MERCATOR SOFTWARE, INC.
August 7, 2003
Xxxxxxx X. Xxxx
[address]
Dear Xxx:
This is an agreement ("Agreement") that has been reached with you in
connection with your continued employment with Mercator Software, Inc. (the
"Company"). Capitalized terms not defined herein shall have the meanings given
thereto in that certain Agreement and Plan of Merger (the "Merger Agreement"),
dated as of August 2, 2003, by and among Ascential Software Corporation, a
Delaware corporation ("Ascential"), Greek Acquisition Corporation, a Delaware
corporation and wholly owned subsidiary of Ascential, and the Company.
1. You and the Company agree that if: (i) you either (a) continue
to remain employed by the Company from the date hereof until
the end of the sixty (60) day period following the
consummation of the currently contemplated tender offer to be
undertaken by Ascential ("Offer") or (b) do not remain
employed for such period as a result of your death, disability
(which means you become eligible for long-term disability
benefits under the Company's long-term disability plan) or the
termination of your employment by the Company other than for
"cause" (as defined in the June 28, 2001 employment agreement
between you and the Company), and (ii) you execute the Form of
Release as set forth in Exhibit A, then the cash severance
benefits (other than the "pro-rated bonus") set forth in
Exhibit B attached hereto (assuming termination on November
15, 2003) will be payable to you semi-monthly over twelve (12)
months rather than payable semi-monthly over eighteen (18)
months. Notwithstanding anything contained in the previous
sentence, (i) the "pro-rated bonus" described in Exhibit B
will be paid to you within 45 days following any termination
of your employment (other than a termination of your
employment by the Company for "cause" (as defined in the June
28, 2001 employment agreement between you and the Company)),
and (ii) the "executive benefits" set forth in Exhibit B will
continue to be provided to you for a period of eighteen (18)
months following any termination of your employment (other
than a termination of your employment by the Company for
"cause" (as defined in the June 28, 2001 employment agreement
between you and the Company)).
2. You and the Company agree that the period within which you are
required to give notice to the Company of the occurrence of
"good
reason," as defined in the June 28, 2001 employment agreement
between you and the Company or pursuant to the Company's
Change of Control Benefits Plan (the "Plan"), has been
extended from thirty (30) days to sixty (60) days following
the occurrence of any such "good reason."
3. Nothing contained herein shall be construed as a waiver of any
rights which you may have under any such employment agreement
or the Plan or an amendment of such Plan or agreement,
including (without limitation) the treatment of any stock
options held by you as described in Exhibit B.
4. Exhibit B contains a statement of the amount and payment terms
of your benefits assuming you are terminated effective
November 15, 2003. The amounts are subject to adjustment
depending on the actual date of termination in accordance with
the terms and conditions of the applicable employment
agreement and/or Plan. The terms and conditions of the
payments of such amounts will be governed by this agreement,
the Plan and any employment agreement between you and the
Company.
5. In the event the Offer is not consummated, this Agreement
shall be null and void and of no force or effect.
If the above sets forth our agreement as you understand it and consent
to it, please so signify by executing the enclosed copy of this letter and
return it to me at the address listed above.
Mercator Software, Inc.
/s/
----------------------
Name:
Title:
Agreed to and Accepted:
/s/ Xxxxxxx X. Xxxx
----------------------
Name: Xxxxxxx X. Xxxx
2
