EXHIBIT 10.19
VIEWLOCITY EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") dated December 20, 2002 (the
"Effective Date") is executed by and between VIEWLOCITY, INC. and its successors
and assigns (collectively "Viewlocity") and L. Xxxxx Xxxxx ("Executive").
The parties agree as follows:
1. EMPLOYMENT.
1.1. EMPLOYMENT. Viewlocity hereby agrees to employ Executive, and Executive
hereby agrees to be employed by Viewlocity, upon the terms and subject
to the conditions set forth in this Agreement.
1.2. TERM OF EMPLOYMENT. The period of Executive's employment under this
Agreement shall begin as of the Effective Date and shall continue until
terminated in accordance with Section 3 below. As used in this
Agreement, the phrase "Employment Term" refers to Executive's period of
employment from the date of this Agreement until the date his employment
is terminated.
1.3. DUTIES AND RESPONSIBILITIES.
(a) Viewlocity will employ Executive as its Executive Vice President
and Chief Financial Officer. In such capacity, Executive shall
perform the customary duties and have the customary
responsibilities of such position and such other duties as may be
assigned to Executive from time to time by Board of Directors of
Viewlocity (the "Board") or Executive's direct superiors.
(b) Executive agrees to devote Executive's full business time,
attention, skill, and effort exclusively to the performance of the
duties that Viewlocity may assign Executive from time to time.
Executive may not engage in any business activities or render any
services of a business, commercial, or professional nature for
compensation for the benefit of anyone other than Viewlocity,
unless Viewlocity consents in writing, it being agreed that
Viewlocity will not withhold its consent to any activity which is
not competitive with Viewlocity's business and does not interfere
with the performance by Executive of Executive's duties and
obligations to Viewlocity under this Agreement. This Agreement does
not prohibit the investment of a reasonable part of Executive's
assets in the stock of a company whose stock is traded on a
national stock exchange.
(c) Executive agrees (i) to comply with all applicable laws, rules and
regulations, and all requirements of all applicable regulatory,
self-regulatory, and administrative bodies; (ii) to comply with
Viewlocity's rules, procedures, policies, requirements, and
directions; and (iii) not to engage in any other business or
employment without the written consent of Viewlocity except as
otherwise specifically provided herein.
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1.4. EMPLOYMENT AT WILL. Executive's employment under this Agreement may be
terminated at any time by either party, at will. This Agreement does not
alter the at-will employment relationship.
2. COMPENSATION; EXPENSES; ADDITIONAL EMPLOYMENT BENEFITS.
2.1. BASE SALARY. Effective as of the closing date of the Merger and
Investment (as those terms are defined herein) and during the balance of
the Employment Term, Viewlocity shall pay Executive a base salary at the
annual rate of $190,000 per year or such rate as may be determined from
time to time by the Board in its sole discretion ("Base Salary"). Such
Base Salary shall be paid in accordance with Viewlocity's standard
payroll practice for executives.
2.2. BONUS. During the Employment Term, Executive shall be eligible to
receive a cash bonus and/or commission in accordance with the terms and
conditions set by the Board each year. The amount of the bonus will be
determined based upon achievement of performance goals established by
the Board in its sole discretion.
2.3. STOCK OPTIONS.
(a) Executive will be eligible for consideration for grants of stock
options in accordance with the terms and conditions of Viewlocity's
Stock Option Plan (or successor stock option plan adopted by
Viewlocity during the term of this Agreement). The decision as to
whether to grant options under the plan to Executive (and, if so,
how many) will be solely within the discretion of the Board.
(b) In the event that a Change in Control (as defined in Section 3.6(b)
below) occurs during the Employment Term, then the vesting schedule
applicable to any outstanding stock options granted to Executive
shall be accelerated by 12 months as of the date of the Change in
Control.
2.4. BENEFIT PLANS; FRINGE BENEFITS. Executive shall be eligible to
participate in or receive benefits under any pension plan, 401(k)
savings plan, nonqualified deferred compensation plan, supplemental
executive retirement plan, medical and dental benefits plan, life
insurance plan, short-term and long-term disability plans, supplemental
and/or incentive compensation plans, or any other employee benefit or
fringe benefit plan, generally made available by Viewlocity to
executives in accordance with the eligibility requirements of such plans
and subject to the terms and conditions set forth in this Agreement.
2.5. VACATION. Executive will receive three weeks paid vacation each year
during the Employment Term.
2.6. REIMBURSEMENT OF BUSINESS EXPENSES. Viewlocity will reimburse Executive
for all reasonable business-related expenses incurred by Executive in
the performance of his duties under this Agreement, provided that
Executive presents vouchers for such expenses or other evidence thereof
to Viewlocity in accordance with Viewlocity's general reimbursement
policy in effect for Viewlocity's executives.
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3. TERMINATION OF EMPLOYMENT.
Executive's employment under this Agreement may be terminated upon the
occurrence of any of the events under any of the circumstances set forth in this
Section 3. Upon termination, Executive (or his beneficiary or estate, as the
case may be) shall be entitled to receive the compensation and benefits
described in Section 4 below, and, if applicable, Section 5 below.
3.1. DEATH. Executive's employment shall terminate upon Executive's death.
3.2. TOTAL DISABILITY. Viewlocity may terminate Executive's employment upon
his becoming "Totally Disabled". For purposes of this Agreement,
Executive shall be "Totally Disabled" if the Board determines that
Executive is physically or mentally incapacitated so as to render
Executive incapable of performing the essential functions of Executive's
job, even with reasonable accommodation. All determinations by the Board
pursuant to this Section 3.2 will be final and binding upon Executive.
3.3. TERMINATION FOR CAUSE. Viewlocity may terminate Executive's employment
for "Cause" at any time after providing written notice to Executive.
(a) For purposes of this Agreement, the term "Cause" shall mean any of
the following: (i) conviction of a crime (including conviction on a
nolo contendere plea) involving the commission by Executive of a
felony or of a criminal act involving, in the good faith judgment
of Board fraud, dishonesty, or moral turpitude; (ii) deliberate and
continual refusal to perform employment duties reasonably requested
by Viewlocity or an affiliate after thirty (30) days' written
notice by certified mail of such failure to perform, specifying
that the failure constitutes cause (other than as a result of
vacation, sickness, illness or injury); (iii) fraud or embezzlement
determined in accordance with Viewlocity's normal, internal
investigative procedures consistently applied in comparable
circumstances; (iv) gross misconduct or gross negligence in
connection with the business of Viewlocity or an affiliate which
has a substantial adverse effect on Viewlocity or the affiliate;
(v) a material breach of any of Executive's obligations under this
Agreement, or (vi) breach of any of the covenants set forth in
Sections 6 or 7 of this Agreement.
(b) Regardless of whether Executive's employment initially was
considered to be terminated for any reason other than Cause,
Executive's employment will be considered to have been terminated
for Cause for purposes of this Agreement if the Board subsequently
determines that Executive engaged in an act constituting Cause.
3.4. TERMINATION BY VIEWLOCITY WITHOUT CAUSE. Viewlocity may terminate
Executive's employment under this Agreement without Cause after
providing written notice to Executive.
3.5. TERMINATION BY EXECUTIVE. Executive may terminate his employment under
this Agreement after providing fifteen days' written notice to
Viewlocity.
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3.6. TERMINATION BY EXECUTIVE FOR GOOD REASON. Executive may terminate his
employment under this Agreement for "Good Reason" after providing
written notice to Viewlocity.
(a) GOOD REASON. Termination of employment by Executive for "Good
Reason" shall be deemed to have occurred only if Executive provides
written notice of termination within one month after the occurrence
of any of the following:
(i) A reduction in Executive's Base Salary by more than 15%.
(ii) The change of Executive's principal place of employment to a
location more than one hundred miles from such principal
place of employment, except for required travel on
Viewlocity's business to an extent substantially consistent
with Executive's business travel obligations.
(iii) The failure by Viewlocity to obtain an assumption of the
obligations of Viewlocity under this Agreement by any
successor to Viewlocity.
(b) CHANGE IN CONTROL. For purposes of this Agreement, a "Change in
Control" shall be deemed to have occurred as of the first day any
one or more of the following conditions shall be have been
satisfied:
(i) Any person (other than any investor a trustee or other
fiduciary holding securities under an employee benefit plan
of Viewlocity, or a corporation owned directly or indirectly
by the stockholders of Viewlocity in substantially the same
proportions as their ownership of stock of Viewlocity),
becomes the beneficial owner, directly or indirectly, of
securities of Viewlocity representing a controlling interest
of the combined voting power of Viewlocity's then
outstanding securities; or
(ii) The stockholders of Viewlocity approve: (A) a plan of
complete liquidation of Viewlocity; or (B) an agreement for
the sale or disposition of all or substantially all
Viewlocity's assets; or (C) a merger, consolidation, or
reorganization of Viewlocity with or involving any other
corporation, other than a merger, consolidation, or
reorganization that would result in the voting securities of
Viewlocity outstanding immediately prior thereto continuing
to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at
least fifty percent (50%)of the combined voting power of the
voting securities of Viewlocity (or such surviving entity)
immediately after such merger, consolidation, or
reorganization.
(iii) The parties agree and acknowledge that: (i) Viewlocity has
executed a merger agreement with SynQuest, Inc. (the
"Merger"); and (ii) the Merger is coupled with an investment
into the surviving entity (resulting from the Merger) by
existing and new investors (the "Investment").
Notwithstanding any other term of this Agreement, in no
event shall a Change in Control be deemed to occur upon any
agreement for the sale or disposition of all or
substantially all Viewlocity's assets, merger,
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consolidation, reorganization or recapitalization in any way
connected with or relating to the Merger or Investment (each
an "Exempt Transaction"). The Board shall have the right, in
its sole and final discretion, to determine whether any
transaction(s) shall be deemed an Exempt Transaction.
3.7. NOTICE OF TERMINATION. Any termination of Executive's employment by
Viewlocity or by Executive (other than by reason of Executive's death)
shall be communicated by written Notice of Termination to the other
party in accordance with Section 12 below. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice in writing
which shall indicate the specific termination provision in this
Agreement relied upon to terminate Executive's employment and shall set
forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the
provision so indicated.
3.8. DATE OF TERMINATION. The effective date of Executive's termination of
employment (the "Termination Date") shall be (i) in the event of his
death, the date of death; (ii) in the event of termination for Total
Disability, thirty (30) days after Notice of Termination is given
(provided that Executive shall not have returned to the performance of
his duties on a full-time basis during such 30-day period); and (iii) in
the event of any other termination, the date specified in the Notice of
Termination.
4. COMPENSATION FOLLOWING TERMINATION OF EMPLOYMENT.
Upon termination of Executive's employment under this Agreement, Executive (or
his designated beneficiary or estate, as the case may be) shall be entitled to
receive the following compensation:
4.1. EARNED BUT UNPAID COMPENSATION. Viewlocity shall pay Executive any
accrued but unpaid Base Salary, bonus and/or commission, as applicable,
for services rendered to the date of termination, any accrued but unpaid
expenses required to be reimbursed under this Agreement, and any
vacation accrued to the date of termination.
4.2. OTHER COMPENSATION AND BENEFITS. Except as may be provided under this
Agreement,
(a) any benefits to which Executive may be entitled pursuant to the
plans, policies and arrangements referred to in Section 2.3 and 2.4
above shall be determined and paid in accordance with the terms of
such plans, policies and arrangements, and
(b) Executive shall have no right to receive any other compensation, or
to participate in any other plan, arrangement or benefit, with
respect to future periods after such termination or resignation.
4.3. SET-OFF. If Executive has any outstanding obligations to Viewlocity at
the time this Agreement terminates for any reason, Executive
acknowledges that Viewlocity is authorized to deduct any amounts owed to
Viewlocity from Executive's final paycheck and/or from any amounts that
would otherwise be due to Executive.
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5. ADDITIONAL COMPENSATION PAYABLE FOLLOWING TERMINATION WITHOUT CAUSE OR
TERMINATION FOR GOOD REASON.
5.1. REQUIREMENTS FOR ADDITIONAL COMPENSATION. In addition to the
compensation set forth in Section 4 above, Executive will receive the
additional compensation and benefits set forth in Section 5.2 below, if
the following requirements are met:
(a) Executive's employment is terminated by Viewlocity pursuant to
Section 3.4 above for reasons other than death, Total Disability or
Cause, or Executive terminates employment for Good Reason pursuant
to Section 3.6 above; and
(b) Executive executes a separation agreement and release in a form
satisfactory to Viewlocity on or after his Termination Date.
5.2. ADDITIONAL COMPENSATION. Viewlocity shall provide Executive with the
following compensation and benefits:
(a) BASE SALARY. Viewlocity shall pay Executive his full base salary as
determined under Section 2.1 at the rate in effect on his
Termination Date, as if his employment had continued until the end
of (i) 9-month period following the Termination Date if Viewlocity
terminates Executive's employment pursuant to Section 3.4 above for
reasons other than death or Total Disability, or (ii) 7-month
period following the Termination Date if Executive terminates
employment for Good Reason pursuant to Section 3.6 above. Any such
payment shall be made at the same time and in the same manner as
such compensation had been paid prior to such termination of
employment.
(b) GROUP HEALTH BENEFITS. If Executive elects to continue group health
benefits coverage in accordance with the COBRA coverage
continuation requirements, Viewlocity will pay the full cost of the
COBRA coverage premiums during the time period beginning on the
Termination Date and ending on the earlier of the last day of the
7-month period following the Termination Date or the date such
COBRA coverage terminates.
(c) ACCELERATION OF STOCK OPTION VESTING FOLLOWING A CHANGE IN CONTROL.
In the event that Executive's Termination Date occurs after the
occurrence of a Change in Control (as defined in Section 3.6(b)
above), then all outstanding stock options granted to Executive
shall become vested and immediately exercisable as of the
Termination Date.
6. WORK PRODUCT.
6.1. Executive's employment duties may include inventing in areas directly or
indirectly related to the business of the Company or to a line of
business that the Company may reasonably be interested in pursuing. All
Work Product shall constitute work made for hire. If (a) any of the Work
Product may not be considered work made for hire, or (b) ownership of
all right, title, and interest to the legal rights in and to the Work
Product will not vest exclusively in Viewlocity, then, without further
consideration, Executive assigns
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all presently-existing Work Product to Viewlocity, and agrees to assign,
and automatically assign, all future Work Product to Viewlocity.
6.2. Viewlocity will have the right to obtain and hold in its own name
copyrights, patents, design registrations, proprietary database rights,
trademarks, rights of publicity, and any other protection available in
the Work Product. At Viewlocity's request, Executive agrees to perform,
during or after Executive's employment with Viewlocity, any acts to
transfer, perfect and defend the Viewlocity's ownership of the Work
Product, including, but not limited to: (a) executing all documents
(including a formal assignment to Viewlocity) necessary for filing an
application or registration for protection of the Work Product (an
"Application"), (b) explaining the nature of the Work Product to persons
designated by Viewlocity, (c) reviewing Applications and other related
papers, or (iv) providing any other assistance reasonably required for
the orderly prosecution of Applications.
6.3. Executive agrees to provide Viewlocity with a written description of any
Work Product in which Executive is involved (solely or jointly with
others) and the circumstances surrounding the creation of such Work
Product.
7. RESTRICTIVE COVENANTS.
Executive acknowledges that the restrictions contained in this Section 7 are
reasonable and necessary to protect the legitimate business interests of
Viewlocity, and will not impair or infringe upon Executive's right to work or
earn a living after Executive's employment with Viewlocity ends.
7.1. TRADE SECRETS AND CONFIDENTIAL INFORMATION. Executive represents and
warrants that: (a) Executive is not subject to any legal or contractual
duty or agreement that would prevent or prohibit Executive from
performing Executive's duties for Viewlocity or otherwise complying with
this Agreement, and (b) Executive is not in breach of any legal or
contractual duty or agreement, including any agreement concerning trade
secrets or confidential information owned by any other party.
(a) Executive agrees that Executive will not: (i) use, disclose, or
reverse engineer the Trade Secrets or the Confidential Information
for any purpose other than Viewlocity's Business, except as
authorized in writing by Viewlocity; (ii) during Executive's
employment with Viewlocity use, disclose, or reverse engineer (A)
any confidential information or trade secrets of any former
employer or third party, or (B) any works of authorship developed
in whole or in part by Executive during any former employment or
for any other party, unless authorized in writing by the former
employer or third party; or (iii) upon Executive's resignation or
termination (A) retain Trade Secrets or Confidential Information,
including any copies existing in any form (including electronic
form), which are in Executive's possession or control, or (B)
destroy, delete, or alter the Trade Secrets or Confidential
Information without Viewlocity's written consent.
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(b) The obligations under this Section 7.1 shall: (i) with regard to
the Trade Secrets, remain in effect as long as the information
constitutes a trade secret under applicable law, and (ii) with
regard to the Confidential Information, remain in effect during the
Restricted Period.
(c) The confidentiality, property, and proprietary rights protections
available in this Agreement are in addition to, and not exclusive
of, any and all other rights to which Viewlocity is entitled under
federal and state law, including, but not limited to, rights
provided under copyright laws, trade secret and confidential
information laws, and laws concerning fiduciary duties.
7.2. NON-SOLICITATION OF CUSTOMERS. During the Restricted Period, Executive
will not directly or indirectly solicit any Customer of Viewlocity for
the purpose of providing supply chain software and related services
competitive with the Business. The restrictions set forth in this
Section 7.2 apply only to the Customers with whom Executive had Contact.
7.3. NON-RECRUITMENT OF EMPLOYEES. During the Restricted Period, Executive
will not directly or indirectly solicit, recruit or induce any Employee
with whom Executive had contact to (a) terminate his or her employment
relationship with Viewlocity or (b) work for any other person or entity
engaged in the Business.
7.4. RETURN OF MATERIALS. Upon the request of Viewlocity and, in any event,
upon the termination of Executive's employment, Executive must return to
Viewlocity and leave at Viewlocity's disposal all laptop computers,
phones, pagers and other tangible property of Viewlocity, together with
all memoranda, notes, records, drawings, manuals, computer programs,
documentation, diskettes, computer tapes, and other documents or media
pertaining to the business of Viewlocity or Executive's specific duties
for Viewlocity, including all copies of such materials. Executive must
also return to Viewlocity and leave at Viewlocity's disposal all
materials involving any Trade Secrets of Viewlocity. This Section 7.4 is
intended to apply to all materials made or compiled by Executive, as
well as to all materials furnished to Executive by anyone else in
connection with Executive's employment.
7.5. DEFINITIONS. For purposes of this Section 7 -
(a) "Business" means the business of supply chain software and related
services.
(b) "Confidential Information" means (a) information of Viewlocity, to
the extent not considered a Trade Secret under applicable law, that
(i) relates to the business of Viewlocity, (ii) possesses an
element of value to Viewlocity, (iii) is not generally known to
Viewlocity's competitors, and (iv) would damage Viewlocity if
disclosed, and (b) information of any third party provided to
Viewlocity which Viewlocity is obligated to treat as confidential.
Confidential Information includes, but is not limited to, (i)
future business plans, (ii) the composition, description, schematic
or design of products, future products or equipment of Viewlocity,
(iii) communication systems, audio systems, system designs and
related documentation, (iv) advertising or marketing plans, (v)
information
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regarding independent contractors, employees, clients and customers
of Viewlocity, and (vi) information concerning Viewlocity's
financial structure and methods and procedures of operation.
Confidential Information shall not include any information that (i)
is or becomes generally available to the public other than as a
result of an unauthorized disclosure, (ii) has been independently
developed and disclosed by others without violating this Agreement
or the legal rights of any party, or (iii) otherwise enters the
public domain through lawful means.
(c) "Contact" means any interaction between Executive and a Customer
which (i) takes place in an effort to establish, maintain, and/or
further a business relationship on behalf of Viewlocity and (ii)
occurs during the last year of Executive's employment with
Viewlocity (or during Executive's employment if employed less than
a year).
(d) "Customer" means any person or entity to whom Viewlocity has sold
its products or services, or solicited to sell its products or
services.
(e) "Employee" means any person who (i) is employed by Viewlocity at
the time Executive's employment with Viewlocity ends, (ii) was
employed by Viewlocity during the last year of Executive's
employment with Viewlocity (or during Executive's employment if
employed less than a year), or (iii) is employed by Viewlocity
during the Restricted Period.
(f) "Restricted Period" means the time period during Executive's
employment with Viewlocity, and for nine months after Executive's
employment with Viewlocity ends.
(g) "Trade Secrets" means information of Viewlocity, and its licensors,
suppliers, clients and customers, without regard to form,
including, but not limited to, technical or nontechnical data, a
formula, a pattern, a compilation, a program, a device, a method, a
technique, a drawing, a process, financial data, financial plans,
product plans, or a list of actual or potential customers or
suppliers which is not commonly known by or available to the public
and which information (i) derives economic value, actual or
potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use, and (ii) is the subject
of efforts that are reasonable under the circumstances to maintain
its secrecy.
8. ENFORCEMENT OF COVENANTS.
8.1. TERMINATION OF EMPLOYMENT AND FORFEITURE OF COMPENSATION. Executive
agrees that in the event that Viewlocity determines that he has breached
any of the covenants set forth in Section 6 or 7 above during his
employment, Viewlocity shall have the right to terminate his employment
for Cause. In addition, Executive agrees that if Viewlocity determines
that he has breached any of the covenants set forth in Section 6 or 7 at
any time, Viewlocity shall have the right to discontinue any or all
remaining benefits payable pursuant to Section 5 above, as applicable.
Such termination of employment or
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discontinuance of benefits shall be in addition to and shall not limit
any and all other rights and remedies that Viewlocity may have against
Executive.
8.2. RIGHT TO INJUNCTION. Executive acknowledges that a breach of the
covenants set forth in Section 6 or 7 above will cause irreparable
damage to Viewlocity with respect to which Viewlocity's remedy at law
for damages will be inadequate. Therefore, in the event of breach or
anticipatory breach of the covenants set forth in this section by
Executive, Executive and Viewlocity agree that Viewlocity shall be
entitled to the following particular forms of relief, in addition to
remedies otherwise available to it at law or equity: (a) injunctions,
both preliminary and permanent, enjoining or retraining such breach or
anticipatory breach and Executive hereby consents to the issuance
thereof forthwith and without bond by any court of competent
jurisdiction; provided, however, that if such court requires a bond
despite the terms hereof, Executive agrees and stipulates that a $10,000
bond shall be sufficient; and (b) recovery of all reasonable sums
expended and costs, including reasonable attorney's fees, incurred by
Viewlocity to enforce the covenants set forth in Section 6 or 7.
8.3. SEPARABILITY OF COVENANTS. The covenants contained in Sections 6 and 7
above constitute a series of separate covenants, one for each applicable
State in the United States and the District of Columbia, and one for
each applicable foreign country. If in any judicial proceeding, a court
shall hold that any of the covenants set forth in Section 6 or 7
permitted by applicable laws, Executive and Viewlocity agree that such
provisions shall and are hereby reformed to the maximum time,
geographic, or occupational limitations permitted by such laws. Further,
in the event a court shall hold unenforceable any of the separate
covenants deemed included herein, then such unenforceable covenant or
covenants shall be deemed eliminated from the provisions of this
Agreement for the purpose of such proceeding to the extent necessary to
permit the remaining separate covenants to be enforced in such
proceeding. Executive and Viewlocity further agree that the covenants in
Sections 6 and 7 shall each be construed as a separate agreement
independent of any other provisions of this Agreement, and the existence
of any claim or cause of action by Executive against Viewlocity whether
predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by Viewlocity of any of the covenants set
forth in Section 6 or 7.
9. SUCCESSORS AND ASSIGNMENT.
Except as otherwise provided in this Agreement, this Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
heirs, representatives, successors and assigns.
9.1. VIEWLOCITY SUCCESSOR. Viewlocity shall require any person (or persons
acting as a group) who acquires ownership or effective control of
Viewlocity or ownership of a substantial portion of the business or
assets of Viewlocity (whether direct or indirect, by purchase, merger,
consolidation or otherwise) expressly to assume and agree to perform
this Agreement in the same manner and to the same extent as Viewlocity
would be required to perform it if no such acquisition had taken place.
As used in this Agreement, "Viewlocity" shall mean Viewlocity as defined
in the first sentence of this Agreement
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and any person (or group) who acquires ownership or effective control of
Viewlocity or ownership of a substantial portion of the business or
assets of Viewlocity or which otherwise becomes bound by all the terms
and provisions of this Agreement, whether by the terms hereof, by
operation of law or otherwise.
9.2. ASSIGNMENT BY EXECUTIVE. The rights and benefits of Executive under this
Agreement are personal to him and no such right or benefit shall be
subject to voluntary or involuntary alienation, assignment or transfer;
provided, however, that nothing in this Section 9.2 shall preclude
Executive from designating a beneficiary or beneficiaries to receive any
benefit payable on his death.
10. ENTIRE AGREEMENT; AMENDMENT.
This Agreement shall supersede any and all existing oral or written agreements,
representations, or warranties between Executive and Viewlocity or any of its
subsidiaries or affiliated entities relating to the terms of Executive's
employment. It may not be amended except by a written agreement signed by both
parties.
11. GOVERNING LAW; JURISDICTION AND VENUE.
11.1. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic substantive laws of the State of Georgia,
without giving effect to any conflicts or choice of laws rule or
provision that would result in the application of the domestic
substantive laws of any other jurisdiction.
11.2. CONSENT TO JURISDICTION AND VENUE. Executive agrees that any claim
arising out of or relating to this Agreement shall be (a) brought in the
Superior Court of Xxxxxx County, Georgia, or (b) brought in or removed
to the United States District Court for the Northern District of
Georgia, Atlanta Division. Executive consents to the personal
jurisdiction of the courts identified above. Executive waives (i) any
objection to jurisdiction or venue, or (ii) any defense claiming lack of
jurisdiction or improper venue, in any action brought in such courts.
12. NOTICES.
Any notice, consent, request or other communication made or given in connection
with this Agreement shall be in writing and shall be deemed to have been duly
given when delivered or mailed by registered or certified mail, return receipt
requested, or by facsimile or by hand delivery, to those listed below at their
following respective addresses or at such other address as each may specify by
notice to the others:
To Viewlocity:
Viewlocity, Inc.
0000 Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: CEO
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To Executive:
At the address set forth below
13. MISCELLANEOUS.
13.1. NON-DISCLOSURE OF AGREEMENT TERMS. Executive agrees that he will not
disclose the terms of this Agreement to any third party other than his
immediate family, attorney, accountants, or other consultants or
advisors or except as may be required by any governmental authority.
13.2. NO CLAIM AGAINST ASSETS. Nothing in this Agreement shall be construed as
giving Executive any claim against any specific assets of Viewlocity or
as imposing any trustee relationship upon Viewlocity in respect of
Executive. Viewlocity shall not be required to establish a special or
separate fund or to segregate any of its assets in order to provide for
the satisfaction of its obligations under this Agreement. Executive's
rights under this Agreement shall be limited to those of an unsecured
general creditor of Viewlocity and its affiliates.
13.3. WITHHOLDING OF TAXES. Viewlocity shall withhold from any compensation
and benefits payable under this Agreement all applicable federal, state,
local, or other taxes.
13.4. WAIVER. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver
thereof or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
13.5. SEPARABILITY. If any term or provision of this Agreement, other than
Section 6, 7 or 8 above, is declared illegal or unenforceable by any
court of competent jurisdiction and cannot be modified to be
enforceable, such term or provision shall immediately become null and
void, leaving the remainder of this Agreement in full force and effect.
13.6. HEADINGS. Section headings are used herein for convenience of reference
only and shall not affect the meaning of any provision of this
Agreement.
13.7. RULES OF CONSTRUCTION. Whenever the context so requires, the use of the
singular shall be deemed to include the plural and vice versa.
13.8. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, and such counterparts will together constitute but one
Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year set forth below.
VIEWLOCITY, INC. EXECUTIVE
By: /s/ C. Xxxxxxx Xxxxxxx /s/ L. Xxxxx Xxxxx
---------------------------------- ----------------------------------
Name: C. Xxxxxxx Xxxxxxx Date: 12/20/02
--------------------------------- ------------------------------
Title: Chairman and CEO Address:
--------------------------------- ---------------------------
Date: 12/20/02
--------------------------------- -----------------------------------
Page 13
