Exhibit 10.1
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February 26, 1997
AGREEMENT AND RELEASE
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Mr. Xxxxxx Xxxxxx (hereinafter referred to as "you") has been informed that your
employment with Marcam Corporation (hereinafter referred to as "Marcam" or the
"Company") will end. It is hereby agreed by and between Marcam and you for good
and sufficient consideration more fully described below, that:
1. Employment Status. Unless new employment is obtained sooner, your employment
with the Company shall terminate on August 31, 1997 ("Termination Date"). Until
that time, you will serve as Vice President, Business Development, reporting to
Xxxx Xxxxxxx. Effective as of the date of this Agreement, you are no longer an
officer of the Company. As of the Termination Date, your salary shall cease and
any entitlement you have or might have under any Company-provided benefit
programs or any oral or written agreement shall terminate, except as required by
federal or state law or otherwise described below.
2. Consideration.
(a) Salary Continuation. The Company shall continue to pay you a total
of $7,692.30 bi-weekly through the Termination Date. The bi-weekly payments will
be made in accordance with the Company's normal payroll practices. All payments
are subject to applicable (if any) federal, state, and local withholding,
payroll and other taxes.
(b) Voice-mail, E-mail and Equipment. You will continue to have access
to Voice-mail, E-mail and the use of your computer through the Termination Date.
An office will be provided on-site at Marcam equipped with a printer and
facsimile machine.
(c) Outplacement Services. If you wish, Marcam will arrange for
Outplacement Services with a consulting company to be decided, for a period of
up to three months beginning at your discretion. If interested, for more
information on these Outplacement Services, please contact Xxxxx Xxxxxxx.
3. Other Benefits.
(a) Health Insurance. The Termination Date shall be treated as a
"qualifying event" under the Consolidated Budget Reconciliation Act of 1985
("COBRA"). You will receive COBRA information under separate cover at the time
of the Termination Date.
(b) Incentive Stock Option Program. As a participant in the Incentive
Stock Option Program, our records indicate that you will have available vested
but unexercised options to purchase 40,000 shares of Marcam Common Stock. The
following table reflects those vested stock options available to you as of the
Termination Date.
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Number of Vested Exercise Price Per
Grant Date Shares Share
2/29/96 40,000 $12.875
Pursuant to the terms and conditions of the Stock Plans under which your stock
options have been granted, you must exercise all vested incentive stock options
within ninety (90) days from the Termination Date, after which all such options
expire. All other incentive stock options not yet exercisable will be forfeited
in accordance with their terms.
For further information regarding the incentive stock option program, please
contact Stock Plan, Inc. at (000) 000-0000.
4. Release. In exchange for receiving the monies and other benefits described in
this Agreement, and your continued employment from today through the Termination
Date, you agree and acknowledge that Marcam, its employees, agents,
subsidiaries, affiliates, successors and assigns, have fully and completely
satisfied any obligation to you. By receiving these monies and other benefits,
you hereby release Marcam, its employees, directors, agents, subsidiaries,
affiliates, successors and assigns from any claims arising out of your
employment with Marcam or the termination of that employment.
This release is intended to be all encompassing and to act as a full and total
release of any claims that you may have or have had against Marcam, its
successors, assigns, directors, shareholders, officers, employees and/or agents,
both individually and in their official capacity with Marcam, including, but not
limited to, any federal or state law or regulation dealing with either
employment or employment discrimination such as those laws or regulations
concerning discrimination on the basis of age, race, color, religion, creed,
sex, sexual orientation, national origin, ancestry, marital status, physical or
mental disability, or veteran status or any military service or application for
military service; any contract, whether oral or written, expressed or implied;
or common law.
5. Settlement of Amounts Due Employee. The amounts set forth above in Section 2,
together with any amounts previously provided to you by Marcam, shall be
complete and unconditional payment, settlement, satisfaction and accord with
respect to all obligations and liabilities of Marcam and any of its affiliated
companies (including their respective successors, assigns, shareholders,
officers, directors, employees, and/or agents) to you, and all claims, causes of
action and damages against Marcam and/or any such other parties regarding your
employment with and termination from employment with Marcam, including, without
limitation, all claims for back wages, salary, draws, commissions, bonuses,
vacation pay, expenses, compensation, severance pay, attorney's fees,
compensatory damages, exemplary damages, or other costs or sums.
6. Marcam Files, Documents, and other Property. No later than the Termination
Date, you will return to Marcam all Marcam property in your possession
including, without limitation, credit cards, office keys, files, documents,
manuals, and equipment. In addition, and if applicable, any outstanding travel
advances, unpaid loans, and monies due on corporate credit cards, must be paid
prior to the Termination Date. It is agreed that if you fail to return any such
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Marcam property that Marcam may offset any outstanding obligations against any
of the monies to be provided to you under paragraph 2.
7. Confidential and Proprietary Information. The terms and conditions of the
Marcam Corporation Employee Agreement on Ideas, Inventions, Confidential
Information and Non-Competition (the "Employee Agreement") which you signed upon
the commencement of employment, a copy of which is attached to this Agreement,
shall survive the termination of your employment.
8. Non-Disparagement. You agree not to disparage the business, operations,
marketing strategies, pricing policies, affairs and financial condition of
Marcam and/or its successors, assigns, directors, shareholders, officers,
employees and/or agents. Similarly, Marcam and/or its successors, assigns,
directors, shareholders, officers, employees and/or agents agree not to
disparage your business reputation.
9. Termination of Agreement. Marcam will have no further obligation under the
terms of this Agreement if you commence other employment on or before the
Termination Date or if you violate any of the terms of the Agreement.
Specifically, in the event you commence employment with a third party prior to
the Termination Date specified herein, your last date of employment with Marcam
will be the date on which you commence such new employment.
10. Representations.
(a) Except for the Employee Agreement, the foregoing represents the
complete and exclusive agreement and understanding relating to the termination
of your employment and supersedes any and all prior agreement of understanding,
written or oral, between Marcam and you with respect to the subject matter
herein.
(b) You represent that you have read the foregoing Agreement, fully
understand the terms and conditions of such Agreement, and is voluntarily
executing the same. In entering this Agreement, you do not rely on any
representation, promise or inducement made by Marcam, with the exception of the
consideration described in this document.
(c) This Agreement may be executed in any number of counterparts, each
of which shall constitute an original, but which taken together shall constitute
one instrument.
Executed this 26th day of February, 1997.
BY: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
BY: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
Marcam Corporation
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