EXHIBIT 10.13
SQL Financials International, Inc.
Agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Agreement made as of the February 5, 1998, between SQL Financials
International, Inc., a Delaware corporation (the "Company"), having a principal
place of business located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ("▇▇▇▇▇▇"), a Georgia resident.
Whereas, ▇▇▇▇▇▇ is an employee, officer and director of the Company, an
officer and manager of its subsidiary, SQL Financials Services, L.L.C. ("SQL
Services") and an officer and director of its subsidiary, SQL Financials Europe,
Inc., ("SQL Europe"), and now desires to resign as an officer of the Company, as
an officer and manager of SQL Services and as an officer and director of SQL
Europe; and
Whereas, ▇▇▇▇▇▇ desires to continue serving as a member of the Board of
Directors of the Company until the Company's initial public offering of equity
securities registered pursuant to the Securities Act of 1933, as amended (the
"IPO") or such other date as he may determine; and
Whereas, ▇▇▇▇▇▇ desires to resign as an employee of the Company following
the IPO; and
Whereas, ▇▇▇▇▇▇ desires to provide consulting services to the Company as an
independent contractor after the IPO; and
Whereas, ▇▇▇▇▇▇ and the Company are parties to an employment agreement (the
"Employment Agreement") dated February 21, 1995, governing certain terms of
▇▇▇▇▇▇'▇ employment by the Company (a copy of which is attached as Exhibit A);
---------
Whereas, ▇▇▇▇▇▇ and the Company each desire to confirm the continuation of
certain provisions of the Employment Agreement and to provide for ▇▇▇▇▇▇'▇
future role as a consultant to the Company;
Now, therefore, in consideration of the foregoing and the mutual covenants
contained herein, the parties agree as follows:
1. ▇▇▇▇▇▇ hereby resigns his position as chief executive officer of the
Company, his positions as an officer and manager of SQL Services and his
positions as an officer and director of SQL Europe, effective as of February 5,
1998, (the date of such resignation to be herein referred to as the "Effective
Date"). On or before the Effective Date, ▇▇▇▇▇▇ will execute and deliver to the
Company written confirmation of his resignations in the form attached as
Exhibits B1, B2 and B3. The duties of ▇▇▇▇▇▇ from the Effective Date through
----------------------
the Termination Date (as hereinafter defined) will include assistance with
matters pertaining to SFI Labs and the IPO.
2. ▇▇▇▇▇▇ shall continue as an employee of the Company from the Effective
Date through the Termination Date (as hereinafter defined), and the Company will
continue to pay to ▇▇▇▇▇▇ his current base salary of $200,000 and any incentive
compensation to which he is entitled under the Company's current incentive
compensation plan. ▇▇▇▇▇▇ and the Company hereby agree that the 1998
Compensation Plan for ▇▇▇▇▇▇ dated January 1, 1998 and approved by the Board of
Directors shall continue to apply to ▇▇▇▇▇▇ as a non-officer employee of the
Company from the Effective Date through the Termination Date (as hereinafter
defined).
3. On the earliest of (i) the closing date of the Company's IPO, (ii) a
Sale of the Company (as herein defined) or (iii) December 31, 1998 (in each
case, the "Termination Date"), ▇▇▇▇▇▇ will resign his employment with the
Company. As used herein, the term "Sale of the Company" shall mean (a) any sale
of all or substantially all of the assets or shares of outstanding capital stock
of the Company to one or more third parties that are not affiliated with the
Company prior to such sale; (b) any liquidation of the Company; or (c) any
merger, consolidation or similar transaction to which the Company is a party and
following which the persons who were shareholders of the Company immediately
prior to the transaction hold less than a majority of the outstanding shares of
voting capital stock of the surviving or resulting corporation or other entity.
After the Termination Date, the Company shall have no further obligation to make
payments of any kind to ▇▇▇▇▇▇ in respect of his employment other than amounts
due and payable hereunder.
4. On the first day of the seventh month following the Termination Date,
▇▇▇▇▇▇ may resign his position as a member of the Company's Board of Directors.
5. In consideration of the covenants contained in this Agreement, the
Company and ▇▇▇▇▇▇ agree as follows:
A. Section 5 of the Employment Agreement is hereby amended to
provide that the Company shall pay ▇▇▇▇▇▇ $37,500 in annual severance pay for a
period of two (2) years from the Termination Date. The Company agrees to pay
all of ▇▇▇▇▇▇'▇ $75,000 in severance pay during the first year following the
Termination Date, which $75,000 amount shall be paid to ▇▇▇▇▇▇ in equal semi-
monthly payments over the one year period from the Termination Date and shall be
subject to normal tax withholdings. ▇▇▇▇▇▇ hereby acknowledges that the
payments provided under this Paragraph 5(A) are sufficient consideration for the
covenants contained in Section 5 of the Employment Agreement.
B. The Company shall pay to ▇▇▇▇▇▇ $225,000, subject to normal tax
withholdings, which amount shall be paid by the Company on or before June 30,
1998.
▇. ▇▇▇▇▇▇ specifically, but without limitation, waives any and all
claims for severance or similar payments of any kind arising from his employment
by the Company except as specifically set forth in this paragraph 5.
-2-
6. ▇▇▇▇▇▇ and the Company have executed an Independent Contractor
Agreement (the "Consulting Agreement") in the form attached as Exhibit C,
---------
providing for the retention of ▇▇▇▇▇▇ as a consultant to the Company effective
as of the Termination Date for the projects specifically identified in the
Consulting Agreement. The term of the Consulting Agreement shall be for one (1)
year from the Termination Date. The compensation paid to ▇▇▇▇▇▇ under the
Consulting Agreement shall consist of (i) base compensation of $125,000 and (ii)
incentive compensation to a maximum of $100,000, payable in accordance with the
Company's 1998 Compensation Plan for ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ dated January 1, 1998 and
approved by the Board of Directors and thereafter in accordance with the 1999
Compensation Plan for ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ derived from the Company's 1999 Business
Plan revenue targets approved by the Board of Directors.
7. Except as to ▇▇▇▇▇▇'▇ resignation of his position as Chief Executive
Officer of the Company and the modification to severance pay provided in
paragraph 5, the Employment Agreement hereby is confirmed and ratified in all
respects and remains in full force and effect according to its terms, including
without limitation all protective covenants by ▇▇▇▇▇▇ to the Company.
8. ▇▇▇▇▇▇ hereby confirms that he presently serves as Trustee under a
certain Amended and Restated Shareholders' Voting Agreement ("Voting Agreement")
dated September 1, 1995 by and among the holders of the common stock of the
Company. ▇▇▇▇▇▇ covenants that he will promptly take such actions as requested
by the Board of Directors as are reasonably necessary to terminate the Voting
Agreement, including but not limited to the execution of a shareholders' consent
terminating the Voting Agreement.
9. ▇▇▇▇▇▇ hereby acknowledges that he continues to have access to Company
Property as defined in the Employment Agreement (including Confidential
Information) and covenants that his use of Company Property during his continued
employment by the Company and his continued membership on the Board of Directors
is governed by Sections 1 and 3 of the Employment Agreement. Following the
later of the Termination Date or his resignation from the Board of Directors,
▇▇▇▇▇▇ covenants that, in accordance with Section 3 of the Employment Agreement,
he will return to the Company any and all Company Property (including
Confidential Information) in his possession or control; provided, however,
-------- -------
nothing in this paragraph shall apply to any property in the possession or
control of Technology Ventures, L.L.C. or ▇▇▇▇▇▇ Consulting Group, Inc. pursuant
to their software licensing agreement with the Company of even date herewith.
10. (a) Except as expressly otherwise provided herein (including without
limitation any breach after the date hereof of the agreements, documents or
instruments set forth in Paragraph 17) and except for any claims which arise
because of breach of this Agreement by the Company, ▇▇▇▇▇▇ hereby waives,
releases and promises never to assert any and all claims that he has or might
have against the Company and its subsidiaries, affiliated persons or entities,
officers, directors, stockholders, agents, attorneys, employees, successors or
assigns (including without limitation SQL Services and SQL Europe), arising from
or related to any or all of his employment with the Company, SQL Services or SQL
Europe as of the Effective Date, his
-3-
resignation from such employment or his status as an officer or stockholder of
the Company. The foregoing release as it applies to officers, directors and
other individuals is intended to release such persons in all capacities,
including individual and official. The released claims include, but are not
limited to, claims arising under federal, state and local statutory or common
law, such as the Age Discrimination in Employment Act, Title VII of the Civil
Rights Act of 1964 and the law of contract and tort.
(b) Except as expressly otherwise provided herein (including without
limitation any breach after the date hereof of the agreements set forth in
Paragraph 17) and except for any claims which arise because of breach of this
Agreement by ▇▇▇▇▇▇, the Company hereby waives, releases and promises never to
assert any and all claims that it has or might have against ▇▇▇▇▇▇ arising from
or related to any or all of his employment with the Company, SQL Services or SQL
Europe as of the Effective Date, his resignation from such employment or his
status as an officer of the Company. The released claims include, but are not
limited to, claims arising under federal, state and local statutory or common
law.
(c) IN CONNECTION WITH THIS RELEASE OF CLAIMS, ▇▇▇▇▇▇ AGREES THAT HE
HAS BEEN INFORMED IN WRITING THAT HE (A) HAD UP TO 21 CALENDAR DAYS TO CONSIDER
WHETHER OR NOT TO EXECUTE THIS AGREEMENT; (B) HAS SEVEN (7) CALENDAR DAYS
FOLLOWING THE EXECUTION OF THIS AGREEMENT TO REVOKE IT AND HAS BEEN INFORMED OF
THE METHOD OF SUCH REVOCATION; AND (C) HAS BEEN ADVISED TO CONSULT AN ATTORNEY
RELATIVE TO THIS MATTER PRIOR TO THE EXECUTION OF THIS AGREEMENT.
11. Neither ▇▇▇▇▇▇ nor the Company will do anything for the purpose of
harming the business, reputation, customer relations, employee relations or
consultant relations of the other. Neither ▇▇▇▇▇▇ nor the Company will make any
disparaging or derogatory remarks about the other. The covenants in this
Paragraph 12 will expire on the second anniversary of the Termination Date.
12. ▇▇▇▇▇▇ hereby acknowledges that the agreement of the Company with
respect to payment of compensation beyond the Effective Date, as provided in
Paragraphs 3 and 4 of this Agreement, constitutes sufficient consideration with
respect to ▇▇▇▇▇▇'▇ covenants contained in this Agreement.
13. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, without regard to its choice of law
provisions.
14. No amendment or waiver of this Agreement or any provision hereof shall
be binding upon the party against whom enforcement of such amendment or waiver
is sought unless it is made in writing and signed by or on behalf of such party
(and, in the case of the Company, approved by the Board of Directors or the
Chief Executive Officer of the Company). The waiver by either party of a breach
of any provision of this Agreement by the other party shall not
-4-
operate and be construed as a waiver or a continuing waiver by that party of any
subsequent breach of the same or any other provision of this Agreement by the
other party.
15. This Agreement shall be binding on and inure to the benefit of the
parties hereto and their respective heirs, executors and administrators,
successors and assigns, except that it may not be assigned by either party
without the written consent of the other.
16. Nothing in this Agreement shall be deemed to limit or otherwise
restrict the rights that ▇▇▇▇▇▇ has to designate himself and three other persons
from time to time to be elected to serve on the Company's Board of Directors
pursuant to Section 10 of a certain Series F Convertible Preferred Stock
Purchase Agreement dated September 26, 1997.
17. This Agreement and the Consulting Agreement constitute the final and
entire agreement of the parties with respect to the matters covered hereby and
replaces and supersedes all other agreements and understandings relating to any
employment or consulting services that ▇▇▇▇▇▇ has rendered, or will render, to
the Company, except for the Employment Agreement, which remains in full force
and effect pursuant to Paragraph 7, any right with respect to indemnification
that ▇▇▇▇▇▇ may have pursuant to the Company's Amended and Restated Certificate
of Incorporation or Bylaws, which shall remain binding on the parties separately
from this Agreement, and the Series F Convertible Preferred Stock Purchase
Agreement dated September 26, 1997.
18. This Agreement shall be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision hereof shall be
prohibited or invalid under any such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating or nullifying
the remainder of such provision or any other provisions of this Agreement. If
any one or more of the provisions contained in this Agreement or the Employment
Agreement, shall for any reason be held to be excessively broad as to duration,
geographical scope, activity or subject, such provisions shall be construed by
limiting and reducing it so as to be enforceable to the maximum extent permitted
by applicable law.
19. This Agreement may be executed in any number of counterparts, and with
counterpart signature pages, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument
as of the date first above written.
SQL Financials International, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Pesident
-5-
