EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of May 1, 2001, by and between FRONT PORCH
DIGITAL INC., a Nevada corporation (the "Company"), and XXXX XXXXXXX, an
individual residing at 0000 Xxxxx Xxx, Xxxxxxxxx, Xxxxxxxx 00000 (the
"Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Employee as its Chief
Executive Officer and wishes to acquire and be assured of Employee's services on
the terms and conditions hereinafter set forth; and
WHEREAS, the Employee desires to be employed by the Company as its Chief
Executive Officer, and to perform and to serve the Company on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual terms, covenants,
agreements and conditions hereinafter set forth, the Company and the Employee
hereby agree as follows:
1. EMPLOYMENT. (a) The Company hereby employs the Employee to serve
as a full time employee of the Company, and the Employee hereby accepts such
employment with the Company, for the period set forth in Section 2 hereof.
During the Employment Term (as defined below), the Employee's office and base
from which he performs his duties hereunder shall be located in Boulder,
Colorado.
(b) To the best of the Employee's knowledge: (i) the Employee
is under no obligation to any former employer or other party that is in any way
inconsistent with, or that imposes any restriction upon, the Employee's
acceptance of employment hereunder with the Company, the employment of the
Employee by the Company, or the Employee's undertakings under this Agreement and
(ii) his performance of all the terms of this Agreement and his employment by
the Company does not and will not breach any agreement to keep in confidence
proprietary information acquired by him in confidence or in trust prior to his
employment by the Company.
2. TERM. (a) Unless earlier terminated as provided in this Agreement,
the term of the Employee's employment under this Agreement shall be for a period
of three (3) years beginning May 1, 2001 (the "Effective Date") and ending on
April 30, 2004, unless extended pursuant to paragraph (b) below (such period or,
if the Employee's employment hereunder is earlier terminated, such shorter
period, or if the Employee's employment is extended pursuant to paragraph (b)
below, such longer period, being hereinafter called the "Employment Term").
(b) The term of this Agreement shall automatically be extended
for an additional one-year period on May 1, 2004 and on each May 1 thereafter
unless, not later than the December 31 immediately preceding such May 1, the
Company shall have given notice that it does not wish to extend this Agreement
or the Employee shall have notified the Company that he wishes to leave the
employ of the Company on the expiration date of the then current term of this
Agreement.
3. DUTIES.
(a) The Employee shall be employed as the Chief Executive
Officer of the Company. The Employee shall faithfully and competently perform
such duties at such times and places and in such manner as the Company may from
time to time reasonably direct or such other duties appropriate to a senior
executive managerial position as the Board of Directors of the Company shall
from time to time determine.
(b) Subject to Section 3(c) hereof and except as may otherwise
be approved in writing by the Board of Directors of the Company, and except
during vacation periods and reasonable periods of absence due to sickness,
personal injury or other disability, the Employee shall devote his full time
throughout the Employment Term to the services required of Employee hereunder.
Subject to Section 3(c) hereof, the Employee shall render his services
exclusively to the Company during the Employment Term and shall use his best
efforts, judgment and energy to improve and advance the business and interests
of the Company in a manner consistent with the duties of Employee's position.
(c) The Company acknowledges that the Employee has various
investments and business interests that he may pursue if such pursuits do not
materially interfere with his duties hereunder. Further, provided such
activities are not in conflict or in competition with the Company's interests,
and the Company's trade secrets are not jeopardized in any manner, and the time
and energy the Employee devotes to such activities do not significantly impair
his ability to act satisfactorily as the Company's Chief Executive Officer, the
Employee shall be permitted to act in such other capacities outside his
employment with the Company. It is expressly agreed the Employee may retain his
ownership interest in, and may continue to pursue, consistent with past
practices, his management responsibilities with respect to, the entities listed
on Schedule A.
(d) Employee shall be entitled to serve on the Company's Board
of Directors during the Employment Term; PROVIDED, HOWEVER, that his Base Salary
shall constitute consideration for any such service and the Employee shall not
be entitled to any additional compensation in respect of such service on the
Board.
4. SALARY AND BONUS.
(a) BASE SALARY. In consideration for the services of the
Employee rendered to the Company hereunder, the Company shall pay the Employee a
base salary at an annual rate of Two Hundred Fifty Thousand Dollars
($250,000.00) during the Employment Term, payable in regular intervals in
accordance with the Company's payroll practices (the "Base Salary"). The Base
Salary will be reviewed at least annually with Employee's input. Adjustments to
Base Salary shall be based on Employee's performance under the terms of a
written personal performance plan ("PPP"), which shall be updated annually with
Employee's knowledge and approval.
(b) STOCK OPTIONS. On the Effective Date, the Company shall
grant stock options to Employee pursuant to and subject to the terms and
conditions of the 2000 Equity Incentive Plan of the Company to purchase 625,000
shares of Common Stock, par value $.001 per share (the "Common Stock"), of the
Company. Of such options, options to purchase 125,000 shares shall be at an
exercise price of $2.00 per share and options to purchase 500,000 shares shall
be at an exercise price of $4.00 per share. Such options shall vest in three
equal annual
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installments, with the first installment vesting on October 1, 2001, the second
installment vesting on October 1, 2002 and the remaining options vesting on
October 1, 2003, and shall expire on September 30, 2010. All such stock options,
whether or not vested, will be subject to forfeiture or termination in the event
of a breach by the Employee of the provisions of Sections 6 or 8 hereof.
(c) BONUSES. The PPP shall include goals (the "Bonusable
Goals") which are reviewed annually with Employee's input and which, if
achieved, would result in a specified bonus of at least $125,000 (the "Target
Bonus") for each 12-month period ended December 31; provided, however, that the
Employee shall be entitled to receive a guaranteed bonus of $125,000 for the
12-month period ending December 31, 2001 whether or not the Employee's Bonusable
Goals for such period are achieved. The Company shall pay the Employee an
additional bonus for achievements in excess of the Bonusable Goals according to
the formula established in the PPP (the "Overachievement Bonus").
(d) WITHHOLDING, ETC. The payment of any salary or bonuses
hereunder shall be subject to income tax, social security and other applicable
withholdings, as well as such deductions as may be required under the Company's
employee benefit plans.
5. BENEFITS. (a) During the Employment Term, the Employee shall be:
(i) eligible to participate in all employee fringe
benefits and any pension and/or profit sharing plans that may be provided
by the Company for its key executive employees in accordance with the
provisions of any such plans, as the same may be in effect on and after
the date hereof;
(ii) eligible to participate in any medical and health
plans or other employee welfare benefit plans that may be provided by the
Company for its key executive employees in accordance with the provisions
of any such plans, as the same may be in effect on and after the date
hereof; PROVIDED, HOWEVER, that the medical and health plans provided by
the Company shall be equivalent to a preferred provider option from a
national health care insurance provider;
(iii) entitled to paid time off each year in accordance
with the Company's standard employee vacation policy, which shall be
taken at such time or times as will not unreasonably hinder or interfere
with the Company's business or operations; and
(iv) entitled to reimbursement for all reasonable and
necessary out-of-pocket business expenses incurred by the Employee in the
performance of the Employee's duties hereunder in accordance with the
Company's policies applicable (on and after the date hereof) thereto.
(b) Employee shall cooperate with the Company in the event the
Company wishes to obtain key-man insurance on the Employee. Such cooperation
shall include, but not be limited to, taking any physical examinations that may
be requested by the insurance company.
6. INVENTIONS AND CONFIDENTIAL INFORMATION. The Employee hereby
covenants, agrees and acknowledges as follows:
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(a) The Company is engaged in a continuous program of research,
design, development, production, marketing and servicing with respect to its
businesses.
(b) The Employee's employment hereunder creates a relationship
of confidence and trust between the Employee and the Company with respect to
certain information pertaining to the business of the Company and its Affiliates
(as hereinafter defined) or pertaining to the business of any client or customer
of the Company or its Affiliates which may be made known to the Employee by the
Company or any of its Affiliates or by any client or customer of the Company or
any of its Affiliates or learned by the Employee during the period of Employee's
employment by the Company.
(c) The Company possesses and will continue to possess
information that has been created, discovered or developed by, or otherwise
become known to it (including, without limitation, information created,
discovered or developed by, or made known to, the Employee during the period of
Employee's employment or arising out of Employee's employment) or in which
property rights have been or may be assigned or otherwise conveyed to the
Company, which information has commercial value in the business in which the
Company is engaged and is treated by the Company as confidential.
(d) Any and all inventions, products, discoveries,
improvements, processes, manufacturing, marketing and services methods or
techniques, formulae, designs, styles, specifications, data bases, computer
programs (whether in source code or object code), know-how, strategies and data,
whether or not patentable or registrable under copyright or similar statutes,
made, developed or created by the Employee (whether at the request or suggestion
of the Company, any of its Affiliates, or otherwise, whether alone or in
conjunction with others, and whether during regular hours of work or otherwise)
during the period of Employee's employment by the Company which may pertain to
the business, products, or processes of the Company or any of its Affiliates
(collectively hereinafter referred to as "Inventions"), will be promptly and
fully disclosed by the Employee to an appropriate executive officer of the
Company (other than the Employee) without any additional compensation therefor,
all papers, drawings, models, data, documents and other material pertaining to
or in any way relating to any Inventions made, developed or created by Employee
as aforesaid. For the purposes of this Agreement, the term "Affiliate" or
"Affiliates" shall mean any person, corporation or other entity directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company. For the purposes of this definition, "control" when
used with respect to any person, corporation or other entity means the power to
direct the management and policies of such person or entity, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
(e) The Employee will keep confidential and will hold for the
Company's sole benefit any Invention which is to be the exclusive property of
the Company under this Section 6 for which no patent, copyright, trademark or
other right or protection is issued.
(f) The Employee also agrees that the Employee will not without
the prior written consent of the Board of Directors of the Company (i) use for
Employee's benefit or disclose at any time during Employee's employment by the
Company, or thereafter, except to the extent required by the performance by the
Employee of the Employee's duties as an employee of the Company, any information
obtained or developed by Employee while in the employ of the Company with
respect to any Inventions or with respect to any customers, clients, suppliers,
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products, employees, financial affairs, or methods of design, distribution,
marketing, service, procurement or manufacture of the Company or any of its
Affiliates, or any confidential matter, except information which at the time is
generally known to the public other than as a result of disclosure by the
Employee not permitted hereunder, or (ii) take with the Employee upon leaving
the employ of the Company any document or paper relating to any of the foregoing
or any physical property of the Company or any of its Affiliates.
(g) The Employee acknowledges and agrees that a remedy at law
for any breach or threatened breach of the provisions of this Section 6 would be
inadequate and, therefore, agrees that the Company and its Affiliates shall be
entitled to injunctive relief in addition to any other available rights and
remedies in case of any such breach or threatened breach; PROVIDED, HOWEVER,
that nothing contained herein shall be construed as prohibiting the Company or
any of its Affiliates from pursuing any other rights and remedies available for
any such breach or threatened breach.
(h) The Employee agrees that upon termination of Employee's
employment by the Company for any reason, the Employee shall immediately return
to the Company all documents and other property in Employee's possession
belonging to the Company or any of its Affiliates.
(i) Without limiting the generality of Section 9 hereof, the
Employee hereby expressly agrees that the foregoing provisions of this Section 6
shall be binding upon the Employee's heirs, successors and legal
representatives.
7. TERMINATION. (a) The Employee's employment hereunder shall be
terminated upon the occurrence of any of the following:
(i) death of the Employee;
(ii) termination of the Employee's employment hereunder
by the Employee at any time for any reason whatsoever (including, without
limitation, resignation or retirement) other than for "good reason" as
contemplated by clause (v)(B) below;
(iii) termination of the Employee's employment hereunder
by the Company because of the Employee's inability to perform Employee's
duties on account of disability (where no reasonable accommodation would
permit Employee to perform the essential functions of his job or
incapacity) for a period of ninety (90) or more days, whether or not
consecutive, occurring within any period of twelve (12) consecutive
months;
(iv) termination of the Employee's employment hereunder
by the Company at any time for "cause" (as hereinafter defined), such
termination to take effect immediately upon written notice from the
Company to the Employee; and
(v) termination of the Employee's employment hereunder
(A) by the Company at any time, other than termination by reason of
disability or incapacity as contemplated by clause (iii) above or
termination by the Company for "cause" as contemplated by clause (iv)
above and (B) by the Employee for "good reason" (as hereinafter defined).
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The following actions, failures or events shall constitute "cause"
for termination within the meaning of clause (iv) above: (i) the Employee's
conviction of, admission of guilt to or plea of NOLO CONTENDERE or similar plea
(which, through lapse of time or otherwise, is not subject to appeal) with
respect to any crime or offense that constitutes a felony in the jurisdiction
involved; (2) acts constituting fraud or breach of fiduciary duty against the
Company which are materially detrimental to the Company, (3) failure by the
Employee to obey the reasonable and lawful orders of the Board of Directors of
the Company, (4) any act by the Employee in violation of Section 8 hereof, any
statement or disclosure by the Employee in violation of Section 6 hereof, or any
material breach by the Employee of a representation or warranty contained in
Section 1(b) hereof; (5) excessive absenteeism (other than by reason of
disability) after written notice from the Board of Directors of the Company of
prior similar actions; (6) excessive alcoholism or addiction to drugs not
prescribed by a qualified physician (other than by reason of disability) after
written notice from the Board of Directors of the Company of prior similar
actions; (7) gross negligence by the Employee in the performance of, or willful
disregard by the Employee of, the Employee's obligations hereunder.
The following actions, failures or events shall constitute "good
reason" within the meaning of clause (V)(B) above: (1) a material breach by the
Company of its obligations under this Agreement, (2) a material diminution of
the Employee's responsibilities or authority hereunder, (3) a decision by the
Board of Directors of the Company not to engage in the Business (as that term is
defined in the Asset Purchase Agreement dated as of October 10, 2000 between the
Company and Storage Technology Corporation, (4) a decrease in a one-year period
of ten percent (10%) or more in either the Employee's Base Salary or the maximum
bonus percentage that may be paid to Employee unless the same such decrease(s)
is imposed equally upon all members of the Company's executive management team
and (5) the removal of the Employee from the Board of Directors of the Company
or the failure of the shareholders of the Company to elect the Employee to the
Board of Directors.
(b) In the event that Employee's employment is terminated by
the Company for any reason other than "cause," or the Employee's employment is
terminated by the Employee for "good reason" (the `Triggering Events'), then (i)
all options granted to the Employee under Section 4(b) hereof which have not
vested shall immediately vest, (ii) all options granted to the Employee shall be
exercisable until the earlier of (a) the expiration date of such options or (b)
the second anniversary of the date of the Triggering Event, and (iii) the
Company immediately shall pay to the Employee a payment equal to the Base Salary
to which Employee would have been entitled during the one-year period following
the date of the Triggering Event had the Employee not been terminated, plus a
bonus equal to the Target Bonus the Employee would have been paid had he
achieved his Bonusable Goals for that year and had continued to achieve the same
Bonusable Goals throughout the one-year period following the date of the
Triggering Event.
(c) Notwithstanding anything to the contrary expressed or
implied herein, except as required by applicable law and except as set forth in
paragraph (b) above, the Company (and its Affiliates) shall not be obligated to
make any payments to the Employee or on the Employee's behalf of whatever kind
or nature by reason of the Employee's cessation of employment (including,
without limitation, by reason of termination of the Employee's employment by the
Company for "cause"), other than (i) such amounts, if any, of the Employee's
salary and bonus as shall have accrued and remained unpaid as of the date of
said cessation and (ii) such other amounts which may be then otherwise payable
to the Employee from the Company's benefits plans or reimbursement policies, if
any.
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(d) No interest shall accrue on or be paid with respect to any
portion of any payments hereunder.
8. NON-COMPETITION. (a) The term "Non-Compete Term" shall mean the
period during which Employee is employed hereunder and the one-year period
thereafter.
During the Non-Compete Term:
(i) the Employee will not make any statement or perform
any act intended to advance an interest of any direct competitor of the
Company or any of its Affiliates in any way that will or may injure an
interest of the Company or any of its Affiliates in its relationship and
dealings with existing customers or clients, or knowingly solicit or
encourage any other employee of the Company or any of its Affiliates to
do any act that is disloyal to the Company or any of its Affiliates or
inconsistent with the interest of the Company or any of its Affiliate's
interests or in violation of any provision of this Agreement;
(ii) the Employee will not discuss with any customers or
clients of the Company or any of its Affiliates the present or future
availability of services or products of a business, if the Employee has
or expects to acquire a proprietary interest in such business or is or
expects to be an employee, officer or director of such business, where
such services or products are directly competitive with services or
products which the Company or any of its Affiliates provides;
(iii) the Employee will not make any statement or do any
act intended to cause any customers or clients of the Company or any of
its Affiliates to make use of the services or purchase the products of
any directly competitive business in which the Employee has or expects to
acquire a proprietary interest or in which the Employee is or expects to
be made an employee, officer or director, if such services or products
directly compete with the services or products sold or provided or
expected to be sold or provided by the Company or any of its Affiliates
to any customer or client; and
(iv) the Employee will not directly or indirectly (as a
director, officer, employee, manager, consultant, independent contractor,
advisor or otherwise) engage in direct competition with, or own any
interest in, perform any services for, participate in or be connected
with (i) any business or organization which engages in direct competition
with the Company or any of its Affiliates in any geographical area where
any business is presently carried on by the Company or any of its
Affiliates, or (ii) any business or organization which engages in direct
competition with the Company or any of its Affiliates in any geographical
area where any business shall be hereafter, during the period of the
Employee's employment by the Company, carried on by the Company or any of
its Affiliates, if such business is then being carried on by the Company
or any of its Affiliates in such geographical area; PROVIDED, HOWEVER,
that the provisions of this Section 8(a) shall not be deemed to prohibit
the Employee's ownership of not more than one percent (1%) of the total
shares of all classes of stock outstanding of any publicly held company.
At the end of the Employee's employment, if any, the Company, in good
faith, shall provide to the Employee a list of the Company's
then-existing direct competitors, Affiliates, customers, businesses,
organizations and others to which this Section 8 refers.
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(b) During the Non-Compete Term, the Employee will not directly
or indirectly hire, engage, send any work to, place orders with, or in any
manner be associated with any supplier, contractor, subcontractor or other
person or firm which rendered manufacturing or other services, or sold any
products, to the Company or any of its Affiliates if such action by Employee
would have a material adverse effect on the business, assets or financial
condition of the Company or any of its Affiliates.
(c) In connection with the foregoing provisions of this Section
8, the Employee represents that Employee's experience, capabilities and
circumstances are such that such provisions will not prevent Employee from
earning a livelihood. The Employee further agrees that the limitations set forth
in this Section 8 (including, without limitation, any time or territorial
limitations) are reasonable and properly required for the adequate protection of
the businesses of the Company and its Affiliates. It is understood and agreed
that the covenants made by the Employee in this Section 8 (and in Section 6
hereof) shall survive the expiration or termination of this Agreement.
(d) For purposes of this Section 8, proprietary interest in a
business is ownership, whether through direct or indirect stock holdings or
otherwise, of one percent (1%) or more of such business.
(e) The Employee acknowledges and agrees that a remedy at law
for any breach or threatened breach of the provisions of this Section 8 would be
inadequate and, therefore, agrees that the Company and any of its Affiliates
shall be entitled to injunctive relief in addition to any other available rights
and remedies in cases of any such breach or threatened breach; PROVIDED,
HOWEVER, that nothing contained herein shall be construed as prohibiting the
Company or any of its Affiliates from pursuing any other rights and remedies
available for any such breach or threatened breach.
9. CHANGE IN CONTROL.
(a) TERMINATION PAYMENTS. In the event Employee's employment
under this Agreement is terminated by the Company on or following a Change in
Control (as defined in Section 9(c)), the Company shall pay to Employee and
Employee shall be entitled to all the payments and rights he would have had if
Employee had terminated his employment for "good reason" as set forth in Section
7(b). The aforesaid amount shall be paid to Employee within thirty (30) days of
the date of termination. In addition, the maximum number of options granted
pursuant to Sections 4(b) hereof that have not previously vested shall
immediately vest as of the date of the Change of Control regardless of the
vesting schedule set forth in such Section. Neither the occurrence of a Change
in Control, nor the vesting in any options as a result thereof shall require the
Employee to exercise any options. In the event of a conflict between any option
grant agreement or plan and this Agreement, the terms of this Agreement shall
control.
(b) EXCISE TAX GROSS UP. If it is determined by an independent
accountant mutually acceptable to the Company and Employee that as a result of
any payment in the nature of compensation made by the Company to (or for the
benefit of) Employee pursuant to this Agreement or otherwise, an excise tax may
be imposed on Employee pursuant to Section 4999 of the Internal Revenue Code of
1986, as amended (the "Code"), the Company shall pay Employee
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in cash an amount to provide Employee with a full tax gross-up under the
provisions of this Section, so that on a net after-tax basis, the result to
Employee shall be the same as if the excise tax under Section 4999 of the Code
(or any successor provisions) had not been imposed.
(c) CHANGE IN CONTROL. For purposes of this Agreement "Change
in Control" shall mean that any of the following events has occurred: (A) any
"person" or "group" of persons, as such terms are used in Sections 13 and 14 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), other than
any employee benefit plan sponsored by the Company, becomes the "beneficial
owner", as such term is used in Section 13 of the Exchange Act, (irrespective of
any vesting or waiting periods) of Common Stock or any class of stock
convertible into Common Stock in an amount equal to forty (40%) percent or more
of the Common Stock (treating all classes of outstanding stock, units or other
securities convertible into stock units as if they were converted into Common
Stock) issued and outstanding immediately prior to such acquisition and
disregarding any equity raise in connection with the financing of such
transaction; (B) Common Stock in excess of forty (40%) percent is purchased
pursuant to a tender or exchange offer other than an offer by the Company; or
(C) the dissolution or liquidation of the Company or the consummation of any
merger or consolidation of the Company or any sale or other disposition of all
or substantially all of its assets, if the shareholders of the Company own
immediately after consummation of such transaction, equity securities possessing
less than fifty (50%) percent of the surviving or acquiring company.
(d) Except for any rights which Employee may have pursuant to
this Section 9, the Company shall have no further obligations hereunder
following such termination after a Change of Control.
10. NON-ASSIGNABILITY. (a) Neither this Agreement nor any right or
interest hereunder shall be assignable by the Employee, Employee's
beneficiaries, or legal representatives without the Company's prior written
consent; PROVIDED, HOWEVER, that nothing in this Section 10(a) shall preclude
the Employee from designating a beneficiary to receive any benefit payable
hereunder upon Employee's death or incapacity.
(b) Except as required by law, no right to receive payments
under this Agreement shall be subject to anticipation, commutation, alienation,
sale, assignment, encumbrance, charge, pledge, or hypothecation or to exclusion,
attachment, levy or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null, void
and of no effect.
11. BINDING EFFECT. Without limiting or diminishing the effect of
Section 10 hereof, this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, successors, legal
representatives and assigns.
12. NOTICE. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and either delivered in person or
sent by first class certified or registered mail, postage prepaid, if to the
Company, at the Company's principal place of business, attention: Chief
Financial Officer (with a copy to Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxxx, Esq.), and if to
the Employee, at Employee's home address set forth above, or to such other
address or addresses as either party shall have designated in writing to the
other party hereto.
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13. SEVERABILITY. The Employee agrees that in the event that any court
of competent jurisdiction shall finally hold that any provision of Section 6 or
8 hereof is void or constitutes an unreasonable restriction against the
Employee, such provision shall not be rendered void but shall apply with respect
to such extent as such court may judicially determine constitutes a reasonable
restriction under the circumstances. If any part of this Agreement other than
Section 6 or 8 is held by a court of competent jurisdiction to be invalid,
illegible or incapable of being enforced in whole or in part by reason of any
rule of law or public policy, such part shall be deemed to be severed from the
remainder of this Agreement for the purpose only of the particular legal
proceedings in question and all other covenants and provisions of this Agreement
shall in every other respect continue in full force and effect and no covenant
or provision shall be deemed dependent upon any other covenant or provision.
14. WAIVER. Failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such term,
covenant or condition, nor shall any waiver or relinquishment of any right or
power hereunder at any one or more times be deemed a waiver or relinquishment of
such right or power at any other time or times.
15. ENTIRE AGREEMENT; MODIFICATIONS. This Agreement constitutes the
entire and final expression of the agreement of the parties with respect to the
subject matter hereof and supersedes all prior agreements, oral and written,
between the parties hereto with respect to the subject matter hereof. This
Agreement may be modified or amended only by an instrument in writing signed by
both parties hereto.
16. APPLICABLE LAW AND VENUE. This Agreement shall be interpreted and
construed in accordance with the laws of the State of Colorado, without regard
to its conflicts of law provisions. Any action to enforce the terms of this
Agreement shall be brought in a court of proper jurisdiction within the State of
Colorado.
17. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
18. SURVIVAL. The termination of Employee's employment hereunder shall
not affect the enforceability of Sections 6 or 8.
19. FURTHER ASSURANCES. The parties agree to execute and deliver all
such further instruments and take such other and further action as may be
reasonably necessary or appropriate to carry out the provisions of this
Agreement.
20. HEADINGS. The Section headings appearing in this Agreement are for
purposes of easy reference and shall not be considered a part of this Agreement
or in any way modify, amend or affect its provisions.
21. FACSIMILE SIGNATURES. Facsimile signatures will be accepted as
originals.
IN WITNESS WHEREOF, the Company and the Employee have duly executed and
delivered this Agreement as of the day and year first above written.
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FRONT PORCH DIGITAL INC.
By: /S/ XXXXXXX X. XXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
/S/ XXXX XXXXXXX
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XXXX XXXXXXX
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SCHEDULE A
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Equity Pier LLC
