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EXHIBIT 10.15
EMPLOYMENT AGREEMENT
This Employment Agreement ("Employment Agreement") dated this 1st day of August,
2000 but effective as of May 1, 2000 (the "Effective Date") is made by and
between X.X. XXXXXXX & COMPANY, a Delaware corporation ("X.X. Xxxxxxx") and
XXXXX X. XXXXXX ("Xxxxxx").
RECITALS
A. J.D. Xxxxxxx is engaged in the business of developing, marketing and
supporting enterprise software and supply chain computing solutions.
X. Xxxxxx is currently employed by X.X. Xxxxxxx in the position of Executive
Vice President and Chief Operating Officer and X.X. Xxxxxxx wishes to
retain Xxxxxx in the employment of X.X. Xxxxxxx for a period of at least
two (2) years from the Effective Date of this Employment Agreement.
It is agreed between X.X. Xxxxxxx and Xxxxxx as follows:
1. EMPLOYMENT. X.X. Xxxxxxx hereby agrees to employ Xxxxxx to perform the
duties and responsibilities set forth in the job description attached as
Attachment A to this Employment Agreement together with such other duties
and responsibilities as shall be assigned to him from time to time by X.X.
Xxxxxxx senior management which shall be consistent with Xxxxxx'x job
description. Xxxxxx accepts such employment with X.X. Xxxxxxx upon the
terms and conditions of this Employment Agreement and agrees to perform the
duties and responsibilities described in this Section in accordance with
all policies, procedures, rules and regulations adopted by X.X. Xxxxxxx
Board of Directors or senior management. During the term of his employment,
Xxxxxx agrees to devote his full time and attention, skills and efforts to
the performance of his duties and responsibilities on behalf of X.X.
Xxxxxxx and to maintain and promote the business of X.X. Xxxxxxx.
2. TERM. Subject to the terms of Section 7, Termination, Xxxxxx shall be
employed by X.X. Xxxxxxx for a period of not less than two (2) years
commencing on the Effective Date (the "Initial Employment Term").
3. COMPENSATION.
3.1 ANNUAL BASE SALARY AND BONUS. Xxxxxx'x compensation from the Effective
Date until April 1, 2001 shall be set at an annual base salary of
$351,120 with an annual bonus incentive of up to seventy-five percent
(75%) of such base salary based upon the achievement of those certain
objectives as determined and approved by the Compensation Committee of
the Board of Directors of X.X. Xxxxxxx. Compensation for subsequent
periods shall be established by a written addendum to this Employment
Agreement as approved by the Compensation Committee of X.X. Xxxxxxx
Board of Directors but in no event will be less than the annual base
salary of $351,120 and annual bonus
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incentive of up to seventy-five percent (75%) of the new base salary
based upon the achievement of those certain objectives as determined
and approved by the Compensation Committee of the Board of Directors
of X.X. Xxxxxxx.
3.2 STAY BONUS. Upon Xxxxxx remaining in the employment of X.X. Xxxxxxx
for the full two (2) year period of the Initial Employment Term and
otherwise complying with the terms hereof or Xxxxxx dying during the
Initial Employment Term, Xxxxxx will receive a stay bonus in an amount
equal to one hundred percent (100%) of his on target earnings (annual
base salary plus bonus as determined in accordance with Section 3.1,
Annual Base Salary and Bonus, hereof) for the second year of the
Initial Employment Term. Such stay bonus will be in addition to the
annual compensation received for the second year of this Employment
Agreement.
3.3 2001 FIRST HALF BONUS. In addition to the stay bonus described in
Section 3.2 above, upon Xxxxxx remaining in the employment of X.X.
Xxxxxxx for the full two (2) year period of the Initial Employment
Term and otherwise complying with the terms hereof, Xxxxxx will
receive an amount equal to one hundred percent (100%) of his first
half fiscal year 2001 bonus determined in accordance with the X.X.
Xxxxxxx Executive Bonus Plan for fiscal year 2001.
3.4 ADDITIONAL BONUS PAYMENT. Should Xxxxxx be terminated by X.X. Xxxxxxx
for any reason other than for Cause, Performance or disability at any
time during the Initial Employment Term or should Xxxxxx resign from
employment with X.X. Xxxxxxx any time after the Initial Employment
Period, X.X. Xxxxxxx will pay to Xxxxxx an additional bonus in the
amount of $60,000. For purposes of this Employment Agreement, "Cause"
and "Performance" shall be as defined in Section 7 of this Employment
Agreement.
4. STOCK OPTION GRANT. Xxxxxx will be granted 225,000 stock options to
purchase the common stock of X.X. Xxxxxxx pursuant to the terms of X.X.
Xxxxxxx 1997 Equity Incentive Plan, or its successor option plan, if any,
at the option of price of $13.0625 per option (the "Stock Option Grant").
The Stock Option Grant shall vest and become exercisable as to one hundred
percent (100%) of the shares subject to the option on (i) the last day of
the two-year period of this Employment Agreement, or (ii) should Xxxxxx be
terminated by X.X. Xxxxxxx for any reason other than for Cause, Performance
or disability at any time during the Initial Employment Term.
Notwithstanding the foregoing sentence, however, should Xxxxxx be
terminated for Performance or disability, the Stock Option Grant shall vest
25% of the grant on May 1, 2001 and 1/16 per month thereafter; any unvested
options will terminate effective on the date of such termination. Should
Xxxxxx resign from employment with X.X. Xxxxxxx or be terminated by X.X.
Xxxxxxx for Cause at any time during the Initial Employment Term, the Stock
Option Grant will be cancelled effective upon the date of resignation or
termination for Cause and Xxxxxx will have no right to exercise any portion
of the Stock Option Grant. Xxxxxx shall have a period of six (6) months
commencing upon termination of employment to exercise his vested stock
option under this Section.
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5. EMPLOYEE BENEFITS. Xxxxxx will be eligible to participate in all employee
benefits provided by X.X. Xxxxxxx to employees, based upon his position and
tenure, including the following:
5.1. HEALTH AND LIFE INSURANCE. X.X. Xxxxxxx agrees to provide to Xxxxxx
(and his spouse and dependents) coverage under X.X. Xxxxxxx group
health and life insurance plan, the coverage, terms and benefits of
which shall be determined, from time to time, in the sole discretion
of X.X. Xxxxxxx Board of Directors.
5.2. PAID TIME OFF. Xxxxxx shall be entitled to the maximum paid time off
provided for in X.X. Xxxxxxx paid time off policy in effect from time
to time.
5.3. QUALIFIED/NON-QUALIFIED PLAN(s). Xxxxxx shall be entitled to
participate in any qualified or non-qualified plan(s) adopted by X.X.
Xxxxxxx Board of Directors and Xxxxxx fulfills all eligibility
requirements under the terms and conditions of such plan. The X.X.
Xxxxxxx Board of Directors reserves the sole right and discretion to
adopt or terminate a plan and to establish all eligibility
requirements and other terms and conditions of such plan.
6. SEVERANCE PAY. If Xxxxxx is terminated by X.X. Xxxxxxx for Performance or
disability, Xxxxxx shall be entitled to receive severance pay in accordance
with the standard X.X. Xxxxxxx xxxxxxxxx pay policy for an employee of
Xxxxxx'x position and time of service in the amount of one year's then
current base salary. If Xxxxxx is terminated by X.X. Xxxxxxx for other than
Cause, Performance or disability, Xxxxxx shall be entitled to receive, in
addition to all other compensation and benefits described herein to the
extent not already paid, severance pay in accordance with the standard X.X.
Xxxxxxx xxxxxxxxx pay policy for an employee of Xxxxxx'x position and time
of service of one year's then current on target earning (annual base salary
plus bonus). This severance payment would be made in a one-time, lump sum
payment subject to appropriate tax withholding. Notwithstanding the
foregoing, however, no severance allowance shall be paid if termination is
for Cause or if Xxxxxx voluntarily terminates employment within the Initial
Employment Term.
6.1. COBRA MEDICAL INSURANCE. If Xxxxxx'x employment is terminated without
Cause, in addition to the severance payment in accordance with Section
6, Xxxxxx and his dependents will be eligible for medical insurance
(for himself and his spouse and dependant(s)) under COBRA commencing
on the date of his termination for a period of one (1) year in
accordance with the standard X.X. Xxxxxxx policy at X.X. Xxxxxxx sole
expense. Xxxxxx and his dependents will be eligible to continue
coverage at his cost beyond such date if he should so elect as
provided by applicable law.
6.2 MANAGEMENT CHANGE IN CONTROL PLAN. The X.X. Xxxxxxx & Company
Management Change in Control Plan Xxxxxx accepted on September 8, 1999
(the "Plan") will remain in full force and effect for the term of this
Employment Agreement and will continue thereafter only so long as
Xxxxxx remains an employee of X.X. Xxxxxxx. Therefore, the X.X.
Xxxxxxx Board of Directors agrees that it waives all rights under the
Plan to remove Xxxxxx as a participant in the Plan, terminate the Plan
with respect to Xxxxxx, amend or
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otherwise modify the Plan in any manner that would be detrimental to
Xxxxxx or serve to reduce the Severance Benefits payable to Xxxxxx
under the Plan.
6.3 INDEMNIFICATION AGREEMENT. The parties executed the X.X. Xxxxxxx &
Company Indemnification Agreement on August 19, 1997 (the
"Indemnification Agreement"). The parties recognize that the scope of
the indemnification offered to Xxxxxx under the Indemnification
Agreement is insufficient. The parties, therefore, agree to work in
good faith together to modify the Indemnification Agreement to expand
the definition of a "Covered Event", provide for payment of all
"Expenses" on an as occurred basis by X.X. Xxxxxxx, allow Xxxxxx to
retain his own counsel at the expense of X.X. Xxxxxxx, and 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 Exhibit B to this Agreement. The
parties agree to complete the agreed to modifications on or before
October 1, 2000. In the event the parties cannot agree by such date as
to the required changes to the Indemnification Agreement, then the
parties shall submit the dispute to a mutually acceptable mediation in
the City and County of Denver, Colorado.
6.3 CONFIDENTIALITY AND NON-SOLICITATION. Xxxxxx acknowledges that he has
signed the X.X. Xxxxxxx Employee Nondisclosure Agreement effective
June 1, 1994 and confirms that he will continue to abide by the
obligations contained therein. However, any violation of the
Nondisclosure Agreement by Xxxxxx shall not affect Xxxxxx'x rights or
X.X. Xxxxxxx obligations under this Agreement. X.X. Xxxxxxx agrees not
to withhold or otherwise set off any sums or benefits due to Xxxxxx
under this Agreement in the event of a breach of the Nondisclosure
Agreement by Xxxxxx.
7. TERMINATION. X.X. Xxxxxxx shall have the right to terminate this Employment
Agreement prior to its expiration only for "Cause" or "Performance" as set
forth below:
7.1. TERMINATION FOR CAUSE. For the purposes of this Employment Agreement,
"Cause" means the following:
(a) the willful and material breach of duty by Xxxxxx in the course
of his employment;
(b) the habitual neglect by Xxxxxx of his employment duties;
(c) the continued incapacity, whether physical or mental, of Xxxxxx
to perform his duties, unless waived by X.X. Xxxxxxx; or
(d) Xxxxxx'x gross misconduct resulting in material damage to X.X.
Xxxxxxx.
7.2. TERMINATION FOR PERFORMANCE. For the purposes of this Employment
Agreement, termination for "Performance" shall be as determined by the
X.X. Xxxxxxx Board of Directors in the good faith exercise of their
business judgment.
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7.3 DISPUTE RESOLUTION. Should Xxxxxx dispute whether X.X. Xxxxxxx has
been reasonable in interpreting "Cause," or "Performance" then in such
event Xxxxxx may submit the matter to arbitration. The arbitration
proceeding shall be conducted under the applicable rules of the
American Arbitration Association and shall be located in Denver,
Colorado. If such organization ceases to exist, the arbitration shall
be conducted by its successor, or by a similar arbitration
organization, at the time a demand for arbitration is made. The
decision of the arbitrator shall be final and binding on both parties.
Each party shall be responsible for its or his own expenses for the
arbitrator's fee, attorney's fees, expert testimony, and for other
expenses of presenting its or his case. Other arbitration costs,
including fees for records or transcripts, shall be borne equally by
the parties.
7.4 COMPENSATION EARNED PRIOR TO TERMINATION. In the event that X.X.
Xxxxxxx terminates Xxxxxx for Cause during the Initial Employment Term
or any renewal periods, Xxxxxx shall be entitled to the compensation
earned prior to the date of termination as provided for in this
Employment Agreement computed pro rata up to and including that date
including any prorata bonuses accrued or payable for the fiscal year
in which Xxxxxx is so terminated and all benefits set forth in Article
5 of this Agreement. Xxxxxx shall be entitled to no further
compensation as of the date of termination.
7.5 RENEWAL. This Employment Agreement shall be deemed automatically
renewed for successive one (1) year periods without any further act of
the X.X. Xxxxxxx, unless, not later than thirty (30) days prior to the
end of any period, either party provides the other with written notice
of intent not to renew; notwithstanding the foregoing, however,
Section 4, Stock Option Grant of this Employment Agreement shall not
apply to any such renewal periods after the initial two (2) year
period.
7.6 NON-RENEWAL. Any non-renewal of this Employment Agreement shall be
treated as a termination of Xxxxxx without Cause and be governed by
the provisions of this Employment Agreement applicable to terminations
without Cause, including, but not limited, to the payments and
benefits due to Xxxxxx under Sections 3, 5 and 6 of this Employment
Agreement.
8. WAIVER AND RELEASE. Xxxxxx acknowledges and agrees that he is aware of his
legal rights concerning his employment with X.X. Xxxxxxx. Xxxxxx (for
himself and his heirs, legal representatives and assigns) hereby waives,
and generally releases X.X. Xxxxxxx and all affiliates, officers,
directors, employees and agents of X.X. Xxxxxxx from, and agrees not to xxx
X.X. Xxxxxxx for, any claims or causes of action, whether known or unknown,
which Xxxxxx has or may have against X.X. Xxxxxxx. This includes, but is
not limited to, any claims or causes of action arising under any federal,
state or local laws dealing with employment discrimination (including, but
not limited to, Title VII of the Civil Rights Act of 1964, as amended; the
Age Discrimination in Employment Act of 1967, as amended; the Older Workers
Benefit Protection Act; the American with Disabilities Act of 1990; the
National Labor Relations Act, as amended; the Family Medical Leave Act; and
any applicable state or local discrimination provisions) and any claims or
causes of action for wrongful discharge relating to Xxxxxx'x employment and
termination of employment other than
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for termination for Cause or for Performance which, if any dispute arises
between the parties, will be subject to the terms of Section 7.3, Dispute
Resolution, above.
9. COOPERATION. The parties hereto agree that, at all times during Xxxxxx'x
employment, and following termination of his employment, each party shall
avoid making any remarks about the other party, which for X.X. Xxxxxxx
shall include its affiliates, officers, directors, employees and agents
that would tend to disparage or injure the reputation of the other party.
10. MISCELLANEOUS.
10.1. ASSIGNMENT. Neither X.X. Xxxxxxx nor Xxxxxx may assign this
Employment Agreement or any of their respective obligations
hereunder.
10.2. NOTICES. Any notice or other communication provided for or required
by this Employment Agreement shall be given within (i) three (3)
business days after mailing by registered or certified mail, postage
prepaid, return receipt requested, (ii) one (1) business day after
deposit with a recognized overnight courier (such as Federal Express)
or (iii) upon delivery if sent by facsimile transmission or in person
in each case to the following address:
TO X.X. XXXXXXX:
X.X. Xxxxxxx & Company
Xxx Xxxxxxxxxx Xxx
Xxxxxx, Xxxxxxxx 00000
Attn: Vice President, General Counsel
TO XXXXXX:
Xxxxx X. Xxxxxx
XXXX XXXXX XXXXX XX
XXXXXXXXX, CO XXXXX
or at such other address or addresses as the X.X. Xxxxxxx or Xxxxxx
may designate.
10.3. GOVERNING LAW. This Employment Agreement and each term thereof shall
be subject to and governed by the laws of the State of Colorado.
10.4. SEVERABILITY. If any portion of this Employment Agreement shall be,
for any reason, invalid or unenforceable, the remaining portion or
portions shall nevertheless be valid, enforceable and effective
unless to do so would clearly violate the present legal and valid
intention of the parties hereto.
10.5. ENTIRE AGREEMENT. This Employment Agreement constitutes the entire
agreement between the parties and contains all of the agreements
between the parties with respect to the subject matter hereof. This
Employment Agreement supersedes any and all other agreements, either
oral or written, between the parties hereto with respect to the
subject matter hereof.
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10.6. AMENDMENT. No change or modification of this Employment Agreement
shall be valid unless the same shall be in writing and signed by
Xxxxxx and a duly authorized officer of X.X. Xxxxxxx. No waiver of
any provision of this Employment Agreement shall be valid unless in
writing and signed by the party or party to be charged.
10.7 BENEFIT. This Employment Agreement shall be binding upon and inure to
the benefit of X.X. Xxxxxxx and Xxxxxx and their respective
successors, heirs, legal representatives and permitted assigns. This
Employment Agreement is hereby executed as of the date set forth
above.
X.X. XXXXXXX & COMPANY XXXXXX
By: /s/ C. Xxxxxx XxXxxxx By: /s/ Xxxxx X. Xxxxxx
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(Authorized Signature) Xxxxx X. Xxxxxx
C. Xxxxxx XxXxxxx
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Chairman and CEO
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SCHEDULE OF ATTACHMENTS
ATTACHMENT A - JOB DESCRIPTION
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SOFTWARE INDUSTRY: JOB DESCRIPTIONS
Chief Operating Officer (0010) DIVISION: Executive
REPORTS TO (TITLE): Chief Executive Officer (005) DEPARTMENT: N/A
UPDATED: 12/31/00 This job is [ ] EXEMPT
[ ] NON-EXEMPT
BASIC PURPOSE: Directs and coordinates corporate support activities to plan,
develop and implement policies, programs and practices that support the
operating functions of the company. Evaluates progress of departments in meeting
their performance goals. Provides counsel to other executives and managers
through specialized service departments, including finance, human resources,
legal, business development, and administrative services. May also be
responsible for internal MIS/data processing function. Member of senior
management of company; may also be CFO.
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Percent (%)
of Monthly
Working
ESSENTIAL DUTIES AND RESPONSIBILITIES: Time
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1. Directs and administers the line operating units of the business, usually involving product development, 40%
marketing, customer and product support, and field operations:
o Develops and maintains a sound plan of corporate organization.
o Prescribes limits of authority among subordinates regarding policies, expenditures and personnel actions.
o Analyzes operating results of business and its units versus approved plans and objectives.
o Takes adequate steps to correct shortfalls in performance.
o Resolves conflicts between operating units and line/staff departments.
2. Assists CEO in development of corporate strategies and strategic objectives and the operating policies and 20%
procedures to assure attainment of these corporate objectives:
o Insures that plans and policies are understood and administered by the management team.
o Uses strategic objectives as basis for establishing performance management and incentive programs for
management team.
3. Directs acquisition, retention and continuing development of key human resources throughout operating units: 20%
o Assures establishment of recruiting, training and development programs, performance management and
reward systems to attain the highest level of productivity for long-range success; systems to include
provisions to meet all government laws and regulations.
o Establishes and maintains effective systems of communications with employees.
4. Represents company in relations with major customers, suppliers, government agencies, etc. 10%
5. Serves as key member of executive team, usually requiring membership on the board. Assumes other special 10%
projects/assignments as directed by the CEO. May act for CEO in his/her absence.
ADDITIONAL DUTIES AND RESPONSIBILITIES:
(The above statements describe the general nature and level of work being performed in this job. They are not 100%
intended to be an exhaustive list of all duties, and indeed additional responsibilities may be assigned, as required,
by management.)
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ESSENTIAL KNOWLEDGE & SKILLS:
Education/Training/Work Experience:
Bachelor's degree in business, or accounting/finance; advanced degree in
business, or its equivalent, or CPA helpful. Minimum 15+ years in finance
and/or administrative functions, with 10 to 12+ years management experience.
Specialized Knowledge & Skills:
Excellent planning and organizing skills with ability to effectively direct
the company's support divisions to assist operating divisions attain
corporate objectives. In-depth knowledge of financial legal principles and
practices. Excellent time management, communications, decision making,
presentation, and organization skills.
Type Equipment Used:
PC and various software languages.
Work Environment/Physical Demands:
General office environment. High levels of stress often occur. No special
physical demands required.
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3-6 (C) Xxxxxxxxx and Associates, Inc. 1996
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Chief Executive Officer (0005), Continued
ESSENTIAL KNOWLEDGE & SKILLS:
Education/Training/Work Experience
Bachelor's degree in business, engineering, sales or marketing; advanced
degree in business or its equivalent is helpful. Minimum 20+ years in high
technology business functions, including 15+ years management experience.
Specialized Knowledge & Skills:
Excellent planning and organizing skills with ability to effectively direct
the company's overall operations in order to maximize revenues and profits.
In-depth knowledge of financial and legal principles and practices. Able to
deal effectively with high level executives outside the company, government
and financial officials, etc. Excellent time management, communications,
decision making, presentation and organizations skills.
Type Equipment Used:
PC and various software languages.
Work Environment/Physical Demands:
General office environment. High levels of stress often occur, including
those associated with frequent travel. No other special physical demands,
required.
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(C) Xxxxxxxxx and Associates, Inc. 1996 3-5
