EXHIBIT 10.20
[X.X. XXXXXXX LETTERHEAD]
July 30, 2001
Xx. Xxxxx Xxxxx
000 Xxxxx'x Xxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0 Xxxxxx
RE: Termination of Employment with X.X. Xxxxxxx & Company
Dear Xxxxx:
This letter (Letter Agreement) sets out the terms and conditions of the
termination of your employment with X.X. Xxxxxxx & Company (X.X. Xxxxxxx).
1. Termination of Employment. You were informed on February 5, 2001 and by a
letter dated February 9, 2001 that your employment with X.X. Xxxxxxx was to
be terminated as part of the restructuring of X.X. Xxxxxxx. As agreed the
effective date of the termination of your employment with X.X. Xxxxxxx was
May 31, 2001. The following terms apply to such termination:
2. Severance Pay. You will receive severance pay in accordance with the
standard X.X. Xxxxxxx xxxxxxxxx pay policy for an employee of your position
and time of service of $410,550 ("Severance Pay"). This severance payment
will be made in a one-time, lump sum payment subject to appropriate tax
withholding, if any, immediately upon the execution of this letter.
3. Vacation Pay. You have been paid for any unused hours of accrued vacation
based on your monthly compensation.
4. Additional Pay. In addition to the Severance Payment you will receive
within 5 days of the date this letter is signed the following amounts or
documents:
o $2,500 (US) for outplacement services paid to Xxxx Xxxx & Associates;
o Reimbursement for income preparation fees for the preparation of
personal income tax returns (US and Canadian) for tax years 2000 and
2001;
o $3,000 for Club trip not taken at the request of JDE grossed up for
income tax due;
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Xxxxx Xxxxx
July 30, 2001
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o Reimbursement for moving expenses from Denver, Colorado to home in
Canada per the attached invoice;
o A favorable letter of recommendation signed by Xxxxxxx X. Xxxxx that
can be used to help obtain employment;
o The 1042(S) form shall be revised pursuant to instructions provided to
X.X. Xxxxxxx by Xxxxx X. Xxxxxx.
5. CONFIDENTIALITY AND NON-SOLICITATION. Notwithstanding your termination from
employment with X.X. Xxxxxxx, you will continue to observe your obligations
of not disclosing any trade secrets, proprietary or confidential
information of X.X. Xxxxxxx and will neither disclose the terms of this
Agreement nor the content of any discussion between you and X.X. Xxxxxxx,
other than to immediate family members, professional advisors, taxing
authorities for the purpose of filing tax returns on your compensation or
pursuant to a court order. You further agree not to recruit any person to
leave the employment of X.X. Xxxxxxx for a period of two years from the
date of termination of your employment. As used in this Agreement, to
"recruit" shall mean, during the above two-year period, by any method of
communication, the direct contact by you or contact by someone at your
direction of a then current employee of X.X. Xxxxxxx or of any of its
subsidiaries for the purpose of inducing such employee to leave employment
with X.X. Xxxxxxx. In addition, you agree not solicit any current customer
or prospect of X.X. Xxxxxxx to terminate any current license or service
agreement with X.X. Xxxxxxx during such two year period.
6. NON-COMPETE. You agree not to accept employment with any of the direct
competitors of X.X. Xxxxxxx listed on the attached "Direct Competitors of
X.X. Xxxxxxx" for a period of one (1) year from the date of termination of
your employment. The non-competition obligations set forth in this
paragraph ("Non-Compete Agreement") shall supersede the non-competition
obligations imposed upon you pursuant to any other agreements by and
between you and X.X. Xxxxxxx including, but not limited to, the following:
(1) those certain non-competition and confidential information agreements
entered into between you and X.X. Xxxxxxx ("Prior Non-Competition
Agreements") and (2) any of the X.X. Xxxxxxx & Company 1992 and 1997 Stock
Option plans or amendments thereto
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Xxxxx Xxxxx
July 30, 2001
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(Stock Option Plans). The Non-Compete Agreement contained in this Letter
Agreement shall be the exclusive and sole contract and agreement between
Xxxxx and X.X. Xxxxxxx regarding Xxxxx'x agreement not to compete with X.X.
Xxxxxxx. X.X. Xxxxxxx hereby waives all of its rights to any and all
remedies, penalties or other awards, whatsoever, that X.X. Xxxxxxx may be
entitled to under any other agreement, including but not limited to those
agreements referenced in this paragraph between the parties with respect to
non competition. This Letter Agreement shall be the sole source of remedy
available to X.X. Xxxxxxx in the event Xxxxx breaches the non-competition
covenant. This non-competition agreement shall not apply if you become
employed by or provide services to an entity, which is subsequently
acquired by a company listed on the attached list of Direct Competitors.
7. X.X. Xxxxxxx Property. The parties acknowledge that you have returned any
proprietary information, such as customer lists, confidential product
information, price lists that may have been in your possession. Xxxxx shall
be entitled to keep as his own property any of the following items provided
by X.X. Xxxxxxx: cell telephone, laptop, personal computers, monitors,
printers, docking station and similar types of items.
8. COBRA Medical Insurance. You will be eligible for medical insurance under
the Canadian equivalent of COBRA commencing on June 1, 2001 for a period of
52 weeks in accordance with the standard X.X. Xxxxxxx policy at X.X.
Xxxxxxx' sole expense. You will be eligible to continue coverage at your
cost beyond such date if you so elect as provided by applicable law.
9. 401(k). Your 401(k) balance calculations will be made within a reasonable
time after May 31, 2001 and at that time you will be notified of your
balance and be provided with options related to distribution at that time.
10. Out Placement Services. In addition to the outplacement payment above, you
will be provided up to $15,000 of employment out sourcing services by a
firm of your choice.
11. Xxxxxxx Xxxxxxx Policy. Effective as of May 31, 2001, since you are no
longer a corporate officer, you are released from the X.X. Xxxxxxx xxxxxxx
xxxxxxx policy.
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Xxxxx Xxxxx
July 30, 2001
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12. Indemnification. X.X. Xxxxxxx has executed with many of its employees the
X.X. Xxxxxxx & Company Indemnification Agreement, a copy of which is
attached as Attachment C ("Indemnification Agreement"). X.X. Xxxxxxx shall
indemnify and protect Xxxxx under the terms of the Indemnification
Agreement. X.X. Xxxxxxx, however, has acknowledged the scope of the
indemnification offered under the Agreement is insufficient. X.X. Xxxxxxx,
therefore, agrees that the Indemnification Agreement is hereby modified to
expand the definition of a "Covered Event", provide for payment of all
"Expenses" on an as occurred basis by X.X. Xxxxxxx, allow Xxxxx to retain
his own counsel at the expense of X.X. Xxxxxxx, 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 Attachment D to this Agreement. This indemnification by X.X. Xxxxxxx
shall survive this Letter Agreement and the release agreed by Xxxxx shall
not release X.X. Xxxxxxx from its obligations set forth in this paragraph.
13. Option Acceleration. X.X. Xxxxxxx agrees that all stock options that Xxxxx
would have vested in between the date you were informed of the termination
of your employment and December 31, 2001 under the Stock Options Plans had
you been employed, shall be immediately accelerated and available to be
exercised by you. You may exercise any such stock options at any time
between the date of this Letter Agreement and midnight December 31, 2001. A
list of such options is attached as Exhibit B to this Letter Agreement.
This Agreement and the attachments to it set forth in full all the terms of your
termination of employment with X.X. Xxxxxxx. Each party hereby releases the
other party from any and all obligations, claims, demands, rights and causes of
action, whatsoever, whether known or unknown. Such a release shall be binding
upon each party and his/its heirs, successors and assigns. You will have a
seven-day revocation period to additionally review the terms and revoke your
acceptance; should you not so revoke your acceptance, the terms of your
termination will be effective on the eighth day. Nothing herein shall prevent
you from participating in a securities class action suit brought against X.X.
Xxxxxxx by other parties.
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Xxxxx Xxxxx
July 30, 2001
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If the foregoing is an accurate reflection of the terms of your termination of
employment with X.X. Xxxxxxx, please so indicate by signing on the line provided
below and returning one copy to X.X. Xxxxxxx.
Very truly yours,
X.X. XXXXXXX & COMPANY
/s/ XXXXXXX X. XXXXX
Xxxxxxx X. Xxxxx
Executive Vice President, Chief Financial Officer
Accepted this 20th day of September, 2001.
/s/ XXXXX XXXXX
Xxxxx Xxxxx
[X.X. XXXXXXX LOGO]
Xxxxx Xxxxx
July 30, 2001
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DIRECT COMPETITORS
OF
X.X. XXXXXXX & COMPANY
BROAD APPS CRM SUPPLY CHAIN HORIZONTAL
SAP Siebel I2 Ariba
Oracle Pivotal Paragon
PeopleSoft Onyx Manugistics
QAD Xxxxxxxx
Xxxxxx
IFS
Intentia
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