EXHIBIT 10.13
October 23, 1997
Xx. Xxxxxxx X. Xxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Dear Xxxx:
This letter sets forth our agreement regarding your resignation from Marcam
Solutions, Inc. (the "Company").
1. You will step down as President and Chief Executive Officer and an
officer of the Company, as well as an officer or director of any subsidiary of
the Company, effective November 17, 1997. You will remain an employee of the
Company through January 27, 1998 at which time you will resign as an employee of
the Company (the "Resignation Date"). You will remain a director of the Board of
the Company through a period to be mutually agreed.
2. From November 17, 1997 through the Resignation Date, you will
receive a base salary of $9,230.77 bi-weekly and remain eligible to participate
in the Company's then current benefits. You will not be eligible for any bonus
for performance during the Company's 1998 fiscal year. As of the Resignation
Date, your salary will cease and any entitlement you have or might have had
under any Company-provided bonus plan or benefit plan, program or practice will
terminate, except as required by federal or state law or as otherwise described
in this letter. The Resignation Date shall be treated as your "qualifying event"
under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), and
you will receive COBRA information under separate cover.
3. On the date you sign this letter agreement, you will be granted an
incentive stock option to purchase 25,000 shares of Common Stock of the Company
under the Company's 1997 Stock Plan, at an exercise price equal to the fair
market value of the Common Stock on the date of the grant, and which will be
100% vested immediately.
4. As of the Resignation Date, all stock options (the "Options")
granted to you during your employment but not yet vested will be forfeited in
accordance with their terms. Any options granted to you during your employment
and vested as of the Resignation Date shall be governed by paragraph 5 of the
letter agreement dated June 10,
1997 by and among you, Marcam Corporation and the Company (the "Letter
Agreement").
5. As of the Resignation Date, as a non-employee director, you will be
eligible to receive the then current cash compensation for each Board meeting
attended (currently $1000 per meeting) and to participate in the Company's
Non-Employee Director Stock Option Plan (the "Directors' Plan") under which you
will (i) automatically be granted an option to purchase 10,000 shares of Common
Stock of the Company in accordance with the Directors' Plan and (ii) be eligible
to automatically be granted an option to purchase 1,500 shares of Common Stock
of the Company on January 1 of each year as long as you are a current
non-employee director of the Company on such date.
6. Release by You. As a material inducement to the Company to enter
into this Resignation Agreement, you, for yourself and for your representatives,
agents, servants, executors, administrators, estates, heirs, successors and
assigns, except as otherwise provided herein, hereby fully, forever, irrevocably
and unconditionally release, remise and discharge the Company and its corporate
affiliates, the Company's officers, directors, stockholders, agents and
employees, both individually and in their official capacities, from any and all
claims, charges, complaints, money, costs, accounts, reckonings, covenants,
contracts, agreements, promises, doings, omissions, damages, executions,
obligations, liabilities, and expenses (including attorneys' fees and costs) of
every kind and nature which you ever had or now have against the Company and its
corporate affiliates, the Company's officers, directors, stockholders, agents
and employees, both individually and in their official capacities, whether based
on any federal or state law or regulation regarding either employment or
employment discrimination, including, but not limited to, all claims under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. 12000e et seq.; the Age
Discrimination in Employment Act, 29 U.S.C. 1621 et seq.; M.G.L. c.151B, the
Americans with Disabilities Act, 29 U.S.C. 1706 et seq.; The Massachusetts Equal
Rights Act or the Massachusetts Civil Rights Act; wrongful discharge claims; any
contract claims, whether oral or written, express or implied; any claims for
back wages, salary, draws, commissions, bonuses, vacation pay, expenses,
compensation, or severance pay, or any other statutory or common law claims and
damages.
Release by the Company. As a material inducement to you to enter into
this Resignation Agreement, the Company, for itself and for its officers,
directors, stockholders, corporate affiliates, agents, employees, successors and
assigns, both individually and in their official capacities, except as otherwise
provided herein, hereby fully, forever, irrevocably and unconditionally
releases, remises and discharges you and your representatives, agents, servants,
executors, administrators, estates, heirs, successors and assigns from any and
all claims, charges complaints, money, costs, accounts, reckonings, covenants,
contracts, agreements, promises, doings, omissions, damages, executions,
obligations, liabilities, and expenses (including attorneys' fees and costs) of
every kind and nature which it or they ever had or now has against you or your
representatives, agents, servants, executors, administrators, estates, heirs,
successors and assigns, whether based on any federal or state law or regulation
or common law including
without limitation any claims arising from any of your acts while you are or
were an officer, director or employee of the Company; any contract claims,
whether oral or written, express or implied; any claims for contribution or
indemnification, or any other statutory or common law claims and damages,
provided however, this release does not apply to the terms and conditions of the
Marcam Solutions Employee Agreement on Ideas, Inventions, Confidential
Information and Non-Competition (the "Employee Agreement") which you signed upon
the commencement of employment, a copy of which is attached to this Agreement,
and which shall survive the termination of your employment.
7. In addition, by your acceptance hereof, you acknowledge and
agree that:
(a) You have been informed that, since you are 40 years of age
or older, you have or might have specific rights and/or claims under the Age
Discrimination and Employment Act of 1967. In consideration of the compensation
described in this letter agreement, you specifically waive such rights and/or
claims to the extent such rights and/or claims arose prior to the date this
letter agreement was executed.
(b) You were advised by the Company of your right to consult
with an attorney prior to executing this Agreement.
(c) You were further advised when you were presented by the
Company with the original draft of this Agreement that you had at least 21 days
within which to consider its terms and consult with or seek advice from an
attorney or any other person of your choosing.
(d) By initialing below, you hereby acknowledge that you were
informed and understand that you had at least 21 days within which to consider
this letter agreement, have consulted with an attorney regarding this letter
agreement or have chosen not to consult with an attorney, and have considered
carefully every provision of this letter agreement, and that after having
engaged in those actions, prefer to and have requested that you enter into this
letter agreement prior to the expiration of the 21-day period discussed above.
/s/ MJQ 10/23/97
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Initial Date
8. The Company acknowledges (i) the exculpation and indemnification
granted to you as a director, officer and employee of the Company under the
Company's Certificate of Incorporation and (ii) that the Company agrees to
provide you with indemnification against any claims arising from your employment
as an officer or director of the Company in a manner consistent with and to the
maximum extent provided by the Company's Certificate of Incorporation and
By-Laws; and such indemnification provisions shall survive the termination of
your employment with the Company and after the
termination of your service to the Company as an officer and/or director of the
Company or as a fiduciary of an employee benefit plan to the extent that such
indemnification provisions are applicable. The Company shall provide you with
full insurance coverage under such directors and officers liability insurance
policies as the Company shall maintain from time to time to the extent and for
the period of time that you serve or have previously served as a director and/or
officer of the Company.
9. You agree that you will not disclose or deliver to anyone, including
employees of the Company, except as authorized by the Company, or use in any way
other than in the Company's business as you are involved as a director of the
Company, any information or material relating to the business of the Company
(including information or materials received by the Company or its subsidiaries
from others) and intended by the Company to be kept in confidence by its
recipients. As used in this Agreement, the term "information" includes all
information concerning technical, administrative, management, financial, or
marketing activities (such as design, manufacturing and procurement
specifications, procedures, manufacturing processes, information processing
processes or programs, marketing plans and strategies, plans for future
development, customer and employee names or other data, and cost and financial
data) and the term "material" includes all physical embodiments of information
(such as drawings, specification sheets, recording media for machine information
processing systems, documentation of all types, contracts, reports, customer
lists, manuals, quotations, proposals, correspondence, and samples).
10. You acknowledge that irreparable injury might result to the
business and property of the Company in the event of your breach of any of the
agreements contained in this Agreement. You recognize further that, in the event
of such a breach, or the substantial likelihood that such a breach will occur,
the Company intends to take legal action, and to seek injunctive relief if
available, in accordance with the language and spirit of this Agreement, in
order to protect fully its interests and property.
11. The invalidity or unenforceability of any provision hereof or the
invalidity or unenforceability or any provision hereof as applied to a
particular occurrence or circumstance shall not affect the validity or
enforceability of any other provision hereof or any other application of any
such provision. If one or more of the provisions contained herein shall for any
reason be held to be excessively broad as to scope, activity, or subject matter
so as to be unenforceable at law, such provision(s) shall be construed and
reformed by the appropriate judicial body by limiting and reducing it (or them)
so as to be enforceable to the maximum extent compatible with the applicable law
as it shall then appear.
12. This Agreement shall be governed by, and construed in accordance
with, the laws of the Commonwealth of Massachusetts of the United States of
America, without giving effect to the principles of conflicts of law thereof.
13. This letter agreement represents the complete and exclusive
agreement and understanding relating to the termination of your employment and
supersedes any and all prior agreement of understanding, written or oral,
between the Company and you with respect to the subject matter.
14. You represent that you have read this letter agreement, fully
understand the terms and conditions of this letter agreement, and are
voluntarily executing this letter agreement. In entering this letter agreement,
you do not rely on any representation, promise or inducement made by the
Company, with the exception of the consideration described in this letter
agreement.
15. This letter agreement may be executed in any number of
counterparts, each of which shall constitute an original, but which taken
together shall constitute one instrument.
16. You may revoke this letter agreement for a period of seven days
following its execution, and this letter agreement shall not become effective or
enforceable until this revocation period has expired.
Sincerely,
MARCAM SOLUTIONS, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
Chairman of the Board
AGREED TO AND ACCEPTED:
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
