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Exhibit 10.7
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement'), made this 27th day of June,
2000, is entered into by Applix, Inc., a Massachusetts corporation with its
principal place of business at 000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000
(the "Company'), and Xxxxxxxx Xxxxxx, residing at 00 Xxxxxxxx Xxxxx, Xxxxxxxxxx,
XX 00000 (the "Employee").
The Company desires to continue the employment of the Employee, and the
Employee desires to continue to be employed by the Company, on the terms
described herein. In consideration of the mutual covenants and promises
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
agree as follows:
1. EMPLOYMENT TERMS.
(a) The Company and the Employee agree that the Employee shall
continue his employment with the Company as Chairman of the Board of Directors
on a full-time basis through July 1, 2000.
(b) The Company and the Employee agree that the Employee shall
continue his employment with the Company as Chairman of the Board of Directors,
or in such other capacity as the Board of Directors of the Company (the "Board)
reasonably designates, for a period commencing on July 2, 2000 and continuing
through and including July 1, 2002. During the two-year period between July 2,
2000 and July 1, 2002, the Employee (i) shall be required to devote up to three
business days per month to the business and affairs of the Company and (ii) the
primary role of the Employee shall be to provide assistance and advice to the
executive officers of the Company on matters concerning strategy and planning.
The days (or portions thereof) on which the Employee performs his employment
services for the Company shall be as mutually agreed between the Company and the
Employee. The Employee shall be subject to the supervision of, and shall have
such authority as is delegated to the Employee by, the Board or such officer of
the Company as may be designated by the Board. The Company shall provide the
Employee with access to office space and related amenities to facilitate the
performance of his employment duties under this Agreement.
(c) The Employee's employment with the Company may be terminated prior
to July 1, 2002 in accordance with the terms of Section 4 of this Agreement. The
period of time during which the Employee is employed by the Company pursuant to
the terms of this Agreement is referred to herein as the "Employment Period".
2. COMPENSATION AND BENEFITS.
2.1 SALARY. The Company shall pay the Employee, in periodic
installments in accordance with the Company's customary payroll practices, an
annual base salary of $270,000 during the Employment Period.
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2.2 FRINGE BENEFITS.
(a) The Employee shall be entitled to participate in all benefit
programs (excluding bonus programs) at the Company establishes and makes
generally available to its employees, if any, to the extent that Employee's
position, tenure, salary, age, health and other qualifications make him eligible
to participate.
(b) Prior to December 31, 2000, the Company shall pay to the Employee
the value of all accrued vacation of the Employee as of such date. From and
after July 1, 2000, the Employee shall no longer be entitled to any paid
vacation.
2.3 STOCK OPTIONS. The Company and the Employee agree that all stock
options currently held by the Employee (the "Options") shall continue in effect
in accordance with their terms, and shall continue to vest for so long as the
Employee is employed by the Company.
2.4 REIMBURSEMENT OF EXPENSES. The Company shall reimburse the
Employee for all reasonable expenses incurred or paid by the Employee in
connection with, or related to, the performance of his duties, responsibilities
or services under this Agreement, in accordance with policies and procedures,
and subject to limitations, adopted by the Company from time to time.
2.5 WITHHOLDING. All salary and other compensation payable to the
Employee shall be subject to applicable withholding taxes.
3. NON-EXCLUSIVE ARRANGEMENT. The Company and the Employee agree that,
during the Employment Period, the Employee may provide services, as an employee,
consultant, advisor, director or otherwise, to a business, company or individual
other than the Company, so long as such other activities do not conflict with
the terms of Section 6 hereof and do not unreasonably interfere with the
performance of his employment duties under this Agreement.
4. TERMINATION OF EMPLOYMENT PERIOD. The employment of the Employee by
the Company pursuant to this Agreement shall terminate upon the occurrence of
any of the following:
4.1 Expiration of the Employment Period;
4.2 Upon the death or disability of the Employee. As used in this
Agreement, the term "disability" shall mean the inability of the Employee, due
to a physical or mental disability, for a period of 90 days, whether or not
consecutive, during any 360-day period to perform the services contemplated
under this Agreement, with or without reasonable accommodation as that term is
defined under state or federal law. A determination of disability shall be made
by a physician satisfactory to both the Employee and the Company, PROVIDED THAT
if the Employee and the Company do not agree on a physician, the Employee and
the Company shall each select a physician and these two together shall select a
third physician, whose determination as to disability shall be binding on all
parties;
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4.3 At the election of either party, upon not less than 30 days' prior
written notice
5. PAYMENTS UPON TERMINATION. In the event the Employee's employment is
terminated by the Company pursuant to Section 4.3, the Company shall (a)
continue to pay to the Employee his salary as in effect on the date of
termination, (b) continue to provide to the Employee the benefits owed to him
under Section 2.2 (to the extent such benefits can be provided to non-employees,
or to the extent such benefits cannot be provided to non-employees, then the
cash equivalent thereof) and (c) amend the Options to permit their continued
exercisability and continued vesting, in each case through and including June
30, 2002. The provision to the Employee of the benefits under this Section 5
shall constitute the sole remedy of the Employee in the event of a termination
of the Employee's employment in the circumstances set forth in this Section 5.
6. NON-COMPETITION AND NON-SOLICITATION.
6.1 During the Employment Period, the Employee will not directly or
indirectly:
(a) engage in any business or enterprise (whether as owner, partner,
officer, director, employee, consultant, investor, lender or otherwise, except
as the holder of not more than 1% of the outstanding stock of a publicly-held
company) that develops, licenses or sells any product that competes with any
product developed, licensed or sold, or planned to be developed, licensed or
sold, by the Company during the Employment Period; or
(b) either alone or in association with others (i) solicit, or permit
any organization directly or indirectly controlled by the Employee to solicit,
any employee of the Company to leave the employ of the Company, or (ii) solicit
for employment, hire or engage as an independent contractor, or permit any
organization directly or indirectly controlled by the Employee to solicit for
employment, hire or engage as an independent contractor, any person who was
employed by the Company at the time of the termination of the Employment Period;
PROVIDED, that this clause (ii) shall not apply to any individual (A) whose
employment with the Company was terminated by the Company or (B) whose
employment with the Company was terminated by the individual more than six
months prior to the solicitation, hiring or engagement by the Employee.
6.2 If any restriction set forth in this Section 6 is found by any
court of competent jurisdiction to be unenforceable because it extends for too
long a period of time or over too great a range of activities or in too broad a
geographic area, it shall be interpreted to extend only over the maximum period
of time, range of activities or geographic area as to which it may be
enforceable.
7. RELEASE.
7.1 The Employee hereby fully, forever, irrevocably and
unconditionally releases, remises and discharges the Company, its officers,
directors, stockholders, corporate affiliates, agents and employees from any and
all claims, charges, complaints, demands, actions, causes of action, suits,
rights, debts, sums of money, costs, accounts, reckonings, covenants,
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contracts, agreements, promises, doings, omissions, damages, executions,
obligations, liabilities, and expenses (including attorneys' fees and costs), of
every kind and nature which he ever had or now has against the Company, its
officers, directors, stockholders, corporate affiliates, agents and employees
(excluding obligations arising under this Agreement), including, but not limited
to, all claims arising out of his employment, all employment discrimination
claims under Title VII of the Civil Rights Act of 1964,42 U.S.C.ss.2000e ET
SEQ., the Age Discrimination in Employment Act, 29 U.S.C.,ss.621 ET SEQ., the
Americans With Disabilities Act, 42 U.S.C.,ss.12101 ET SEQ., the Massachusetts
Fair Employment Practices Act, M.G.L. c.151B,ss.1 ET SEC., all claims arising
out of the Massachusetts Civil Rights Act, M.G.L. c.12ss.ss.l1H and 111, the
Massachusetts Equal Rights Act, c.93ss.ss.102 and 103 and M.G.L. c.214,ss.1C,
all damages arising out of all employment discrimination claims, wrongful
discharge claims or other common law claims and damages.
7.2 The Employee acknowledges that he has been given 21 days to
consider this Agreement and that the Company advised him to consult with an
attorney of his own choosing prior to signing this Agreement. The Employee may
revoke this Agreement for a period of seven days after the execution of this
Agreement, and the Agreement shall not be effective or enforceable until the
expiration of this seven-day revocation Period.
7.3 The Employee affirms that no other promises or agreements of any
kind have been made to or with him by any person or entity whatsoever to cause
him to sign this Agreement, and that he fully understands the meaning and intent
of this Agreement. The Employee states and represents that he has bad an
opportunity to fully discuss and review the terms of this Agreement with an
attorney. The Employee further states and represents that he has carefully read
this Agreement, understands the contents herein, freely and voluntarily assents
to all of the terms and conditions hereof, and signs his name of his own free
act.
7.4 The Company hereby fully, forever, irrevocably and unconditionally
releases, remises and discharges the Employee from any and all claims, charges,
complaints, demands, actions, causes of action, suits, rights, debts, sums of
money, costs, accounts, reckonings, covenants, contracts, agreements, promises,
doings, omissions, damages, executions, obligations, liabilities, and expenses
(including attorneys' fees and costs), of every kind and nature which it ever
had or now has against the Employee (excluding obligations arising under this
Agreement).
8. NON-DISPARAGEMENT.
8.1 The Employee agrees not to make any statement, written or oral,
which disparages the Company, its respective officers, or management and
business practices, or which disrupts or impairs the Company's normal
operations. The provisions of this Section 8.1 shall not apply to any truthful
statement required to be made by the Employee in any legal proceeding, required
filing under the securities laws, or pursuant to any governmental or regulatory
investigation
8.2 The Company agrees that it will not make any statement, written or
oral, which disparages the Employee. The provisions of this Section 8.2 shall
not apply to any
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truthful statement required to be made by the Company in any legal proceeding,
required filing under the securities laws, or pursuant to any governmental or
regulatory investigation.
9. MISCELLANEOUS.
9.1 NOTICES. Any delivered under this Agreement shall be deemed duly
delivered four business days after it is sent by registered or certified mail,
return receipt requested, postage prepaid, or one business day after it is sent
for next-business day delivery via a reputable nationwide overnight courier
service, in each case to the address of the recipient set forth in the
introductory paragraph hereto. Either party may change the address to which
notices are to be delivered by giving notice of such change to the other party
in the manner set forth in this Section 9.1.
9.2 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings,
whether written or oral, relating to the subject matter of this Agreement
including without limitation the Employment Agreement dated April 3, 1989. The
inventions and non-disclosure agreement executed by the Employee shall remain in
full force and effect.
9.3 AMENDMENT. This Agreement may be amended or modified only by a
written instrument executed by both the Company and the Employee.
9.4 EQUITABLE REMEDIES. The restrictions contained in this Agreement
are necessary for the protection of the business and goodwill of the Company and
are considered by the Employee to be reasonable for such purpose. The Employee
agrees that any breach of this Agreement is likely to cause the Company
substantial and irrevocable damage and therefore, in the event of any such
breach, the Employee agrees that the Company, in addition to such other remedies
which may be available, shall be entitled to specific performance and other
injunctive relief.
9.5 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts. Any action,
suit or other legal arising under or relating to any provision of this Agreement
shall be commenced only in a court of the Commonwealth of Massachusetts (or, if
appropriate, a federal court located within Massachusetts), and the Company and
the Employee each consents to the jurisdiction of such a court. The Company and
the Employee each hereby irrevocably waive any right to a trial by jury in any
action, suit or other legal proceeding arising under or relating to any
provision of this Agreement.
9.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of both parties and their respective successors and
assigns, including any corporation with which or into which the Company may be
merged or which may succeed to its assets or business, provided, however, that
the obligations of the Employee are personal and shall not be assigned by him.
9.7 WAIVERS. No delay or omission by the Company in exercising any
right under this Agreement shall operate as a waiver of that or any other right.
A waiver or consent
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given by the Company on any one occasion shall be effective only in that
instance and shall not be construed as a bar or waiver of any right on any other
occasion.
9.8 CAPTIONS. The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
9.9 SEVERABILITY. In case any provision of this Agreement shall be
invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year set forth above.
APPLIX, INC.
By: /s/ Xxxx Xxxxxxxxxxx
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Xxxx Xxxxxxxxxxx, President
/s/ Xxxxxxxx Xxxxxx
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XXXXXXXX XXXXXX
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SUPPLEMENTAL AGREEMENT TO EMPLOYMENT AGREEMENT
THIS SUPPLEMENTAL AGREEMENT (the "Agreement"), is made this 19th day of
March, 2001, between Applix, Inc., a Massachusetts corporation (the "Company"),
and Xxxxxxxx Xxxxxx (the "Employee").
WHEREAS, the Company and the Employee are party to an Employment Agreement
dated June 27, 2000 (the "Employment Agreement"); and
WHEREAS, in conjunction with the sale or otherwise discontinuance of the
operations of the VistaSource division, the Company and the Employee would like
to alter some of the agreements contained in the Employment Agreement;
NOW, THEREFORE, in consideration of the agreements contained herein, the
parties agree as follows:
1. The Employee's employment with the Company shall terminate effective
as of the date of this Agreement. This employment termination shall not affect
the status of the Employee as a member or Chairman of the Company's Board of
Directors.
2. The Company shall pay to the Employee, as severance benefits, a sum of
$348,750, paid in monthly installments between the date of this Agreement and
July 1, 2002. These payments will be made once per month, payable on the 15th
day of the month, or the closest business day occurring after the 15th day of
the month starting on April 15, 2001. In consideration therefor, the Employee
agrees to make himself available to the Company, at the reasonable request of
the Company and at such times as the Company and the Employee mutually agree, to
provide advice to the Company on strategic planning matters, through the date of
disposition of VistaSource.
3. The Employee shall no longer be entitled to participate in any benefit
programs of the Company.
4. Effective as of the date of this Agreement, the Employee hereby
surrenders to the Company for cancellation, and renounces all rights to, his
stock option, dated December 31, 1999, covering 100,000 shares of common stock
of the Company.
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5. The Company and the Employee each agree that all options for common
stock of the Company held by the Employee (other than the option covered by
Section 4 above) shall be amended such that (a) they shall be exercisable in
full as of the date of this Agreement, notwithstanding any other vesting
schedule contained therein, and (b) the Employee shall have until October 1,
2002 to exercise such options. The Employee acknowledges that any incentive
stock option which is exercised by him more than 90 days after the date of this
Agreement shall no longer qualify as an incentive stock option.
6. The Company and the Employee agree that the non-competition and
non-solicitation provisions of the Employment Agreement shall remain in effect
until July 1, 2002.
7. This Supplemental Agreement constitutes the entire agreement between
the parties related to the subject matter hereof.
8. Section 9 of the Employment Agreement (other than Section 9.2) shall
apply to the terms of this Agreement.
Executed as of the date and year set forth above.
APPLIX, INC.
By: /s/ Xxxx Xxxxxxxxxxx
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Xxxx Xxxxxxxxxxx, President
/s/ Xxxxxxxx Xxxxxx
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XXXXXXXX XXXXXX
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