1
Exhibit 10.2
June 18, 2001
Xx. Xxxxxx X. Xxxxxxx, President
AVIDYN, Inc.
00000 Xxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
Dear Xxx:
Please allow this letter and the attached Schedules A & B to serve as the entire
agreement between AVIDYN, Inc. (the Company), Xxxxxxx Xxxxx (the Employee) and
Xxxxx CFO Partners, LLP (Xxxxx CFO).
This letter creates an employment relationship between the Employee and the
Company. This is for the benefit of the Company and to ensure its absolute
control of the Employee in the exercise of his or her employment.
For the services of the Employee, the Company agrees to pay $4,500 per month as
set forth in Schedule A, which also includes other related employment terms.
Xxxxx CFO's obligation is to make the Employee available to the Company and to
make our resources available to the Employee. Since we do not have a direct
relationship with the Company and the Company controls and directs the Employee,
Xxxxx CFO cannot and does not assume the same risks we might assume if we
directly supervised the Employee. Schedule B sets forth provisions dealing with
the limitation of liability of Xxxxx CFO. This allows Xxxxx CFO to provide this
unique relationship that offers the value of a traditional employment
relationship and the resources and benefits of our national CFO firm.
The Company may for any reason and with 30 days prior written notice to the
Employee and Xxxxx CFO, terminate the Employee "at will," and the parties
expressly acknowledge that no provision in this agreement, including Schedules A
and B changes the "at will" nature or in any way creates an expressed or implied
term of duration. Likewise, Xxxxx CFO or the Employee may terminate this letter
agreement for any reason with 30 days prior written notice to the Company, and
immediately if the Company has not remained current in its obligations under
this letter or if the Company engages in or asks the Employee to engage in
illegal or unethical conduct.
2
Any disputes between the Company and Xxxxx CFO (whether or not it includes the
Employee as a party) shall be resolved by binding arbitration in Dallas, Texas
under the rules of the American Arbitration Association and governed by Texas
law.
The terms of this letter agreement are severable and may not be amended except
in a writing signed by the parties. Please sign below and return a signed copy
of this letter to indicate your agreement with its terms and conditions.
We look forward to serving you.
Sincerely yours,
XXXXX CFO PARTNERS, LLP EMPLOYEE
/s/Xxxxxx X. Xxxxx /s/Xxxxxxx X. Xxxxx
----------------------------- -----------------------------
(Signature) (Signature)
Xxxxxx X. Xxxxx Xxxxxxx Xxxxx
----------------------------- -----------------------------
Area Partner
For XXXXX CFO PARTNERS, LLP
Acknowledged and agreed by:
AVIDYN, Inc.
/s/Xxxxxx X. Xxxxxxx
-----------------------------
By: Xxxxxx X. Xxxxxxx
Its: President
Date: 7/2/01
------------------------
2
3
SCHEDULE A
1. Term of Employment
Employee will work one day per week beginning July 9, 2001 ("Effective
Date").
2. Costs
Employee will be paid a Monthly Salary ("Salary") of $3,750 and Xxxxx
CFO will be paid a Resource Fee ("Fee") of $750. The daily rate for
additional days (beyond the stated number of days per week) is $900 as
Salary and $180 as Fee.
Salary and Fee for the first month will be prorated based upon the
number of normal workdays remaining in the month. The Salary and Fee
shall be subject to adjustment annually or at the time the Company makes
any adjustments or if the Company does not do so, at the time Xxxxx CFO
makes its rate adjustments.
3. Payments
The Salary will be processed through payroll and paid at the same time
as other employees. Xxxxx CFO will invoice the Fee and it will be due by
the 15th day of the month for which amounts are invoiced.
4. Payments
The Company will pay Xxxxx CFO one full month of the Fee ($750) as a
deposit upon execution of this Agreement. The deposit will be applied
against any open amounts due upon the termination of this agreement. Any
deposit remaining will be promptly returned.
5. Employee Benefits
The Company will promptly reimburse the Employee for all out-of-pocket
business expenses expended on behalf of the Company with appropriate
prior approval.
The Employee elects not to participate in the Company's employee
retirement plan or any other employee benefit plan, and waives any
coverage that may otherwise exist. The Company will not include Employee
as a participant in any such plan, unless required to do so by law for
plan qualification. However, notwithstanding the foregoing, Employee may
participate in the Company's 401(k) plan at the Company's option.
6. Other Terms
For Employee's protection, the following shall apply:
3
4
To the extent the Company has directors' and officers' liability
insurance ("including entity coverage") and/or errors and omissions
liability insurance in effect, the Company will provide such insurance
coverage for the Employee along with written evidence to the Employee
and Xxxxx CFO that Employee is covered by such insurance.
Employee may sign federal or state securities filings and reps and
warranties on behalf of the Company, but only if Employee and Xxxxx CFO
receives written evidence that, in signing such filings, reps and
warranties, he or she is covered by applicable adequate insurance
(whether director and officer insurance or a special policy) maintained
by the Company at no additional cost to Employee or Xxxxx CFO.
If the Company requests, Employee will serve as an officer of the
Company, but only if (i) Employee is duly elected as an officer by the
Company's Board of Directors and (ii) Employee and Xxxxx CFO has
received written evidence that he or she is covered as an officer by the
director and officer insurance maintained by the Company at no
additional cost to Employee or Xxxxx CFO.
4
5
SCHEDULE B
The following provisions are aimed exclusively at limiting the liability of
Xxxxx CFO for the reasons stated in the first page of this letter agreement.
Note that these provisions do not affect any traditional employer remedies
against an employee.
1. Xxxxx CFO does not make any representations or warranties concerning
Employee's services. The Company is solely responsible for directing
Employee as it would any other employee and for evaluating, managing and
using Employee's services. Xxxxx CFO makes no representation or warranty
as to the accuracy or reliability of reports, projections and/or
forecasts and will not be held liable for any claims of reliance on such
reports, projections and/or forecasts. Xxxxx CFO will not be liable for
any non-compliance with federal, state or local laws or regulations.
2. The Company may pursue against Employee any remedies the Company may
have under this letter agreement or at law for breach by Employee of his
or her duties to the Company. The Company agrees that, absent Xxxxx
CFO's breach of express obligations under this letter agreement, or an
intentional tort by Xxxxx CFO or Employee, Xxxxx shall have no liability
to the Company or third parties based on Employee's breach of duties
that Employee owes to the Company or third parties.
3. With the exception of intentional tort by Xxxxx CFO or Employee, the
Company agrees to indemnify Xxxxx CFO to the full extent permitted by
law for any losses, costs, damages and expenses, including reasonable
attorneys' fees, as such are incurred, in connection with (i) any cause
of action, suit or other proceeding arising in connection with Xxxxx
CFO's engagement by the Company under this letter agreement, Employee's
employment with the Company or the provision of services by Employee,
and (ii) any legal proceeding in which Xxxxx CFO may be required or
agree to participate, but in which Xxxxx CFO is not a party.
4. If the Company and Xxxxx CFO are defendants in any action, suit or other
proceeding, the defense of Xxxxx CFO will be represented by counsel
selected by the Company, unless upon advice of Xxxxx CFO's counsel,
Xxxxx CFO will not be adequately represented by the Company's counsel
because of a conflict of interest or inability to present a defense that
would otherwise be available to us if separately represented, in which
case Xxxxx CFO may be represented by counsel of its own choosing.
5. As a condition for recovery of any liability, the Company must give
Xxxxx CFO written notice of the alleged basis for liability within 30
days of discovering the circumstances giving rise to such alleged
liability.
6. Xxxxx CFO shall not be liable in any event for incidental or
consequential damages of the Company, including without limitation, any
interruption of business or loss of business, profit, or goodwill.
5
