<PAGE>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM 10-K/A
(MARK ONE)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended October 31, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
COMMISSION FILE NUMBER 0-15322
SYSTEM SOFTWARE ASSOCIATES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 36-3144515
-------- ----------
(STATE OR OTHER JURISDICTION (IRS EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
500 W. MADISON, 32ND FLOOR
CHICAGO, ILLINOIS 60661
---------------------
(ADDRESS OF PRINCIPAL EXECUTIVE
OFFICES)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (312) 258-6000
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT: NONE
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
7% Convertible Subordinated Notes, due 2002
Common Stock, par value $0.0033 per Share
(Title of class)
--------------
----------------------
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
---
<PAGE>
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [_]
The aggregate market value of voting stock held by non-affiliates of the
registrant based upon the closing sale price of the stock as reported on the
Over-the-Counter Bulletin Board service on January 14, 2000, was $23,109,889.85.
At January 14, 2000, 12,022,759 shares of the registrant's Common Stock were
outstanding.
================================================================================
2
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information required by this item with respect to executive officers is
set forth in Part I of this report, as originally filed. Information regarding
directors is set forth below.
ROBERT R. CARPENTER, age 45, was appointed Chief Executive Officer and
Chairman of the Board of Directors on September 15, 1999. He was a private
technology investor from 1998 until joining the Company. From 1997 to 1998, Mr.
Carpenter served as President and Chief Executive Officer of Origin Americas, a
subsidiary of Philips B.V. From 1994 to 1997, he was Senior Vice President NCR
Worldwide Service for AT&T Corporation where he had worldwide responsibility for
NCR's services business. Mr. Carpenter holds a M.B.A. from Northwestern
University Kellogg Graduate School of Management, a M.A. in Foreign Affairs from
the University of Virginia and a B.A. degree from Depauw University.
DOUGLAS P. SMITH, age 48, has been a Director of the Company since March
1998. Mr. Smith is a Managing Director of Chase H&Q, a division of Chase
Securities Inc., formerly Hambrecht & Quist LLC ("H&Q LLC"), the Company's
financial advisor. He previously served as an Advisory Director of H&Q LLC.
Prior to joining H&Q LLC in 1997, he was the Chief Financial Officer and Head of
Strategy for ComputerVision Corporation. He also acted in senior executive
capacities with Prime Computer and Penn Central Corporation. He holds an M.A. in
International Economics from Northeastern University and a B.A. in Economics
from Union College.
WILLIAM N. WEAVER, JR., age 65, has been a Director of the Company since
December 1986 and its Assistant Secretary since March 1985. Mr. Weaver is a
member of the law firm of Sachnoff & Weaver, Ltd., an Illinois professional
corporation ("S&W"), which is counsel to the Company. Mr. Weaver has practiced
law in the State of Illinois since 1964 and serves as a director of
USFreightways Corporation, as well as several privately-held corporations. He
holds an A.B. degree from Oberlin College and a J.D. from John Marshall Law
School.
The Company's executive officers are appointed by and serve at the discretion of
the Board of Directors. All Directors hold such office until the next annual
meeting of the stockholders or until their successors are duly elected and
qualified.
COMPLIANCE WITH SECTION 16(a) OF THE EXCHANGE ACT
Section 16(a) of the Securities Exchange Act of 1934, as amended, requires
the Company's directors and executive officers and holders of 10% or more of the
Company's Common Stock, to file with the Securities and Exchange Commission
reports of ownership and changes in ownership on the SEC's Forms 3, 4 and 5.
Based solely on its review of the copies of such forms it has received, the
Company believes that all of its officers, directors and greater than ten
percent beneficial owners complied with all the filing requirements applicable
to them with respect to transactions during fiscal 1999.
3
<PAGE>
ITEM 11.
MANAGEMENT COMPENSATION
The table below discloses the compensation awarded by the Company during
the Company's last three fiscal years to any person who served as Chief
Executive Officer during fiscal 1999 and to each person who served as an
executive officer during fiscal 1999 (the "Named Executive Officers"). All share
amounts and per share prices in this Report give effect to the 1 for 4 reverse
stock split of the Company's Common Stock that was effected September 2, 1999:
Summary Compensation Table
<TABLE>
<CAPTION>
Long-term
Compensation
Annual Compensation Awards
----------------------------------------------------------
Securities
Other annual Underlying All Other
Fiscal Salary Bonus Compensation Options Compensation
Name and Principal Position Year ($) ($) ($) (#) ($)
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Robert R. Carpenter, 1999 68,181 600,000 - 1,000,000 70(2)
Chairman of the Board and
Chief Executive Officer (1)
Joseph J. Skadra, 1999 250,000 82,500 - 8,750 420(2)
Vice President Finance and 1998 246,917 76,900 - 10,000 398(2)
Controller (3) 1997 237,000 57,000 - - 431(2)
Lorraine H. Fenton, 1999 300,000 80,000 87,638 (5) 25,000 504(2)
Vice President, Research and
Development (4)
William M. Stuek, 1999 437,500 - - - 63,270(7)
Former Chairman of the Board 1998 416,666 1,950,000 - 360,000 700(2)
and Chief Executive Officer (6)
Lawrence A. Zimmerman, 1999 242,115 88,125 84,743 (9) 12,500 420(2)
Former Executive Vice 1998 154,545 87,500 44,515 (10) 50,000 252(2)
President and Chief Financial
Officer (8)
</TABLE>
(1) Mr. Carpenter was appointed Chief Executive Officer and Chairman of the
Board of Directors on September 15, 1999. Mr. Carpenter's salary of $68,181
was paid for the period from September 15, 1999 to October 31, 1999.
(2) Represents the dollar value of insurance premiums paid by the Company
during the covered fiscal year with respect to term life insurance for the
benefit of the Name Executive Officer.
4
<PAGE>
(3) Mr. Skadra served as the Company's Vice President and Chief Financial
Officer through April 29, 1998. Mr. Skadra is the Company's principal
financial and accounting officer.
(4) Ms. Fenton was appointed Vice President, Research and Development on
November 18, 1998. She had served as Vice President-Development since July
1, 1998.
(5) Of the $87,638, $59,479 represents reimbursement of housing expenses and
$28,159 represents reimbursement of travel expenses.
(6) Mr. Stuek resigned as Chairman of the Board and Chief Executive Officer on
September 15, 1999.
(7) Of the $63,270, $62,500 represents amounts paid pursuant to Mr. Stuek's
severance agreement and $770 represents the dollar value of insurance
premiums paid by the Company during fiscal 1999 with respect to term life
insurance for the benefit of Mr. Stuek.
(8) Mr. Zimmerman resigned as Executive Vice President and Chief Financial
Officer on August 9, 1999.
(9) Of the $84,743, $63,097 represents reimbursement of housing expenses and
$21,646 represents reimbursement of travel expenses.
(10) Of the $44,515, $31,457 represents reimbursement of housing expenses and
$13,058 represents reimbursement of travel expenses.
Option Grants in Fiscal 1999
The following table provides further information on individual stock option
grants made in fiscal 1999 to the Named Executive Officers.
<TABLE>
<CAPTION>
Individual Grants
-------------------------------------------------------
% of Total
Number of Options
Shares Granted To Potential Realizable Value at
Underlying Employees Exercise Assumed Annual Rates of
Options Granted in Fiscal Price Expiration Stock Price Appreciation (1)
Name (#) 1999 ($/Sh.) Date 5% ($) 10% ($)
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Robert R. Carpenter 800,000 (2) 47.0% 4.00 9/12/09 2,012,463 5,099,976
200,000 (3) 11.8% 10.00 9/12/09 - 74,994
Joseph J. Skadra 2,500 (4) * 22.00 12/16/08 34,589 87,656
6,250 (5) * 6.00 8/26/09 23,584 59,765
Lorraine H. Fenton 25,000 (6) 1.5% 11.752 4/13/09 184,769 468,242
William M. Stuek - N.A. N.A. N.A. N.A. N.A.
Lawrence A. Zimmerman 12,500 (7) * 11.752 3/17/09 92,385 234,121
</TABLE>
*Less than 1%
- -------------
5
<PAGE>
(1) The potential realizable value columns of the table illustrate values that
might be realized upon exercise of the options immediately prior to their
expiration, assuming the Company's Common Stock appreciates at the
compounded rates specified over the term of the options. These numbers do
not take into account provisions of certain options providing for
termination of the option following termination of employment or
nontransferability of the options and do not make any provision for taxes
associated with exercise. Because actual gains will depend, among other
things, on future performance of the Common Stock, the amounts reflected in
this table may not necessarily be achieved.
(2) Options granted become exercisable as follows: 200,000 on the grant date of
9/13/99 and 150,000 on 9/13/2000, 9/13/2001, 9/13/2002 and 9/13/2003.
(3) Options granted become exercisable on September 13, 2003.
(4) Options granted become exercisable ratably on the first four anniversaries
of the grant date of 12/16/98.
(5) Options granted become exercisable ratably on the first two anniversaries
of the grant date of 8/26/99.
(6) Options granted become exercisable as follows: 5,000 on the grant date of
4/13/99 and 5,000 on 4/13/2000, 4/13/2001, 4/13/2002 and 4/13/2003.
(7) Options granted become exercisable as follows: 2,500 on the grant date of
3/17/99 and 2,500 on 3/17/2000, 3/17/2001, 3/17/2002 and 3/17/2003.
6
<PAGE>
October 31, 1999 Option Values
The following table provides information on the value of Named Executive
Officers' unexercised stock options as of October 31, 1999. There were no option
exercises in fiscal 1999 by such officers.
<TABLE>
<CAPTION>
Number of Shares Underlying
Unexercised Options at Value of Unexercised
October 31, 1999 (#) In-the-Money Options at
-------------------- October 31, 1999 ($)
Name Exercisable Unexercisable Exercisable Unexercisable
- ---- ----------------------------------------- ---------------------------------
<S> <C> <C> <C> <C>
Robert R. Carpenter 200,000 800,000 - -
Joseph J. Skadra 7,374 16,676 - -
Lorraine H. Fenton 20,000 42,500 - -
William M. Stuek 152,687 - - -
Lawrence A. Zimmerman - - - -
</TABLE>
Compensation Committee Interlocks and Insider Participation
During fiscal 1999, the Compensation Committee of the Board of Directors
consisted of Casey G. Cowell, Douglas P. Smith and William N. Weaver, Jr. until
May 1999, and thereafter consisted of Douglas P. Smith and William N. Weaver,
Jr. None of these persons was a current or former officer or employee of the
Company or any of its subsidiaries. Mr. Smith is a Managing Director of Chase
H&Q, a division of Chase Securities Inc., which acts as financial advisor to the
Company; Mr. Weaver is a member of S&W, which provides legal services to the
Company. See "Certain Relationships and Related Transactions."
Compensation of Directors
The Company does not pay directors any cash consideration for serving on
the Board of Directors. In recognition of their continued board service, the
Board of Directors on August 19, 1998, adopted a resolution pursuant to which
all non-employee directors were awarded a discretionary option under the
Company's existing stock option plan to purchase 7,500 shares, exercisable at
the fair market value of the Company's stock on the date of grant, such option
to become exercisable in equal portions on the first and second anniversaries of
the grant date.
In consideration of this and earlier option grants, S&W agreed to waive its
fees for Mr. Weaver's time expended attending meetings of the Board of Directors
and committees. Accordingly, neither Mr. Weaver nor S&W received any cash
compensation in consideration of Mr. Weaver's services as a director in fiscal
1999.
Employment Contracts
Robert R. Carpenter entered into an Employment Agreement in connection with
his initial hiring on September 13, 1999, and was appointed the Company's Chief
7
<PAGE>
Executive Officer on September 15, 1999. The terms of his employment include the
following: a term of four years; a base annual salary of $500,000; an engagement
bonus of $600,000; a targeted bonus of up to $1,000,000 for the fiscal year
ending October 31, 2000 based upon the attainment of certain operating income
targets; an annual incentive bonus for fiscal years after October 31, 2000 of up
to $500,000; reimbursement of all reasonable and approved business expenses in
connection with his employment; and options to purchase 1,000,000 shares of
Common Stock which options generally vest over a period of 4 years (subject to
acceleration upon the occurrence of certain events). The Employment Agreement
also contains certain protective covenants regarding confidential information
that Mr. Carpenter may acquire through his association with the Company.
William M. Stuek, the Company's former Chairman of the Board and Chief
Executive Officer, resigned his positions effective September 15, 1999 and
entered into an agreement with the Company as of September 14, 1999 pursuant to
which the Company will continue to pay Mr. Stuek his annual base salary of
$500,000 through September 15, 2001 in consideration for his release of any and
all claims he may have against the Company for compensation or otherwise. The
agreement further provides, as additional consideration, for the modification of
the terms of certain options granted to Mr. Stuek pursuant to his employment
agreement with the Company and contains certain protective covenant regarding
confidential information that Mr. Stuek acquired through his association with
the Company.
Joseph J. Skadra, the Company's Vice President Finance and Controller,
entered into an Employment Agreement with the Company on August 27, 1998. The
terms of his employment include the following: a base salary of $250,000
annually; an annual bonus of up to $100,000 based on achievement of specified
organizational and management objectives; and options to purchase 7,500 shares
of Common Stock. Mr. Skadra also has a confidentiality agreement with the
Company which is to apply throughout Mr. Skadra's employment and for a period of
one year thereafter.
Lorraine H. Fenton, the Company's Vice President Research and Development,
entered into an Employment Agreement with the Company on August 7, 1998. The
terms of this employment included the following: a base salary of $300,000
annually; an annual bonus of up to $100,000 based on achievement of specified
organizational and personal management objectives; reimbursement of all
reasonable and approved business expenses in connection with her employment; and
options to purchase 37,500 shares of Common Stock. The Employment Agreement also
contains certain protective covenants regarding confidential information that
Ms. Fenton may acquire through her association with the Company.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Security Ownership of Principal Holders and Management
The following table sets forth information as of December 31, 1999, with
respect to the beneficial ownership of the Company's outstanding Common Stock by
each
8
<PAGE>
stockholder known by the Company to be the beneficial owner of more than 5% of
its Common Stock, and as of February 21, 2000, with respect to each director,
each current executive officer, each executive officer discussed under
"Management Compensation" above, and all the directors and officers as a group.
<TABLE>
<CAPTION>
Name and Address Amount and Nature of
of Beneficial Owner Beneficial Ownership Percent of Class(1)
- ------------------- -------------------- -------------------
<S> <C> <C>
Roger E. Covey......................................... 1,540,312(2) 12.81
2225 N. Lakewood
Chicago, IL 60614
Hambrecht & Quist California........................... 933,413(3) 7.76
One Bush Street
San Francisco, CA 94104
Gardner Lewis Asset Management, L.P.................... 882,171(4) 7.33
285 Wilmington, W. Chester Pike
Chadds Ford, PA 19317
Tudor Investment Corporation........................... 732,745(5) 6.09
600 Steamboat Road
Greenwich, CT 06830
Putnam Investments, Inc................................ 677,348(6) 5.63
One Post Office Square
Boston, MA 02109
Robert R. Carpenter.................................... 200,000(7) 1.64
William M. Stuek....................................... 165,145(7)(8) 1.35
William N. Weaver, Jr.................................. 84,613(9) *
Lorraine H. Fenton..................................... 25,000(7) *
Joseph J. Skadra....................................... 8,749(7) *
Douglas P. Smith....................................... 0(10) *
Lawrence A. Zimmerman.................................. 0 *
All Officers and Directors as a Group 318,362(7)(9)(10) 2.58
(five persons).......................................
</TABLE>
- --------
* Less than 1%.
(1) Percentage of class based on the 12,028,415 shares of Common Stock
outstanding on February 21, 2000 and is determined by assuming the exercise
of options that are held by such persons (but not those held by any other
person) which are exercisable within 60 days of February 21, 2000.
Beneficial ownership is
9
<PAGE>
determined in accordance with the rules of the Securities and Exchange
Commission, and includes voting and investment power with respect to the
shares shown as beneficially owned, except as otherwise indicated.
(2) According to a statement by Roger Covey, he does not personally own any
shares of the Company's Common Stock but is the beneficial owner of
1,390,312 shares held of record by the Xerxes Trust and 150,000 shares held
of record by the Tang Research Foundation, of which Mr. Covey is a
Director.
(3) Hambrecht & Quist California ("H&Q"), an indirect wholly-owned subsidiary
of The Chase Manhattan Corporation, has shared dispositive and voting power
over all listed shares. Such shares are issuable upon conversion of shares
of the Company's Series A Preferred Stock held of record by H&Q SSA
Investors, L.P. and the exercise of certain warrants held of record by
Chase Securities Inc.. Mr. Smith is a Managing Director of Chase H&Q, a
division of Chase Securities Inc., and as such may have beneficial
ownership of the listed shares. See note (10) below.
(4) According to a Report on the SEC's Schedule 13G, as of December 31, 1999,
Gardner Lewis Asset Management, L.P. has sole dispositive power for all
882,171 listed shares and exercises sole voting power over 828,760 shares
and shared voting power over 4,465 of such shares.
(5) According to a Report on the SEC's Schedule 13G, as of December 31, 1999,
Tudor Investment Corporation ("TIC") shares dispositive and voting power
over 732,745 shares. The 13G Report indicates that TIC is the financial
advisor to four entities which also share dispositive and voting power over
the total of 732,745 shares; however, none of the four entities by itself
is a beneficial owner of more than 5% of SSA's Common Stock.
(6) According to a Report on the SEC's Schedule 13G, as of December 31, 1998,
Putnam Investments, Inc. ("PI") had shared voting power over 208,704 shares
and shared dispositive power over 677,348 shares. Two registered investment
advisors wholly owned by PI beneficially owned shares of SSA's Common
Stock: Putnam Investment Management, Inc. beneficially owned 182,096 shares
and The Putnam Advisory Company, Inc. beneficially owned 495,251 shares. PI
beneficially owns the SSA shares beneficially owned by its two
subsidiaries.
(7) Includes unissued shares of Company's Common Stock, subject to options
exercisable within 60 days of February 21, 2000, as follows: Mr. Carpenter
200,000; Mr. Stuek 152,687; Ms. Fenton 25,000; and Mr. Skadra 8,749.
(8) Includes 12,458 shares of the Company's Common Stock issuable upon
conversion of 7% Convertible Notes held by Mr. Stuek.
10
<PAGE>
(9) Includes 21,413 unissued shares of the Company's Common Stock, subject to a
currently exercisable option held by Sachnoff & Weaver, Ltd., of which Mr.
Weaver is a member. Mr. Weaver disclaims beneficial ownership of all but
his allocated portion of the shares covered by the option.
(10) Mr. Smith's share holdings as indicated in the table exclude: (i) 361,050
shares issuable upon the conversion of shares of Series A Preferred Stock
or upon the exercise of Common Stock purchase warrants, all held by H&Q SSA
Investors, L.P., an entity of which Mr. Smith is a limited partner and of
whose general partner, Chase H&Q, a division of Chase Securities Inc., Mr.
Smith is a Managing Director; and (ii) 572,363 shares issuable upon the
exercise of certain warrants held by Chase Securities Inc.
11
<PAGE>
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
William N. Weaver, Jr., a member of the Board of Directors, is a member of
the law firm of Sachnoff & Weaver, Ltd., an Illinois professional corporation.
Sachnoff & Weaver, Ltd. has acted and continues to act as counsel to the Company
with regard to certain matters and has received legal fees for services rendered
in connection therewith.
Douglas P. Smith, a member of the Board of the Directors, is a Managing
Director of Chase H&Q, a division of Chase Securities Inc, formerly Hambrecht &
Quist LLC. Chase H&Q has acted and continues to act as a financial advisor to
the Company with regard to certain business matters of the Company and has
received fees and warrants to purchase the Company's Common Stock for its
services rendered in connection therewith.
Joseph J. Skadra, the Company's Vice President Finance and Controller, has
borrowed funds from the Company commencing July 10, 1996. Amounts borrowed are
represented by a promissory note, and bear interest at 8.25% per annum. Mr.
Skadra borrowed the amounts for personal reasons. As of February 21, 2000, the
amount owing, including accrued interest, is $253,891, which constitutes the
largest amount which has been outstanding under such arrangements. Repayment of
all amounts of principal is currently due July 21, 2000. Interest is payable
monthly in arrears.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Act
of 1934, as amended, the registrant has caused this amendment to report to be
signed on its behalf by the undersigned thereunto duly authorized.
SYSTEM SOFTWARE ASSOCIATES, INC.
February 28, 2000 /s/ Joseph J. Skadra
------------------------
Joseph J. Skadra
VP Finance and Controller
12
<PAGE>
INDEX TO EXHIBITS
Exhibit Description
No. -----------
- -------
10.56 Employment Agreement Between Registrant and Lorraine H. Fenton, dated
August 7, 1998
13
<PAGE>
EXHIBIT 10.56
Employment Agreement
This Employment Agreement (the "Agreement") is made and entered into as of the
7th day of August, 1998 ("Effective Date"), by and between System Software
Associates, Inc., a Delaware corporation (hereinafter the "Company"), and
Lorraine H. Fenton (hereinafter the "Employee").
WHEREAS, the Company desires that the Employee provide services for the benefit
of the Company (including, to the extent required, all subsidiary and related
companies of the Company; hereinafter collectively the "Affiliates") and the
Employee desires to accept such employment with the Company; and
WHEREAS, in the course of employment with the Company, the Employee will have
access to certain confidential information that relates to or will relate to the
business of the Company and its Affiliates, and the Company desires that any
such information not be disclosed to other parties or otherwise used for
unauthorized purposes.
NOW, THEREFORE, in consideration of the above premises and the following terms
and mutual covenants, the parties agree as follows:
1. EMPLOYMENT. The Employee shall serve as Vice-President Research and
Development. The Employee hereby accepts such employment and position on the
terms contained herein.
2. DUTIES AND EMPLOYEE LOYALTY. The Employee shall work for the Company in a
full-time capacity and shall have the duties, responsibilities, powers and
authority customarily associated with the position of Vice-President Research
and Development, which duties shall include, but not be limited to,
responsibility for manufacturing and supporting products made by the Company,
together with such other duties and functions as are assigned from time to time
by the Employee's Manager. The Employee shall report to the Company's Chief
Executive Officer or his designee (hereinafter "Employee's Manager"). The
Employee shall devote her entire business time, attention, energy, knowledge,
and skill to the performance of duties for the Company and will use her best
efforts to promote the interests of the Company and its Affiliates.
The Employee expressly agrees that during the term of this Agreement, he shall
not engage, directly or indirectly, as a partner, officer, director,
stockholder, advisor, agent, employee, or in any other form or capacity, in any
other business similar to that of the Company. The foregoing notwithstanding,
nothing herein contained shall be deemed to prevent the Employee from investing
in the capital stock or other securities of any corporation whose stock or
securities are publicly owned or are regularly traded on any public exchange.
<PAGE>
3. TERM OF EMPLOYMENT. Unless sooner terminated as in accordance with
Paragraph 7, this Agreement shall be entered into commencing as of its Effective
Date (hereinafter the "Start Date") and shall thereafter continue until
expiration in accordance with the terms and conditions of this Agreement.
4. COMPENSATION. For all services rendered by the Employee to the Company, the
Company shall pay to the Employee during her period of employment the following
compensation:
Base Salary. The Employee shall be entitled to an annual base salary of
$300,000.00 (hereinafter "Base Salary"); said Base Salary to be made
retroactive commencing as of July 1, 1998, payable in substantially equal
installments in accordance with the Company's then current local payroll
policy.
Annual Incentive Bonus. The Employee shall be entitled to participate in an
annual bonus program which shall provide the Employee an opportunity to
achieve a targeted annual bonus of up to $100,000.00, based on achievement of
specified organizational and personal management objectives (hereinafter
"Annual Incentive Bonus"). The Employee agrees that incentive bonus payments
are not guaranteed income and are based upon actual performance and
achievement of established objectives on a fiscal year or quarterly basis.
The actual payment of earned incentive bonus payments shall be made by the
Company on a periodic basis in accordance with the Company's then current
payroll policy. Currently, such periodic payments coincide with the Company's
fiscal quarters and fiscal year-end.
Adjustments to Base Salary and Annual Incentive Bonus. The Base Salary
and/or Annual Incentive Bonus may be increased (but may not be reduced,
unless there is a significant change in the Employee's duties and
responsibilities) by the Employee's Manager. To that end, the Employee shall
periodically receive a performance review in accordance with the Company's
then existing policies. For informational purposes only, the Company's
current policy provides for an annual performance review (which may or may
not, at the Company's option, include an adjustment in the Employee's Base
Salary and/or Annual Incentive Bonus).
Additional Compensation. The Employee is also eligible to be considered for
participation, during the term of her employment, in such other compensation
programs as may be available by the Company from time to time (commensurate
with the Employee's position and compensation).
Grant of Stock Options. In accordance with the Company's Long Term Incentive
Plan, Employee has been granted 150,000 stock options in the Company's common
stock. The strike price on these options will be $4.0625 per share; being the
value of a share of the Company's common stock as of the close of market on
August 4, 1998. The stock options will, subject to Paragraph 7, below, vest
as follows: 1/5th (30,000 stock options) on the Start Date; the remaining
4/5ths (120,000 stock options) in four equal annual installments (30,000
stock options per installment) over
<PAGE>
a four (4) year employment period beginning one year after the Start Date.
The grant of such stock options, in accordance with the foregoing, will be
memorialized in an option agreement pursuant to and in accordance with the
Company's Long Term Incentive Plan.
Deductions. The Employee agrees that the Company shall withhold from any and
all compensation required to be made to the Employee under this Agreement all
federal, state, local and/or other taxes or payroll deductions which the
Company determines are required to be withheld in accordance with applicable
statutes and/or regulations from time to time in effect or as otherwise
withheld pursuant to the consent or agreement of the Employee.
5. BENEFITS. During the term of this Agreement, the Employee shall be eligible
to participate in any life insurance, disability insurance, medical, dental, or
health insurance, vacation, savings, pension and retirement plans and other
benefit plans or programs as may be maintained by the Company for the benefit of
its employees (commensurate with the Employee's position and compensation).
6. EXPENSES. During the term of this Agreement, the Company shall promptly
reimburse the Employee for all reasonable and approved business expenses
incurred by him in connection with the performance of her duties to the Company,
upon substantiation of such expenses in accordance with the policies of the
Company in effect from time to time.
7. TERMINATION. The Employee's services shall terminate upon the first to
occur of the following events:
Termination Without Cause. The Company expressly reserves the right to
terminate the employment of the Employee hereunder other than for cause,
disability or death, as provided for below. In the event that the Employee's
employment shall have been so terminated by the Company other than for
cause, death, or disability, the Employee shall be entitled to receive the
equivalent of twelve (12) months Base Salary (as may have been adjusted from
time to time during the term of this Agreement and in accordance with the
terms hereof) (hereinafter "Severance Payment"). The Company will pay this
Severance Payment on a lump sum basis within thirty (30) days of
termination. In addition, in the event that the Employee's employment shall
have been so terminated, the vesting period with respect to stock options
granted to the Employee pursuant to Paragraph 4, above, shall accelerate so
as to permit the Employee to exercise, in accordance with the terms of SSA's
Long Term Incentive Plan, any such stock options which would have otherwise
vested within a period of twenty-four (24) months after the Employee's
effective date of termination of employment. Notwithstanding the foregoing,
in the event that the Employees' employment is terminated by the Company as
a result of a Change of Control (as defined below), the vesting period with
respect to stock options granted to the Employee pursuant to Paragraph 4,
above, shall accelerate as provided for below.
<PAGE>
Voluntary Termination and Termination for Cause. The Employee's employment
may be voluntarily terminated by him at any time by giving sixty (60) days
written notice thereof to the Company (or such shorter period of time as may
be agreed upon by the Company). Additionally, the Employee's employment may
be terminated at any time for cause (as hereinafter defined), effective
immediately upon the giving of written notice to the Employee.
If at any time during the term of this Agreement: (a) the Employee shall have
voluntarily terminated her employment with the Company; or (b) the Company
shall have terminated the employment of the Employee for cause (as
hereinafter defined), the Employee shall be entitled to receive only her Base
Salary (as may have been adjusted from time to time during the term of this
Agreement and in accordance with the terms hereof) up to the date of
termination plus any accrued but unused vacation pay. The Employee shall also
be entitled to any benefits mandated under the Consolidated Omnibus Budget
Reconciliation Act of 1985 (COBRA) or required under the terms of any life
insurance or retirement plan, program, or agreement provided by the Company
and to which the Employee is a party or in which the Employee is a
participant, including, but not limited to, any short-term or long-term
disability plan or program, if applicable.
For purposes of this Agreement, the Employee shall be deemed terminated "for
cause" if the Company terminates the Employee after the Employee: (a) shall
have been formally indicted (or the equivalent thereof) for any felony
including, but not limited to, a felony involving fraud, theft,
misappropriation, dishonesty, or embezzlement; (b) shall have committed
intentional acts of gross misconduct that materially impair the goodwill or
business of the Company or cause material damage to its property, goodwill,
or business; or (c) shall have refused to, or willfully failed to, perform
her material duties, provided, however, that no termination under this
subparagraph (c) shall be effective unless the Employee does not cure such
refusal or failure to the Company's satisfaction as soon as practicable after
the Company gives the Employee written notice identifying such refusal or
failure (and, in any event, within thirty (30) calendar days after receipt of
such written notice). No act or failure to act on the part of the Employee
shall be considered "willful" unless it is done, or omitted to be done, by
the Employee in bad faith or without reasonable belief that her action or
omission was in the best interests of the Company.
Termination Due to Disability. This Agreement and any termination of
employment as a result of a disability shall be subject to the disability
policy as established by the Company from time to time.
Termination Due to Death. In the event of the Employee's death during the
term of this Agreement, the Employee's employment hereunder shall immediately
terminate and, in such event, the Employee's estate shall be entitled to
receive the Employee's Base Salary (as may have been adjusted from time to
time during the term of this Agreement and in accordance with the terms
hereof) to the last day of the month during which the Employee's death shall
have occurred and such
<PAGE>
additional benefits, if any, as may be provided by any insurance or other
benefits to which the Employee may have participated in or otherwise became
entitled to during her period of employment, as established or maintained by
the Company for its employees from time to time.
Termination Due to Change of Control. The Employee's employment may be
terminated by him by written notice for a Good Reason (as hereinafter
defined) by giving ninety (90) days written notice thereof to the Company (or
such shorter period of time as may be agreed upon by the Company), at any
time within one hundred eighty (180) days following a Change of Control (as
defined below). In such event, the Employee shall be entitled to receive the
Severance Payment as described above. The Company will pay the Severance
Payment on a lump sum basis within thirty (30) days of termination.
In the event that the Employee's employment shall have been terminated by him
in accordance with the foregoing or by the Company due to a Change of
Control, the vesting period with respect to all stock options granted to the
Employee pursuant to Paragraph 4, above, shall accelerate so as to permit the
Employee to exercise, in accordance with the terms of SSA's Long Term
Incentive Plan, all stock options which would have otherwise vested in
accordance with the terms of this Agreement.
The term "Good Reason" shall mean either: (a) the elimination of the
Employee's position or a material diminution in the Employee's authority,
functions, duties or responsibilities, which has occurred as a result of a
Change of Control (as hereinafter defined); or (b) a failure by the Company
to either reaffirm the Employee's current position with the Company or offer
the Employee a comparable position at the same or greater compensation level
within thirty (30) days following a Change of Control (as defined below).
The term "Change of Control" shall mean a material change in the management
structure of the Company which has occurred as a result of either: (a) a sale
of a controlling interest of the Company to a third party; (b) a sale of the
Company to a third party of all or substantially all of the Company's stock
or assets; or (c) a merger of the Company with another unrelated entity.
Treatment of Annual Incentive Bonus Upon Termination. In the event of
termination of the employment of the Employee for any reason, the Employee
shall be entitled to receive any Annual Incentive Bonus or other compensation
(other than Base Salary) in respect of the fiscal quarter of the Company in
which the termination shall take place; the specific amount of the Annual
Incentive Bonus and/or additional compensation to be paid to the Executive to
be: (a) prorated based upon the earlier of the effective date of the
Employee's termination of employment or the date the Employee ceases to
perform services on behalf of the Company; and (b) dependent upon the
Company's achievement of the underlying bonus program to which the Annual
Incentive Bonus and/or other compensation relates. In addition, in the event
that at the time of her termination, the Employee is due, but has not yet
received, payment of any Annual Incentive Bonus, or portion thereof, or other
compensation
<PAGE>
(other than Base Salary), such amount(s) shall be paid to Employee in
accordance with the Company's payroll policy from time to time in effect.
Payment Contingencies: Payment to the Employee of the Severance Payment,
together with any other amounts to be paid to the Employee pursuant to this
Paragraph 7, is contingent upon: (a) the Employee signing an agreement that
releases the Company from actions, suits, claims, proceedings and demands
related to the period of employment and/or the termination of employment; (b)
the Company being permitted to offset from the severance pay hereunder any
salary paid to the Employee during the ninety (90) day notice period (or such
shorter period of time as may be provided for herein or otherwise agreed upon
by the Company) if the Employee performs no services during such notice
period; (c) the Employee returning, in good condition, all property belonging
to Company; and (d) the Employee remaining in compliance with her obligations
of confidentiality including, without limitation, the Employee's adherence to
the restrictions placed upon her subsequent employment opportunities pursuant
to Paragraph 8, below.
8. EMPLOYEE CONFIDENTIALITY OBLIGATIONS. The Employee acknowledges and agrees
that solely by virtue of her employment by, and relationship with the Company,
he will acquire confidential information relating to the Company and its
Affiliates; such confidential information includes, but is not limited to: (a)
any financial business, planning, operations, services, potential services,
products, potential products, technical information and/or know-how, formulas,
production, purchasing, marketing, sales, personnel, customer, broker, supplier,
or other information of the Company or Affiliates; (b) any papers, data,
records, processes, methods, techniques, systems, models, samples, devices,
equipment, compilations, invoices, customer lists, or documents of the Company
or Affiliates; (c) any confidential information or trade secrets of any third
party provided to the Company in confidence or subject to other use of
disclosure restrictions or limitations; and (d) any other information, written,
oral, or electronic, whether existing now or at some time in the future, whether
pertaining to current or future developments, which pertains to the Company's or
Affiliate's affairs or interests or with whom or how the Company or Affiliates
conduct business (hereinafter collectively "Information").
The Employee further acknowledges and agrees that in consideration of the terms
and conditions set forth in this Agreement, including, without limitation, the
compensation to be paid to the Employee hereunder, the Employee shall sign and
abide by the terms and conditions of the Employee Confidentiality Agreement,
attached hereto and deemed a part hereof (hereinafter "Employee Confidentiality
Agreement"), including, without limitation, the restriction on the Employee's
subsequent employment opportunities as set forth in Section 4 thereof. In
addition, the Employee acknowledges and agrees that the restrictions contained
in Section 4 of the Employee Confidentiality Agreement are necessary and
reasonable in order to protect the Company in the conduct of its business and
will not prevent the Employee from earning a comparable livelihood following the
termination of her employment with the Company. The Employee further agrees that
for a minimum period of one (1) year following the termination of her employment
with the Company, he shall disclose the existence and terms of the Employee
Confidentiality
<PAGE>
Agreement to each subsequent employer and hereby consents to and the Company is
hereby given permission to disclose the existence and terms of the Employee
Confidentiality Agreement to any such subsequent employer.
The Information described in this Paragraph 8 shall be deemed to be included in
the definition of "Proprietary Information" as set forth in the Employee
Confidentiality Agreement and shall be subject to the terms and conditions
contained therein.
9. ADDITIONAL PROVISIONS. The Company and the Employee further agree as
follows:
Assignment. The Employee acknowledges that the services to be rendered by
him are unique and personal. Accordingly, the Employee may not assign any of
her rights or delegate any of her duties or obligations under this Agreement.
The rights and obligations of the Company under this Agreement shall inure to
the benefit of and shall be binding upon the successors and assigns of the
Company.
Notices. All notices required or permitted hereunder shall be in writing and
deemed effectively given upon personal delivery or upon deposit in the United
States mails, by registered or certified mail, postage prepaid, addressed to
the other party hereto.
Entire Agreement. This Agreement constitutes the entire agreement between
the parties, and supersedes all prior agreements and understandings relating
to the subject matter hereof. If any provision of this Agreement shall be
found invalid or unenforceable for any reason, in whole or in part, then such
provision shall be deemed modified, restricted, or reformulated to the extent
and in the manner necessary to render the same valid and enforceable, or
shall be deemed excised from this Agreement, as the case may require, and
this Agreement shall be construed and enforced to the maximum extent
permitted by law, as if such provision had been originally incorporated
herein as so modified, restricted, or reformulated or as if such provision
had not been originally incorporated herein, as the case may be.
Amendment. This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Employee.
Headings. The paragraph and subparagraph headings used in this Agreement are
for convenience only and shall not be deemed to be considered a construction
of the provisions hereof.
Immigration and Reform Control Act of 1986. This Agreement is contingent
upon submission by the Employee of the appropriate documentation for
verification in compliance with the Immigration and Reform Control Act of
1986, as amended.
Governing Law. This Agreement shall be governed by and construed,
interpreted and enforced in accordance with the laws of the State of
Illinois.
<PAGE>
THE EMPLOYEE HAS READ AND FULLY UNDERSTANDS THE TERMS AND CONDITIONS SET FORTH
IN THIS AGREEMENT, HAS HAD TIME TO REFLECT ON AND CONSIDER THE BENEFITS AND
CONSEQUENCES OF ENTERING INTO THIS AGREEMENT, AND HAS HAD THE OPPORTUNITY TO
REVIEW THE TERMS HEREOF WITH AN ATTORNEY OR OTHER REPRESENTATIVE, IF HE SO
CHOOSES.
THIS AGREEMENT IS CONTINGENT UPON THE EMPLOYEE'S SIGNED ACCEPTANCE OF SAME NO
LATER THAN 5:00 P.M. (CENTRAL STANDARD TIME) ON _______________________.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first written at the introductory paragraph to this Agreement.
SYSTEM SOFTWARE ASSOCIATES, INC.
By: /s/ Kirk Isaacson
-------------------
Typed or Printed Name: Kirk Isaacson, V.P. & General Counsel
-------------------------------------
EMPLOYEE:
By: /s/ Lorraine Fenton
-------------------
Typed or Printed Name: Lorraine H. Fenton
------------------
<PAGE>
EMPLOYEE CONFIDENTIALITY AGREEMENT
This Agreement is made and entered into as of the 7th day of August, 1998, by
and between System Software Associates, Inc., a Delaware corporation with its
principal place of business at 500 West Madison Street, Chicago, Illinois, 60661
("SSA") and Lorraine Fenton ("EMPLOYEE").
WHEREAS, SSA has expended considerable time, effort and resources in the
development of certain proprietary information, which must be maintained as
confidential in order to ensure the success of SSA's business;
WHEREAS, EMPLOYEE has access to such information; and
WHEREAS, each of SSA's other employees has been or shall be obligated to
maintain the secrecy of such proprietary information as a condition of his/her
continued employment by SSA.
NOW THEREFORE, in consideration of the covenants and promises contained herein,
and of EMPLOYEE's continued employment by SSA, the compensation and benefits
received by EMPLOYEE from SSA and the access given EMPLOYEE to the aforesaid
information, the parties hereto agree as follows:
1. DEFINITIONS. As used herein, the term "PROPRIETARY INFORMATION" means any
and all information, oral or written, that is not generally known by persons not
employed by or parties to contracts with SSA, including but not limited to:
(a) inventions, designs, discoveries, works of authorship, improvements or
ideas developed or otherwise possessed by SSA;
(b) SSA's proprietary software, consisting of computer programs in source or
object code and all related documentation and training materials,
including all upgrades, updates, improvements and modifications thereof
and including programs and documentation in incomplete stages of design or
research and development;
(c) the subject matter of SSA's patents, design patents, copyrights, trade
secrets, trademarks, service marks, trade names, trade dress, manuals,
operating instructions and other industrial property to the extent that
such information is unavailable to the public and/or is in incomplete
stages of design or research and development;
(d) SSA's business operations, including marketing, research and product
development plans and strategies which have been or are being considered;
(e) SSA's pricing information and pricing methods; and
(f) SSA's lists of past, existing or potential clients and customers.
2. OWNERSHIP OF PROPRIETARY INFORMATION
<PAGE>
(a) EMPLOYEE acknowledges that SSA is the owner of the PROPRIETARY INFORMATION
and agrees not to contest any such ownership rights of SSA, either during
or after EMPLOYEE's employment with SSA.
(b) Subject to Paragraph 2(c) EMPLOYEE agrees to assign to SSA at any time
during and after EMPLOYEE's employment with SSA, promptly at SSA's request
and without additional compensation, all of EMPLOYEE's right, title and
interest in and to any and all inventions, designs, discoveries, works of
authorship, improvements, or software in or to which EMPLOYEE may acquire
rights in whole or in part as a result of his/her employment by SSA, and
to sign such documents and do such acts as may be reasonably necessary to
accomplish such assignment.
(c) Pursuant to the Illinois Employees' Patent Act, Public Act 83-493, the
parties agree that Paragraph 2(b) shall not apply to an invention for
which no equipment, supplies, facility or trade secret information of SSA
was used and which was developed entirely on EMPLOYEE's own time, unless
the invention (i) relates to the business of SSA or to SSA's actual or
demonstrably anticipated research or development; or (ii) results from any
work performed by EMPLOYEE for SSA.
(d) EMPLOYEE acknowledges that any computer programs, documentation or other
copyrightable works created in whole or in part by EMPLOYEE during his
employment with SSA shall be considered "works made for hire" under the
U.S. Copyright Act, 17 U.S.C. 101 and shall become part of the PROPRIETARY
INFORMATION.
3. NONDISCLOSURE OF PROPRIETARY INFORMATION. EMPLOYEE agrees to hold the
PROPRIETARY INFORMATION in the strictest confidence, both during and after
EMPLOYEE's employment relationship with SSA. To this end, EMPLOYEE shall:
(a) not make, or permit or cause to be made copies of the PROPRIETARY
INFORMATION, except as necessary to carry out EMPLOYEE's duties as
prescribed by SSA;
(b) not disclose or reveal the PROPRIETARY INFORMATION, or any portion
thereof, to any person except other SSA employees who have signed
nondisclosure agreements with SSA;
(c) take all reasonable precautions to prevent the inadvertent disclosure of
the PROPRIETARY INFORMATION to any unauthorized person;
(d) not transport or cause to be transported the PROPRIETARY INFORMATION
outside the premise of SSA, except as necessary to carry out EMPLOYEE's
duties as prescribed by SSA; and
(e) not without SSA's authorization participate directly or indirectly in the
development, marketing, sale, licensing or other exploitation of software
products or services which embody or are derived from the PROPRIETARY
INFORMATION.
<PAGE>
EMPLOYEE expressly agrees that disclosures prohibited hereby include, without
limitation, disclosure of similarities or possible similarities between the
PROPRIETARY INFORMATION and the work product of another person or company.
4. TERMINATION OF EMPLOYMENT. Upon termination of his/her employment for any
reason whatsoever, EMPLOYEE shall deliver to SSA all written or printed
documents, all tapes, disks and other electronic media and all other tangible
property in EMPLOYEE's possession which contain any PROPRIETARY INFORMATION. For
the period of one year after such termination, EMPLOYEE shall not, directly or
indirectly (including without limitation as an officer, director, employer,
employee, advisor, consultant or investor) (i) hire or solicit the employment or
services of any person who is an employee of SSA, or (ii) engage in the
development, production, distribution, sale, licensing, or marketing of software
products directly competitive with SSA's software products including without
limitation software designed to run on IBM AS/400, IBM RS/6000, HP9000 computers
or their successors. If the foregoing covenant is held to be more restrictive
than permitted by applicable law, the objectionable restriction shall be
construed as being limited to the maximum restriction permitted.
5. NOTICE OF PATENT AND COPYRIGHT APPLICATIONS. During the period of one year
after the termination of his/her employment relationship with SSA, EMPLOYEE
shall notify SSA of all patents and copyrights applied for by EMPLOYEE and to
provide SSA with a description of such patents and copyrights sufficient to
enable SSA to determine whether the works over which they are claimed relate to,
or are derived from, the PROPRIETARY INFORMATION.
6. INJUNCTIVE RELIEF. EMPLOYEE acknowledges and agrees that in the event of
any breach or threatened breach by EMPLOYEE of any of the provisions of this
Agreement, damages shall be an inadequate remedy and SSA shall be entitled to
injunctive and otherwise equitable relief. SSA's rights under this provision are
in addition to all rights otherwise available to it at law or in equity.
7. SEVERABILITY. In the event that any provision hereof is found invalid or
unenforceable pursuant to a judicial decree or decision, the invalidity and
unenforceability of such provision shall not affect the other provisions of this
Agreement and all such other provisions shall remain in full force and effect.
It is expressly agreed that the existence of any claim or cause of action of
EMPLOYEE against SSA, whether or not predicated on this Agreement, shall not
constitute a defense to the enforcement of this Agreement by SSA.
8. WAIVER. No waiver of any provision of this Agreement or any rights or
obligations of either party hereunder shall be effective unless pursuant to a
written instrument signed by the party or parties making such a waiver, and such
waiver shall be effective only in the specific instance and for the specific
purpose stated therein.
9. GOVERNING LAW. This Agreement and any controversy arising hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Illinois.
<PAGE>
EMPLOYEE states that he has freely and voluntarily entered into this Agreement,
and that he has read and understood each and every provision hereof. EMPLOYEE
acknowledges receiving a fully executed copy of this Agreement. Signed this 7th
day of August, 1998.
SYSTEM SOFTWARE ASSOCIATES, INC. EMPLOYEE
By: /s/ Kirk Isaacson /s/ Lorraine Fenton
----------------- -------------------
Title: VP and General Counsel
----------------------
