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EXHIBIT 10.20
CONTRACT OF EMPLOYMENT
BETWEEN:
VANTIVE FRANCE Sarl, located at 00-00 xxx Xxxxxxxxx, 00 000 Xxxxx, registered
number: 40812364400010, represented by Xx. Xxxxxxxxx X. DOORNBERG, Managing
Director (hereinafter referred to as the "COMPANY") or the Chief Operating
Officer of The Vantive Corporation, Xxxxxxx Xxxxxxxxxxxx
ON THE ONE HAND
AND
Mr. Xxx XXXXXX, residing at 00 Xxxxxxxx Xxxx, XX00 0XX Xxxxxx, Xxxxxxx, a
French citizen (hereinafter referred to as "Xx. XXXXXX")
ON THE OTHER HAND.
THE FOLLOWING PROVISIONS HAVE BEEN AGREED:
1. APPOINTMENT -- COLLECTIVE AGREEMENT
The Company undertakes to employ Xx. XXXXXX on a permanent basis from 15 March
1999 or from a given date prior to this. It is explicitly agreed that the
present offer shall be null and void if, for whatever reason, Xx. XXXXXX is not
available to take up his responsibilities in full on 15 March 1999.
Xx. XXXXXX shall be employed in compliance with the general conditions of the
Collective Agreement applying to the Company at all times and the conditions
defined hereafter.
The Company is currently subject to the National Collective Agreement governing
"Technical studies offices, Engineering consultancies and Consulting
Companies."
Xx. XXXXXX, who accepts this employment, formally states that he will not be
bound to any company by a Contract of Employment as from 12 April 1999 and
shall be free of any commitment to all previous employers.
2. RESPONSIBILITIES -- CLASSIFICATION
Xx. XXXXXX shall be appointed to the position of "Executive Vice-President,
General Manager of Vantive International" and shall be a member of the
Executive Committee Board of The Vantive Corporation.
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In this role, Xx. XXXXXX shall be responsible for managing the resources and
operations of the companies in the group (hereinafter referred to as "Vantive
International") and more especially for developing and increasing Vantive
International's revenues outside the United States.
Xx. XXXXXX shall perform his duties diligently in the Company's best interests
and according to its instructions and directives.
For the duration of the present contract, Xx. XXXXXX undertakes to comply with
all applicable legal and regulatory provisions, with all general or specific
instructions he receives from the Company and to comply with the rules and
practices governing the Company's internal operations as well as the terms and
conditions of the present Contract.
Xx. XXXXXX shall report to the Chief Operating Officer or the Chief Executive
Officer of The Vantive Corporation. Any substantial modification of the
responsibilities defined above shall be subject to an amendment agreed by the
parties to the Contract.
Xx. XXXXXX'x job description is classified as Executive Position 3-3,
coefficient 270.
3. REMUNERATION
Xx. XXXXXX shall be paid:
3.1 firstly, a basic inclusive annual gross salary of 1,755,000 FF (one
million seven hundred and fifty five thousand French francs), including
overtime, payable in twelve (12) instalments at the end of each month.
This remuneration covers all overtime, a fact which Xx. XXXXXX
specifically accepts in advance as being inherent to his
responsibilities, in accordance with the provisions of Article 7 below;
3.2 secondly, an On-target Bonus equal to a gross annual sum of 877,500 FF
(eight hundred and seventy seven thousand five hundred French francs)
(the "On-target Bonus"), the payment of which shall be subject to the
following conditions:
3.2.1 For a period of six (6) months calculated from the Effective
Date of the present Contract ("the First Six Months"), Xx. XXXXXX shall
receive a guaranteed and non-recoverable advance equal to 100% of the
On-target Bonus calculated proportionally for the said period of six
(6) months.
3.2.2 For a period of six (6) months from the date of expiry of the
First Six Months ("the Second Six Months"), Xx. XXXXXX shall receive a
guaranteed and non-recoverable advance equal to 50% of the On-target
Bonus calculated proportionally for the said period of six (6) months.
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A Commission Plan outlining the elements comprising Xx. XXXXXX'x variable
remuneration for the 1999 fiscal year shall be drawn up by joint agreement
between the Parties within one hundred and eighty (180) days following the
Effective Date of the present Contract and shall be reviewed annually by joint
agreement following a meeting with Xx. XXXXXX.
3.3 Xx. XXXXXX shall be entitled to receive Stock Options (share-purchase
subscription options) in the amount of 200,000 (two hundred thousand)
shares of the common stock of The Vantive Corporation in accordance with
the policy operating in The Vantive Corporation and in compliance with the
specific provisions stipulated by the said Company from time to time,
subject to approval by the said Company's Board of Directors and to
signature by Xx. XXXXXX of the Stock Options Agreement then in force, the
current conditions of which are set out in Annex A attached hereto. These
Stock Options shall be subject to the provisions applying in the event of a
merger or acquisition affecting all the assets of The Vantive Corporation
under the conditions more specifically described in Annex A. For
clarification purposes, it is stipulated that the conditions applicable to
Stock Options in accordance with the terms of the present Article 3.3 shall
be subject to the law of the State of California.
3.4 Xx. XXXXXX shall also be entitled to all the other benefits generally
offered to full-time employees of the Company, including supplementary
health insurance and life assurance entailing full or partial reimbursement
of costs incurred by Xx. XXXXXX. Furthermore, the Company shall guarantee
to Xx. XXXXXX that the provisions of the Collective Agreement relating to
compensation and length of illness shall be applied from the Effective Date
of the present Contract without any pre-condition of service with the
Company.
All sums or benefits which the Company shall pay or grant in addition to
the remuneration agreed in the present Article 3 shall be construed as
bonuses. The allocation of such bonuses during one particular year does not
imply any obligation on the part of the Company to pay similar bonuses in
subsequent years.
Within ninety (90) days from the Effective Date of the present Contract,
the Parties shall jointly carry out an analysis and decide (with the
assistance of external consultants, if necessary) on the appropriateness of,
the parties agreeing to pay the remuneration described in the present
Article 3 to Xx. XXXXXX in different countries ("split payroll"), within the
limits stipulated by and subject to the relevant legal and tax provisions in
each country concerned. In this event, Xx. XXXXXX shall be solely
responsible for storing all data and other documents relating to his
business travel required by the relevant social and fiscal legislation.
3.5 The total annual remuneration, comprising Xx. XXXXXX'x basic salary and the
On-target Bonus described in the present Article, shall be reviewed
annually.
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4. TEMPORARY SECONDMENT
The Parties agree that during the period commencing on the Effective Date of the
present Contract and terminating on 30 June 1999 (the "Period of Secondment"),
Xx. XXXXXX shall perform his functions at Vantive (UK) Ltd., the British
subsidiary of The Vantive Corporation, currently located at Ascot, England.
During the Period of Secondment, Xx. XXXXXX' remuneration (as set out in Article
3 above) shall be paid in France and be subject to the relevant legal and tax
provisions. In addition, Xx. XXXXXX shall be entitled to the following fringe
benefits during the said Period of Secondment:
a gross monthly housing allowance of 46,800 FF (forty six thousand eight hundred
French francs),
and
a gross quarterly educational allowance of 20,475 FF (twenty thousand four
hundred and seventy five French francs) for the first two quarters of 1999.
5. REIMBURSEMENT OF EXPENSES
Xx. XXXXXX shall be entitled to reimbursement of transport and living expenses
as well as entertainment costs incurred while performing his duties, in
compliance with the policy operating in the Company and on presentation of
receipts. Xx. XXXXXX shall not be entitled to any reimbursement for expenses
incurred travelling from his residence to the Company's headquarters.
6. WORKPLACE
Subject to the provisions of Article 4 above, Xx. XXXXXX shall carry out his
duties from the Company's headquarters in Paris (or, if need be, in the Ile de
France).
The Parties agree that Xx. XXXXXX'x workplace may be transferred temporarily in
the future to San Francisco or any other large European city such as London,
Brussels or Geneva, depending on the group's organisational requirements. If
this should occur, a separate amendment to the present Contract shall be drawn
up. Such amendment shall stipulate the duration and the effective date of the
transfer, which must ensure a notice compatible with his children's schooling
and cannot be lower than the current school year. Furthermore, this amendment
shall stipulate the conditions for payment of the costs associated with Xx.
XXXXXX'x expatriation (removals, housing allowance and school fees). In
addition, Xx. XXXXXX recognises and accepts that the very nature of his position
shall entail a considerable amount of travel in the area where Vantive
International carries out its business, as set out in Article 8 below.
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7. WORKING HOURS
In view of Xx. XXXXXX'x position in the organisational hierarchy and the large
amount of travel associated therewith, which makes it impossible to monitor
working hours effectively and ensures a large degree of freedom in terms or
organising schedules, it is explicitly agreed that Xx. XXXXXX shall devote as
much time to his functions as is required to fulfil his duties in a satisfactory
manner. As a result, the present Contract has been drawn up for an unspecified
number of working hours remunerated by the sums described in Article 3 above,
with this excluding the possibility of Xx. XXXXXX seeking additional payment for
overtime.
8. TRAVEL
Xx. XXXXXX shall undertake all long and short-distance business travel in France
and abroad as required by his position in compliance with the Company's
instructions. Xx. XXXXXX will fly business class.
9. ALLOCATION OF A COMPANY CAR
To enable Xx. XXXXXX to perform his duties, the Company will provide him with a
leased car (i.e. BMW 740 or a vehicle of equivalent value) and shall pay the
insurance-policy premiums as set out below and all maintenance costs. Said
allocation of a company car shall continue for the duration of the Contract and
constitutes a fringe benefit within the context of social and fiscal
legislation.
The vehicle can be used for both professional and private purposes, with the
Company paying all costs and charges associated with its use for business on
presentation of the usual receipts.
The insurance policy shall be taken out by the Company, which shall pay the
premiums.
Xx. XXXXXX undertakes to maintain said vehicle in good condition. Upon
termination of the present Contract, Xx. XXXXXX shall return the vehicle to the
Company by immediately bringing it to his workplace and shall hand over its
documents and keys at the same time.
Should the vehicle be involved in any incident, Xx. XXXXXX shall inform the
Company accordingly as soon as possible and, at the latest, within 48 hours to
enable the latter to take whatever steps are necessary.
In the event of an accident, Xx. XXXXXX shall comply with the provisions
stipulated by the law and his insurance policy in such a way that the Company is
not made liable at any time or for any reason. Xx. XXXXXX must, by registered
letter with confirmation of receipt, notify the Company and the insurer of any
accident occurring while the car is being used at the latest within 48 hours of
such accident.
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10. PAID HOLIDAYS
Xx. XXXXXX shall be entitled to paid holidays in accordance with French law, to
be taken at dates and for periods agreed with the Company depending on his
workload. Xx. XXXXXX shall have the right not to work on the legal holidays
provided for under French law.
11. DURATION OF THE CONTRACT - NOTICE OF TERMINATION
The present Contract is entered into for an unlimited period. With the exception
of circumstances involving serious professional misconduct, the Contract can be
terminated by giving three (3) months' notice.
In the event that the Company would elect to terminate the present Contract in
compliance with the present Article 11, Xx. XXXXXX shall be entitled to a
special redundancy payment, which shall include any legal or contractual
redundancy payment to which he would be entitled, for an amount equal to nine
(9) months' gross basic salary plus commissions (based on the amounts specified
in Article 3) and all other benefits applicable during the period in question,
excluding the housing and education allowances referred to under Article 4.
It is emphasised that no redundancy payment of any type is payable in the event
of dismissal for serious professional misconduct. The special redundancy payment
described in this Article shall not be payable either in the event of
resignation of Xx. XXXXXX.
12. EXCLUSIVITY OF SERVICES
Xx. XXXXXX shall reserve his services exclusively for the Company and may not
pursue any other professional activity for the duration of the present Contract.
13. ILLNESS, ACCIDENTS AND UNAVAILABILITY FOR WORK
Xx. XXXXXX shall inform the Company and provide written confirmation in the
event of any interruption of his professional activities so that the latter can
take whatever steps are necessary. Should he fall ill, Xx. XXXXXX must produce a
medical certificate indicating the type of sickness concerned and the length of
time he is expected to be unavailable for work.
14. INTELLECTUAL PROPERTY
14.1 Inventions
In addition to the duties described above, Xx. XXXXXX may, from time to
time, be assigned various study or research tasks by the Company under
the terms of the present Contract. Inventions produced by Xx. XXXXXX in
these
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circumstances shall be the Company's property in compliance with
Paragraph 1, Article 1(3) of amended statute no. 68-1 dated 2 January
1968.
Xx. XXXXXX'x salary does take this possibility into account and
incorporates inclusive payment for the results of work carried out even
on an occasional basis under the terms of the present Contract.
Nonetheless, should any of Xx. XXXXXX'x inventions be of exceptional
interest to the Company and of such importance that its contribution is
not reflected to a commensurate degree in the inventor's salary, Xx.
XXXXXX shall receive a supplementary payment based on the relevant
factors.
Xx. XXXXXX undertakes to inform his Employer immediately of all of his
inventions in compliance with Paragraph 3, Article 1(3) of the
above-mentioned law, using the method specified by his superiors for the
prescribed declaration. He is forbidden to disclose any information
concerning such inventions.
14.2 Patents on inventions
While working for the Company, Xx. XXXXXX undertakes wholly, unreservedly
and without seeking payment other than his stipulated remuneration to:
- inform the Company of and transfer to it all his rights to any inventions,
patents, technical manufacturing procedures, improvements, commercial secrets
and plans which he has developed or helped to develop in all and any areas in
which the Company is or will be active for the duration of the present
Contract;
- recognize the Company's ownership of these rights or to transfer ownership of
the same to the Company for both France and foreign countries;
- comply with all the formalities and procedures necessary to establish the
Company's legal and proper possession of said inventions, improvements and
plans, as well as patents or other industrial property rights which may derive
from the above.
15. RESTITUTION AND USE OF COMPANY PROPERTY
All items, materials and information supports entrusted to Xx. XXXXXX by the
Company to assist him in carrying out his duties, especially information
referred to Article 14 as well as all files, documentation and correspondence,
manuals, books, folders, samples and other documents, lists and drawings, shall
remain the property of the Company and must be returned to it on termination of
employment or at any other time where requested.
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Xx. XXXXXX undertakes not to use any of the items referred to in the previous
paragraph for any purpose other than in relation to his professional activities
or to make copies or reproductions for personal use or any other reason, unless
explicitly authorized to do so by the Company. Furthermore, Xx. XXXXXX
explicitly undertakes to return said items, materials and supports
entrusted to him as well as all copies and reproductions in his possession on
the day he leaves the Company for whatever reason without the Company having
to request the same or give prior notice.
16. NON-COMPLETION CLAUSE
Xx. XXXXXX undertakes for the duration of the present Contract not to engage in
any direct or indirect act on behalf of competitors which could be detrimental
to the Company.
In the event of termination of this Contract of Employment for any reason,
Xx. XXXXXX undertakes not to work for the following competitor companies
immediately as from the date of termination:
o Siebel
o Clarify
The duration of this obligation of non-competition shall be one (1) year from
the termination of the Contract of Employment.
17. APPLICABLE LAW
The Parties agree that this Contract and any disputes arising hereunder shall
be governed by French Law.
18. COMPLETENESS OF THE AGREEMENT
The present Contract constitutes the complete agreement reached between the
Parties, annulling and superseding any previous commitments as well as any
verbal or written commitments relating to the present Contract. The Contract
can be modified or amended only on the basis of an addendum signed by the
Parties. No other entry, document, use or practice shall be recognized as an
annulment or modification of the present Contract.
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DRAWN UP AS TWO ORIGINALS, ON 27 January 1999
/s/ Xxxxxxx Dunhalbeger /s/ Xxx XxXxxx
----------------------------- --------------------------------
THE COMPANY Xx. Xxxxxx(1)
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(1) The signature is to be preceded in handwriting by the phrase "read and
approved, acceptable for the contract"
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ANNEX A
EXTRACT FROM THE PROPOSAL LETTER FROM THE VANTIVE CORPORATION TO XX. XXXXXX
Annex A 1: Stock option agreement
Annex A 2: Stock option plan
Annex A 3: Special conditions
Should The Vantive Corporation or a merging or acquiring entity terminate your
employment for any reason other than your voluntary resignation, death,
disability, or "just cause", you will be entitled to 9 months of paid coverage
of health insurance, 9 months stock vesting, as well as continued salary and
on-target bonus for a period of 9 months, with the amount paid out in a lump sum
within 30 days of your final day of employment and health insurance coverage
continued over a 9 month period.
In the case of any merger, acquisition or other business combination
("Transaction") involving all or substantially all of the assets of The Vantive
Corporation, other than reincorporation where Vantive is not the surviving
company and where the acquiring company or merger partner controls a majority of
Vantive stock after a Transaction, any granted and unvested options you may own
will have their vesting accelerated by one year, i.e. by 12/48, up to a maximum
of 100% of your option shares. Should this acceleration in the event of an
acquisition be "improved" for all other officers of the Corporation, your
position will be adjusted accordingly.
+ THE STOCK OPTION AGREEMENT AND STOCK OPTION PLAN SHALL BE ATTACHED AS SOON AS
GENERATED AND AVAILABLE.
