EXHIBIT 10.19
EMPLOYMENT AGREEMENT
This Employment Agreement ("Employment Agreement") dated this 21st day of
December, 2000 but effective as of September 1, 2000 (the "Effective Date") is
made by and between X.X. XXXXXXX & COMPANY, a Delaware corporation ("X.X.
Xxxxxxx") and XXXXX XXXXXXX ("Xxxxxxx").
RECITALS
A. J.D. Xxxxxxx is engaged in the business of developing, marketing and
supporting enterprise software and supply chain computing solutions.
X. Xxxxxxx is currently employed by X.X. Xxxxxxx in the position of Group Vice
President and X.X. Xxxxxxx wishes to retain Xxxxxxx in the employment of
X.X. Xxxxxxx for a period of at least three (3) years from the Effective
Date of this Employment Agreement.
It is agreed between X.X. Xxxxxxx and Xxxxxxx as follows:
1. EMPLOYMENT. X.X. Xxxxxxx hereby agrees to employ Xxxxxxx to perform the
duties and responsibilities set forth in the job description attached as
Attachment A to this Employment Agreement together with such other duties
and responsibilities as shall be assigned to him from time to time by X.X.
Xxxxxxx senior management which shall be consistent with Xxxxxxx'x job
description. Xxxxxxx accepts such employment with X.X. Xxxxxxx upon the
terms and conditions of this Employment Agreement and agrees to perform the
duties and responsibilities described in this Section in accordance with
all policies, procedures, rules and regulations adopted by X.X. Xxxxxxx
Board of Directors or senior management. During the term of his employment,
Xxxxxxx agrees to devote his full time and attention, skills and efforts to
the performance of his duties and responsibilities on behalf of X.X.
Xxxxxxx and to maintain and promote the business of X.X. Xxxxxxx.
2. TERM. Subject to the terms of Xxxxxxx 0, Xxxxxxxxxxx, Xxxxxxx shall be
employed by X.X. Xxxxxxx for a period of not less than three (3) years
commencing on the Effective Date (the "Initial Employment Term").
3. COMPENSATION.
3.1 ANNUAL BASE SALARY AND BONUS. Xxxxxxx'x compensation from September 1,
2000 until April 1, 2001 shall be set at an annual base salary of
$200,000 with an annual bonus incentive of up to seventy-five percent
(75%) of such base salary based upon the achievement of those certain
objectives as determined and approved by the Compensation Committee of
the Board of Directors of X.X. Xxxxxxx. Compensation for subsequent
periods shall be established by a written addendum to this Employment
Agreement as approved by the Compensation Committee of X.X. Xxxxxxx
Board of Directors but in no event will be less than the annual base
salary of $200,000
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and annual bonus incentive of up to seventy-five percent (75%) of the
new base salary based upon the achievement of those certain objectives
as determined and approved by the Compensation Committee of the Board
of Directors of X.X. Xxxxxxx.
3.2 STAY BONUS. Upon Xxxxxxx remaining in the employment of X.X. Xxxxxxx
for the full three (3) year period of the Initial Employment Term and
otherwise complying with the terms hereof or Xxxxxxx dying during the
Initial Employment Term, Xxxxxxx will receive a stay bonus in an
amount equal to $200,000. Such stay bonus will be in addition to the
annual compensation, annual bonus incentive and other benefits
described in this Agreement. The stay bonus will be due and payable
within fifteen (15) days after the expiration of the Initial
Employment term.
4. EMPLOYEE BENEFITS. Xxxxxxx will be eligible to participate in all employee
benefits provided by X.X. Xxxxxxx to employees, based upon his position and
tenure, including the following:
4.1. HEALTH AND LIFE INSURANCE. X.X. Xxxxxxx agrees to provide to Xxxxxxx
(and his spouse and dependents) coverage under X.X. Xxxxxxx group
health and life insurance plan, the coverage, terms and benefits of
which shall be determined, from time to time, in the sole discretion
of X.X. Xxxxxxx Board of Directors.
4.2. PAID TIME OFF. Xxxxxxx shall be entitled to the maximum paid time off
provided for in X.X. Xxxxxxx paid time off policy in effect from time
to time.
4.3. QUALIFIED/NON-QUALIFIED PLAN(S). Xxxxxxx shall be entitled to
participate in any qualified or non-qualified plan(s) adopted by X.X.
Xxxxxxx Board of Directors and Xxxxxxx fulfills all eligibility
requirements under the terms and conditions of such plan. The X.X.
Xxxxxxx Board of Directors reserves the sole right and discretion to
adopt or terminate a plan and to establish all eligibility
requirements and other terms and conditions of such plan.
5. SEVERANCE PAY. If Xxxxxxx is terminated by X.X. Xxxxxxx for Performance or
disability, Xxxxxxx shall be entitled to receive severance pay in
accordance with the standard X.X. Xxxxxxx xxxxxxxxx pay policy for an
employee of Xxxxxxx'x position and time of service in the amount of one
year's then current base salary. If Xxxxxxx is terminated by X.X. Xxxxxxx
for other than Cause, Performance or disability, Xxxxxxx shall be entitled
to receive, in addition to all other compensation and benefits described
herein to the extent not already paid, severance pay in accordance with the
standard X.X. Xxxxxxx xxxxxxxxx pay policy for an employee of Xxxxxxx'x
position and time of service of one year's then current on target earning
(annual base salary plus bonus). This severance payment would be made in a
one-time, lump sum payment subject to appropriate tax withholding.
Notwithstanding the foregoing, however, no severance allowance shall be
paid if termination is for Cause or if Xxxxxxx voluntarily terminates
employment within the Initial Employment Term.
5.1 COBRA MEDICAL INSURANCE. If Xxxxxxx'x employment is terminated without
Cause, in addition to the severance payment in accordance with Section
5,
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Xxxxxxx and his dependents will be eligible for medical insurance (for
himself and his spouse and dependant(s)) under COBRA commencing on the
date of his termination for a period of one (1) year in accordance
with the standard X.X. Xxxxxxx policy at X.X. Xxxxxxx sole expense.
Xxxxxxx and his dependents will be eligible to continue coverage at
his cost beyond such date if he should so elect as provided by
applicable law.
5.2 MANAGEMENT CHANGE IN CONTROL PLAN. The X.X. Xxxxxxx & Company
Management Change in Control Plan Xxxxxxx accepted on September 8,
1999 (the "Plan") will remain in full force and effect for the term of
this Employment Agreement and will continue thereafter only so long as
Xxxxxxx remains an employee of X.X. Xxxxxxx. Therefore, the X.X.
Xxxxxxx Board of Directors agrees that it waives all rights under the
Plan to remove Xxxxxxx as a participant in the Plan, terminate the
Plan with respect to Xxxxxxx, amend or otherwise modify the Plan in
any manner that would be detrimental to Xxxxxxx or serve to reduce the
Severance Benefits payable to Xxxxxxx under the Plan.
5.3 INDEMNIFICATION AGREEMENT. The parties executed the X.X. Xxxxxxx &
Company Indemnification Agreement on August 19, 1997 (the
"Indemnification Agreement"). The parties recognize that the scope of
the indemnification offered to Xxxxxxx under the Indemnification
Agreement is insufficient. The parties, therefore, agree to work in
good faith together to modify the Indemnification Agreement to expand
the definition of a "Covered Event", provide for payment of all
"Expenses" on an as occurred basis by X.X. Xxxxxxx, allow Xxxxxxx to
retain his own counsel at the expense of X.X. Xxxxxxx, and in
accordance with the provisions of a letter dated July 31, 2000 from
the Law Firm of Xxxxxx, Xxxxxxxxx & Xxxxxx, L.L.C. to Xxxx Xxxxxx,
Esq., a copy of which is attached as Exhibit B to this Agreement. The
parties agree to complete the agreed to modifications on or before
January 31, 2000. In the event the parties cannot agree by such date
as to the required changes to the Indemnification Agreement, then the
parties shall submit the dispute to a mutually acceptable mediation in
the City and County of Denver, Colorado.
5.4 CONFIDENTIALITY AND NON-SOLICITATION. Xxxxxxx acknowledges that he has
signed the X.X. Xxxxxxx Employee Nondisclosure Agreement effective
March 31, 1992 and confirms that he will continue to abide by the
obligations contained therein. However, any violation of the
Nondisclosure Agreement by Xxxxxxx shall not affect Xxxxxxx'x rights
or X.X. Xxxxxxx obligations under this Agreement. X.X. Xxxxxxx agrees
not to withhold or otherwise set off any sums or benefits due to
Xxxxxxx under this Agreement in the event of a breach of the
Nondisclosure Agreement by Xxxxxxx.
6. TERMINATION. X.X. Xxxxxxx shall have the right to terminate this Employment
Agreement prior to its expiration only for "Cause" or "Performance" as set
forth below:
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6.1. TERMINATION FOR CAUSE. For the purposes of this Employment Agreement,
"Cause" means the following:
(a) the willful and material breach of duty by Xxxxxxx in the course
of his employment;
(b) the habitual neglect by Xxxxxxx of his employment duties;
(c) the continued incapacity, whether physical or mental, of Xxxxxxx
to perform his duties, unless waived by X.X. Xxxxxxx; or
(d) Xxxxxxx'x xxxxx misconduct resulting in material damage to X.X.
Xxxxxxx.
6.2 TERMINATION FOR PERFORMANCE. For the purposes of this Employment
Agreement, termination for "Performance" shall be as determined by
the X.X. Xxxxxxx Board of Directors in the good faith exercise of
their business judgment.
6.3 DISPUTE RESOLUTION. Should Xxxxxxx dispute whether X.X. Xxxxxxx has
been reasonable in interpreting "Cause," or "Performance" then in such
event Xxxxxxx may submit the matter to arbitration. The arbitration
proceeding shall be conducted under the applicable rules of the
American Arbitration Association and shall be located in Denver,
Colorado. If such organization ceases to exist, the arbitration shall
be conducted by its successor, or by a similar arbitration
organization, at the time a demand for arbitration is made. The
decision of the arbitrator shall be final and binding on both parties.
Each party shall be responsible for its or his own expenses for the
arbitrator's fee, attorney's fees, expert testimony, and for other
expenses of presenting its or his case. Other arbitration costs,
including fees for records or transcripts, shall be borne equally by
the parties.
6.4 COMPENSATION EARNED PRIOR TO TERMINATION. In the event that X.X.
Xxxxxxx terminates Xxxxxxx for Cause during the Initial Employment
Term or any renewal periods, Xxxxxxx shall be entitled to the
compensation earned prior to the date of termination as provided for
in this Employment Agreement computed pro rata up to and including
that date including any prorata bonuses accrued or payable for the
fiscal year in which Xxxxxxx is so terminated and all benefits set
forth in Article 4 of this Agreement. Xxxxxxx shall be entitled to no
further compensation as of the date of termination.
6.5 RENEWAL. After the Initial Employment Term, this Employment Agreement
shall be deemed automatically renewed for successive one (1) year
periods without any further act of the X.X. Xxxxxxx, unless, not later
than thirty (30) days prior to the end of any period, either party
provides the other with written notice of intent not to renew.
6.6 NON-RENEWAL. Any non-renewal of this Employment Agreement shall be
treated as a termination of Xxxxxxx without Cause and be governed by
the provisions of this Employment Agreement applicable to terminations
without Cause, including, but not limited, to the payments and
benefits due to Xxxxxxx under Sections 3, 4 and 5 of this Employment
Agreement.
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7. WAIVER AND RELEASE. Xxxxxxx acknowledges and agrees that he is aware of his
legal rights concerning his employment with X.X. Xxxxxxx. Xxxxxxx (for
himself and his heirs, legal representatives and assigns) hereby waives,
and generally releases X.X. Xxxxxxx and all affiliates, officers,
directors, employees and agents of X.X. Xxxxxxx from, and agrees not to xxx
X.X. Xxxxxxx for, any claims or causes of action, whether known or unknown,
which Xxxxxxx has or may have against X.X. Xxxxxxx. This includes, but is
not limited to, any claims or causes of action arising under any federal,
state or local laws dealing with employment discrimination (including, but
not limited to, Title VII of the Civil Rights Act of 1964, as amended; the
Age Discrimination in Employment Act of 1967, as amended; the Older Workers
Benefit Protection Act; the American with Disabilities Act of 1990; the
National Labor Relations Act, as amended; the Family Medical Leave Act; and
any applicable state or local discrimination provisions) and any claims or
causes of action for wrongful discharge relating to Xxxxxxx'x employment
and termination of employment other than for termination for Cause or for
Performance which, if any dispute arises between the parties, will be
subject to the terms of Section 6.3, Dispute Resolution, above.
8. COOPERATION. The parties hereto agree that, at all times during Xxxxxxx'x
employment, and following termination of his employment, each party shall
avoid making any remarks about the other party, which for X.X. Xxxxxxx
shall include its affiliates, officers, directors, employees and agents
that would tend to disparage or injure the reputation of the other party.
9. MISCELLANEOUS.
9.1. ASSIGNMENT. Neither X.X. Xxxxxxx nor Xxxxxxx may assign this
Employment Agreement or any of their respective obligations hereunder.
9.2. NOTICES. Any notice or other communication provided for or required by
this Employment Agreement shall be given within (i) three (3) business
days after mailing by registered or certified mail, postage prepaid,
return receipt requested, (ii) one (1) business day after deposit with
a recognized overnight courier (such as Federal Express) or (iii) upon
delivery if sent by facsimile transmission or in person in each case
to the following address:
TO X.X. XXXXXXX:
X.X. Xxxxxxx & Company
Xxx Xxxxxxxxxx Xxx
Xxxxxx, Xxxxxxxx 00000
Attn: Vice President, General Counsel
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TO XXXXXXX:
Xxxxx Xxxxxxx
0000 Xxxxx Xxxx
Xxxxxx, XX 00000
or at such other address or addresses as the X.X. Xxxxxxx or Xxxxxxx
may designate.
9.3. GOVERNING LAW. This Employment Agreement and each term thereof shall
be subject to and governed by the laws of the State of Colorado.
9.4. SEVERABILITY. If any portion of this Employment Agreement shall be,
for any reason, invalid or unenforceable, the remaining portion or
portions shall nevertheless be valid, enforceable and effective unless
to do so would clearly violate the present legal and valid intention
of the parties hereto.
9.5. ENTIRE AGREEMENT. This Employment Agreement constitutes the entire
agreement between the parties and contains all of the agreements
between the parties with respect to the subject matter hereof. This
Employment Agreement supersedes any and all other agreements, either
oral or written, between the parties hereto with respect to the
subject matter hereof.
9.6. AMENDMENT. No change or modification of this Employment Agreement
shall be valid unless the same shall be in writing and signed by
Xxxxxxx and a duly authorized officer of X.X. Xxxxxxx. No waiver of
any provision of this Employment Agreement shall be valid unless in
writing and signed by the party or party to be charged.
9.7 BENEFIT. This Employment Agreement shall be binding upon and inure to
the benefit of X.X. Xxxxxxx and Xxxxxxx and their respective
successors, heirs, legal representatives and permitted assigns. This
Employment Agreement is hereby executed as of the date set forth
above.
X.X. XXXXXXX & COMPANY XXXXXXX
By: /s/ C. XXXXXX XXXXXXX By: /s/ XXXXX XXXXXXX
--------------------------------- ---------------------------------
(Authorized Signature) Xxxxx Xxxxxxx
C. Xxxxxx XxXxxxx
Chairman and CEO
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SCHEDULE OF ATTACHMENTS
ATTACHMENT A
Job Description
Xxxxx Xxxxxxx
Job Title: Vice President, World Software and Genesis Groups
Reports to: COO
Basic Purpose: Directs company organizations which support the sale and
servicing of World Software to mid-size company (Genesis projects), and the ASP
partner alliance groups.
ESSENTIAL DUTIES AND RESPONSIBILITIES:
1. Designs and implements projects resulting in the sale and subsequent
customer support of World Software products to small to mid-size companies.
Within this objective, staff provides sales, software development, and
customer support.
2. Designs ASP partner alliance solutions, through strategic business
alliances with partners who provide network and operational support for
customers who have purchased company software and have subsequently
purchased network support.
3. Directs personnel activities of staff (i.e., hires, trains, appraises,
motivates, promotes, etc.)
4. Insures that all World Software sales and support, as well as ASP partner
relationships are consistent with the company's short and long-term
strategic objectives, and that all activities insure profitability.
Composition of Departments within Span of Control:
The Genesis Sales and Support group (including software development, marketing
and support) and the ASP partner alliance group are within the span of control
of this position.
SCHEDULE OF ATTACHMENTS
ATTACHMENT A
Job Description
Xxxxx Xxxxxxx
Job Title: Vice President, World Software and Genesis Groups
Reports to: COO
Basic Purpose: Directs company organizations which support the sale and
servicing of World Software to mid-size company (Genesis projects), and the ASP
partner alliance groups.
ESSENTIAL DUTIES AND RESPONSIBILITIES:
1. Designs and implements projects resulting in the sale and subsequent
customer support of World Software products to small to mid-size companies.
Within this objective, staff provides sales, software development, and
customer support.
2. Designs ASP partner alliance solutions, through strategic business
alliances with partners who provide network and operational support for
customers who have purchased company software and have subsequently
purchased network support.
3. Directs personnel activities of staff (i.e., hires, trains, appraises,
motivates, promotes, etc.)
4. Insures that all World Software sales and support, as well as ASP partner
relationships are consistent with the company's short and long-term
strategic objectives, and that all activities insure profitability.
Composition of Departments within Span of Control:
The Genesis Sales and Support group (including software development, marketing
and support) and the ASP partner alliance group are within the span of control
of this position.
ADDITIONAL DUTIES AND RESPONSIBILTIES:
1. Evaluates profitability on an on-going basis, and based on profitability
ratios, market changes and demands, and other business needs, will
occasionally develop and implement new business strategies to meet company
objectives.
