/s/ ELIZABETH A. FETTER
EXHIBIT 10.39
March 18, 2003
Elizabeth A. Fetter
2888 Sacramento Street
San Francisco, California 94115
Dear Liz,
It is a pleasure for me to provide you with this letter agreement setting forth the terms of your continuing employment with QRS Corporation (“QRS” or the “Company”). This letter supersedes and replaces all prior agreements between you and QRS regarding the terms of your continuing employment with the Company. This letter does not affect the terms of the written Indemnification Agreement between you and QRS or the stock options previously granted to you.
POSITION
President, Chief Executive Officer and Member of the Board of Directors
REPORTING TO
The Board of Directors
LOCATION
Richmond, California
ANNUAL COMPENSATION
Your annual compensation, incentive compensation and performance evaluation will be administered by the Compensation Committee and reviewed by the Board of Directors. Effective as of January 1, 2003, your annual compensation shall be as follows:
| 1. | Your annual base compensation will be $450,000 or $37,500 per month. QRS employees are paid semi-monthly (i.e., on the fifteenth and last working day of each month). |
| 2. | In addition, your annual target incentive compensation shall be 75 % of your base compensation or $337,500. The actual incentive compensation that you receive shall be based upon the performance of the Company as a whole and your individual performance during the calendar year as described below under annual incentive compensation components. Your total annual target compensation is the sum of your base compensation and your target incentive compensation. Your compensation, including incentives, will be reviewed in the fourth quarter of 2003 and each year thereafter in conjunction with the Compensation Committee’s evaluation of your performance. If there is a material change in the nature of your responsibilities, your compensation will be reviewed at that time. |
REIMBURSEMENT OF REASONABLE BUSINESS EXPENSES
QRS will reimburse you for all business expenses reasonably incurred by you in the performance of your duties hereunder. You will adhere to QRS’ travel and entertainment polices and procedures, submit expense reports with appropriate vouchers, receipts, and other substantiation of such expenses within thirty (30) days after they are incurred. You should expect prompt reimbursement.
ANNUAL INCENTIVE COMPENSATION COMPONENTS
| 1. | General Corporate Financial Objectives—Eighty percent (80%) of your incentive compensation shall be based upon the extent to which QRS achieves its overall financial objectives as defined by the applicable annual operating plan approved by the Board of Directors. Should the Company not achieve the financial objectives set forth in the operating plan, your incentive compensation will be subjectively determined based upon your performance against your objectives and the Company’s determination as to available incentive compensation funding. The timing of any payouts for the corporate component of your incentive compensation shall be consistent with the incentive compensation program adopted by the Compensation Committee for the Executive Leadership Team as a whole. |
| 2. | Personal Strategies and Objectives—Twenty percent (20%) of your incentive compensation is subject to fulfillment of your specific objectives as CEO as identified from time to time by the Compensation Committee. Such factors may include the overall performance of you and your direct reporting organization in meeting Company and individual responsibilities, developing and executing appropriate Company strategies, achieving a high degree of customer service and loyalty, ensuring employee satisfaction and retention, and supporting overall Company objectives. |
LONG TERM INCENTIVES
It will be recommended that you receive a grant of 25,000 restricted share rights for the Company’s common stock under the Company’s 1993 Stock Option Plan (the “Plan”), a copy of which is available for your review. This recommendation will be presented to the Compensation Committee of the Board of Directors at its first meeting subsequent to your acceptance of this letter. The shares shall vest and become payable on January 1, 2006 provided that you remain employed by the Company at that time.
In addition, the Compensation Committee has approved a stock option grant of 60,000 shares in accordance with the Plan. These shares shall be subject to performance vesting in accordance with the terms approved by the Compensation Committee. These terms shall be reflected in the option agreement that will be provided to you. The Compensation Committee also has approved an additional stock option grant of 30,000 shares that shall become fully vested upon the earlier of: (1) when the Company establishes and maintains a stock price of more than $12 for 15 consecutive trading days or (2) the sixth anniversary of the grant date. At the sole discretion of the Compensation Committee, you will also have the opportunity to be considered for an additional stock option grant in the amount of 60,000 shares during the third quarter of 2003. If your employment terminates for any reason (whether or not in connection with a change in control of the Company), the options that have
vested as of your termination date shall remain exercisable for twelve (12) months after the termination of your service with the Company or such longer period as the Plan or Plan Administrator may specify, provided that no option may be exercised after the specified expiration date of the option term.
BENEFITS
In addition to the benefits available to all QRS associates as defined in the Employee Handbook; as the Chief Executive Officer you are provided with additional benefits as follows:
Life Insurance—The Company shall purchase and maintain in effect term life insurance sufficient to provide a benefit equal to two times your annual base salary.
Disability Insurance—The Company shall purchase and maintain in effect disability insurance sufficient to provide you with an income equal to 66% of your base compensation while you are disabled and unable to perform the duties of your current employment with QRS. You will have the option of continuing this additional disability insurance coverage at your own expense in the event of the termination of your employment. This additional insurance benefit is taxable and will be reported for tax purposes as additional income to you. The Company shall adjust your base compensation to include an amount sufficient to compensate you for the federal and state taxes for which you will be responsible on account of the additional income reported on account of this disability insurance benefit.
Liability Insurance—The Company shall purchase and maintain in effect sufficient Director’s and Officer’s liability insurance to provide you with reasonable coverage, including the provision of legal counsel and/or reimbursement of appropriate legal fees you pay personally, against all liability claims and judgments arising from your legal exercise of your duties as a Director or Officer of QRS, including any actions filed after you cease your duties as a Director or Officer or in the event of the termination of your employment. The Company shall also provide in its bylaws, a full indemnification for you as a QRS officer, to the maximum extent permissible under Delaware law. The Company shall retain the sole discretion to determine the amount and form of Director’s and Officer’s liability insurance that is sufficient to provide you with reasonable coverage.
PTO—You will be entitled to 10 holidays per calendar year and 25 PTO (Personal Time Off) days per year. A prorated portion of PTO is accrued each pay period. PTO may be used for vacation, illness, or other purposes at your discretion. A maximum of 50 days of unused PTO may be carried over from year to year.
TERMINATION AND SEVERANCE
This position is for no set period or term and just as you have the right to resign your position at any time, for any reason, QRS reserves the right to terminate your employment at any time, with or without good cause, with or without advance notice.
If the Company terminates your employment without cause under circumstances not entitling you to severance and accelerated vesting under “Change of Control” below, you will become entitled to severance pay equal in the aggregate to your total annual targeted compensation at the level in effect at the time of your termination. Such severance pay will be made in four equal installments with the
first payment occurring within ten days following the termination of your employment and the remaining three payments to be made three, six and nine months following the date that the Company terminates your employment. In addition, you shall be entitled to receive at the time of your termination the pro-rata amount (based upon the length of your employment during the fiscal year) of your annual target incentive compensation calculated at 100% of your target incentive for the period of your service during the fiscal year. All such payments will be subject to applicable deductions and withholding taxes. The Company will also make COBRA payments on your behalf for 12 months following your termination. You shall receive no severance benefits under this paragraph if the Company terminates your employment for cause or you voluntarily resign your position. As a condition of receiving the severance benefits set forth in this paragraph, the Company may require you to sign a written release in a form acceptable to the Company of any known and unknown claims by you against the Company arising out of your employment, excluding any claims for indemnification against claims made by third parties, in which case no payment will be made to you under this paragraph until you have executed such release and any time period during which you may revoke such release has lapsed.
For purposes of this agreement, termination “for cause” shall mean the Company’s termination of your employment for any of the following reasons: (1) your failure to perform in a diligent or competent fashion consistent with your position as CEO, President or member of the Board of Directors the material duties of your job after a written demand for such performance is delivered to you by the Company that identifies the manner in which you have not substantially performed those duties and that provides a reasonable period for you to cure those deficiencies; (2) a material breach by you of your obligations under any confidential or proprietary information agreements with the Company or of any of your fiduciary or legal obligations as a director or officer of the Company, (3) your failure to follow in a material respect Company policies or directives applicable to your position, (4) any willful misconduct on your part or (5) any unauthorized activity on your part that creates a material conflict of interest between you and the Company after you have been provided a reasonable opportunity to refrain from that activity.
CHANGE OF CONTROL BENEFITS
| 1. | Should there occur a Corporate Transaction or a Change in Control (as those terms are defined in the Company’s 1993 Stock Option/Stock Issuance Plan) and either (i) your employment is subsequently involuntarily terminated other than for “Misconduct” (as defined below) within twelve (12) months or (ii) you subsequently resign within twelve (12) months by reason of a material reduction in your base compensation, your annual total target compensation, or your benefits (for this purpose, 15% will be deemed a material reduction of base compensation, total target compensation and benefits), a material reduction in your duties or responsibilities, or a change in your principal place of employment that increases your commute by more than 25 miles, then you will be entitled to severance pay equal in the aggregate to two times your targeted total annual compensation at the level in effect at the time of your termination or resignation or (if greater) at the level in effect immediately prior to the Corporate Transaction or Change in Control. The payments set forth in this paragraph shall be made in four equal installments with the first payment occurring within ten days following the termination of your employment and the remaining three payments to be made three, six and nine months following the date that the Company terminates your employment. |
| In addition, you shall be entitled to receive at the time of your termination the pro-rata amount (based upon the length of your employment during the fiscal year) of your annual incentive compensation calculated at 100% of your target incentive compensation for the period of your service during the fiscal year. The Company shall also make COBRA payments on your behalf for a period of 18 months from the date you resign or are terminated. |
| 2. | Except to the extent otherwise provided in paragraph 3 below, should a Corporate Transaction or Change in Control occur during your period of employment with the Company, then (i) all of your outstanding options will, immediately prior to the specified effective date for the Corporate Transaction or Change in Control, become exercisable for all the shares at the time subject to those options, whether or not those options are to be assumed or replaced with a cash incentive program, and those accelerated options may be exercised for all or any portion of the option shares as fully vested shares; and (ii) all of your unvested restricted share rights for QRS stock will immediately vest at the time of such Corporate Transaction or Change in Control. |
| 3. | However, the following limitation will be in effect for (i) all of your unvested restricted share rights for QRS stock and (ii) any unvested options that are to be assumed by the successor entity (or parent company) or otherwise continued in effect or which are to be replaced with a cash incentive program that preserves the spread existing at the time of such Corporate Transaction or Change in Control on any shares for which your options are not otherwise at that time exercisable (the excess of the fair market value of those shares over the exercise price): The accelerated vesting of those unvested restricted share rights and options will be limited to the extent and only to the extent necessary to assure that the parachute payment attributable to the accelerated vesting of those shares and options, when aggregated with any other compensation that constitutes a parachute payment, would not constitute an excess parachute payment under Internal Revenue Code Section 280G(b). |
| To the extent one of more of your options or unvested restricted share rights do not vest on an accelerated basis upon a Corporate Transaction or Change in Control by reason of such limitation, those options will continue to become exercisable in accordance with the exercise schedule indicated in the respective grant notices for those options, and those unvested restricted share rights will continue to vest in accordance with the vesting schedule set forth in the applicable Restricted Share Right Agreements. However, following a Corporate Transaction or Change in Control should either (i) your employment be involuntarily terminated other than for Misconduct or (ii) you resign by reason of a material reduction in your base compensation, your annual total target compensation, or your benefits (for this purpose, 15% will be deemed a material reduction), a material reduction in your duties or responsibilities, or a change in your principal place of employment that increases your commute by more than 25 miles, at the time of such Corporate Transaction or Change in Control or within twenty four (24) months thereafter, then each of your outstanding options, to the extent not otherwise fully exercisable at that time, shall automatically accelerate and become immediately exercisable for all the option shares and may be exercised for any or all of those shares as fully vested shares at any time prior to the expiration or sooner termination of the option term. In addition, all of your unvested restricted share rights will immediately vest upon such a termination of employment or your resignation. |
| 4. | If acceleration of vesting of your options and restricted share rights upon such a termination of your employment, alone or when aggregated with other compensation payable to you, constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “ Code”) and would subject you to an excise tax under Section 4999 of the Code (or successor or similar provisions), the Company shall pay you an additional amount, which, when reduced by all taxes thereon (including any additional tax owed under Section 4999 of the Code (or successor or similar provision)) provides you with sufficient cash to pay the amount of excise tax owed by you on all amounts payable hereunder (computed disregarding than such additional payment). If the Internal Revenue Service asserts such an excise tax and the Company does not believe such excise tax is due, you agree to assist the Company in contesting such assertion; provided the Company advances you funds to pay the amount of excise tax when asserted by the IRS and indemnifies you for any penalties or interest resulting from such contest. |
| 5. | Any of your options or restricted share rights that are assumed by the successor entity (or parent company) in the Corporate Transaction or are otherwise continued in effect following the Change in Control transaction shall be appropriately adjusted to apply and pertain to the number and class of securities that would have been issued to you in the consummation of such Corporate Transaction or Change in Control had the options been exercised or the restricted share rights settled immediately prior to such event. Appropriate adjustments shall also be made to the option prices payable per share under the options, provided the aggregate option prices payable shall remain the same. |
| 6. | For purposes of this Agreement, Misconduct means (i) your willful engagement in gross misconduct injurious to the Company or your commission of any act of gross negligence or malfeasance with respect to your duties incident to your employment; (ii) your willful failure to attend to the material duties assigned to you by the Board of Directors; (iii) your commission of any act of fraud, embezzlement or dishonesty against the Company or any affiliate thereof, or (iv) your conviction for any criminal offense involving fraud or dishonesty or any similar conduct that is injurious to the reputation of the Company. For purposes of this Agreement, a Corporate Transaction shall not include any merger, whether forward or reverse, if, immediately after the merger, securities possessing 50% or more of the total combined voting power of the surviving entity or parent thereof are beneficially owned, directly or indirectly, by those persons who were the Company’s stockholders immediately before the merger in substantially the same proportion as their stockholdings immediately before the merger. |
EMPLOYMENT AT WILL
Your employment in the position of President and Chief Executive Officer will remain an Employment At Will. This means that your position is for no set period or term and just as you have the right to resign your position at any time, for any reason, QRS reserves the right to terminate your employment at any time, with or without cause and with or without advance notice. If any contrary representation has been made to you, this letter supersedes it. Neither subsequent agreement contrary to this nor any amendment to this term can be made unless it is in writing and signed by both of us and copied to the Chairman of the Compensation Committee.
I trust the above meets your approval. However, should you have any questions or concerns, you should not hesitate to contact either Phil Schlein or myself. For our part we look forward, with tremendous enthusiasm, to your continuing employment with QRS and our ongoing relationship.
Sincerely,
/s/ GARTH SALONER
Garth Saloner, Chairman of the Board
cc: Philip Schlein—Chairman of the Compensation Committee
I accept this ongoing position with QRS Corporation on the terms and conditions above and understand and agree that it supersedes any other agreement, written or oral, I may have with QRS with respect to employment or compensation by QRS, including salary, incentive, options, termination and severance.
| /s/ ELIZABETH A. FETTER | March 18, 2003 | |||||||
| Elizabeth A. Fetter | Date | |||||||
