EXHIBIT 10.20
Personal and Confidential
June 29, 2001
Xx. Xxxxxxx X. Xxxxxxx
00000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Dear Xxxx:
This letter sets forth our agreement regarding your resignation from MAPICS,
Inc. (the "Company").
1. You will step down as Chief Financial Officer, Vice President of Finance and
Treasurer for the Company effective immediately and shall continue in a
consulting position with the Company through August 15, 2001 (the "Resignation
Date") at which time you will no longer be considered an employee of the
Company. During the period July 5/th/ to July 12/th/ and August 1/st/ to August
15/th/, it is understood that you will be on vacation. You also hereby resign
from any directorship positions, officer positions or subscriptions you hold
with the Company, its subsidiaries and affiliates or other organizations on the
Company's behalf effective immediately. You will continue to act in a
consultative role with the Company through the Resignation Date and assist the
Company in a reasonable transition of your work and perform such other
reasonable transition-related duties as assigned by the Chief Executive Officer
or his designee.
2. Through the Resignation Date you will receive a gross base salary of $6,250
semi-monthly and remain eligible to participate in the current benefits. Your
benefits costs and deductions for this period will be appropriately deducted and
all applicable taxes withheld. You will also receive a gross bonus of $28,125
for your individual performance and the Company's financial performance during
the third quarter of the Company's 2001 fiscal year. Otherwise, no bonus amounts
will be owing by the Company. You will not be eligible for any bonus for your or
the Company's performance during the fourth quarter of the Company's 2001 fiscal
year or thereafter. As of the Resignation Date, your salary will cease and any
entitlement you have or might have under any Company-provided bonus plan or
benefit plan, program or practice including,
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without limit, your Executive Growth Plan dated April 1, 1998 shall be
immediately forfeited except as required by federal or state law or as otherwise
expressed in this letter. You agree that, subject to vacation planned under
paragraph 1, you have utilized all vacation owing and shall not be entitled to
any further payments reflecting vacation whether or not it is accrued. The
Change of Control Agreement dated March 1998 between you and the Company is
hereby terminated as of the date of this letter agreement. The Resignation Date
shall be treated as your "qualifying event" under the Consolidated Omnibus
Budget Reconciliation Act of 1985 ("COBRA"), and you will receive COBRA
information under separate cover.
3. Within ten business days after your Resignation Date, you will be paid a
gross severance payment of $152,500.
4. As of the date of this letter, all Restricted Shares granted to you shall be
forfeited and all Restricted Stock Award Agreements between you and the Company
are hereby terminated. As of the Resignation Date, all stock options ("Options")
granted to you during your employment but not yet vested will be forfeited in
accordance with their terms. You shall have ninety days from the Resignation
Date to exercise any vested Options in accordance with the terms of the
applicable Option Plan documents. You shall comply with all applicable
securities laws, including those regarding xxxxxxx xxxxxxx.
5. Release By You. As a material inducement to the Company to enter into this
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letter agreement you, for yourself and your representatives, agents, servants,
executors, administrators, estates, heirs, successors and assigns, except as
otherwise provided herein, hereby fully, forever, irrevocably and
unconditionally release, remise and discharge the Company and its corporate
affiliates, the Company's officers, directors, stockholders, agents and
employees, both individually and in their official capacities, from any and all
claims, charges, complaints, 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 you ever had or now have against the Company and its
corporate affiliates, the Company's officers, directors, stockholders, agents
and employees, both individually and in the official capacities, whether based
on any federal or state law or regulation regarding either employment or
employment discrimination, including but not limited to, all claims under Title
VII of the Civil Rights Act of 1964, 42, U.S.C. 12000e et seq.; the Age
Discrimination in Employment Act, 29 U.S.C. 1621 et seq.; the Americans with
Disabilities Act, 29 U.S.C 1621 et seq.; wrongful discharge claims; any contract
claims, whether oral or written, express or implied; any claims for back wages,
salary, draws, commissions, bonuses, vacation pay, expenses, compensation, or
severance pay, or any other statutory or common law claims and damages.
6. Release By the Company. As a material inducement to you to enter into this
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letter agreement the Company, for itself and for its corporate affiliates and
officers, directors, stockholders, agents and employees, both individually and
in their official capacities, except as otherwise provided herein, hereby fully,
forever, irrevocably and unconditionally release, remise and discharge you and
your representatives, agents,
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servants, executors, administrators, heirs, successors and assigns from any and
all claims, charges, complaints, 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 the Company ever had or now have against you or your
representatives, agents, servants, executors, administrators, heirs, successors
and assigns, whether based on any federal or state law or regulation or common
law including without limitation any claims arising from any of your authorized
acts while you are or were an employee of the Company; any contract claims
whether oral or written, express or implied; any claims for contribution or
indemnification, or any other statutory or common law claims and damages.
7. In addition, by your acceptance hereof, you acknowledge and agree that:
a) You have been informed that if you are 40 years of age or older, you have or
might have specific rights and/or claims under the Age Discrimination in
Employment Act. In consideration of the compensation described in this letter
agreement, you specifically waive such rights and/or claims to the extent such
rights and/or claims arose prior to the date this letter agreement was executed.
b) You were advised by the Company of your right to consult with an attorney
prior to executing this Agreement.
c) You were further advised when you were presented by the Company with the
original draft of this Agreement that you had at least 21 days within which to
consider its terms and consult with or seek advice from an attorney or any other
person of your choosing.
d) By initialing below, you hereby acknowledge that you were informed and
understand that you had at least 21 days within which to consider this letter
agreement, have consulted with an attorney regarding this letter agreement or
have chosen not to consult with an attorney, and have considered carefully every
provision of this letter agreement, and that after having engaged those actions,
prefer to and have requested that you enter into this letter agreement prior to
the expiration of the 21 day period discussed above.
__________ ___________
Initial Date
8. You agree that you will not disclose or deliver to anyone, including
employees of the Company, except as authorized by the Company, or use in any way
other than in the Company's business, any information or material relating to
the business of the Company (including information or materials received by the
Company or its subsidiaries from others) and intended by the Company to be kept
in confidence by its recipients. As used in this letter agreement, the term
"information" includes all information concerning the
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technical, administrative, management, financial or marketing activities (such
as design, manufacturing and procurement specifications, procedures,
manufacturing processes, information processing processes, or programs,
marketing plans and strategies, plans for future development, customer and
employee names or other data and cost and financial data) and the term
"materials" includes all physical embodiments of information (such as drawings,
specification sheets, recording media for machine information processing
systems, documentation of all types, contracts, reports, customer lists,
employee lists, manuals, quotations, proposals, correspondence and samples). You
shall promptly return all materials in your possession or control. You further
agree that you will not disclose to any third party except your immediate family
members and legal and tax advisors, the existence or terms and conditions of
this letter agreement. You may also disclose the existence and general terms of
this Agreement to prospective employers and professional recruiters who agree to
treat it in confidence and to not further disclose it to any third party. In
consideration of the severance payment described in paragraph 3, for a period of
twelve (12) months from the Resignation Date, you further agree: a) not to,
directly or indirectly, on your own behalf or that of another, solicit or induce
any employee of the Company to terminate his/her employment relationship with
the Company or to enter into an employment relationship with another; and, b)
not to, directly or indirectly, be employed by or provide services for any
person or entity in the State of Georgia which markets, sells or services
application software products which are competitive to those marketed by the
Company, except as otherwise expressly agreed to in advance by the Company.
9. You acknowledge that irreparable injury might result to the business and
property of the Company in the event of your breach of any of the terms
contained in this letter agreement. You further understand and agree that, in
the event of such breach or the substantial likelihood of such breach, monetary
damages shall be difficult to calculate and that the Company shall be entitled
to receive injunctive relief in order to protect fully its interest and
property.
10. The invalidity or unenforceability of any provision hereof or the invalidity
or unenforceability of any provision hereof as applied to a particular
occurrence or circumstance shall not affect the validity or enforceability of
any other provision hereof or any other application of any such provision. If
one or more of the provisions contained herein shall for any reason be held to
be excessively broad as to scope, activity, or subject matter so as to be
unenforceable at law, such provision(s) shall be construed and reformed by the
appropriate judicial body by limiting or reducing it (or them) so as to be
enforceable to the maximum extent compatible with the applicable law as it shall
then appear.
11. This agreement shall be governed by, and construed in accordance with, the
laws of Georgia, without giving effect to the principles of conflicts of law
thereof.
12. This letter agreement and the Employee Agreement represents the complete and
exclusive agreement and understanding relating to the termination of your
employment
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and supersedes any and all prior agreements or understandings, oral or written,
between the Company and you with respect to the subject matter.
13. You represent that you have read this letter agreement, fully understand the
terms and conditions and are voluntarily executing this letter agreement. In
entering this letter agreement, you do not rely on any representation, promise
or inducement made by the Company, with the exception of the consideration
described in this letter agreement.
14. This letter agreement may be executed in any number of counterparts, each of
which shall constitute an original, but which taken together shall constitute
one instrument.
15. You may revoke this letter agreement for a period of seven days following
its execution, and this letter agreement shall not be effective or enforceable
until this revocation period has expired.
Sincerely,
MAPICS, Inc.
By: _________________________
Xxxxxxx X. Xxxx
President and CEO
AGREED TO AND ACCEPTED:
By: _________________________
Xxxxxxx X. Xxxxxxx
Date: _______________________
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Amendment to Resignation Letter Agreement
Dated June 29, 2001 Between
Xxxxxxx X. Xxxxxxx and MAPICS, Inc.
(the "Agreement")
For one dollar and other good and valuable consideration, the receipt
and sufficiency of which is hereby recognized, MAPICS (the "Company") and
Xxxxxxx X. Xxxxxxx hereby agree to amend the Agreement as follows:
1. Paragraph 3 of the Agreement is hereby deleted and replaced as follows:
"3. You will be paid a gross severance payment of $152,500, payable in two
installments as follows: a) $147,500 will be paid within 10 days of the
Resignation Date and b) $5,000 will be paid on January 15, 2002. This second
installment payment shall have not in any way be deemed to effect the
Resignation Date or the date of forfeiture of any stock options, restricted
stock or other benefits as expressed elsewhere in this Agreement."
Except as expressly modified hereby, all terms and conditions of the Agreement
shall remain in full force and effect. The parties have caused this amendment to
be executed as of the effective date of the Agreement.
__________________________
Xxxxxxx X. Xxxxxxx
__________________________
MAPICS, Inc.
