Employment Agreement - Platinum Software Corp. and William R. Pieser
February 7, 1996
Mr. William R. Pieser
5010 Birkdale Way
San Jose, CA 95138
Re: Offer of Employment
Dear Bill:
I am happy to extend you the following offer of employment at Platinum Software
Corporation (the "Company").
1. Title. Your position will be Senior Vice President, Marketing and
Business Development and you will report to the President of the Company. You
will be headquartered in the Company's Irvine, California offices.
2. Base Salary. Your base salary will be $210,000 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 $105,000 based on a performance plan to be agreed upon between you and
the President of the Company. For fiscal 1996 you will receive a bonus payable
on July 15, 1996 equal to $105,000 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.
4. Additional Incentive Bonus. You will be eligible to receive an annual
"additional incentive bonus" of up to $105,000. The performance criteria for
this bonus will be agreed upon and determined by you and the President of the
Company 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
500,000 shares of the Company's common stock ("Restricted Stock") on the
following terms:
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February 7, 1996
Mr. William R. Pieser
Page 2
(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
date of this offer letter, which is $3.50.
(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 350,000 shares of Restricted Stock will lapse according to the
following schedule:
(i) 50,000 shares immediately upon the date of commencement of
your employment.
(ii) 8,334 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
150,000 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) 25,000 shares if FY 1997 operating revenues exceed the
Base Year revenues by 25% and 25,000 shares if the
Company's profit after taxes for FY 1997 is equal to or
exceeds 5% of FY 1997 operating revenues.
(ii) 25,000 shares if FY 1998 operating revenues exceed the
Base Year revenues by 50% and 25,000 shares if the
Company's profit after taxes for FY 1998 is equal to or
exceeds 10% of FY 1998 operating revenues.
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February 7, 1996
Mr. William R. Pieser
Page 3
(iii) 25,000 shares if FY 1999 operating revenues exceed the
Base Year revenues by 75% and 25,000 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 six months under
paragraph 4 hereof) and benefits due you to the date of termination and for a
period of six 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 respect to the six months following
your termination such that the Restricted Stock shall continue to vest for such
six-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
Senior Vice President of Marketing and Business Development for 24 or more
consecutive weeks.
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February 7, 1996
Mr. William R. Pieser
Page 4
(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, or the President (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 San Jose,
California for sale. Provided that you substantiate that your investment in this
residence is approximately $640,000, 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 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.
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February 7, 1996
Mr. William R. Pieser
Page 5
7. Country Club Membership. The Company will purchase a membership in a
country club of your choice in your name (or the name you choose) provided the
Company will not be obligated to pay more than $50,000 for the initial
membership fee. You will agree to return any proceeds from the sale of this
membership immediately after its sale, unless otherwise agreed in writing by the
President of the Company.
8. Other. 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
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.
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February 7, 1996
Mr. William R. Pieser
Page 6
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:
______________________________
L. George Klaus William R. Pieser
President and Chief Executive Officer
LGK:cl