1
EXHIBIT 10.9
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of the "Effective Date" defined below, by and between SALESLOGIX CORPORATION, a
Delaware corporation (the "Company"), and XXXXXXX X. XXXXXXXX, an individual
("Executive").
RECITALS
A. The Company has entered into an agreement to merge (the "Merger")
with Opis Corporation, an Iowa corporation ("Opis").
B. Executive currently is employed by Opis. Executive and the Company
desire to enter into this Agreement, which describes the terms and conditions
under which the Company will employ Executive as of the Effective Date going
forward.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the Company and Executive, intending
to be legally bound, hereby agree as follows:
AGREEMENT
1. Employment. Effective upon and subject to the closing of the Merger in a
manner acceptable to the Company (the "Effective Date"), the Company agrees to
employ Executive, and Executive accepts such employment and agrees to perform
services for the Company, for the period and upon the other terms and conditions
set forth in this Agreement.
2. Term of Employment. The term of Executive's employment hereunder shall
commence on the Effective Date and shall continue for a term of four (4) years
or until this Agreement is earlier terminated as provided herein, this being an
"at will" employment agreement (the "Term"); provided, that Sections 5 and 6 of
this Agreement shall govern the amount of any compensation to be paid to
Executive upon termination of this Agreement.
3. Position and Duties.
3.1 Service with the Company. Commencing on the Effective Date and thereafter
during the Term of this Agreement, Executive agrees to serve as the Vice
President of Customer Support Products of the Company, and to perform such
executive employment duties consistent with Executive's education, training and
experience as shall be assigned to Executive from time to time by the Company's
Chief Executive Officer initially, and any executive to whom the Chief Executive
Officer shall later assign Executive to report.
3.2 No Conflicting Duties. During the Term hereof, Executive shall not serve as
an officer, director, employee, consultant, or advisor to any other business
without the prior
2
written consent of the Board. Executive hereby confirms that Executive is under
no contractual commitments inconsistent with Executive's obligations set forth
in this Agreement, and that during the Term of this Agreement, Executive will
not render or perform services, or enter into any contract to do so for
compensation, for any other corporation, firm, entity or person. Excluding any
period of vacation or other approved leaves, Executive shall devote Executive's
entire working time, knowledge, attention, energy, and skill to the duties and
responsibilities set forth in this Section 3 and otherwise assigned by the
Company in conformity with normal exclusive full-time employment standards, and
shall exert Executive's best efforts on behalf of the Company
4. Compensation.
4.1 Base Salary. As compensation for all services to be rendered by
Executive under this Agreement, the Company shall pay to Executive a monthly
salary of $9,583.33 (the "Base Salary"), which shall be paid on a regular basis
in accordance with the Company's normal payroll procedures and policies. The
amount of the Base Salary shall be subject to periodic review and adjustment (at
least annually) in the Company's sole discretion. The Company shall not decrease
the Base Salary below the initial amount set forth above during the term of this
Agreement. Executive shall also receive a car allowance for 6 months not to
exceed an aggregate allowance of $3,000. Executive shall cause that certain GMAC
Lease Agreement between Xxxxxxxx Buick - Pontiac - Cadillac, Inc. and Opis dated
February 5, 1996 (the "GMAC Lease") to be assigned to Executive and Opis, and
the Company and all subsidiaries of Company shall be released from all
obligations under the GMAC Lease within 90 days of the date of this Agreement.
4.2 Bonuses. Executive is eligible from time to time for bonuses under
written bonus plans adopted by the Company from time to time in its sole
discretion. Executive's eligibility for any such bonuses shall be subject to the
terms and conditions of the adopted written bonus plans. Nothing in this
Agreement or otherwise, however, shall be construed as guaranteeing Executive
the right to receive any bonus. For calendar year 1998, Executive will be
eligible to participate in any executive compensation plan that other executives
of the Company are eligible to participate in, which plan will be determined by
the Compensation Committee of the Board of Directors of Company, it its sole
discretion.
4.3 Stock Options. The Board will grant to Executive options to
purchase up to 100,000 shares of the Company's common stock. Such options shall
be granted pursuant to the Company's 1996 Equity Incentive Plan (the "Plan") and
an award agreement in the form attached hereto as Exhibit A setting forth such
terms and conditions as the Board deems appropriate, including without
limitation vesting conditions and restrictions on transfer of such stock.
4.4 Participation in Benefit Plans. Executive shall be included to the
extent eligible thereunder in any and all plans or programs of the Company
providing general benefits for the Company's employees, including but not
limited to insurance, 401(k) plan, sick days, and holidays. Executive shall be
entitled to three (3) weeks vacation per year. Executive's
2
3
participation in any such plan or program shall be subject to the provisions,
rules and regulations applicable thereto, as amended from time to time. The
provisions of this Section 4.4 shall not affect in any way the rights of the
Company to amend or terminate any such benefits in accordance with the terms of
such plans or programs and the provisions of applicable law.
4.5 Business Expenses. In accordance with the Company's policies
established from time to time, the Company will pay or reimburse Executive for
all reasonable and necessary out-of-pocket expenses incurred by Executive in the
performance of Executive's duties under this Agreement, subject to the
presentment of appropriate documentation in accordance with Company policies. To
the extent that the Company generally offers perquisites to other similarly
situated executives at the Company, the Company shall provide substantially
similar perquisites to Executive.
4.6 Moving Expenses. Upon presentment of appropriate vouchers, the
Company agrees to reimburse Executive for reasonable moving costs relate to
Executive's relocation from Des Moines, Iowa, to Scottsdale, Arizona, as more
fully described on the relocation policy attached hereto as Exhibit B. The
Company will reimburse Executive for any incremental income tax associated with
relocating Executive to Scottsdale, Arizona.
4.7 Written Agreements. Executive shall be entitled to receive bonuses,
stock options, restricted stock, other compensation based on the Company's stock
or other compensation not expressly set forth in this Agreement only if such
compensation is expressly provided for in written plans or agreements entered
into by the Company after the date hereof.
5. Termination.
5.1 Disability. The Company shall have the right to terminate
Executive's employment and this Agreement upon Executive's becoming totally or
permanently disabled for a period of three (3) months or more, to the fullest
extent allowed by applicable law. For purposes of this Agreement, the term
"totally or permanently disabled" or "total or permanent disability" means
Executive's inability on account of sickness or accident, whether or not
job-related, to engage in regularly or to perform adequately Executive's
assigned duties under this Agreement. A good faith determination by the Board of
the existence of a disability shall be conclusive for all purposes hereunder. In
making such determination of disability, the Board may utilize such advice and
consultation as the Board deems appropriate, but there is no requirement of
procedure or formality associated with the making of a determination of
disability.
5.2 Death of Executive. Executive's employment and this Agreement shall
terminate immediately upon the death of Executive.
5.3 Termination for Cause. The Company may terminate Executive's
employment and this Agreement at any time for "Cause" (as hereinafter defined)
immediately upon written notice to Executive. As used herein, the term "Cause"
shall mean that Executive shall have in the reasonable judgment of the Company
(i) been convicted of any felony; (ii)
3
4
committed any criminal act in connection with the embezzlement of Opis funds by
Xxxxxx Xxxxxx; (iii) knowingly participated in any improper revenue recognition
by Opis; (iv) knowingly submitted any fraudulent loan application; (v) committed
an act of fraud, embezzlement, dishonesty, moral turpitude or breach of trust;
(vi) committed an act of gross misconduct that materially and adversely affects
the Company or any employee of the Company; (vii) used or possessed any illegal
drug or any other illegal substance; (viii) knowingly breached any material
covenant or obligation under this Agreement or other agreement with the Company;
and (ix) any certificate or other document executed by Executive on behalf of
Opis in connection with the Merger was not, to the knowledge of Executive at the
time of such execution, true and accurate in all material respects. For purposes
of this Section 5.3 "materiality" and "adversely affects" shall be determined by
the Chief Executive Officer or the Board of Directors of the Company acting in
good faith, and such determination shall be conclusive for all purposes.
5.4 Termination for Performance Reasons. The Company may terminate
Executive's employment and this Agreement at any time for "Performance Reasons"
(as hereinafter defined) provided the Company first provides Executive with
written notice that he may be terminated for "Performance Reasons," and gives
Executive forty-five (45) days to cure such deficiencies. As used herein, the
term "Performance Reasons" shall mean that Executive shall have in the
reasonable judgment of the Company (i) violated written corporate policy or
rules of the Company; (ii) refused to follow the written directions or
directives of the Board, the Company's Chief Executive Officer, or Executive's
supervisors; or (iii) failed to satisfactorily discharge Executive's duties and
obligations.
5.5 Resignation. Executive's employment and this Agreement shall be
terminated on the earlier of the date that is thirty (30) days following the
written submission of Executive's resignation to the Company or the earlier date
such resignation is accepted by the Company.
5.6 Termination Without Cause. The Company may terminate Executive's
employment and this Agreement without cause or reason upon written notice to
Executive. Termination "without cause" shall mean termination of employment on
any basis other than termination of Executive's employment hereunder pursuant to
Sections 5.1, 5.2, 5.3, 5.4, or 5.5. Executive and the Company expressly agree
and acknowledge that Executive is an at-will employee under Arizona law, which
means that the Company may terminate Executive's employment at any time, with or
without cause or reason.
6. Compensation Upon the Termination of Executive's Employment.
6.1 In the event Executive's employment is terminated pursuant to
Section 5.1 (Disability), 5.3 (Cause), or 5.5 (Resignation), then Executive
shall be entitled to receive Executive's then current monthly Base Salary
through the date Executive's employment is terminated, but no other compensation
of any kind or amount, except for any vested rights under the plans or
agreements referred to in Section 4.3.
4
5
6.2 In the event Executive's employment is terminated pursuant to
Section 5.2 (Death), Executive's beneficiary designated by Executive in writing
to the Company, or in the absence of such beneficiary, Executive's estate, shall
be entitled to receive Executive's then current monthly Base Salary through the
end of the month in which Executive's death occurs, but no other compensation of
any kind or amount, except for any vested rights under the plans or agreements
referred to in Section 4.3.
6.3 In the event Executive's employment is terminated pursuant to
Section 5.4 (Performance Reasons), the Company shall: (i) pay to Executive, as a
severance allowance, Executive's then current monthly Base Salary for the three
(3) month period following the date of termination; (ii) maintain in full force
and effect, by paying Executive's COBRA payments, health insurance for the
Executive until the first to occur of Executive's attainment of alternative
employment or three (3) months following the termination date of Executive's
employment hereunder; and (iii) pay no other compensation of any kind or amount,
except for any vested rights under the plans or agreements referred to in
Section 4.3 (collectively, the "Termination Payments"). As a condition precedent
to the Company's obligation to provide Executive with the Termination Payments,
Executive must first execute and deliver to the Company a legal release in
substantially the form that is attached hereto as Exhibit C.
6.4 In the event Executive's employment is terminated pursuant to
Section 5.5 (Without Cause), the Company shall: (i) pay to Executive, as a
severance allowance, Executive's then current monthly Base Salary for the six
(6) month period following the date of termination; (ii) maintain in full force
and effect, by paying Executive's COBRA payments, health insurance for the
Executive until the first to occur of Executive's attainment of alternative
employment or six (6) months following the termination date of Executive's
employment hereunder; and (iii) pay no other compensation of any kind or amount,
except for any vested rights under the plans or agreements referred to in
Section 4.3 (collectively, the "Termination Payments"). As a condition precedent
to the Company's obligation to provide Executive with the Termination Payments,
Executive must first execute and deliver to the Company a legal release in
substantially the form attached as Exhibit C.
6.5 All payments required to be made by the Company to Executive
pursuant to this Section 6 shall be paid in the manner and at the times
specified in Section 4.1 hereof.
6.6 The failure or delay by either party hereto to exercise its rights
to terminate this Agreement with respect to any one or more of the matters
referred to in Section 5 shall not be taken or held to be a waiver by such party
of its right of termination of this Agreement in respect to such matter or any
subsequent matter.
6.7 Except as expressly provided in this Section 6, upon the
termination of this Agreement, the Company shall not have any liability or
obligation of any kind or character to the Executive under the terms of this
Agreement or in connection with the termination of the Executive's employment
hereunder.
5
6
7. Confidentiality and Proprietary Information. Simultaneous with the
execution of this Agreement, Executive shall execute and return to the Company
the Employee Proprietary Rights Agreement attached hereto as Exhibit D.
8. Ventures. If, during the Term, Executive is engaged in or associated
with the planning or implementing of any project, program or venture involving
the Company and a third party or parties, or Executive receives from any third
party or parties any opportunity to participate in any project, program or
venture relating directly to the business of the Company, all rights in the
project, program or venture shall belong to the Company and shall constitute a
corporate opportunity belonging exclusively to the Company. Except as approved
by the Company's Board, Executive shall not be entitled to any interest in such
project, program or venture or to any commission, finder's fee or other
compensation in connection therewith other than the Base Salary to be paid to
Executive as provided in this Agreement.
9. Non-Competition; Solicitation of Customers and Solicitation of Employees.
9.1 Non-Competition.
(a) Executive agrees that, during the Term and for a period of
twelve (12) months thereafter, Executive shall not, directly or indirectly,
engage in competition with the Company within any state in the United States, or
any country outside the United States, in which the Company is then conducting
its business (the "Territory"), in any manner or capacity (e.g., as a
consultant, principal, partner, owner, officer, director, stockholder, agent, or
employee) in any phase of the Company's business as then being conducted.
(b) Ownership by Executive, as a passive investment, of less
than 1% of the outstanding shares of capital stock of any corporation listed on
a national securities exchange or publicly traded in the over-the-counter market
shall not constitute a breach of this Section 9.1.
(c) Executive further agrees that, during the Term and for a
period of twelve (12) months thereafter, Executive will not, directly or
indirectly, assist or encourage any other person in carrying out, directly or
indirectly, any activity that would be prohibited by the above provisions of
this Section 9 if such activity were carried out by Executive, either directly
or indirectly, and in particular Executive agrees that Executive will not,
directly or indirectly, induce any employee or consultant of the Company to
carry out, directly or indirectly, any such activity.
9.2 Agreement Not to Solicit Customers. Executive agrees that,
during the Term and for a period of twelve (12) months thereafter, Executive
will not, either directly or indirectly, on Executive's own behalf or in the
service or on behalf of others, solicit, divert or appropriate, or attempt to
solicit, divert or appropriate, to any competing business (i) any person or
entity whose account the Company sold or serviced (including maintenance) during
the twelve (12) months preceding the termination of such employment, or (ii) any
person or entity whose
6
7
account the Company has directly solicited at least twice within the twelve (12)
month period prior to the date of termination of employment.
9.3 Agreement Not to Solicit Employees and Contractors. Executive
agrees that during the Term and for the three (3) year period thereafter,
Executive will not, either directly or indirectly, on Executive's own behalf or
in the service or on behalf of others solicit, divert, encourage to leave or
cease doing business with the Company, or hire away, or attempt to solicit,
divert, encourage to leave or cease doing business with the Company, or hire
away any person then employed by the Company or then serving as a sales
representative or distributor of the Company.
9.4 Reformation. In the event that any provision in this Section 9 is
held to be overbroad as written, such provision shall be deemed amended to
narrow its application to the extent necessary to make the provision enforceable
to the fullest extent allowable. Executive and the Company hereby agree that
such amendment shall be accomplished as follows:
(a) In the case of duration, the length of the covenant or
provision shall be reduced in increments of one (1) month each until it is of
the greatest duration as may be enforceable under applicable law.
(b) In the case of geographic scope, the geographic scope of
the covenant or provision shall be reduced until it is of the greatest
geographic scope as may be enforceable under applicable law, which reduction
shall be effected by eliminating in the following order, one by one, countries
outside the United States, beginning with the country in which the Company
received the least volume of gross revenue over the prior six (6) months, and
continuing in the inverse order ranked by the Company's gross xxxxxxxx over the
prior six (6) months within each country until such scope is enforceable, and
then, if necessary, by eliminating in the following order, one by one,
individual States within the United States, beginning with the State in which
the Company received the least volume of gross revenue over the prior six (6)
months, and continuing in the inverse order ranked by the Company's gross
xxxxxxxx over the prior six (6) months within each State until such scope is
enforceable, and then, if necessary and applicable, by eliminating in the
following order the counties in the State of Arizona, beginning with the county
in which the Company received the least volume of gross revenue over the prior
six (6) months, and continuing in the inverse order ranked by the Company's
gross xxxxxxxx over the prior six (6) months within each county in Arizona until
such scope is enforceable.
9.5 Reasonableness. Executive and the Company agree that the covenants
set forth in this Section 9 are appropriate and reasonable when considered in
light of the nature and extent of the Company's business. Executive acknowledges
that (i) the Company has a legitimate interest in protecting the Company's
business activities, (ii) the covenants set forth herein are not oppressive to
Executive and contain reasonable limitations as to time, scope, geographical
area and activity, (iii) the covenants do not harm in any manner whatsoever the
public interest, (iv) Executive can earn a livelihood without violating any of
the covenants set forth herein, and (v) Executive has received and will receive
substantial consideration for
7
8
agreeing to such covenants, including without limitation the consideration to be
received by Executive under this Agreement, including the Termination Payments.
9.6 Notice to Future Employers. For the period of twelve (12)
months following the termination of Employee's employment, Employee shall
provide a copy of this Agreement to any future or prospective employer of
Employee and agrees that the Company also may do so.
10. Surrender of Records and Property. Upon termination of Executive's
employment with the Company, Executive shall deliver promptly to the Company all
records, manuals, books, blank forms, documents, letters, memoranda, notes,
notebooks, reports, data, tables, calculations or copies thereof, which are the
property of the Company and which relate in any way to the business, products,
practices or techniques of the Company, and all other property, trade secrets
and confidential information of the Company, including, but not limited to, all
documents which in whole or in part contain any trade secrets or confidential
information of the Company, which in any of these cases are in Executive's
possession or under Executive's control.
11. Release of Opis. As of the Effective Date, Executive waives and
releases all of Executive's existing rights to any relief of any kind from Opis
and its affiliates, subsidiaries, divisions, directors, officers, shareholders,
employees, agents, attorneys, successors, and assigns (collectively, the
"Released Parties"), including, without limitation, all claims, demands,
liabilities, obligations, causes, and causes of action of whatever kind or
nature, whether known or unknown, past or present, suspected or unsuspected,
including, without limitation, those that arise out of or that relate to:
Executive's employment with Opis; the termination of Executive's employment with
Opis; all statements or actions of the Released Parties; all claims that arise
under the Civil Rights Act of 1964 and the Americans with Disabilities Act; all
claims for wrongful discharge; all claims for relief or other benefits under any
federal, state, or local statute, ordinance, regulation, or rule of decision;
all claims that the Released Parties engaged in conduct prohibited on any basis
under any federal, state, or local statute, ordinance, regulation, or rule of
decision; and all claims for wages, stock, stock options, or other rights with
respect to equity securities of Opis, severance pay, compensation, attorneys'
fees, liquidated damages, punitive damages, costs, expense reimbursements, and
disbursements.
12. Assignment. This Agreement shall not be assignable, in whole or in
part, by either party without the written consent of the other party, except
that the Company may, without the consent of Executive, assign its rights and
obligations under this Agreement to any corporation, firm or other business
entity (i) with or into which the Company may merge or consolidate, (ii) to
which the Company may sell or transfer all or substantially all of its assets or
(iii) which controls, is controlled by or is under common control with, the
Company, where control means the ownership of 50% or more of the equity
investment and of the voting power of an entity. Upon such assignment by the
Company, the Company shall obtain the assignees' written agreement enforceable
by Executive to assume and perform, from and after the date of such assignment,
the terms, conditions, and provisions imposed by this Agreement upon the
Company. After any such assignment by the Company and such written agreement by
the assignee, the Company shall be discharged from all further liability
hereunder and such assignee
8
9
shall thereafter be deemed to be the Company for the purposes of all provisions
of this Agreement including this Section 12.
13. Injunctive Relief. Executive agrees that it would be difficult to
compensate the Company fully for damages for any violation of the provisions of
this Agreement, including without limitation the provisions of Sections 7, 9 and
10. Accordingly, Executive specifically agrees that the Company shall be
entitled to temporary and permanent injunctive relief to enforce the provisions
of this Agreement. This provision with respect to injunctive relief shall not,
however, diminish the right of the Company to claim and recover damages in
addition to injunctive relief.
14. Dispute Resolution. If there shall be any dispute between the
Company and Executive whatsoever, the dispute shall be resolved in accordance
with the dispute resolution procedures set forth in Exhibit E hereto, the
provisions of which are incorporated as a part hereof, and the parties hereto
hereby agree that such dispute resolution procedures shall be the exclusive
method for resolution of disputes under this Agreement. Notwithstanding anything
herein to the contrary, nothing in this Section 14 or Exhibit E shall preclude
any party from seeking interim or provisional relief, in the form of a temporary
restraining order, preliminary injunction or other interim equitable relief
concerning a dispute, either prior to or during any of the negotiations or
proceedings provided for herein, if deemed necessary by a party, in its
discretion, to protect the interests of such party. Further, this Section 14
shall be specifically enforceable. IT IS EXPRESSLY UNDERSTOOD THAT BY SIGNING
THIS AGREEMENT, WHICH INCORPORATES BINDING ARBITRATION, THE COMPANY AND
EXECUTIVE AGREE TO WAIVE COURT OR JURY TRIAL AND TO WAIVE PUNITIVE, STATUTORY,
CONSEQUENTIAL AND ANY DAMAGES, OTHER THAN COMPENSATORY DAMAGES, TO THE FULLEST
EXTENT ALLOWED BY LAW.
15. Miscellaneous.
15.1 Governing Law. This Agreement is made under and shall be
governed by and construed in accordance with the laws of the State of Arizona.
15.2 Prior Agreements. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof and supersedes
all prior agreements and understanding with respect to such subject matter,
except for other written agreements between the parties that are specifically
referenced in this Agreement, and the parties hereto have made no agreements,
inducements, representations or warranties relating to the subject matter of
this Agreement which are not set forth herein.
15.3 Withholding Taxes. The Company may withhold from any
payments and benefits payable under this Agreement all federal, state, city or
other taxes as shall be required pursuant to any law or governmental regulation
or ruling.
9
10
15.4 Notices. All notices and other communications hereunder
shall be in writing and shall be given by delivery in person, by registered or
certified mail (return receipt requested and with postage prepaid thereon) or by
cable, telex or facsimile transmission to the Company at the Company's primary
business address and to Executive at the address on file with the Company, which
may be changed upon written notice by Executive.
All notices and other communications hereunder that are addressed as
provided in or pursuant to this Section 15.4 shall be deemed duly and validly
given (a) if delivered in person, upon delivery, (b) if delivered by registered
or certified mail (return receipt requested and with postage paid thereon), 72
hours after being placed in a depository of the United States mails and (c) if
delivered by cable, telex or facsimile transmission, upon transmission thereof
and receipt of the appropriate answer back, if any.
15.5 Amendments. No amendment, modification or rescission of
this Agreement shall be deemed effective unless made in writing signed by the
parties hereto.
15.6 No Waiver. No term or condition of this Agreement shall
be deemed to have been waived nor shall there be any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed by the
party against whom enforcement of the waiver or estoppel is sought. Any written
waiver shall not be deemed a continuing waiver unless specifically stated, shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
15.7 Severability. If, after application of any provision of
this Agreement specifying how reformation shall be accomplished, including
Section 9.4, to the extent any provision of this Agreement shall still be
invalid or unenforceable, it shall be considered deleted from this Agreement and
the remainder of such provision and of this Agreement shall be unaffected and
shall continue in full force and effect.
15.8 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
15.9 Survival. Sections 7, 8, 9, 10, 11, 12, 13, 14, and 15
shall survive termination of this Agreement.
10
11
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the day and year first set forth above.
SALESLOGIX CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Its President
--------------------------
"THE COMPANY"
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------
XXXXXXX X. XXXXXXXX
"EXECUTIVE"
The undersigned, as spouse of the Executive identified above, hereby confirms
that the community property of Executive and the undersigned is subject to and
bound by the agreement set forth above.
-----------------------------
Spouse of Employee
11
12
EXHIBIT A
Form of ISO Award Agreement
13
EXHIBIT B
To Employment Agreement of Xxxxxxx Xxxxxxxx
Employee Relocation Program
Purpose of Program
The program has been designed with the primary objective of minimizing the
financial impact of the relocation of an employee and his/her immediate family
to the Phoenix metropolitan area. It is the aim of SalesLogix to make the
relocation as efficient and pleasant as possible. It should be recognized,
however, that while we have high aspirations for the future, currently we are a
small start-up company with limited personnel and financial resources. That
aside, we will do everything we can to make your relocation as painless as we
can. The program covers up to two trips to the Phoenix metropolitan area (get to
know the "Valley of the Sun" and house/apartment hunting), temporary living and
other expenses, the move itself, normal seller's closing costs incurred in
selling your home (or, if you currently live in an apartment, early lease
termination penalties) and normal buyer's closing costs in buying a home.
Trips to the Phoenix metropolitan area
Reimbursement of expenses incurred for up to two trips to the Phoenix
metropolitan area, a get to know the "Valley of the Sun" trip of up to three
days and a house/apartment finding trip of up to seven days. Expenses to be
reimbursed include: airfare for employee and spouse, hotel, rental car and up to
$30.00 per person per day for meals and incidentals. Airfare, hotel and rental
car are to be arranged by SalesLogix. In order to minimize the costs of airfare,
we request that you notify us at least two weeks in advance of your travel to
obtain the lowest possible fares.
Temporary living and other expenses
Reimbursement for up to $2,500 of temporary housing and other agreed upon (in
advance) expenses.
Moving expenses
Moving expenses will be reimbursed in full. We will require that bids be
solicited from three reputable moving companies, one of which will be arranged
by SalesLogix from United Moving and Storage. In the event that the employee
decides to make his/her own arrangements, SalesLogix will pay the employee an
amount equal to the lowest of the three bids.
Reimbursement of expenses in connection with sale of home
Reimbursement/payment of normal seller's closing costs, including real estate
commissions of up to 6% incurred in connection with the sale of existing home.
Lease termination costs
14
Reimbursement/payment of costs incurred in connection with early termination of
lease for rented housing.
Reimbursement of expenses in connection with purchase of new home
Reimbursement of normal buyer's closing and new mortgage loan costs, including
up to a 1% origination fee for new loan.
15
EXHIBIT C
Form of Release
In exchange for consideration from SalesLogix Corporation, a Delaware
corporation (the "Company"), the receipt and sufficiency of which are hereby
acknowledged, I, the undersigned individual, hereby waive and release all of my
existing rights to any relief of any kind from the Company and Opis Corporation,
its wholly owned subsidiary formerly known as SLX Acquisition Corporation
("SAC"), and Opis Corporation, an Iowa corporation that was merged into SAC
("OPIS"), and their affiliates, subsidiaries, divisions, directors, officers,
shareholders, employees, agents, attorneys, successors, and assigns
(collectively, the "Released Parties"), including, without limitation, all
claims, demands, liabilities, obligations, causes, and causes of action of
whatever kind or nature, whether known or unknown, past or present, suspected or
unsuspected, including, without limitation, those that arise out of or that
relate to: my employment with the Company or OPIS; the termination of my
employment with the Company or OPIS; all statements or actions of the Released
Parties; all claims that arise under the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, and the Americans with Disabilities Act; all
claims for wrongful discharge; all claims for relief or other benefits under any
federal, state, or local statute, ordinance, regulation, or rule of decision;
all claims that the Released Parties engaged in conduct prohibited on any basis
under any federal, state, or local statute, ordinance, regulation, or rule of
decision; and all claims for wages, stock, stock options, or other rights with
respect to equity securities of the Company or OPIS, severance pay,
compensation, attorneys' fees, liquidated damages, punitive damages, costs,
expense reimbursements, and disbursements (other than the consideration I
received as set forth on Schedule 2.1(b) of that Certain Agreement and Plan of
Merger between the Company, SAC and OPIS, dated December 23, 1997).
I acknowledge that I have been given at least 21 calendar days to
decide whether to sign this release, and that I have been advised to consult
with my own attorney prior to signing the release. I further acknowledge, that
after I sign this release and return it to the Company, I will then have 7 days
to revoke my acceptance of this release, or, in other words, change my mind. I
understand that if I decide to revoke my acceptance of this release, I must send
the Company a letter declaring my decision to revoke my acceptance, which the
Company must receive before the expiration of the 7-day revocation period to be
effective.
I also agree that I will not disparage or defame the reputation,
character, image, or services of the Company or the Released Parties. I also
agree that I will not recommend or suggest to any potential claimants or
plaintiffs or any entity or their attorneys or agents that they initiate claims
or lawsuits against the Company or the Released Parties, nor will I voluntarily
aid, assist, or cooperate with any such claims or lawsuits.
------------------------------- -------------------------
Xxxxxxx Xxxxxxxx Date
16
EXHIBIT D
Employee Proprietary Rights Agreement
17
EXHIBIT E
Dispute Resolution Procedures
A. If a controversy should arise which is covered by Section 14, then
not later than three (3) months from the date of the event which is the subject
of dispute either party may serve on the other a written notice specifying the
existence of such controversy and setting forth in reasonably specific detail
the grounds thereof ("Notice of Controversy"); provided that, in any event, the
other party shall have at least thirty (30) days from and after the date of the
Notice of Controversy to serve a written notice of any counterclaim ("Notice of
Counterclaim"). The Notice of Counterclaim shall specify the claim or claims in
reasonably specific detail. If the Notice of Controversy or the Notice of
Counterclaim, as the case may be, is not served within the applicable period,
the claim set forth therein will be deemed to have been waived, abandoned and
rendered unenforceable.
B. Following receipt of the Notice of Controversy (or the Notice of
Counterclaim, as the case may be), there shall be a three (3) week period during
which the parties will make a good faith effort to resolve the dispute through
negotiation ("Period of Negotiation"). Neither party shall take any action
during the Period of Negotiation to initiate arbitration proceedings.
C. If the parties should agree during the Period of Negotiation to
mediate the dispute, then the Period of Negotiation shall be extended by an
amount of time to be agreed upon by the parties to permit such mediation. In no
event, however, may the Period of Negotiation be extended by more than five (5)
weeks or, stated differently, in no event may the Period of Negotiation be
extended to encompass more than a total of eight (8) weeks.
D. If the parties agree to mediate the dispute but are thereafter
unable to agree within one (1) week on the format and procedures for the
mediation, then the effort to mediate shall cease, and the Period of Negotiation
shall terminate four (4) weeks from the Notice of Controversy (or the Notice of
Counterclaim, as the case may be).
E. Following the termination of the Period of Negotiation, the dispute
(including the main claim and counterclaim, if any) shall be settled by
arbitration, governed by the Federal Arbitration Act, 9 U.S.C. 1 et seq.
("FAA"), and judgment upon the award may be entered in any court of competent
jurisdiction. The format and procedures of the arbitration are set forth below.
F. A notice of intention to arbitrate ("Notice of Arbitration") shall
be served on the opposing party within forty-five (45) days of the termination
of the Period of Negotiation. If the Notice of Arbitration is not served within
this period, the claim set forth in the Notice of Controversy (or the Notice of
Counterclaim, as the case may be) will be deemed to have been waived, abandoned
and rendered unenforceable.
G. The Company shall designate a neutral third party to administer the
arbitration, such as the American Arbitration Association, Jams Endispute, or
another neutral individual or entity, who may be one of the arbitrators (the
"Administrator").
18
H. The arbitrators shall reach a decision on the merits on the basis of
applicable legal principals as embodied in the law of the State of Arizona. The
arbitration hearing shall take place in Phoenix, Arizona.
I. There shall be three arbitrators, regardless of the amount in
controversy. Each party shall select one arbitrator within fifteen (15) days
after the Notice of Arbitration is served by notifying the opposing party and
the Administrator of such selection, and the two party-appointed arbitrators
shall select the third arbitrator (the "Neutral Arbitrator") within fifteen (15)
days after they are selected and shall promptly notify the parties of such
selection. The Neutral Arbitrator, in order to be eligible to serve, shall be a
lawyer in Phoenix, Arizona (i) who has at least fifteen (15) years experience
specializing in general commercial litigation, general corporate and commercial
matters, or employment law matters and (ii) who has had both training and
experience as an arbitrator. In the event the party-appointed arbitrators cannot
agree on the Neutral Arbitrator, the Administrator shall appoint a Neutral
Arbitrator who shall meet the foregoing criteria. If either party fails to
appoint a party-appointed arbitrator, the single party-appointed arbitrator
shall select the Neutral Arbitrator and the Neutral Arbitrator shall be the sole
arbitrator and shall decide all matters in the arbitration. Until the conclusion
of the arbitration, each party shall pay the fees and costs of its
party-appointed arbitrator, and the parties shall each pay one-half (1/2) the
fees and costs of the Neutral Arbitrator. Upon the conclusion of the
arbitration, the prevailing party shall be entitled to reimbursement of the
arbitrators' fees it has paid, as set forth below.
J. At the time of appointment and as a condition thereto, each
arbitrator will be apprised of the time limitations and other provisions of this
Exhibit C and shall indicate such arbitrator's agreement to comply with such
provisions and time limitations.
K. During the thirty (30) day period following appointment of the
Neutral Arbitrator, either party may serve on the other a request for limited
numbers of documents (no more than twenty (20) categories of documents may be
requested) directly related to the dispute. Such documents will be produced
within seven (7) days of the request to the extent practicable.
L. Following the thirty (30) day period of document production, there
will be a forty-five (45) day period during which limited depositions will be
permissible. Neither party will take more than five (5) depositions, and no
party can question a witness for more than three (3) hours in any deposition.
M. Disputes as to discovery or prehearing matters of a procedural
nature shall be promptly submitted to the arbitrators pursuant to telephone
conference call or otherwise. The arbitrators shall make every effort to render
a ruling on such interim matters at the time of the hearing (or conference call)
or within five (5) business days thereafter.
N. Following the period of depositions, the arbitration hearing shall
promptly commence. The arbitrators will make every effort to commence the
hearing within thirty (30) days of the conclusion of the deposition period and,
in addition, will make every effort to
19
conduct the hearing on consecutive business days to conclusion. The Federal
Rules of Evidence will apply during the arbitration hearing.
O. An award will be rendered, at the latest, within six (6) months of
the date of the Notice of Arbitration and within thirty (30) days of the close
of the arbitration hearing. The award shall set forth the grounds for the
decision (findings of fact and conclusions of law) in reasonably specific
detail. The award shall be final and nonappealable except as provided in the
FAA.
The award may only be made for compensatory damages, and if any other
damages (whether exemplary, punitive, consequential, statutory or other) are
included, the award shall be vacated and remanded, or modified or corrected, as
appropriate to promote this damage limitation.
The prevailing party in the arbitration shall be entitled to
reimbursement from the other party of costs incurred in connection with the
arbitration, including, without limitation, filing fees, attorneys' fees,
disbursements of counsel, costs, and arbitrator's fees.
P. All decisions and awards of the arbitrators must be by a majority of
the arbitrators.
Q. All negotiations and proceedings pursuant to this Exhibit C and
information and documents disclosed therein ("Confidential Information") shall
be used only for negotiation, mediation, and arbitration as provided in this
Exhibit C, and for no other purpose. Specifically, Confidential Information
shall not be disclosed to anyone other than (i) the parties and their attorneys
and staffs; (ii) outside experts or consultants retained by the parties for
purposes of mediation or arbitration, including their secretarial or clerical
personnel, provided that the outside experts and consultants have first read
this paragraph and have agreed to abide by its terms; and (iii) other persons
upon whom the parties mutually agree in writing. All arbitrators and mediators
shall agree in writing, prior to the start of any mediation or arbitration, to
agree to comply with the foregoing restrictions regarding Confidential
Information. All documents will be returned to the party that produced such
documents when the documents are no longer needed or upon the final
determination of the mediation or arbitration.
R. The parties may agree upon different procedures or deadlines only in
a writing signed by both parties.
