Exhibit 10.28
THIS AMENDMENT dated as of the 26th day of September, 1998 to the
Employment Agreement made as of August 11, 1994 (the "Employment Agreement") by
and between JETFORM CORPORATION, a corporation incorporated pursuant to the laws
of Canada ("JetForm") and XXXX X. XXXXX ("Executive").
WHEREAS JetForm and Executive wish to amend certain provisions of the
Employment Agreement and make certain further agreements, in each case as set
forth below;
NOW THEREFORE in consideration of the mutual covenants and agreements
contained in this Amendment and other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged) the parties hereto
agree as follows:
ARTICLE 1. INTERPRETATION
1.01 Unless otherwise specified, all capitalized terms used in this
Addendum and not otherwise defined in this Amendment shall have the
meanings given to them in the Employment Agreement. Where reference is
made in this Amendment to a section number, it shall refer to a
section number in the Employment Agreement. Except as amended hereby,
the parties confirm that the Employment Agreement remains in full
force and effect in accordance with the terms thereof and the terms
not hereby amended shall apply to this Amendment as though stated
herein.
ARTICLE 2. AMENDMENTS TO EMPLOYMENT AGREEMENT
2.01 Additional Duties. The Corporation and the Executive hereby agree to
delete the period and add the word "and" following clause (c) of
Section 2.1 and add the following clause (d) to Section 2.1:
"(d) use diligent efforts to observe in all material respects the
material rules, regulations and policies of the Corporation applicable
to the Executive, (including without limitation the Corporation's
policies respecting xxxxxxx xxxxxxx) from time to time in force which
are brought to the attention of the Executive or which he should
reasonably be aware."
2.02 Amendment to Termination Payment. The Corporation and Executive agree
that the amount payable by the Corporation to the Executive upon
termination of the Executive's employment by the Corporation for
reasons other than Just Cause, Disability, retirement or death or by
the Executive for Good Reason should be increased from 1.25 times
Annual Salary to 3 times Annual Salary. Accordingly, the reference to
"1.25" in clause 3.1(c)(i)(B) is hereby deleted and replaced with "3".
2.03 Change of Control. The Corporation and the Executive hereby agree that
the following clause (d) shall be added to Section 3.1:
"(d) Change of Control. The parties agree that this Agreement will not
automatically terminate upon (i) any sale of all or substantially all
of the assets of the Corporation or (ii) any change of voting control
of the Corporation, whether by way of share acquisition, merger
amalgamation, plan of arrangement or otherwise. However, the
Corporation and the Executive acknowledge and agree that both the
Corporation (or its successor) and the Executive shall have the right
to terminate this Agreement within ninety days of the legal closing of
the change event, on thirty days notice to the other party. If the
Executive's employment is so terminated.
(i) the Corporation shall pay to or to the order of the
Executive the aggregate of the following amounts (less any
deductions required by law):
(A) if not theretofore paid, the Executive's Annual
Salary for the then current fiscal year of the
Corporation for the period to and including the
Date of Termination; and
(B) an amount equal to the product obtained by
multiplying the Annual Salary by 3;
(ii) all options held by the Executive, whether then vested or
not, shall immediately become exercisable (and shall remain
exercisable as set forth in clause 3.1(c)(ii)) in the event
that the Executive's employment is terminated by the
Corporation (other than for Just Cause, Disability or Death)
within one year following the acquisition by a third party
of greater than 50% of the then issued and outstanding
JetForm common shares;
(iii) the Corporation shall not seek in any way to amend the terms
of any loans from the Corporation or its subsidiaries to the
Executive;
(iv) the Corporation shall provide the Executive with the job
relocation counselling services of the firm acceptable to
the Corporation for an amount not to exceed $30,000;
(v) if, at the Date of Termination, there were any memberships
in any clubs, social or athletic organizations paid for by
the Corporation that were for the regular use of the
Executive at the Date of Termination, the Corporation will
not take any action to terminate such memberships but need
not renew any such membership that expires; and
(vi) the Corporation shall pay to the Executive all outstanding
and accrued vacation pay to the Date of Termination."
2.04 Amendment to Payment and Benefit Requirements following Termination.
The last sentence of Section 3.3 of the Employment Agreement is
deleted and replaced with the following:
"If the Executive secures employment after the Date of Termination and
prior to receiving all amounts owing hereunder, the Executive shall
immediately inform the Corporation and the Corporation shall have the
right to terminate all health, life and disability benefits being
carried by the Corporation for the Executive."
A. Amendment to Duration of Non-Compete/Non-Solicitation. In
consideration of the amendment to the termination payment as set forth
in Section 2.02 above, the Corporation and Executive agree that the
duration of the non-compete and non-solicitation covenants contained
in Sections 4.1 and 4.2 of the Employment Agreement shall be extended
so as to apply for a period of three years following the Date of
Termination. Accordingly, the reference to "18 months" in each of
Sections 4.1 and 4.2 is hereby deleted and replaced with "36 months".
2.06 Amendment to Board Resignation Provision. The parties agree that the
Executive shall not be required to resign from the board of directors
of the Corporation upon the termination of the Executive's employment.
Accordingly, Section 5.2 is hereby deleted in its entirety and
replaced with the following:
"5.2 The Executive agrees that after termination of his employment for
whatever reason, he will tender his resignation from any position he
may hold as an officer of the Corporation or as an officer or director
of any of its affiliated or associated companies, provided that doing
so will not reduce the obligations of the Corporation described
herein."
ARTICLE 3. GENERAL
3.01 Independent Legal Advice. The Executive acknowledges that he has had
an opportunity to obtain independent legal advice before signing this
Amendment and agrees that either such advice has been obtained or that
he does not wish to seek or obtain such independent legal advice. The
Executive acknowledges that he has read this Amendment and fully
understands the nature and effect of it and the terms contained herein
and that the said terms are fair and reasonable and correctly set out
the Executive's intentions.
3.02 Address for Notice. Until changed in accordance therewith, the
Executive's address for notice as set forth in Section 5.5 of the
Employment Agreement shall be:
Xxxx X. Xxxxx
00 Xxxx Xxxx Xxx
Xxxxxx, Xxxxxxx X0X 0X0
3.03 Governing Law. This Amendment shall be governed by the laws of the
Province of Ontario and the federal laws of Canada applicable therein.
IN WITNESS WHEREOF the parties have executed this Amendment.
JETFORM CORPORATION
By:
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Authorized Officer
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Witness XXXX X. XXXXX
