Employment Agreement - Platinum Software Corp. and L. George Klaus
February 7, 1996
Mr. L. George Klaus
395 Golden Hills Drive
Portola Valley, CA 94028
Re: Offer of Employment
Dear George:
I am happy to extend you the following offer of employment at Platinum Software
Corporation (the "Company").
1. Title. Your position will be President, Chief Executive Officer and Director
and you will report to the Board of Directors of the Company. You will be
headquartered in the Company's Irvine, California offices. Subject to the
authority of the Board, you shall have full and complete authority to run the
Company's business and to conduct its operations, including, without limitation
the authority, in accordance with the Company's then existing personnel and
other policies, to employ and discharge all employees of the Company, and you
shall perform, on behalf of the Company, all duties and services as are
customarily incident to these offices. The Company acknowledges that you serve
as a consultant to or member of the Board of Directors of a number of other
companies and that you shall perform such duties as required by those positions
for so long as they do not conflict materially with your performance of services
hereunder.
2. Base Salary. Your base salary will be $500,000 per year paid semi-monthly
in accordance with the Company's normal payroll policies and subject to standard
withholding.
3. Annual Bonus. You will receive an annual bonus on a fiscal year basis of up
to $250,000 based on a performance plan to be agreed upon between you and the
Board of Directors. For fiscal 1996 you will receive a bonus payable on July 15,
1996 equal to $250,000 multiplied by the fraction, the numerator of which is the
number of days you were employed by the Company during its 1996 fiscal year and
the denominator of which is 365. The Company's fiscal year ends June 30, 1996.
<PAGE> 2
February 7, 1996
Mr. L. George Klaus
Page 2
4. Additional Incentive Bonus. You will be eligible to receive an
annual "additional incentive bonus" of up to $250,000. The performance criteria
for this bonus will be agreed upon and determined by you and the Board of
Directors before August 1, 1996. This bonus will begin with the Company's 1997
fiscal year.
5. Restricted Stock. The Company offers you the right to purchase
2,000,000 shares of the Company's common stock ("Restricted Stock") on the
following terms:
(a) The purchase price of the Restricted Stock will be the closing
price of the Company's Common Stock on the NASDAQ National Market System on the
day before your start date and the purchase will take place on such date.
(b) In order to fund the purchase, the Company will provide you a loan
in the amount of the purchase price. The loan will be evidenced by a recourse
promissory note which will bear simple interest at a rate of 6% per annum or
such higher rate of interest as is sufficient to avoid imputed income under
Sections 483, 1274 or 7872 of the Internal Revenue Code of 1986, as amended.
Interest may be paid annually by you, deferred until the stock is sold, or
forgiven by the Board of Directors, at its sole discretion. The principal on the
loan will be due on a pro rata basis when the Restricted Stock is sold by you or
on the fifth anniversary of the promissory note, whichever occurs first. The
promissory note will be secured by a pledge of the Restricted Stock and shall be
recourse only to the extent of any deficiency in the value of the Common Stock.
If your employment is terminated for cause (as defined below) the repayment of
the promissory note shall be accelerated.
(c) The Company will retain the right to repurchase the Restricted
Stock at a price equal to the initial purchase price. The repurchase rights with
respect to 1,400,000 shares of Restricted Stock will lapse according to the
following schedule:
(i) 350,000 shares immediately upon the date of
commencement of your employment.
(ii) 29,167 shares on the first day of each month
beginning on the date of commencement of your
employment and continuing for each month thereafter
for a period of 36 months.
The Company's repurchase rights with respect to the remaining
600,000 shares of Restricted Stock will lapse according to the following
schedule assuming the Company's fiscal year ending June 30, 1996 is the Base
Year:
(i) 100,000 shares if FY 1997 operating revenues exceed
the Base Year revenues by 25% and 100,000 shares if
the Company's profit
<PAGE> 3
February 7, 1996
Mr. L. George Klaus
Page 3
after taxes for FY 1997 is equal to or exceeds 5% of
FY 1997 operating revenues.
(ii) 100,000 shares if FY 1998 operating revenues exceed
the Base Year revenues by 50% and 100,000 shares if
the Company's profit after taxes for FY 1998 is equal
to or exceeds 10% of FY 1998 operating revenues.
(iii) 100,000 shares if FY 1999 operating revenues exceed
the Base Year revenues by 75% and 100,000 Shares if
the Company's profit after taxes for FY 1999 is equal
to or exceeds 15% of FY 1999 operating revenues.
(d) All of the Company's repurchase rights with respect to any of the
Restricted Stock under this paragraph 5 shall lapse immediately upon a Change of
Control. For purposes of this section, a Change in Control shall mean (i) the
sale, lease, conveyance or other disposition of all or substantially all of the
Company's assets as an entirety or substantially as an entirety to any person,
entity or group of persons acting in concert, (ii) any transaction or series of
transactions that results in, or that is in connection with, any person, entity
or group acting in concert (other than existing affiliates of the Company),
acquiring "beneficial ownership" (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934), directly or indirectly, of such percentage of the
aggregate voting power of all classes of voting equity stock of the Company as
shall exceed fifty percent (50%) of such aggregate voting power, (iii) the
stockholders of the Company approve a merger or consolidation of the Company
with any other corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least fifty percent
(50%) of the total voting power represented by the voting securities of the
Company or such surviving entity outstanding immediately after such merger or
consolidation; or (iv) a liquidation of the Company. Upon a Change of Control,
you may elect, in your sole discretion, not to have any portion of such
restrictions lapse in order to avoid any "parachute payment" under Section
280G(b)(2) of the Internal Revenue Code of 1986, as amended.
(e) If the Company shall terminate your employment agreement without
"cause" or if a "constructive termination" has occurred or if you die or become
disabled, the Company shall (i) pay you all compensation (including the base
salary and any bonus that would have been payable for the next twelve months
under paragraph 4 hereof) and benefits due you to the date of termination and
for a period of twelve months following the date of such termination and (ii)
cancel the Company's repurchase rights on the Restricted Stock for shares that
otherwise could be repurchased by the Company with
<PAGE> 4
February 7, 1996
Mr. L. George Klaus
Page 4
respect to the twelve months following your termination such that the Restricted
Stock shall continue to vest for such twelve-month period. During such period,
you shall continue to be entitled to participate in the Company's employee
benefits plans or arrangements (as set forth in Section 4 above) on the same
basis as if you were an employee. For purposes of this Agreement, disabled shall
mean your inability due to any physical or mental condition to perform a
substantial portion of your duties as President and CEO for 24 or more
consecutive weeks.
(f) For the purposes of this paragraph 5: (i) "cause" shall mean (A)
willful and repeated failure to comply with the lawful directions of the
Company's Board of Directors, (B) gross negligence or willful misconduct in the
performance of duties to the Company and/or its subsidiaries, (C) commission of
any act of fraud with respect to the Company and/or its subsidiaries, (D)
conviction of a felony or a crime involving moral turpitude causing material
harm to the standing and reputation of the Company and/or its subsidiaries, in
each case as determined in good faith by the Company's Board of Directors; and
(ii) "constructive termination" shall be deemed to occur if (A)(1) there is a
material adverse change in your position causing it to be of less stature or of
less responsibility, (2) a change in the persons to whom you report (other than
a change in Board of Director composition) or (3) a reduction of more than 20%
of your base compensation and (B) the Company shall fail to correct the
occurrence to your reasonable satisfaction following written notice by you
within the thirty (30) days following receipt of such notice and you elect to
terminate your employment voluntarily.
(g) Registration Rights. In connection with the Restricted Stock, the
Company will register such shares on Form S-8. If registration of such shares of
Restricted Stock is not permissible on Form S-8 the Company will register such
shares on Form S-3, subject to customary underwriter lock ups and cutbacks, if
applicable, and shall rank in equal priority with the registration rights held
by existing preferred stockholders.
6. Relocation Allowances. The Company agrees to assist you in relocating to
Irvine, California. In this regard, you agree to list your home in Portola
Valley, California for sale and the Company will reimburse you for the carrying
costs of the house until the house is sold. Provided that you substantiate that
your investment in this residence is approximately $2,600,000, the Company will,
upon the sale of your house, make up any shortfall in the sales price from your
investment either by, at the Company's election, : (i) reimbursing you the
shortfall amount within 30 days following the closing or (ii) by participating
in a simultaneous closing and absorbing the shortfall. Any amount of
reimbursement will be grossed up to include income taxes on the amount of any
reimbursement pursuant to this paragraph 6 such that you will have no additional
taxes solely because of any such reimbursements. In addition, in order to assist
you in purchasing a home in Orange County, California, the Company will
reimburse you for up
<PAGE> 5
February 7, 1996
Mr. L. George Klaus
Page 5
to three (3) points of financing and closing costs, and will guarantee bridge
financing, if necessary. The Company will provide temporary housing to you in
its corporate apartment. In addition, the Company will reimburse you for your
costs incurred in leasing a vehicle during any temporary living period. Finally,
the Company will cover your moving expenses to Southern California as well as
return moving expenses to Northern California at a time no earlier than three
years unless the Company is sold or relocated in which case they will be
provided at the time of the sale or relocation.
7. Country Club Membership. The Company will purchase a membership in Big Canyon
Country Club in your name (or the name you choose). You will agree to return any
proceeds from the sale of this membership immediately after its sale, unless
otherwise agreed in writing by the Board of Directors.
8. Other. The Company understands that you have previously arranged a vacation
in March of 1996 and will honor this arrangement. The Company will reimburse you
for your reasonable legal expenses incurred for document reviews related to your
employment. Effective the beginning of the month following your start date, you
will be eligible to participate in the Company's health plan, including the
Exec-U-Care plan. After meeting eligibility requirements, you will be able to
participate in various company benefit programs including the Company's 401(k)
savings program, Section 125 Reimbursement Account, and the Confidential
Employee Assistance Program (EAP).
9. Indemnification. In the event you are made, or threatened to be made, a party
to any legal action or proceeding, whether civil or criminal, by reason of the
fact that you are or were a director or officer of the Company or serves or
served any other corporation fifty percent (50%) or more owned or controlled by
the Company in any capacity at Company's request, you shall be indemnified by
the Company, and the Company shall pay your related expenses when and as
incurred, all to the full extent permitted by law.
10. Successors. Any successor to the Company (whether direct or indirect and
whether by purchase, lease, merger, consolidation, liquidation or otherwise) to
all or substantially all of the Company's business and/or assets shall assume
the obligations under this Agreement and agree expressly to perform the
obligations under this Agreement in the same manner and to the same extent as
the Company would be required to perform such obligations in the absence of a
succession. The terms of this Agreement and all of your rights hereunder shall
inure to the benefit of, and be enforceable by, your personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
This offer is contingent upon execution of the Company's Employee Proprietary
Agreement and the Employee Acknowledgment Statement and your having a physical
exam within thirty (30) days after commencing employment and remedying any
<PAGE> 6
February 7, 1996
Mr. L. George Klaus
Page 6
deficiencies from any unsatisfactory results of the physical. Upon accepting
this offer, you will be required to sign and agree to the terms therein.
Additionally, due to the Immigration Reform Act and Control of 1986, if you are
an employee of the Company in the United States, prior to or on your first day
of employment, you will be required to show proof of identity and authorization
to work in the United States. Please be prepared to show appropriate
documentation for evidence of identity and employment eligibility.
Please indicate your acceptance of this offer by signing in the space below.
Upon receipt, I will have the necessary agreements prepared to document the
items described in this offer letter. If you have any questions, please do not
hesitate to call.
Very truly yours, Accepted:
____________________________
Carmelo J. Santoro L. George Klaus
Chief Executive Officer
CJS:cl