EXHIBIT 10.28.1
TERMINATION AGREEMENT
Agreement made as of the 1st day of December, 1999, by and between JetForm
Corporation, 560 Rochester Street, Ottawa, Ontario, K1S 5K2 (the "Company") and
John Kelly, 23 Hyde Park Way, Nepean, Ontario, K2G 5R7 ("Kelly").
WHEREAS Kelly has served as a senior executive of the Company since 1994
and Kelly and the Company have agreed to terminate Kelly's employment in the
Company;
AND WHEREAS Kelly and the Company have entered into an agreement dated
August 11, 1994 which Agreement was amended on September 26, 1998 (the
"Agreement") and wish to set out the parties' respective rights and obligations
under the Agreement as a result of Kelly's termination of his employment with
the Company.
NOW THEREFORE for the reasons set forth above and in consideration of the
mutual premises and covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which hereby are acknowledged, it
is hereby agreed as follows:
1. Kelly's employment with the Company shall terminate on the date hereof.
2. Notwithstanding such termination, the Company will pay to Kelly (a) an
annual amount of $455,000 for three years commencing on the date hereof,
which will be payable in arrears by direct deposit to Kelly's bank account
on the Company's regular mid-month and end of month pay date commencing
with the first pay in December 1999. In addition, the Company will continue
(i) all health benefits for the earlier of three years or until Kelly
obtains full time employment (Kelly shall notify the Company upon such
event); (ii) a car allowance of $1,000 per month for a period of three
years; and (iii) stock options granted to and currently vested or unvested
by Kelly shall continue to be held by Kelly as though Kelly had continued
to have been employed by the Company. Kelly shall also be entitled to job
relocation counseling services which shall include business and financial
planning in an amount not to exceed $30,000.
3. Notwithstanding Kelly's termination, in the event the Company pays its
Chief Executive Officer (i) incentive compensation on account of profit or
customer satisfaction, or (ii) benefits allowance whether in the form of
base salary or otherwise, for all or any portion of the three year period
following the date hereof, Kelly shall be entitled to receive compensation
in the same percentages earned of profit or customer satisfaction and/or
benefits allowance, same terms and timing as the Company's Chief Executive
Officer based on an aggregate annual incentive to Kelly of $185,000
(profit) and $10,000 (customer satisfaction) and $22,750 to Kelly based on
a benefits allowance. Kelly's entitlement hereunder shall be payable as and
when paid to the Company's Chief Executive Officer.
4. All amounts stated herein are before taxes. The Company shall withhold and
remit all taxes and statutory withholdings and any other taxes based on
Kelly's income as though Kelly was an employee during the Agreement.
5. Article IV of the Agreement as amended shall continue in full force and
effect.
6. The validity, construction and enforce ability of this Agreement shall be
governed in all respects by the laws of Ontario and the laws of Canada
applicable therein.
7. Kelly acknowledges and agrees that it will be difficult to compute the
amount of damage or loss to the Company if he violates this Agreement, that
Company will not have an adequate legal remedy if Kelly violates the
provisions of this Agreement and that any such violation will cause
substantial irreparable injury and damage to the Company. Therefore, Kelly
agrees that, in the event of any violation by him of this Agreement, the
Company shall, in addition to damages, be entitled to specific performance,
injunctive, or other equitable relief, of either a preliminary or permanent
type.
8. Prior to any disclosure by the Company to the public, Kelly agrees to keep
all terms of this Agreement confidential except for any disclosure to
financial advisors.
IN WITNESS WHEREOF, the Company and Kelly have executed this Termination
Agreement as of the date first written above.
JETFORM CORPORATION
By:
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Title:
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Witness as to the signature of JOHN KELLY
John Kelly
