Exhibit 10.3
April 24, 2001
Xxxxxxx X. Xxxxx
000 Xxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxx 00000
Re: Separation of Employment from TenFold Insurance and Engagement as a
Consultant
Dear Xxxxxx:
As we discussed, you have made the decision to terminate your employment with
TenFold Insurance, Inc. (the "TenFold Insurance"), effective as of April 30,
2001 (the "Separation Date"). The purpose of this letter agreement (this
"Agreement") between you, TenFold Corporation ("TenFold") and TenFold Insurance
is to document the terms and conditions of the termination of your employment
with TenFold Insurance, the engagement by TenFold of you as a consultant and
other related matters. As the former President of TenFold Insurance, you possess
specialized experience, expertise and knowledge that may be important in
litigation which has been or may be filed against TenFold Insurance and/or
TenFold. Consequently, subject to the terms and conditions of this Agreement,
TenFold desires to engage you as an independent contractor to consult with
TenFold for the duration of any governmental investigation, litigation,
regulatory, or other proceeding involving TenFold Insurance or TenFold which may
have arisen or which may arise following the signing of this Agreement. In
consideration of the mutual promises set forth below, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. You hereby resign, effective as of the Separation Date as an employee,
officer, and director, as the case may be, of TenFold Insurance and TenFold.
2. On or about the Separation Date, TenFold Insurance or TenFold agrees
to pay you (i) your current base rate of pay for all work you have performed
during the current payroll period through the Separation Date, to the extent not
previously paid, (ii) your current base rate of pay for the vacation days, as
reflected on the books of TenFold Insurance, you have earned but not used as of
the Separation Date, and (iii)
sales commissions for the first calendar quarter of 2001 in the amount of
$48,898.78 pursuant to the terms and conditions of the TenFold Corporation 2001
Sales Compensation Plan, Sales Directors.
3. Within thirty (30) days of the Separation Date, TenFold will reimburse
you in full for all unpaid normal and customary travel and related business
expenses incurred on behalf of the Company prior to the Severance Date upon your
submission and the TenFold's approval of the applicable expense forms and
vouchers.
4. TenFold will pay on your behalf the full premium cost and any
administrative fee for you to continue your participation in the TenFold group
health and dental plans under applicable federal law ("COBRA") for a period of
six (6) months following the Separation Date. Except as set forth in this
Agreement, neither TenFold Insurance nor TenFold will have any obligation to you
for the provision of benefits, including, without limitation, the obligation to
provide medical, dental, vision, life or disability insurance.
5. You agree that the payments by TenFold Insurance or TenFold in
accordance with the terms of Paragraphs 2, 3 and 4 of this Agreement shall be in
full and complete satisfaction of any and all sums which are now or might
hereafter have become owing to you for services rendered by you during your
employment with TenFold Insurance and TenFold.
6. XxxXxxx hereby agrees to comply in full with the terms of the stock
option grants dated July 22, 1998, January 20, 1999, August 15, 2000, and
December 15, 2000 and hereby amends the terms of all such option grants to
permit you to exercise all or any such option grants vested as of the Separation
Date at any time within six (6) months of the Separation Date. You acknowledge
that, as of the Separation Date, no options have vested under the terms of the
grants dated August 15, 2000 and December 15, 2000.
7. Effective as of the Separation Date, you hereby transfer to TenFold
the 200,000 shares of Class A Common Stock of TenFold Insurance which you
purchased pursuant to that certain TenFold Insurance, Inc. Restricted Stock
Purchase Agreement dated February 18, 2000 between TenFold Insurance and you
(the "Shares"), in exchange for consideration of $1,000 as set forth in
Paragraph 8 below. Effective as of the Separation Date, the TenFold Insurance,
Inc. Restricted Stock Purchase Agreement dated February 18, 2000 is hereby
automatically, irrevocably and without further action of either party thereto
completely cancelled and terminated. You acknowledge and agree that the stock
option grant provided in the TenFold Insurance, Inc. Restricted Stock Purchase
Agreement dated February 18, 2000 is null and void and of no further force and
effect, and that neither TenFold Insurance nor TenFold shall have any obligation
thereunder.
8. In return for the releases provided in Paragraphs 14 and 15 below, and
as an adjustment to the original purchase price of the Shares TenFold will cause
TenFold Insurance to reduce, effective as of the Separation Date, the aggregate
amount that you owe to TenFold Insurance under that certain Promissory Note
dated February 18, 2000 from the principal amount of $960,000 plus accrued
interest to $1,000 (and no accrued interest). TenFold will cause TenFold
Insurance to accept repayment of the remaining balance of the Promissory Note by
delivery of the Shares as provided in Paragraph 7 above and the Promissory Note
shall be deemed paid in-full as of the Separation Date. Further, you represent
to Tenfold and TenFold Insurance that you would be entitled to claim a tax
deduction under federal and applicable state income tax laws for the payment of
any accrued interest on the Promissory Note.
9. TenFold Insurance and TenFold will continue to indemnify you pursuant
to the terms and conditions of, respectively, the TenFold Corporation
Indemnification Agreement dated March 1, 2000 and the TenFold Insurance, Inc.
Indemnification Agreement dated September 27, 1999.
10. (a) You represent and warrant that you have not disclosed prior to the
execution of this Agreement, and that you will not disclose in the future, this
Agreement or any of its terms or provisions, directly or by implication, except
to members of your immediate family and to your legal and tax advisors, and then
only on condition that they agree not to further disclose this Agreement or any
of its terms or provisions to any other party, and that you understand such
representations and warranties are a material inducement to TenFold and TenFold
Insurance entering into this Agreement. You acknowledge and agree that the
obligations set forth in this Sub-Paragraph are an essential portion of the
consideration received by TenFold and TenFold Insurance in exchange for the
Agreement and the amounts to be paid to you hereunder, and you expressly
recognize the delays, expenses and difficulties involved in proving, in a legal
proceeding, the actual damages or losses suffered by TenFold or TenFold
Insurance if there is a breach of this confidentiality clause. Accordingly, you
agree that, as liquidated damages for any breach of this confidentiality clause,
but not as a penalty, you shall pay TenFold or TenFold Insurance all amounts
paid to date by TenFold or TenFold Insurance hereunder, as the case may be, upon
any breach of that obligation. Neither the breach of this clause nor the payment
of liquidated damages by you shall affect the validity of this Agreement.
(b) TenFold and TenFold Insurance each represent and warrant that neither
has disclosed prior to the execution of this Agreement, and that, except as
required by applicable law, neither will disclose in the future, this Agreement
or any of its terms or provisions, directly or by implication, except to either
of their respective legal and tax advisors, and then only on condition that they
agree not to further disclose this Agreement or any of its terms or provisions
to any other party.
11. You agree, without reservation, to and give unconditional assurance to
TenFold and TenFold Insurance that you have returned to TenFold or TenFold
Insurance any and all documents, materials and information related to the
business, whether present or otherwise, of TenFold or TenFold Insurance, and all
copies, and all keys and other property of TenFold or TenFold Insurance in your
possession or control. Recognizing that your employment with TenFold Insurance
has terminated, you agree that you will not, for any purpose, attempt to access
or use any computer or computer network or system of the Company including,
without limitation, its electronic mail systems.
12. You reconfirm and agree to all terms, conditions, and obligations
under the TenFold Corporation Employee Confidential Information and Inventions
Agreement executed by you and dated June 28, 1998 and the TenFold Corporation
and Affiliated Companies Employee Confidential Information and Inventions
Agreement executed by you and dated May 15, 2000, both of which agreement s are
hereby incorporated by reference into this Agreement in their entirety, and you
expressly disclaim any and all interest in all such Confidential Information.
13. (a) You represent and warrant that you have not disparaged prior to
the execution of this Agreement, and that you will not in disparage in the
future, TenFold, TenFold Insurance, or their respective affiliates or employees
or their business reputations to any person or entity or engage in conduct which
disrupts, damages, impairs or interferes with the business reputations of
TenFold, TenFold Insurance or their respective affiliates and employees, and
that you understand such representations and warranties are a material
inducement to TenFold and TenFold Insurance entering into this Agreement. You
acknowledge and agree that the obligations set forth in this Paragraph are an
essential portion of the consideration received by XxxXxxx and TenFold Insurance
in exchange for the Agreement and the amounts to be paid to you hereunder, and
you expressly recognize the delays, expenses and difficulties involved in
proving, in a legal proceeding, the actual damages or losses suffered by TenFold
or TenFold Insurance if there is a breach of this confidentiality clause.
Accordingly, you agree that, as liquidated damages for any such breach of this
non-disparagement clause, but not as a penalty, you shall pay TenFold or TenFold
Insurance all amounts paid to date by TenFold or TenFold Insurance hereunder, as
the case may be, upon any breach of that obligation. Neither the breach of this
clause nor the payment of liquidated damages by you shall affect the validity of
this Agreement.
(b) XxxXxxx and TenFold Insurance each represent and warrant that the
officers and directors of neither entity have disparaged prior to the execution
of this Agreement, and that the officers and directors of neither entity will
disparage in the future, you or your business reputations to any person or
entity nor engage in conduct which disrupts, damages, impairs or interferes with
your business reputation.
14. In consideration of the promises made by XxxXxxx and TenFold Insurance
in this Agreement, you on behalf of yourself and any past, present or future
heirs, executors, administrators, or assigns, hereby irrevocably and
unconditionally release and hold harmless TenFold, TenFold Insurance and each of
TenFold's and TenFold Insurance's respective agents, directors, officers,
employees, representatives, attorneys and affiliated companies, divisions,
subsidiaries and parents (and agents, directors, officers, employees,
representatives and attorneys of such affiliates), and their predecessors,
successors, heirs, executors, administrators and assigns, and all persons acting
by, through, under or in concert with any of them (collectively "Releasees"), or
any of them, from any and all actions, causes of action, suits, debts, charges,
complaints, claims, demands, losses, liabilities and obligations of any nature
whatsoever, in law or equity, known or unknown, suspected or unsuspected, which
you ever had, now have, or you or your heirs, executors, administrators or
assigns hereafter may claim to have against each or any of the Releasees
(hereinafter the "Claims"), arising from or relating in any way to your
employment relationship with TenFold or TenFold Insurance or the termination
thereof, whether the Claims arise from any alleged violation by TenFold or
TenFold Insurance of any federal, state or local statutes, ordinances or common
law, and whether based on contract, tort, or statute or any other legal or
equitable theory of recovery. Such claims include, without limitation, any
claims relating to severance, stock options or other benefits, unpaid wages,
salary or incentive payment, breach of express or implied contract, wrongful
discharge, or employment discrimination under any applicable federal, state or
local statute, provision, order or regulation, including but not limited to, any
claim under Title VII and the Age Discrimination in Employment Act. You
understand the forgoing to be a general release of all Claims. You agree that
the release contained in this Paragraph extends to all claims whatsoever. You
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further agree that neither you nor any person, organization or any other entity
acting on your behalf will file, charge, claim, sue, participate in, join or
cause or permit to be filed, charged or claimed, any action, claim, grievance or
demand for damages or other relief (including injunctive, declaratory, monetary
or other) against TenFold, TenFold Insurance, their respective affiliates and
successors and their respective officers, directors, employees, agents and
representatives, past, present or future, with respect to the Claims which are
the subject of this Agreement.
15. In addition to the release in Paragraph 14 above, you further agree
and acknowledge as follows:
a. In consideration of the promises made by TenFold and TenFold
Insurance in this Agreement, you specifically release Releasees from any and all
liabilities, claims, causes of action, demands for damages or remedies of any
kind or character, including claims for attorneys' fees and legal costs, arising
under or from the Age Discrimination in Employment Act of 1967 as amended, and
which are related to or arise out of your employment or the termination of your
employment with Releasees.
b. You understand and acknowledge that by entering into this
Agreement, you do not waive any rights or claims relating to age discrimination
that may arise after the date of this Agreement.
c. Because you are not an attorney, you are specifically advised to
consult with an attorney regarding this Agreement prior to agreeing to and
signing it.
d. You acknowledge that, prior to signing this Agreement, you have
twenty-one (21) days from the date of your receipt of this Agreement within
which to consider it, and to consult with an attorney of your choice regarding
it. Should you nevertheless elect to execute this Agreement sooner than 21 days
after you have received it, you specifically and voluntarily waive the right to
claim or allege that you have not been allowed by Releasees or by any
circumstances beyond your control to consider this Agreement for a full 21 days.
e. You acknowledge and agree that this Agreement will not become
effective or enforceable until after seven (7) days from the date it is signed
by you. During that 7-day period, you understand and agree that he may revoke
this Agreement by delivering written notice of your revocation to Xxxxxxxx X.
Xxxxxxx XXX at the following address: TenFold Corporation, 000 Xxxx Xxxxxxxx
Xxxx, Xxxxx 000, Xxxxxx, Xxxx 00000.
f. You acknowledge that you have read this Agreement and that the
language and meaning of this Agreement are sufficiently clear and that you
understand it.
16. Subject to the terms and conditions of this Agreement, TenFold hereby
engages you and you hereby agree to perform consulting services relating to
matters arising during or related to your employment with TenFold or TenFold
Insurance for the duration of any governmental investigation, litigation,
regulatory, or other proceeding involving TenFold or TenFold Insurance which may
have arisen or which may arise following the signing of this Agreement (the
"Consulting Services"). In providing the Consulting Services, you agree to make
yourself reasonably available to TenFold or TenFold Insurance to answer
questions and provide information concerning projects on which you have
experience and expertise, including, without limitation, Crawford, Trumbull,
Nationwide Insurance, Utica, Royal and Westfield projects, the securities class
action suit and the SEC investigation. In the event of customer disputes or
litigation concerning any such projects, you agree to make yourself reasonably
available for depositions and to serve as a witness at trial.
17. As compensation for the Consulting Services, TenFold will pay you a
total of $100,000, which you will be paid in 12 equal installments of $8,333.33
over the course of the six-month period beginning in May 1, 2001 (on the last
day and the 15/th/ day of the month). TenFold will also reimburse you for any
reasonable and pre-approved
expenses you incur in connection with performing the Consulting Services. You
will not be entitled to any other compensation or benefits from TenFold or
TenFold Insurance other than as provided in this Agreement, unless the parties
agree in writing.
18. You agree that you are an independent contractor and not an employee
of TenFold or TenFold Insurance. Accordingly, with respect to the compensation
to be paid by TenFold for the Consulting Services pursuant to this Agreement,
TenFold shall not withhold on your behalf any sum or sums for income tax,
unemployment insurance, social security or any other withholding pursuant to any
law or requirement of any government or governmental body of any jurisdiction
that may apply to you. Each and every one of such withholdings, payments and
benefits, if any, are your sole responsibility. You shall indemnify and hold
TenFold and TenFold Insurance harmless from and against any and all claims
asserting rights or remedies arising out of any actual or alleged employee
status with TenFold or TenFold Insurance from and after the Separation Date,
including, without limitation, any and all liability relating to any the
foregoing withholdings, payments and benefits, together with any penalties and
interest which might be assessed. To the extent allowed by applicable law, in
the event any state or local government tax commission (the "Commission") or the
United States Internal Revenue Service (the "IRS") should question or challenge
your independent contractor status under this Agreement, the parties hereto
agree that you, TenFold and TenFold Insurance shall have the right to
participate in any discussion or negotiation occurring with the Commission or
the IRS, even if said party did not initiate such discussions or negotiations,
and each party hereto shall notify the other, in advance, of any such discussion
or negotiation. In addition, you shall indemnify and hold TenFold and TenFold
Insurance harmless from and against any taxes, penalties, interest or additions
to tax which may be assessed as a result of any other payments or other benefits
provided to you pursuant to any provision of this Agreement, including without
limitation any claim that TenFold or TenFold Insurance was obligated to file
income tax reports or withhold income, employment or other taxes with respect to
such payments or other benefits.
19. You acknowledge that, by virtue of the Consulting Services to be
performed by you under this Agreement, you will have access to information that
is confidential to TenFold and/or TenFold Insurance ("Confidential
Information"). Confidential Information includes, without limitation, software,
data, trade secrets, business processes, organization charts, customer
information, information about costs, profits, markets, sales, plans for future
development and new product concepts, the terms of this Agreement and other
agreements, and all information that is clearly identified, or should under the
circumstances reasonably be considered, as confidential. You agree to hold
XxxXxxx's and TenFold Insurance's Confidential Information in confidence during
the performance of your Consulting Services and thereafter. You further agree
that, unless required by a lawful court order, subpoena, or similar legal
request, not to make the TenFold's or TenFold Insurance's Confidential
Information
available in any form to any third party or to use such Confidential Information
for any purpose other than to provide the Consulting Services. If you are
required to disclose TenFold's or TenFold Insurance's Confidential Information
by a lawful court order, subpoena, or similar legal request, you agree to
promptly notify TenFold's General Counsel of such requirement so that an
appropriate protective order may be sought. All files, software, records,
documents, blueprints, specifications, information, letters, notes, media lists,
original artwork/creative, notebooks, and all similar tangible materials and
property relating to the Consulting Services or to the business of TenFold or
TenFold Insurance, whether prepared by you or otherwise coming into your
possession, shall remain the exclusive property of TenFold or TenFold Insurance,
as the case may be. You shall not retain any copies of the foregoing without
XxxXxxx's prior written permission. Upon the termination of your Consulting
Services, or whenever requested by TenFold, you shall immediately deliver to
TenFold all such materials and property in your possession or under your
control. You further agree that unless required by a lawful court order,
subpoena, or similar legal request, you will not disclose your engagement as an
independent contractor or the terms of this Agreement to any person without the
prior written consent of TenFold and that at all times you will preserve the
confidential nature of your relationship to TenFold and of the Consulting
Services hereunder.
20. This Agreement shall not render you an employee, partner, agent of, or
joint venture partner with TenFold or TenFold Insurance for any purpose. You are
and will remain an independent contractor in your relationship to TenFold and
TenFold Insurance and, as such, shall not be entitled to any employment rights
or benefits other than those expressly provided for in this Agreement. Except as
expressly set forth in this Agreement, you shall have no claim against TenFold
or TenFold Insurance hereunder or otherwise for vacation pay, sick leave,
retirement benefits, social security, worker's compensation, health or
disability benefits, unemployment insurance benefits, or employee benefits of
any kind.
21. The laws of the state of Utah shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights
and duties of the parties hereto. Any litigation arising out of this Agreement
shall be conducted in state or federal courts in Salt Lake City, Utah, and the
parties hereto expressly agree upon and consent to such jurisdiction and venue.
22. You give, by executing this Agreement, TenFold and TenFold Insurance
your unconditional assurance that you have signed it voluntarily and with a full
understanding of its terms and that you have had the full and sufficient
opportunity to consider this Agreement before signing it.
23. You covenant and agree that for a period of 24 months from the
Separation Date you (a) shall not engage, anywhere within the geographical areas
in which TenFold is then conducting its business operations, directly or
indirectly, alone,
in association with or as a shareholder, principal, agent, partner, officer,
director, employee or consultant of any other organization, in any business (a
"Competitive Business") which directly competes with any business then being
conducted by TenFold; provided, that the foregoing shall not prohibit you from
owning a maximum of two percent (2%) of the common stock of any publicly traded
corporation; provided, however, that this clause (a) shall not prohibit you from
working in the insurance industry to the extent that such work does not
otherwise violate this clause (a); (b) shall not solicit to leave the employ of
TenFold or TenFold Insurance or hire any officer, employee or consultant of
TenFold or TenFold Insurance; (c) shall not solicit, divert or to take away, the
business or patronage of any of the customers or accounts of TenFold, which were
contacted, solicited or served by you at any time during your employment by
TenFold or TenFold Insurance; provided, however, that you may recommend to
entities which are not customers of TenFold other vendors' software solutions to
the extent that such software solutions do not compete with software solutions
offered by TenFold; and (d) shall not acquire, or assist any other party in
acquiring, any shares of TenFold, or otherwise seek, or assist any other party
in seeking to gain control of TenFold. You acknowledge and agree that because of
the nature of the business in which TenFold is engaged and because of the nature
of the confidential information to which you have had access during your
employment or may have access to during your engagement as a consultant pursuant
to this Agreement, it would be impractical and excessively difficult to
determine the actual damages of TenFold in the event you breached any of the
covenants of this Paragraph or the Employee Confidential Information and
Inventions Agreements referenced in Paragraph 12 above, and remedies at law
(such as monetary damages) for any breach of your obligations under this Section
or the Employee Confidential Information and Inventions Agreement referenced in
Section 12 above would be inadequate. You therefore agree and consent that if
you commit any breach of a covenant under this Section or the Employee
Confidential Information and Inventions Agreements referenced in Paragraph 12
above or threaten to commit any such breach, TenFold shall have the right (in
addition to, and not in lieu of, any other right or remedy that may be available
to it) to temporary and permanent injunctive relief from a court of competent
jurisdiction. You acknowledge and agree that this Section is reasonable and is
necessary for the legitimate protection of TenFold, and will not deprive you of
a reasonable opportunity to practice you profession or trade. With respect to
any provision of this Paragraph or the Employee Confidential Information and
Inventions Agreements referenced in Paragraph 12 above that is finally
determined to be unenforceable, you and TenFold hereby agree that this Agreement
or any provision hereof shall be reformed in a manner that retains as much of
the original intent of the Agreement as is both practicable and consistent with
applicable law.
24. This letter contains the entire Agreement between you, TenFold, and
TenFold Insurance and replaces all prior and contemporaneous agreements,
communications and understandings, whether written or oral, with respect to your
employment, the termination of your employment, your engagement as a consultant
and all related matters.
25. To the extent that any party to this Agreement is required to issue a
press release or other public disclosure regarding this Agreement or the
contents thereof, Customer, such party shall allow the other parties to this
Agreement the right to review the form of such press release or other public
disclosure prior to the issuance thereof.
If the terms of this Agreement are acceptable to you, please sign, date, and
return one fully executed copy to me. The enclosed duplicate copy of this
letter, which you should also sign and date, is for your records.
Sincerely,
Xxxxx X. Xxxxxx Xxxx X. Xxxxxxx
President and Chief Executive Officer Chief Financial Officer
TenFold Corporation TenFold Insurance, Inc.
I, Xxxxxxx X. Xxxxx, freely acknowledge, accept, and agree to be legally
bound by the foregoing terms and conditions of this Agreement without
reservation, condition, or limitation.
Signature: ___________________________
Date: ________________________________
