Termination of Employment Agreement - Manugistics Inc. and David Roth
Manugistics, Inc.
2115 E. Jefferson Street
Rockville, Maryland 20852
TERMINATION OF EMPLOYMENT AGREEMENT
Date Presented: November 11, 1998
This Agreement will be withdrawn if not accepted by you, in writing, and
delivered to Manugistics by close of business December 2, 1998.
This Termination of Employment Agreement ("Agreement") is entered into by
Manugistics, Inc. ("Manugistics") and David Roth ("you") who has been employed
since October 10, 1994. It is acknowledged that you will terminate your
employment relationship with Manugistics as of close of business, February 19,
1999 ("Termination Date"); and both you and Manugistics agree to set forth the
terms and conditions upon which the employment relationship is to be terminated.
You also agree that you have received valuable and sufficient consideration for
entering into this Agreement. Any payment made by Manugistics will only be made
after there has been a signed agreement between the parties. The parties agree
to the following terms:
1. Termination Date.
To the best of your ability, you will be expected to perform you job duties,
or those assigned to you by your manager, for the period beginning November
9, 1998 and ending close of business, November 27, 1998. This period of time
is called your "work-out period". Your Severance Period will begin on
November 28, 1998 and end, close of business February 19, 1999. You will not
be required to perform company work during your Severance Period except as
otherwise noted in this Agreement. You will receive pay during the Severance
Period specified in this paragraph, even if you should secure employment
with another employer during this Severance Period. During the Severance
Period, you should spend your time in pursuit of other employment.
Your termination of employment for other employment opportunities will be
effective as of close of business on the Termination Date.
1a. Extension of Termination Date and Severance Period.
In the event you have not begun full time professional employment with
another employer by February 19, 1999, and you have made a good faith effort
to secure such employment, your Termination Date will no longer be
considered February 19, 1999. Rather, your Severance Period and Termination
Date will be extended until May 14, 1999, or until professional employment
begins with another employer, whichever occurs first.
2. Reason for Termination.
It is mutually agreed by the parties that you will resign your employment
with Manugistics in order to secure employment that is more aligned with
your career objectives and philosophy. Announcement of your resignation from
Manugistics will be at a time and in a manner agreeable to the parties, but
before November 23, 1998.
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3. Severance Pay.
a. During this Severance Period, you will receive a total of up to 24 weeks
of salary. Severance paychecks will be issued according to Manugistics'
regular payroll procedures. As part of severance payment, you agree to
provide reasonable transition assistance to Manugistics during the severance
period. Any earned but unused vacation will be paid to you in the paycheck
you receive from Manugistics following your Termination Date. To assist you
in your job search (resume prep/printing, secretarial services, etc.),
$1000. will be paid to you through our payroll system in the first full pay
period in your Severance Period. Receipts for expenses will not be required.
You will also be entitled for up to four (4) one hour coaching sessions with
a professional career transition consultant selected by Manugistics.
b. Manugistics may offset against any amounts due to you under this
Severance Agreement: (a) all amounts due from you to Manugistics; and (b)
the value of any property of Manugistics that is in your possession which is
not returned to Manugistics by the Severance Date.
4. Benefits.
a. You will receive all the benefits of employment with Manugistics that
you have in force as of the date of this Agreement. These benefits will
continue through your Termination Date, unless this Agreement specifically
provides otherwise. This Agreement will not affect any rights or obligations
you have otherwise accrued under Manugistics benefit plans, including
Manugistics Insurance Plans, and the Manugistics, Inc. 401(K) Retirement
Savings Plan. The terms of those Plans shall control concerning the
termination of benefits under those plans. You will be eligible for Short
Term Disability and Good Health Subsidy until your Severance Period begins.
The Employee Assistance Plan (1-800-225-8451) is available to you for six
months following your Termination Date. PC Subsidy and Tuition Assistance
had to be approved by HRD prior to the date of this letter to be considered.
You may be eligible for unemployment compensation benefits to the extent
state law allows.
b. Following your Termination Date, you will be able to continue your
company health insurance plan as set forth under COBRA. To be eligible, you
must complete a timely COBRA application for coverage. Under COBRA law you
will be eligible for at least 18 months of coverage. You will be responsible
for payment of the full premium and administrative costs: Standard Plan
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(approximately $196.28 per month for Employee only, $437.40 per month for
Employee plus one dependent, or $573.48 per month for Family coverage); HMO,
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(approximately $147.86 per month for Employee only, or $399.21 per month for
Family coverage). Insurance premiums are subject to change as such changes
would apply to other employees.
c. On request, Carl Di Pietro will meet with you regarding employment
sources and otherwise provide employment counseling. A $10,000 retroactive
pay increase will be paid in consideration of a salary pay increase
scheduled for May, 1998. Such retroactive payment will be made in the first
full pay period in your Severance Period. Benefits provided after the May
date will reflect this pay increase. Based on your performance to date, you
are eligible for reemployment with Manugistics should a suitable opportunity
exist. You will prepare a reference template that will be shared by
Manugistics management with prospective employers and/or their
representatives. The contents of the reference template will be agreed upon
by the parties and reflect accurate performance statements.
d. You will be paid up to $10,000 for non financial FY99 incentive bonus
objectives that have been completed to the satisfaction of your Manager, Joe
Broderick. This payout will be made in accordance with the provisions of
your FY99 plan.
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e. You may attend the Boston AMR conference on November 17/18, 1998.
Manugistics will reimburse you for conference registration and reasonable
travel expenses. The issue of whether or not you will attend as a
Manugistics employee will be agreed upon with Joe Broderick.
f. You will be required to exercise vested stock options that may be due
you within thirty (30) days following your Termination Date, or such options
will be forfeited.
5. Condition Precedent.
All obligations of Manugistics under this Agreement are conditioned upon
your compliance with your obligations herein.
6. Termination Procedure.
a. You will comply with the duties and responsibilities noted in
Manugistics' termination procedures set forth in the on-line Employee
Encyclopedia and which the parties agree are a part of this Agreement. These
duties and responsibilities include, but are not limited to, returning
licensed manuals, proprietary information, computer equipment/software,
office keys, access cards, credit cards and paying off Diner's Club in full.
Your computer access shall continue until the close of business on the
Severance Date or discontinued sooner as determined by your manager. You
agree to remove your personal property from and leave Manugistics premises,
during regular Manugistics' business hours, on or before the Severance Date.
Manugistics will provide you with a new voice mailbox so that you can
receive employment related calls from outside the Company. On or before your
Termination Date, the voice mailbox will be deactivated at the discretion of
the company.
b. You will be permitted to continue to use the Manugistics' laptop
computer that has been assigned to you through your Termination Date or
until you secure other employment, whichever occurs first.
7. Release of Claims.
a. Employee Release. You hereby release Manugistics and its directors,
officers, and employees from past and present claims based on acts or
omissions occurring before and as of today's date. These include, but are
not limited to, claims for salary, benefits, commissions and damages which
are directly or indirectly related to your employment by Manugistics or the
termination of your employment.
b. Manugistics Release. Manugistics and its directors, officers,
successors, agents and attorneys hereby release you and your heirs,
administrators, executors, representatives, agents and attorneys from past
and present claims based on acts or omissions occurring before and as of
today's date. These include, but are not limited to, breach of contract,
breach of duties, personal injury or torts, which are directly or indirectly
related to your employment by Manugistics or the termination of your
employment.
c. Limitation of Releases. The releases in this Section apply to your
employment or termination of your employment, but do not apply to claims for
breach of this Agreement.
d. In consideration of the severance benefits paid to Employee pursuant to
this Agreement, the Employee hereby releases Employer from any claims under
the Age Discrimination in Employment Act which arose prior to the execution
date of this Agreement. Employee
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should discuss any questions concerning this waiver with an attorney of
Employee's choice prior to executing this Agreement. Employee shall have a
period of twenty one (21) days from the date of presentment of this
Agreement within which to consider this Agreement or amendments thereto.
Employee may revoke this Agreement for a period of seven (7) days following
its execution, and this Agreement shall not be effective or enforceable
until such seven-day revocation period has expired.
8. Indemnification
Notwithstanding anything to the contrary in Section 7, as provided in this
Section 8, Manugistics agrees that Employee shall be indemnified to the
maximum extent allowed under Article XI, Sections 1-5 and 8, Manugistics
Group, Inc.'s By-Laws (the "By-Laws") against any suit or claim now or
hereafter brought against the Employee (including Shareholder class action
suits). Pursuant to the By-Laws Article XI, Section 5, entitled "Advancement
of Expenses", Manugistics agrees that it shall propose to the Board of
Directors of Manugistics Group, Inc., at the January, 1999 Quarterly Meeting
that the Board approve the advancement of expenses for any action, suit or
proceeding resulting from actions taken or omissions made by Employee in
good faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of Manugistics. The indemnification and advancement
of expenses provided for in this Section 8 shall apply to any suit or claim
arising out of acts taken or missions made by Employee during the period
commencing with the first day of Employee's employment with Manugistics and
ending on the earlier of: (i) Employee commencing employment with another
party; or (ii) May 14, 1998.
9. Noninterference.
You agree to maintain a cooperative attitude toward Manugistics, not to
disrupt Manugistics ongoing business, and not to make disparaging remarks
about Manugistics. You agree to act in good faith in your conduct and to
refrain from any involvement in the business affairs of Manugistics except
as provided in this section or expressly directed by your manager. You also
agree to be available by telephone and in person until Termination Date to
the extent that Manugistics reasonably finds such necessary. If you receive
any questions concerning the daily business affairs of Manugistics after the
Severance Date (or sooner if instructed by your manager), including
questions from customers of Manugistics, you agree to promptly refer them to
your manager. Manugistics agrees to act in good faith and not to make
disparaging remarks about you, your performance, or your character.
10. Noncompete.
For one (1) year after Manugistics makes the last payment under this
agreement, you agree not to directly or indirectly:
a. Solicit, attempt to solicit or contact for the purpose of soliciting (for
you or for any other person or business) any employee of Manugistics.
b. Solicit, attempt to solicit or contact for the purpose of soliciting (for
you or for any other person or business) any person or business which was a
customer of Manugistics during your employment by Manugistics, or any person
or business to whom Manugistics had proposed future service within the one
(1) year period prior to your Termination Date. The solicitation
restrictions of this paragraph apply to you if you are associated with or
representing, directly or indirectly, any interest with products and
services that are in direct competition with Manugistics.
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c. Seek or accept employment with a person or business which is a
competitor of Manugistics, if the employment is directly or indirectly
related to the types of services made that you provided to Manugistics,
without your prior notice to and your receipt of the written consent of
Manugistics. Only I2 and SAP are considered competitors under the terms of
this paragraph. Once you have decided on a new employer, you agree to notify
Manugistics' Director of Human Resources, in writing, with the employer's
name and address, date of employment, your new job title and a brief
description of job duties.
You understand that you cannot disclose any confidential information and/or
trade secrets of Manugistics as set out in your Conditions of Employment or
applicable law. Breach of any of the obligations in the Code of Conduct or
Conditions of Employment are deemed a breach of this AGREEMENT for purposes
of Section 6.c.
d. Both parties agree that your consent to your obligations under this
Noncompete Section is an important consideration for Manugistics to enter
into this Agreement and that these obligations are meant to protect
Manugistics confidential information which is a valuable asset and could be
used by its competitors to Manugistics detriment. You understand the value
of this provision to Manugistics, and you also agree that Manugistics may
not be able to fully protect its rights through money damages. Therefore,
you understand that Manugistics may seek injunctive relief in order to
ensure that this provision is enforced. If a court with proper jurisdiction
finds that this provision is too broad, both parties agree that the court
may limit it so that it may be enforced to the fullest extent possible.
11. Reaffirmation of Your Obligations.
You agree to reaffirm the obligations under the Manugistics Employee Code of
Conduct and the Manugistics Conditions of Employment to which you have been
bound since your first day of employment by Manugistics. Receipt of
Manugistics benefits as noted in this Agreement or elsewhere, are subject to
your full compliance with the Manugistics Code of Conduct and Conditions of
Employment.
12. Entire Agreement.
This Agreement is the entire agreement between the parties with regard to
your employment with Manugistics, and the termination of your employment,
and supersedes all previous communications between you and Manugistics
relating to your employment or termination.
13. Confidentiality.
You hereby agree to keep the terms of this Agreement confidential and not to
disclose this Agreement with anyone other than your tax or legal advisors,
without Manugistics' consent which will not be unreasonably withheld.
Manugistics will only disclose the terms of this Agreement to its tax and
legal advisors and those Manugistics employees whose position reasonably
requires such knowledge.
14. Acknowledgment of Understanding.
YOU AGREE THAT YOU HAVE READ AND FULLY UNDERSTAND AND AGREE WITH THE TERMS
OF THIS AGREEMENT. YOU ALSO AGREE THAT YOU HAVE NOT BEEN COERCED IN ANY
MANNER WITH REGARD TO THIS AGREEMENT, AND HAVE AGREED TO THESE TERMS AFTER
FULL AND FAIR NEGOTIATION.
This Agreement is agreed to and accepted by:
YOU: MANUGISTICS:
By: ______________________________ By: _____________________________
Print Name: _______________________ Print Name: ______________________
Title: ___________________________ Title: ___________________________
Date Signed: _____________________ Date Signed: _____________________