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EXHIBIT 10.14
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Xx. Xxxxx X. Xxxxxxx
July 16, 1999
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July 16, 1999
PERSONAL & CONFIDENTIAL
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Xx. Xxxxx X. Xxxxxxx
00 Xxxxxxxx Xxxx
Xxxx Xxxxxx, XX 00000
Dear Xxxx:
This letter agreement (the "Agreement") confirms the agreement that we
have reached regarding your transition and severance arrangements in connection
with the termination of your employment with Servicesoft Technologies, Inc. (the
"Company"). The purpose of this Agreement is to establish an amicable
arrangement for ending your employment relationship, including releasing the
Company from claims that you may have against it or any related companies,
releasing you from claims that the Company may have against you, and permitting
you to receive separation pay, continuation of vesting of stock options and
other benefits.
You are entering into this Agreement voluntarily. You understand that
you are giving up your right to bring all possible legal claims against the
Company, including claims relating to your employment and termination. If you
were not to enter into this Agreement and were to bring any claims against the
Company, the Company would dispute the merits of those claims and would contend
that it acted lawfully and for good business reasons with respect to you.
You understand that by entering into this Agreement, the Company is not
admitting in any way that it violated any legal obligation that it owed to you
or to any other person.
With those understandings and in exchange for the promises of you and
the Company set forth below, you and the Company agree as follows:
1. EMPLOYMENT ARRANGEMENTS
You and the Company acknowledge and agree that in lieu of the severance
benefits and other terms to which you may have been entitled under the
employment offer letter dated May 30, 1995, as amended by the letter agreements
dated February 3, 1998 and February 1, 1999 (collectively, "Employment
Agreement") by and between you and the Company, the Employment Agreement shall
be deemed terminated in its entirety and superseded by this Agreement.
Furthermore, any references to the Employment
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July 16, 1999
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Agreement in this Agreement are made for definitional purposes only, and not
with the intention of incorporating any other part of the Employment Agreement
in this Agreement.
By entering into this Agreement, you acknowledge that your employment
with the Company as President shall continue until the earlier of (a) the hiring
of a new Chief Executive Officer by the Board of Directors of the Company or (b)
December 31, 1999 (the "Transition Period"). In that capacity, you shall report
to Xxxx Xxxxxxxxx, the current Chief Executive Officer, and devote substantially
all of your working time and attention to the Company's business and shall
diligently and in good faith promote the interests of the Company as directed by
the Chief Executive Officer and the Board of Directors. You further acknowledge
that your employment with the Company may be terminated at any time prior to the
end of the Transition Period upon written notice from the Chief Executive
Officer and shall, in any event, terminate without any further action or notice
upon the end of the Transition Period.
2. PAY
(a) SALARY
The Company shall pay your current salary to you in twice monthly
installments of $8,333.33 through the date your employment with the Company is
terminated as provided in Section 1 (the "Termination Date"). The Company shall
also pay you for any accrued but unused vacation pay as of the Termination Date.
(b) SEVERANCE PAY
The Company shall continue your current annual salary of $200,000 for a
period of twelve (12) months commencing on the Termination Date (the "Severance
Period"), payable on the Company's regular bi-monthly payroll dates. At your
election you may accelerate the payment of any or all of these payments at any
time after the Termination Date by notifying the Company of your intent to do
so. You may elect to accelerate on no more than two occasions and on each
occasion you may accelerate up to and including all remaining payments into a
single payment.
(c) BONUS
The parties hereby acknowledge and agree that the Company shall pay you
an annual performance bonus for calendar year 1999 as provided in the current
senior management bonus plan approved by the Company's Board of Directors in
April 1999, which such bonus shall be paid after the end of the calendar year
and prorated through the Termination Date.
3. BENEFITS
By signing this Agreement, you are exercising your right to continue
receiving group medical and dental insurance benefits to the extent authorized
by and consistent with
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29 U.S.C. ss. 1161 ET SEQ. (commonly known as "COBRA") from and after the
Termination Date. Your rights and obligations under COBRA are generally
described in the Company's notice to you concerning COBRA rights and
obligations. Notwithstanding the terms of the COBRA notice, during the Severance
Period the Company will continue to pay on your behalf all medical and dental
insurance premiums, provided that you otherwise remain eligible for COBRA
coverage.
4. STOCK OPTIONS
All of your currently unvested stock options will vest in full on the
last day of the Transition Period so long as your employment with the Company
has not been terminated prior to that date for cause including substantial and
continued failure to discharge your duties which such failure continues after
written notice and an opportunity to cure. If your employment with the Company
has not been terminated for cause prior to the end of the Transition Period, the
Company agrees to loan to you, upon your written request given on or within ten
(10) days after the Termination Date, a principal amount equal to the aggregate
exercise price paid upon exercise of your stock options. Such loan will be made
available at the time you exercise your options, will be secured by the shares
issued in exchange for the exercised options and bear interest at the per annum
rate of 6%. This loan will be due and payable upon the earlier of (i) the third
anniversary of issuance, (ii) Three hundred and sixty-five (365) days after
completion of the Company's initial public offering and (iii) in any event, at
the time you sell or otherwise dispose of the secured shares.
5. BOARD OF DIRECTORS; OTHER POSITIONS
You hereby agree to resign as a Director on the Company's Board of
Directors and as a director and officer of any of the Company's subsidiaries
effective as of the Termination Date or any earlier date requested in writing by
the Board of Directors. The parties agree that such resignation shall be
effective without any further notice or action on your part. In the interim,
your continuation as a Director of the Company shall be subject to your
performing the duties of that position and your position as President with
reasonable diligence and in a good faith effort to serve the Company's
interests.
This Agreement shall not be construed to limit your ability to enter
into any mutually acceptable agreement with the Company whereby your services
are continued as an employee, consultant or Director.
6. GENERAL RELEASES OF CLAIMS
(a) GENERAL RELEASE OF CLAIMS BY YOU
For good and valuable consideration, the sufficiency of which is hereby
acknowledged, you hereby irrevocably and unconditionally release, acquit and
forever discharge the Company, its predecessors, subsidiaries, successors,
affiliates, and assigns,
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and the directors, officers, employees, shareholders, members and
representatives of any of the foregoing, and all persons acting on behalf or
through any of the foregoing (any and all of whom or which are hereinafter
referred to as "Servicesoft"), from any and all charges, complaints, claims,
liabilities, obligations, promises, agreements, controversies, damages, actions,
causes of action, suits, rights, demands, costs, losses, debts and expenses
(including attorneys' fees and costs actually incurred), of any nature
whatsoever, known or unknown (collectively, "Claims"), that you now have, own,
or hold, or claim to have, own, or hold, or that you at any time had, owned, or
held, or claimed to have had, owned, or held against Servicesoft, including
claims relating to your subsequent termination of employment contemplated
hereunder. This general release of Claims includes, without implication of
limitation, the complete release of all Claims of breach of express or implied
contract; all Claims arising under the Employment Agreement; all Claims of
wrongful termination of employment whether in contract or tort; all Claims of
intentional, reckless, or negligent infliction of emotional distress; all Claims
of breach of any express or implied covenant of employment, including the
covenant of good faith and fair dealing; all Claims of interference with
contractual or advantageous relations, whether prospective or existing; all
Claims of deceit or misrepresentation; all Claims of discrimination under state
or federal law, including, without implication of limitation, Title VII of the
Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., as amended, the Age
Discrimination in Employment Act of 1967, 29 U.S.C. ss. 621 et seq., as amended,
and Chapter 151B of the Massachusetts General Laws; all Claims of defamation or
damage to reputation; all Claims for reinstatement; all Claims for punitive or
emotional distress damages; all Claims for wages, bonuses, severance, back or
front pay or other forms of compensation and all Claims for attorney's fees and
costs. This general release of Claims shall not be construed to include a
release of Claims that arise from the Company's obligations under this Agreement
or any rights of indemnification to which the Executive is entitled under the
Company's Certificate of Incorporation or By-Laws.
(b) GENERAL RELEASE OF CLAIMS BY THE COMPANY
For good and valuable consideration, the sufficiency of which is hereby
acknowledged, the Company hereby irrevocably and unconditionally releases,
acquits and forever discharges you from any and all Claims that the Company now
has, owns, or holds or claims to have, own, or hold or that the Company at any
time had, owned, or held, or claimed to have had, owned, or held against you as
a result of good faith acts or omissions undertaken in the best interests of the
Company. This general release of Claims includes, without implication of
limitation, a release of all Claims related to your performance of your
responsibilities as an employee of the Company.
7. NONCOMPETE AGREEMENT
Notwithstanding anything in this Agreement to the contrary, you shall
continue to be subject to the agreement between you and the Company (the
"Noncompete Agreement"). Without otherwise limiting the scope of the Noncompete
Agreement, you
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acknowledge and agree that you shall be subject to the following obligations
during the period from the date hereof through the first anniversary of the
Termination Date:
(a) You will not engage, directly or indirectly
(including as an owner, manager, stockholder, consultant, director, officer or
employee) in a self-employment business or work for any enterprise which
manufactures, assembles or markets products or services which compete with those
of the Company without the express written authorization of the Company. The
Company agrees that this post-termination restriction does not pertain to work
you may engage in that does not relate to products or services being developed
or marketed to maintenance and service organizations. Notwithstanding the
foregoing, the Company agrees that you may own stock of a corporation that
provides goods or services which are competitive with goods or services provided
(or proposed to be provided) by the Company if: (i) such stock is traded on a
regular basis on regular securities exchanges or in over-the-counter markets;
(ii) you promptly provide written notice to the Company of your ownership of
such stock; and (iii) the amount of such stock owned by you does not constitute
more than two percent (2%) of the outstanding stock of any such corporation.
(b) You shall not solicit, induce, attempt to hire, or
hire any employee of the Company (or any person who may have been employed by
the Company during any portion of the six (6) month period immediately preceding
the Termination Date), or assist in such hiring by any other person or business
entity or encourage any such employee to terminate his or her employment with
the Company.
(c) Induce or attempt to induce any of the Company's
customers to reduce or curtail their business with the Company or terminate
their relationship with the Company.
8. NONDISPARAGEMENT
The Company agrees not to make any statements that disparage you and
you agree not to make any statements that disparage the Company or any of its
products, services, employees, officers or directors. Notwithstanding the
foregoing, statements made in the course of sworn testimony in legal proceedings
or other statements required by law shall not be subject to this Section 8.
9. TAX DEDUCTIONS AND REPORTING
The Company shall reduce payments made to you pursuant to this
Agreement by deductions and withholdings that it reasonably determines to be
required for tax purposes and the Company shall make such tax-related reporting
that it reasonably determines to be required with respect to consideration
provided pursuant to this Agreement.
10. NOTICES, ACKNOWLEDGEMENTS AND OTHER TERMS
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You are advised to consult with an attorney before signing this
Agreement.
This Agreement is the entire agreement between you and the Company, and
all previous agreements, or promises between you and the Company are superseded,
null, and void, except your stock option agreements (as modified by this
Agreement), and the Noncompete Agreement.
You acknowledge that you have been given the opportunity, if you so
desired, to consider this Agreement for twenty-one (21) days before executing
it. If not signed by you and returned to the Company so that it is received by
the Company within twenty-one (21) days of your receipt of this Agreement, this
Agreement will not be valid. In the event that you execute and return this
Agreement within less than twenty-one (21) days of the date of its delivery to
you, you acknowledge that such decision was entirely voluntary and that you had
the opportunity to consider this letter agreement for the entire twenty-one (21)
day period. The Company acknowledges that for a period of seven (7) days from
the date of the execution of this Agreement, you shall retain the right to
revoke this Agreement by written notice that the Company receives before the end
of such period, and that this Agreement shall not become effective or
enforceable until the expiration of such revocation period. The "Effective Date"
of this Agreement shall be the date which is seven (7) days from the date of
execution of this Agreement.
By signing this Agreement, you acknowledge that you are doing so
voluntarily. You also acknowledge that you are not relying on any
representations by any representative of the Company concerning the meaning of
any aspect of this Agreement.
In the event of any dispute, this Agreement will be construed as a
whole, will be interpreted in accordance with its fair meaning, and will not be
construed strictly for or against either you or the Company. The law of
Massachusetts will govern any dispute about this Agreement, including any
interpretation or enforcement of this Agreement, without giving effect to the
conflict of laws provisions of Massachusetts law. In the event that any
provision or portion of a provision of this Agreement shall be determined to be
unenforceable, the remainder of this Agreement shall be enforced to the fullest
extent possible as if such provision or portion of a provision was not included.
This Agreement may be modified only by a written agreement signed by you and an
authorized representative of the Company.
If you agree to these terms, please sign and date below and return this
Agreement to the Company within the time limitation set forth above.
This Agreement may be executed simultaneously in any number of
counterparts, each of which when so executed and delivered shall be taken to be
an original; but such counterparts shall together constitute but one and the
same document.
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Sincerely,
SERVICESOFT TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: Chief Executive Officer
ACCEPTED AND AGREED:
/s/ Xxxxx X. Xxxxxxx July 20, 1999
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Xxxxx X. Xxxxxxx Date
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