognized accounting firm other than the accounting
firm engaged by the Company for general audit purposes to make the
determinations required hereunder. The Company shall bear all
expenses with respect to the determinations by such accounting firm required to
be made hereunder.
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The
accounting firm engaged to make the determinations hereunder shall provide its
calculations, together with detailed supporting documentation, to the Company
and Executive within thirty calendar days after the date on which such
accounting firm has been engaged to make such determinations or such other time
as requested by the Company or Executive. If the accounting firm
determines that no Excise Tax is payable with respect to a Payment, it shall
furnish the Company and Executive with an opinion reasonably acceptable to
Executive that no Excise Tax will be imposed with respect to such
Payment. Any good faith determinations of the accounting firm made
hereunder shall be final, binding, and conclusive upon the Company and
Executive.”
4.
Section 7(a) shall be deleted in its
entirety and replaced with:
(a) “Separation Agreement and
Release of Claims. The receipt of any severance pursuant to
Section 6 will be subject to Executive signing and not revoking a separation
agreement and release of claims in a form reasonably acceptable to the
Company, and provided further that such
separation agreement and release of claims are executed and become effective no
later than sixty (60) days following the termination
date. Such agreement will provide (among other things) that
Executive will not disparage the Company, its directors, or its executive
officers during the Continuance Period and the Company similarly will not
disparage the Executive or his family. No severance will be paid or
provided until the separation agreement and release agreement becomes
effective.
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5.
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A new paragraph is
added to become Section 7(b) as follows and the
existing Sections 7(b), 7(c), 7(d) and 7(e) become
Sections
7(c),
7(d), 7(e) and 7(f)
respectively:
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“Timing of Payments. Any severance payments
or benefits under this Agreement that would be considered Deferred Compensation
Separation Benefits (as defined in Section 8) shall be paid on, or, in the case
of installments, shall not commence until, the sixtieth (60th) day following Executive’s separation from service, or,
if later, such time as required by Section 8. Any installment
payments that would have been made to Executive during the sixty (60) day period
immediately following the Executive’s separation from service but for the
preceding sentence shall be paid to Executive on the sixtieth (60th) day following the Executive’s separation from service
and the remaining payments shall be made as provided in this
Agreement.”
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6.
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A new section is added
to become Section 8 as follows and the
existing Sections 8 through 23 become Sections
9 through 24
respectively:
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“Section 8. Section
409A.
“(a) Notwithstanding anything to the contrary in this
Agreement, no severance payable to Executive, if any, pursuant to this
Agreement, when considered together with any other severance payments or
separation benefits that are considered deferred compensation under Section 409A
of the Internal Revenue Code of 1986, as amended (the “Code”) and the
final
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regulations and any guidance promulgated thereunder
(“Section 409A”) (together, the “Deferred Compensation Separation Benefits”)
shall be payable until Executive has a “separation from service” within the
meaning of Section 409A.
(b) Notwithstanding anything to the contrary in this
Agreement, if Executive is a “specified employee” within the meaning of Section
409A at the time of Executive’s termination (other than due to death), then the
Deferred Compensation Separation Benefits that are payable within the first six
(6) months following Executive’s separation from service shall become payable on
the first payroll date that occurs on or after the date six (6) months and one
(1) day following the date of Executive’s separation from service but in no event later than thirty (30) days after the
date six (6) months and one (1) day following the date of Executive’s separation
from service. All subsequent
Deferred Compensation Separation Benefits, if any, shall be payable in
accordance with the payment schedule applicable to each payment or
benefit. Notwithstanding anything herein to the contrary, if
Executive dies following Executive’s separation from service but prior to the
six (6) month anniversary of the separation, then any payments delayed in
accordance with this paragraph shall be payable in a lump sum as soon as
administratively practicable after the date of Executive’s death and all other
Deferred Compensation Separation Benefits shall be payable in accordance with
the payment schedule applicable to each payment or benefit but in no
event later than thirty (30) days after the date of Executive’s
death. Each payment and benefit
payable under this Agreement is intended to constitute separate payments for
purposes of Section 1.409A-2(b)(2) of the Treasury
Regulations.
(c) Any amount paid under this Agreement that satisfies the
requirements of the “short-term deferral” rule set forth in Section
1.409A-1(b)(4) of the Treasury Regulations shall not constitute Deferred
Compensation Separation Benefits for purposes of clause (b)
above.
(d) Any amount paid under this Agreement that qualifies as a
payment made as a result of an involuntary separation from service pursuant to
Section 1.409A-1(b)(9)(iii) of the Treasury Regulations that do not exceed the
Section 409A Limit (as defined below) shall not constitute Deferred Compensation
Separation Benefits for purposes of clause (b) above.
(e) The foregoing provisions are intended to comply with the
requirements of Section 409A so that none of the severance payments and benefits
to be provided hereunder shall be subject to the additional tax imposed under
Section 409A, and any ambiguities herein shall be interpreted to so
comply. The Company and Executive agree to work together in good
faith to consider amendments to this Agreement and to take such reasonable
actions which are necessary, appropriate or desirable to avoid imposition of any
additional tax or income recognition prior to actual payment to Executive under
Section 409A.”
7. New Section 9 (f) shall be
deleted and replaced with the following:
“Good
Reason. For purposes of this Agreement, “Good Reason” means
the occurrence of any of the following without Executive’s express prior written
consent: (i) a material reduction in Executive’s position or duties (other than
a reduction caused by Executive
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ceasing
to be Chairman of the Board or a member of the Board due to applicable legal or
listing requirements or stockholders failing to reelect Executive to the Board),
(ii) a reduction (or series of reductions) of Executive's Base Salary or Target
Bonus that singly or in the aggregate constitute a material reduction, other
than a one-time reduction of up to 10% that also is applied to substantially all
of the Company's other senior executives, (iii) a material reduction in the
aggregate level of benefits made available to Executive other than a reduction
that also is applied to substantially all of the Company’s other senior
executives, (iv) relocation of Executive’s primary place of business for the
performance of his duties to the Company to a location that is more than 30
miles from its location as of the Effective Date, or (v) any material breach or
material violation of a material provision of this Agreement by the Company (or
any successor to the Company). In order
for a resignation to qualify as for “Good Reason,” the Executive must provide
the Company with written notice within ninety
(90)
days of the event that Executive believes constitutes “Good Reason” specifically
identifying the acts or omissions constituting the grounds for Good Reason and
the Company must have failed to cure such Good Reason condition within thirty
(30) days following the date of such notice.”
8. New Section 9 shall have (g) added as
follows:
“(g) Section 409A
Limit. For purposes of this
Agreement, “Section 409A Limit” shall mean the lesser of two (2) times: (i)
Executive’s annualized compensation based upon the annual rate of pay paid to
Executive during Executive’s taxable year preceding Executive’s taxable year of
Executive’s termination of employment as determined under Treasury Regulation
1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue Service guidance issued with
respect thereto; or (ii) the maximum amount that may be taken into account under
a qualified plan pursuant to Section 401(a)(17) of the Code for the year in
which Executive’s employment is terminated.”
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9.
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This
Amendment, taken together with the Prior Agreement,
supersedes any and all previous contracts, arrangements or understandings
between the parties with respect to the subject hereof, and may not be
amended adversely to Employee’s interest except by mutual written
agreement of the Parties. To the extent not amended hereby, the
Prior Agreement
remains in full force and
effect.
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10.
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This
Amendment will become effective on the date that it is signed by both
Parties (the “Effective
Date”).
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IN WITNESS WHEREOF, each of
the Parties has executed this Amendment, in the case of the Company by its duly
authorized officer, as of this 31st day of December of the year
2008.
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INFORMATICA
CORPORATION
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| By: ▇▇▇▇ ▇. ▇▇▇ | ||
| Title: Executive Vice President and CFO | ||
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ACCEPTED
AND AGREED TO this
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| 31st day of December 2008. | |
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| ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
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Executive
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