Exhibit 10.2
July 26, 2001
Xxxxxx X. Xxxxxxxx
00 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Re: Resignation of Employment with TenFold Corporation
Dear Xxx:
As we discussed, you have made the decision to resign from your employment with
TenFold Corporation (the "TenFold"), effective as of July 31, 2001 (the
"Separation Date"). The purpose of this letter agreement (this "Agreement")
between you and TenFold is to document the terms and conditions of the
termination of your employment with TenFold and other related matters. In
consideration of the mutual promises set forth below, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. You hereby resign, effective as of the Separation Date, as an employee,
officer, and director of TenFold and its affiliated companies, as applicable.
2. On or about the Separation Date, XxxXxxx agrees to pay you (a) your
current base rate of pay for all work you have performed during the current
payroll period through the Separation Date, to the extent not previously paid,
and (b) your current base rate of pay for the vacation days, as reflected on the
books of TenFold, you have earned but not used as of the Separation Date.
3. Within thirty (30) days of the Separation Date, TenFold will reimburse
you in accordance with company policy for all unpaid normal and customary travel
and related business expenses incurred on behalf of TenFold prior to the
Separation Date upon your submission and TenFold's approval of the applicable
expense forms and vouchers.
4. Notwithstanding anything to the contrary provided in Section 5.b.i.
of that certain Employment Agreement dated as of May 14, 2001 between TenFold
Corporation and Xxxxxx X. Xxxxxxxx ("Employment Agreement"), TenFold will pay
you, for the three and half month period beginning on August 1, 2001 and ending
on November 15, 2001, your current monthly base salary of $25,000 (based on
$300,000 per annum) in bi-
monthly installments, net of applicable state and federal withholding taxes, in
the manner and at the times during the month as paid by TenFold to you prior to
the Separation Date.
5. Notwithstanding anything to the contrary provided in Section 5.b.i.
of the Employment Agreement, TenFold will also pay on your behalf, for the
six-month period beginning on August 1, 2001 and ending on January 31, 2002, the
full premium cost and any administrative fee for you to continue your
participation in the TenFold group health and dental plans under applicable
federal law ("COBRA"); provided, however, that you are not eligible for health
or dental benefits in connection with employment as an employee or engagement as
a consultant by an entity other than TenFold during any part of said six-month
period. The parties expressly understand and agree that if you become eligible
for health, vision or dental benefits in connection with employment as an
employee or engagement as a consultant by an entity other than TenFold at any
time during the period of August 1, 2001 to January 31, 2002, XxxXxxx's
obligation to make and your right to receive the payments provided in this
paragraph 5 shall immediately terminate as of the date you become eligible for
such health or dental benefits. During the six-month period beginning on August
1, 2001 and ending on January 31, 2002, you agree to notify XxxXxxx immediately
upon becoming eligible for group health and/or dental plan in connection with
employment as employee or engagement as consultant of any entity other than
TenFold. Except as set forth in this paragraph 5 of this Agreement, TenFold will
no have obligation to you for the provision of benefits, including, without
limitation, the obligation to provide medical, dental, vision, life or
disability insurance; provided, however, the Company shall continue to provided
you with disability insurance through August 31, 2001.
6. The parties acknowledge and agree that, notwithstanding the termination
of your TenFold employment, the parties' respective rights and obligations
provided in Section 8 (Confidentiality Agreement), Section 10 (Conflicts),
Section 11 (Successors), Section 12 (Notice), Section 13 (General Release) and
Section 14 (Miscellaneous Provisions) of the Employment Agreement shall survive
and remain in full force and effect.
7. TenFold will pay on your behalf, for a period of up to 3 months after
the Separation Date, the cost of renting your TenFold office located at 00 Xxx
Xxxxxx Xxxxxx, Xxxxx (the "Maine Office"). XxxXxxx will also reimburse you for
operating expense relating to the Maine Office through August 15, 2001. TenFold
will also pay any cancellation fees related to the Maine Office, but excluding
any operating or other incidental expenses incurred after the Separation Date.
You agree to use your commercially reasonable best efforts to obtain from the
landlord of the Maine Office an agreement with an effective date no more than 3
months after the Separation Date either (a) terminating the lease and releasing
of TenFold of all obligations thereunder, or (b) consenting to the assignment of
the lease and all obligations thereunder from TenFold
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to you. You further agree (a) to promptly reimburse TenFold on demand for all
rent incurred after October 31, 2001 and operating or other incidental expenses
associated with the Maine Office and incurred after the Separation Date, and (b)
to hold TenFold free and harmless from all liability, judgments, costs, claims
or demands, including reasonable attorneys' fees, arising out of your failure to
comply with subpart (a) of this sentence or any breach or default of the lease
which you have caused.
8. TenFold hereby transfers to you, at no cost and on an "as-is" basis
with no warranties, ownership and title to the following office furniture and
equipment which is owned by TenFold and which is currently located in the Maine
Office: fax machine, paper shredder, cellular telephone, palm pilot, desk and
chair. XxxXxxx also agrees to permit you to use, at no cost for a period of up
to 3 months after the Separation Date, the lap top computer, printer and
monitor, all of which were assigned to you and leased by XxxXxxx. You agree,
without reservation, to and give unconditional assurance to TenFold that,
following the 3-month period after the Separation Date, you will promptly return
to TenFold the lap top computer, the printer and monitor.
9. XxxXxxx agrees to pay on your behalf the cost of tuition for your
attendance at the Camden Technology Conference in October 2001; provided,
however, that you in no way represent to anybody at the Conference that you are
employed by or affiliated with TenFold (e.g., wearing a TenFold name tag) and
that TenFold shall have no obligation to reimburse you for travel or other
expenses related to your attendance at such Conference.
10. Effective as of the Separation Date, TenFold hereby amends the
terms of your TenFold stock option grant effective as of May 14, 2001 (750,000
shares of TenFold Common Stock with an exercise price of $0.66) as follows: (a)
to accelerate the vesting date of 50,000 shares of said stock option grant so
that 50,000 shares are shall be deemed to be vested as of the Separation Date,
and (b) to permit you to exercise those options for a period of twelve (12)
months from the Separation Date. You acknowledge that, as of the Separation
Date, no other options have vested under the terms of the TenFold stock option
grant effective as of May 14, 2001.
11. You agree that the payments and other consideration by TenFold in
accordance with the terms of paragraphs 2, 3, 4, 5, 7, 8, 9 and 10 of this
Agreement shall be in full and complete satisfaction of any and all sums which
are now or might hereafter have become owing to you for services rendered by you
during your employment with TenFold.
12. You agree that, as of the Separation Date, (a) your TenFold Energy,
Inc. stock option grant dated August 23, 1999 shall cease to vest and that
pursuant to the terms of the TenFold Energy, Inc. 1999 Stock Plan, you have 90
days from the Separation Date to exercise your vested TenFold Energy, Inc. stock
options; however,
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you agree that you will not exercise such options and that neither TenFold
Energy, Inc. nor TenFold shall have any obligation under the TenFold Energy,
Inc. 1999 Stock Plan; and (b) your TenFold stock option grants dated August 31,
1999, August 15, 2000 and December 15, 2000 shall cease to vest and that your
vested options under such stock option grants shall be exercisable in accordance
with the terms and conditions of the specific option agreement governing the
stock option grant. You acknowledge that, as of the Separation Date, no options
have vested under the terms of the TenFold stock option grants dated August 15,
2000 and December 15, 2000.
13. TenFold will continue to indemnify you pursuant to the terms and
conditions of (a) the TenFold Energy, Inc. Indemnification Agreement, dated as
of August 23, 1999, between you and TenFold Energy, Inc., and (b) the TenFold
Corporation Indemnification Agreement, dated as of March 1, 2001 between you and
TenFold.
14. You represent and warrant that you have not disclosed prior to the
execution of this Agreement, and that you will not disclose in the future, this
Agreement or any of its terms or provisions, directly or by implication, except
to members of your immediate family and to your legal and tax advisors, and then
only on condition that they agree not to further disclose this Agreement or any
of its terms or provisions to any other party, and that you understand such
representations and warranties are a material inducement to TenFold entering
into this Agreement. You acknowledge and agree that the obligations set forth in
this paragraph 14 are an essential portion of the consideration received by
TenFold in exchange for the Agreement and the amounts to be paid to you
hereunder, and you expressly recognize the delays, expenses and difficulties
involved in proving, in a legal proceeding, the actual damages or losses
suffered by TenFold if there is a breach of this confidentiality clause.
Accordingly, you agree that, as liquidated damages for any breach of this
confidentiality clause, but not as a penalty, you shall pay TenFold all amounts
paid to date by TenFold upon any breach of that obligation. Neither the breach
of this clause nor the payment of liquidated damages by you shall affect the
validity of this Agreement.
15. You agree, without reservation, to and give unconditional assurance
to TenFold that, within no more than 10 business days of the Separation Date,
you will return to TenFold any and all documents, materials, property and
information relating to your employment with or the business, whether present or
otherwise, of TenFold or its affiliated companies, and all copies, keys and
other property of TenFold or its affiliated companies in your possession or
under your control (other than the office furniture and equipment referenced in
paragraph 8 above), including, without limitation, all files, software, records,
documents, blueprints, specifications, information, letters, notes, media lists,
original artwork/creative, notebooks, customer information and all similar
tangible materials and property relating to your
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employment with or the business of TenFold or its affiliated companies.
Recognizing that your employment with TenFold has terminated, you agree that you
will not, for any purpose, attempt to access or use any computer or computer
network or system of TenFold, including, without limitation, its electronic mail
systems.
16. You reconfirm and agree to all terms, conditions, and obligations
under the TenFold Corporation Employee Proprietary Information and Inventions
Agreement executed by you and dated August 2, 1999, which agreement is hereby
incorporated by reference into this Agreement in its entirety, and you expressly
disclaim any and all interest in all Proprietary Information of TenFold as
defined therein.
17. Each of the parties represents and warrants that it has not disparaged
prior to the execution of this Agreement, and that it will not disparage in the
future, the other party (including its affiliated companies, officers,
directors, employees and agents) or their business reputations, to any person or
entity, including, without limitation, investors, potential investors, customers
and suppliers of the other party and representatives of the press and other
media, or engage in conduct which disrupts, damages, impairs or interferes with
the business reputations of the other party (including its affiliated companies,
officers, directors, employees and agents). You acknowledge and agree that your
obligations set forth in this paragraph 17 are an essential portion of the
consideration received by TenFold in exchange for the Agreement and the amounts
to be paid to you hereunder, and are a material inducement to TenFold entering
into this Agreement. You expressly recognize the delays, expenses and
difficulties involved in proving, in a legal proceeding, the actual damages or
losses suffered by TenFold if you breach this non-disparagement clause.
Accordingly, you agree that, as liquidated damages for any breach by you of this
non-disparagement clause, but not as a penalty, you shall pay TenFold all
amounts paid to date by TenFold hereunder upon any breach of that obligation.
Neither the breach of this clause nor the payment of liquidated damages by you
shall affect the validity of this Agreement.
18. In consideration of the promises made by XxxXxxx in this Agreement,
you on behalf of yourself and any past, present or future heirs, executors,
administrators, or assigns, hereby irrevocably and unconditionally release and
hold harmless TenFold and its agents, directors, officers, employees,
representatives, attorneys and TenFold's affiliated companies, divisions,
subsidiaries and parents (and the agents, directors, officers, employees,
representatives and attorneys of such affiliates), and their predecessors,
successors, heirs, executors, administrators and assigns, and all persons acting
by, through, under or in concert with any of them (collectively "Releasees"), or
any of them, from any and all actions, causes of action, suits, debts, charges,
complaints, claims, demands, losses, liabilities and obligations of any nature
whatsoever, in law or equity, known or unknown, suspected or unsuspected, which
you ever had, now have, or you or your heirs, executors, administrators or
assigns hereafter may claim to have
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against each or any of the Releasees (hereinafter the " Released Claims"),
arising from or relating in any way to your employment relationship with TenFold
or the termination thereof, whether the Released Claims arise from any alleged
violation by TenFold of any federal, state or local statutes, ordinances or
common law, and whether based on contract, tort, or statute or any other legal
or equitable theory of recovery. Such claims include, without limitation, any
claims relating to severance, stock options or other benefits, unpaid wages,
salary or incentive payment, breach of express or implied contract, wrongful
discharge, or employment discrimination under any applicable federal, state or
local statute, provision, order or regulation, including but not limited to, any
claim under Title VII and the Age Discrimination in Employment Act. You
understand the forgoing to be a general release of all claims. You agree that
the release contained in this paragraph 18 extends to all claims whatsoever. You
further agree that neither you nor any person, organization or any other entity
acting on your behalf will file, charge, claim, sue, participate in, join or
cause or permit to be filed, charged or claimed, any action, claim, grievance or
demand for damages or other relief (including injunctive, declaratory, monetary
or other) against TenFold, each of TenFold's subsidiaries, their respective
affiliates and successors and their respective officers, directors, employees,
agents and representatives, past, present or future, with respect to the
Released Claims which are the subject of this Agreement. Both TenFold and you
agree that the Released Claims shall not include any claims or disputes between
the parties to enforce any term or condition of this Agreement.
19. In addition to the release in paragraph 18 above, you expressly and
knowingly waive any and all rights under Section 1542 of the Civil Code of the
State of California, which provides as follows:
"A general release does not extend to claims which creditor does not
know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
For all purposes of this paragraph 19 of this Agreement, the term "creditor" as
used and referenced in Section 1542 of the Civil Code of the State of California
means and includes you, your heirs, executors, administrators, or assigns.
20. In consideration of the promises made by TenFold in this Agreement,
you agree to cooperate with TenFold with respect to all matters arising during
or related to your employment, including, but not limited to, all matters in
connection with any governmental investigation, litigation, regulatory, or other
proceeding which may have arisen or which may arise following the signing of
this Agreement. You agree to make yourself reasonably available to TenFold to
answer questions and provide information concerning projects on which you have
experience and expertise, and to make yourself reasonably available for
depositions and to serve as a witness at trial in litigation
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involving TenFold. TenFold will reimburse you for pre-approved travel costs and
other reasonable out-of-pocket expenses you incur as a result of cooperation you
provide under this paragraph 20, including, without limitation, travel costs and
expenses incurred by you in connection with the SEC investigation of TenFold;
provided, however, that you will remit to TenFold any reimbursement that you
receive from other parties. You acknowledge and agree that TenFold shall have no
obligation to pay you for your time spent providing cooperation under this
paragraph 20; provided, however, that in the event that the Company requires
more than five business days of your time under this paragraph 20, the Company
will negotiate in good faith with you to provide reasonable consideration for
such cooperation.
21. The laws of the state of California shall govern any disputes or
claims between the parties concerning in any way your employment relationship
with TenFold or the termination thereof, the validity of this Agreement, the
construction of its terms and the interpretation of the rights and duties of the
parties under this Agreement. Any litigation arising from or relating to any
dispute or claim between the parties concerning your employment relationship
with XxxXxxx, the termination of your TenFold employment or this Agreement shall
be conducted in state or federal courts in the state of California, and the
parties hereto expressly agree upon and consent to such jurisdiction and venue.
22. You give, by executing this Agreement, TenFold your unconditional
assurance that you have signed it voluntarily and with a full understanding of
its terms and that you have had the full and sufficient opportunity to consider
this Agreement before signing it.
23. You acknowledge and agree that TenFold may issue a press release or
other public disclosure regarding this Agreement or the contents thereof, and
you hereby irrevocably and unconditionally release TenFold from any and all
liability relating thereto.
24. You covenant and agree that for a period of six (6) months from and
after the Separation Date you (a) shall not engage, anywhere within the
geographical areas in which TenFold is then conducting its business operations,
directly or indirectly, alone, in association with or as a shareholder,
principal, agent, partner, officer, director, employee or consultant of any
other organization, in any business (a "Competitive Business") which directly
competes with any business then being conducted by TenFold; provided, that the
foregoing shall not prohibit you from owning a maximum of two percent (2%) of
the common stock of any publicly traded corporation; (b) shall not solicit to
leave the employ of TenFold or hire any officer, employee or consultant of
TenFold; (c) shall not solicit, divert or to take away, the business or
patronage of any of the customers or accounts of TenFold, which were contacted,
solicited or served by you at any time during your employment by XxxXxxx; and
(d) shall not acquire, or assist any
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other party in acquiring, any shares of TenFold, or otherwise seek, or assist
any other party in seeking to gain control of TenFold. You acknowledge and agree
that because of the nature of the business in which TenFold is engaged and
because of the nature of the confidential information to which you have had
access during your employment by TenFold, it would be impractical and
excessively difficult to determine the actual damages of TenFold in the event
you breached any of the covenants of this paragraph 24 or the TenFold
Corporation Employee Proprietary Information and Inventions Agreement dated
August 2, 1999 referenced in paragraph 16 above, and remedies at law (such as
monetary damages) for any breach of your obligations under this paragraph 24
above would be inadequate. You therefore agree and consent that if you commit
any breach of a covenant under this paragraph 24 or the TenFold Corporation
Employee Proprietary Information and Inventions Agreement dated August 2, 1999
referenced in paragraph 16 above or threaten to commit any such breach, TenFold
shall have the right (in addition to, and not in lieu of, any other right or
remedy that may be available to it) to temporary and permanent injunctive relief
from a court of competent jurisdiction. You acknowledge and agree that this
paragraph 24 is reasonable and is necessary for the legitimate protection of
TenFold, and will not deprive you of a reasonable opportunity to practice your
profession or trade. With respect to any provision of this paragraph 24 of the
Agreement or the TenFold Corporation Employee Proprietary Information and
Inventions Agreement dated August 2, 1999 referenced in paragraph 16 above that
is finally determined to be unenforceable, you and TenFold hereby agree that
this Agreement or any provision hereof shall be reformed in a manner that
retains as much of the original intent of the Agreement as is both practicable
and consistent with applicable law.
25. This letter contains the entire Agreement between you and TenFold
and replaces all prior and contemporaneous agreements, communications and
understandings, whether written or oral, with respect to your employment, the
termination of your employment and all related matters.
If the terms of this Agreement are acceptable to you, please sign, date, and
return one fully executed copy to me. The enclosed duplicate copy of this
letter, which you should also sign and date, is for your records.
Sincerely,
Xxxxx X. Xxxxxx
President and Chief Executive Officer
TenFold Corporation
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I, Xxxxxx X. Xxxxxxxx, freely acknowledge, accept, and agree to be
legally bound by the foregoing terms and conditions of this Agreement without
reservation, condition, or limitation.
Signature: ____________________________
Date: July 26, 2001
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