EXHIBIT 10.17
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") dated November 1, 2001
("Effective Date"), is between SynQuest, Inc. ("SynQuest") and Xxxx Xxxxx
("Executive").
The parties agree as follows:
1. Employment. SynQuest hereby employs Executive and Executive
hereby accepts employment, subject to the terms and conditions of this
Agreement. Executive will serve as Senior Vice President, Pre-Sales and
Solution Consulting of SynQuest and will have the duties, rights and
responsibilities customarily associated with that position, as well as any
other reasonable duties relating to the operation of the business of SynQuest
and SynQuest's subsidiaries that the Board of Directors of SynQuest (the
"Board") may from time to time assign to Executive. Executive will devote his
full business time, skills and best efforts to rendering services on behalf of
SynQuest and will exercise such care as is customarily required by employees
undertaking similar duties for companies similar to SynQuest.
Executive's employment under this Agreement will continue on the
Effective Date, and may be terminated at any time by either party, at will,
subject to the obligations of the Company under Section 6.6.
2. Compensation; Expenses; Additional Employment Benefits
2.1 Salary. During the term of Executive's employment under this
Agreement, SynQuest will pay Executive an annual base salary equal to $175,000
(the "Base Salary"), which will be payable to Executive in accordance with
SynQuest's payroll procedures in effect with respect to other officers of
SynQuest, less all applicable withholding taxes. The Base Salary will be
reviewed annually by the Board and, based on the Board's review, the Base
Salary may be increased (at the sole discretion of the Board).
2.2 Bonus. During the term of Executive's employment under this
Agreement, Executive will be entitled to receive (if earned) an annual bonus
("Bonus"). The terms and conditions under which the Bonus will be earned
(including corporate and individual goals and objectives upon which payment of
the Bonus may be based) will be established annually in accordance with
SynQuest's bonus plan for key executive personnel.
2.3 Executive Stock Option Plan. Executive will be eligible for
consideration for grants of stock options in accordance with the terms and
conditions of SynQuest's Stock Option Plan (or successor stock option plan
adopted by SynQuest 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, and such grants, if any,
will be subject to any terms and conditions imposed thereon by the Board.
-1-
2.4 Reimbursement of Business Expenses. SynQuest 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 SynQuest in
accordance with SynQuest's general reimbursement policy in effect for
SynQuest's executives.
2.5 Participation in Benefit Plans. Executive will be eligible to
participate in SynQuest's existing benefit plans and any other compensation,
welfare, insurance and other benefit plans as SynQuest may maintain from time
to time for the benefit of SynQuest's key executive personnel, on the terms and
subject to the conditions set forth in those plans.
2.6 Vacation. Executive will receive three weeks paid vacation
each year during the term of Executive's employment.
2.7 Additional Benefits and Prerequisites. Executive will have
additional benefits and prerequisites authorized from time to time for
Executive in accordance with SynQuest's policies then in effect with respect to
other SynQuest executives.
3. Termination of Employment. Executive's employment under this
Agreement may be terminated upon the occurrence of any of the following events:
3.1 Death. Executive's death (a "Death Termination Event").
3.2 Disability. If the Board determines in good faith, based on
medical evidence considered by the Board to be reliable and after giving
Executive an opportunity to present evidence on his own behalf, that as a
result of a medically determinable physical or mental impairment Executive has
become substantially unable to perform his duties under this Agreement at the
principal executive offices of SynQuest for any period of six (6) consecutive
months, or nine (9) months in any twelve (12) month period, then Executive will
be deemed to be disabled for the purposes of this Agreement and the Board may
terminate Executive's employment under this Agreement (a "Disability
Termination Event"). All determinations by the Board pursuant to this Section
3.2 will be final and binding upon Executive.
3.3 Termination for Cause. The Board may terminate Executive's
employment under this Agreement for cause upon: (i) the determination by the
Board that Executive has failed to materially perform his duties under this
Agreement (other than as a result of Executive's incapacity due to physical or
mental illness or injury), and such failure is a result of an intentional
and/or extended neglect of Executive's duties under this Agreement; (ii)
conviction of Executive for a felony or any crime involving theft, fraud or
moral turpitude; (iii) commission by Executive of any act involving dishonesty
or fraud against SynQuest or SynQuest's subsidiaries; (iv) failure by Executive
to comply with a reasonable written order of the Board; (v) a misrepresentation
made willfully, recklessly or in bad faith by Executive to SynQuest's
stockholders or the Board, which causes injury to SynQuest or SynQuest's
subsidiaries or SynQuest's stockholders; or (vi) a
-2-
material breach by Executive of his obligations under Sections 9 through 13 (a
"Good Cause Termination Event").
3.4 Termination Without Cause.
(a) The Board may terminate Executive's employment under this
Agreement without cause at any time by delivering to Executive a Notice of
Termination (as defined in Section 4 below).
(b) Executive may terminate his employment by delivering to
the Board a Notice of Termination, and such termination will be considered to
be without cause if there occurs a material change in the position held by
Executive or in the duties of Executive, without Executive's consent, such that
Executive's position or duties are not comparable to Executive's position and
duties prior to such material change. The termination of employment as a result
of a Death Termination Event will be considered to be without cause. (Both
termination events described in Subsections (a) and (b) are referred to
individually in this Agreement as a "No Cause Termination Event").
3.5 Voluntary Termination. Executive may voluntarily terminate
his employment under this Agreement at any time by delivering to the Board a
Notice of Termination as specified in Section 5(e) below (a "Voluntary
Termination Event"); provided, however, that (1) if at the time of such
voluntary termination by Executive, Executive could be terminated as a result
of a Good Cause Termination Event, Executive will be deemed to have been
terminated as a result of a Good Cause Termination Event instead of a Voluntary
Termination Event, (2) if Executive resigns under the circumstances described
under Section 3.4, the termination will be deemed to have been resulted from a
No Cause Termination Event.
4. Notice of Termination. Any termination by the Board pursuant
to Sections 3.2, 3.3 or 3.4(a) of this Agreement will be communicated to
Executive by a Notice of Termination. Any termination by Executive pursuant to
Sections 3.4(b) or 3.5 of this Agreement will be communicated by Notice of
Termination to the Board. For purposes of this Agreement, a "Notice of
Termination" means a notice that indicates the specific termination provision
in this Agreement relied upon for such termination, and if delivered pursuant
to Sections 3.2, 3.3 or 3.4(a) of this Agreement, sets forth the basis for
termination of Executive's employment under the provisions indicated.
5. Date of Termination. "Date of Termination" means:
(a) If Executive's employment is terminated as a result
of a Death Termination Event, the date of Executive's death;
(b) If Executive's employment is terminated as a result
of a Disability Termination Event, thirty (30) days after Notice of Termination
is given;
-3-
(c) If Executive's employment is terminated by the Board
as a result of a Good Cause Termination Event the date the Notice of
Termination is given (or such later date as may be specified by the Board in
the Notice of Termination),
(d) If Executive's employment is terminated as a result
of a No Cause Termination Event, the date the Notice of Termination is given,
provided that Executive will have a minimum of fifteen (15) business days after
the date the Notice of Termination is given during which to exercise any stock
options he holds (this provision will supercede any provision regarding period
of exercise which is less than fifteen (15) days in any stock option agreement,
including those entered into after the date of this Agreement); and
(e) If Executive's employment is terminated as a result
of a Voluntary Termination Event, sixty (60) days after Notice of Termination
is given (or such shorter period of time as the Board may specify in the
Board's sole discretion after receiving Executive's Notice of Termination,
provided that Executive will have a minimum of fifteen (15) business days after
the date the Notice of Termination is given during which to exercise any stock
options he holds (this provision will supercede any provision regarding period
of exercise which is less than fifteen (15) days in any stock option agreement,
including those entered into after the date of this Agreement.
6. Compensation upon Termination or During Disability.
6.1 No Further Obligation. Upon any termination of employment,
SynQuest and SynQuest's subsidiaries will have no further obligation to
Executive except to pay Executive (or Executive's estate in the case of
Executive's death) the compensation and other benefits provided in this Section
6. Amounts payable pursuant to this Section 6 are in lieu of any severance pay
that would otherwise be payable to Executive upon termination of Executive's
employment with SynQuest under SynQuest's severance pay policies.
6.2 Death. If Executive's employment is terminated as a result of
a Death Termination Event, SynQuest will pay to Executive's estate any Base
Salary and Bonus earned but unpaid and any other amounts due to Executive from
SynQuest (whether pursuant to benefit plans or otherwise) through the date of
Executive's death.
6.3 Disability. If Executive's employment is terminated as a
result of a Disability Termination Event, Executive will continue to receive
payment of any Base Salary and Bonus earned but unpaid and any other amounts
due to Executive from SynQuest (whether pursuant to benefit plans or otherwise)
through the Date of Termination. After payment of amounts set forth in this
Section 6.3, Executive's compensation will be paid in accordance with
SynQuest's long-term disability plans, if any, that may then be in effect with
respect to Executive.
6.4 Good Cause. If Executive's employment is terminated as a
result of a Good Cause
-4-
Termination Event, Executive will receive payment of any Base Salary earned but
unpaid and any other amounts due to Executive from SynQuest (whether pursuant
to benefit plans or otherwise) through the Date of Termination.
6.5 Voluntary Termination. If Executive's employment is
terminated as a result of a Voluntary Termination Event, Executive will receive
payment of any Base Salary and Bonus earned but unpaid and any other amounts
due to Executive from SynQuest (whether pursuant to benefit plans or otherwise)
through the Date of Termination.
6.6 No Cause Termination. If Executive's employment is terminated
as a result of a No Cause Termination Event, then SynQuest will pay Executive
within fifteen (15) days after the Date of Termination, (i) any Base Salary and
Bonus earned but unpaid and any other amounts due to Executive from SynQuest
(whether pursuant to benefit plans or otherwise) through the Date of
Termination, and (ii) fifty percent (50%) of Executive's then-current Base
Salary, but in no event less than $87,500.
7. Employment Rights. Nothing in this Agreement confers on
Executive any right to continue in the employ of SynQuest or SynQuest's
subsidiaries, or to interfere in any way with the right of the Board to
terminate Executive's employment at any time.
8. Scope of Duties.
8.1 Employment by SynQuest as Sole Occupation. Executive agrees
to devote Executive's full business time, attention, skill, and effort
exclusively to the performance of the duties that SynQuest 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 SynQuest, unless SynQuest
consents in writing, it being agreed that SynQuest will not withhold its
consent to any activity which is not competitive with SynQuest's business and
does not interfere with the performance by Executive of Executive's duties and
obligations to SynQuest under this Agreement. It is the policy of SynQuest
never to allow its personnel to work for any competitive enterprise during
their employment, including after hours, on weekends, or during vacation time,
even if only organizational assistance or limited consultation is involved.
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.
8.2 Noninterference With Third-Party Rights. SynQuest is
employing Executive with the understanding that (i) Executive is free to enter
into employment with SynQuest and (ii) only SynQuest is entitled to the benefit
of Executive's work. SynQuest has no interest in using any other person's
patents, copyrights, trade secrets, or trademarks in an unlawful manner.
Executive should be careful not to misapply proprietary rights that SynQuest
has no right to use.
-5-
9. Ownership of Executive Developments.
9.1 Ownership of Work Product.
(a) SynQuest will own all Work Product (as defined below
in Section 9.1(e)). All Work Product will be considered work made for hire by
Executive and owned by SynQuest.
(b) If any of the Work Product may not, by operation of
law, be considered work made for hire by Executive for SynQuest, or if
ownership of all right, title, and interest of the intellectual property rights
therein may not otherwise vest exclusively in SynQuest, Executive agrees to
assign, and upon creation thereof automatically assigns, without further
consideration, the ownership of all Trade Secrets (as defined below in Section
10.2), U.S. and international copyrights, patentable inventions, and other
intellectual property rights therein to SynQuest, its successors and assigns.
(c) SynQuest, its successors and assigns, will have the
right to obtain and hold in its or their own name copyright registrations,
trademark registrations, patents and any other protection available in the
foregoing.
(d) Executive agrees to perform, upon the reasonable
request of SynQuest, during or after Executive's employment, such further acts
as may be necessary or desirable to transfer, perfect, and defend SynQuest's
ownership of the Work Product. When requested, Executive will:
(1) Execute, acknowledge, and deliver any
requested affidavits and documents of
assignment and conveyance with respect to
any Work Product;
(2) Assist in the preparation, prosecution,
procurement, maintenance and enforcement of
copyrights and, if applicable, patents with
respect to the Work Product in any
countries;
(3) Provide testimony in connection with any
proceeding affecting the right, title, or
interest of SynQuest in any Work Product;
and
(4) Perform any other acts deemed necessary or
desirable to carry out the purposes of this
Agreement.
SynQuest will reimburse all reasonable out-of-pocket expenses
incurred by Executive at SynQuest's request in connection with the foregoing,
including (unless Executive is otherwise being compensated at the time) a
reasonable per diem or hourly fee for services rendered following termination
of Executive's employment.
-6-
(e) For purposes hereof, "Work Product" means all
intellectual property rights, including all Trade Secrets, U.S. and
international copyrights, patentable inventions, discoveries and improvements,
and other intellectual property rights, in any programming, documentation,
technology, or other Work Product that relates to the business and interests of
SynQuest and that Executive conceives, develops, or delivers to SynQuest at any
time during the term of Executive's employment. "Work Product" does not include
Executive's "Residual Knowledge." "Residual Knowledge" means prior or existing
knowledge or skills obtained by Employee during the course of his employment,
to the extent retained in Employee's human memory (and not in any other form,
such as written form or electronic form, such as magnetic storage media).
Residual Knowledge will not include any Trade Secrets or other proprietary
information of SynQuest (or its subsidiaries or affiliates). Executive hereby
irrevocably relinquishes for the benefit of SynQuest and its assigns, and
hereby agrees to waive and never to assert, any moral rights in the Work
Product recognized by applicable law.
9.2 Clearance Procedure for Proprietary Rights Not Claimed by
SynQuest. If Executive ever wishes to create or develop, on Executive's own
time and with Executive's own resources, anything that may be considered Work
Product but as to which Executive believes Executive should be entitled to the
personal benefit, Executive is required to follow the clearance procedure set
forth in this Section 9.2 in order to ensure that SynQuest has no claim to the
proprietary rights that may arise.
Before Executive begins any development work on Executive's own time,
Executive must give SynQuest advance written notice of Executive's plans and
supply a description of the development under consideration. SynQuest will hold
in confidence and not disclose any proprietary and confidential information
contained in the description submitted by Executive. SynQuest will determine,
in good faith, within thirty (30) days after Executive has fully disclosed
Executive's plans to SynQuest, whether the development is claimed by SynQuest
as Work Product. If SynQuest determines that it does not claim such
development, Executive will be notified in writing and may retain ownership of
the development to the extent of what has been disclosed to SynQuest. Executive
should submit for further clearance any significant improvement, modification,
or adaptation so that it can be determined whether the improvement,
modification, or adaptation relates to the business or interests of SynQuest.
Clearance under this procedure does not relieve Executive of the need
to obtain the written consent of SynQuest pursuant to Section 8.1 before
engaging in business activities or rendering business, commercial, or
professional services for the benefit of anyone other than SynQuest (subject to
the provisions of Section 8.1). SynQuest thus reserves the right to exercise
greater control over development work that Executive might consider doing for
profit after hours, as opposed to mere hobby work pursued in Executive's spare
time.
10. Confidentiality.
10.1 Consequences of Entrustment With Sensitive Information.
Executive's position
-7-
with SynQuest requires considerable responsibility and trust. Relying on
Executive's ethical responsibility and undivided loyalty, SynQuest expects to
entrust Executive with highly sensitive confidential, restricted, and
proprietary information involving Trade Secrets (as defined in Section 10.2)
and Confidential Information (as defined in Section 10.4). Executive is legally
and ethically responsible for protecting and preserving SynQuest's proprietary
rights for use only for SynQuest's benefit, and these responsibilities may
impose unavoidable limitations on Executive's ability to pursue some kinds of
business opportunities that might interest Executive during or after
Executive's employment.
10.2 Trade Secrets Defined. For purposes of this Agreement, "Trade
Secrets" means information, without regard to form, including, but not limited
to, (i) technical or nontechnical data, formulas, patterns, compilations,
programs, devices, methods, techniques, drawings, processes, financial data,
financial plans, product plans relating to or reflected in SynQuest's computer
software products, or (ii) a list of actual or potential customers or suppliers
of SynQuest that: (A) derive 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 their disclosure or use;
and (B) are the subject of efforts that are reasonable under the circumstances
to maintain their secrecy. The term "Trade Secret" will not include any
information which constitutes Confidential Information (as defined below in
Section 10.4).
Trade Secrets do not include information that Executive can show by
competent proof (i) was known to Executive prior to disclosure by SynQuest;
(ii) was generally known to the public at the time SynQuest disclosed the
information to Executive; (iii) became generally known to the public after
disclosure to Executive by the SynQuest through no act or omission of
Executive; or (iv) was disclosed to Executive by a third party having a bona
fide right both to possess the information and to disclose the information to
Executive.
10.3 Restrictions on Use and Disclosure of Trade Secrets.
Executive must hold in confidence at all times after the date of this Agreement
all Trade Secrets of SynQuest and must not disclose, publish or make use at any
time after the date of this Agreement of Trade Secrets without the prior
consent of SynQuest.
10.4 Confidential Information Defined. For purposes of this
Agreement, "Confidential Information" means any data or information, other than
Trade Secrets, which (i) is valuable to SynQuest, (ii) is not generally known
or available to competitors of SynQuest, and (iii) is treated as confidential
by SynQuest.
10.5 Use or Disclosure of Confidential Information. Executive
agrees that during the term of Executive's employment by SynQuest, and for a
period of two (2) years following termination of Executive's employment,
Executive will hold in confidence all Confidential Information and will not
disclose, publish or make use of Confidential Information without the prior
written consent of SynQuest.
-8-
10.6 Screening of Public Releases of Information. In addition, and
without any intention of limiting Executive's other obligations under this
Agreement in any way, Executive should not, during Executive's employment,
reveal any non-public information concerning the technology pertaining to the
proprietary products and manufacturing processes of SynQuest (particularly
technology under current development or improvement), unless Executive has
obtained approval from SynQuest in advance. In that connection, Executive
should submit to SynQuest for review any proposed scientific and technical
articles and the text of any public speeches relating to work done for SynQuest
before they are released or delivered. SynQuest has the right to disapprove and
prohibit, or delete any parts of, such articles or speeches that might disclose
SynQuest's Trade Secrets or other Confidential Information or otherwise be
contrary to SynQuest's business interests.
10.7 SynQuest's Rights Under Applicable Trade Secret Law. Nothing
in this Agreement is intended to, nor will it, diminish the SynQuest's rights
regarding the protection of SynQuest's trade secrets pursuant to applicable
Georgia law.
11. Return of Materials. Upon the request of SynQuest and, in any
event, upon the termination of Executive's employment, Executive must return to
SynQuest and leave at SynQuest's disposal all memoranda, notes, records,
drawings, manuals, computer programs, documentation, diskettes, computer tapes,
and other documents or media pertaining to the business of SynQuest or
Executive's specific duties for SynQuest, including all copies of such
materials. Executive must also return to SynQuest and leave at SynQuest's
disposal all materials involving any Trade Secrets of SynQuest. This Section 11
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.
12. Non-interference with Personnel Relations. During Executive's
employment with SynQuest and for a period of one (1) year afterwards, Executive
will not knowingly solicit, entice or persuade any other Executives of SynQuest
to leave the services of SynQuest for any reason.
13. Non-competition Agreement.
13.1 Definitions. For the purposes of this Section 13, the
following definitions will apply:
(a) "SynQuest Activities" means all activities of the
type conducted, authorized, offered, or provided by Executive within one (1)
year prior to termination of Executive's employment as they relate to the
business and interests of SynQuest. For purposes of reference, such activities
at the date of this Agreement include the business of producing, marketing,
promoting and distributing computer software programs that have as their
primary content manufacturing or supply chain management material or logistics
planning material. The term "SynQuest Activities" includes (without limitation)
the production, marketing and distribution of
-9-
computer software programs which compete directly with any of the computer
software programs distributed by SynQuest on the date of termination of
Executive's employment.
(b) "Noncompete Period" or "Nonsolicitation Period"
means the period beginning on the date of this Agreement and ending one (1)
year after the Termination Date.
(c) "Territory" means any country throughout the world
where SynQuest is engaged in SynQuest Activities as of the Termination Date,
including, without limitation, the United States of America, its territories
and possessions.
13.2 Trade Name. Executive agrees that during the Noncompete
Period, Executive must not, directly or by assisting others, own, manage,
operate, join, control or participate in the ownership, management, operation
or control of any business conducted under any corporate or trade name of
SynQuest or name similar thereto without the prior written consent of SynQuest.
13.3 Noncompetition.
(a) Coverage. The parties acknowledge that Executive
will conduct SynQuest business activities throughout the Territory. Executive
acknowledges that to protect adequately the interests of SynQuest in the
business of SynQuest, it is essential that any noncompete covenant with respect
thereto cover all SynQuest Activities and the entire Territory.
(b) Covenant. Executive hereby agrees that Executive
must not, during the Noncompete Period, in any manner (other than as an
Executive of or as a consultant to SynQuest), directly or by assisting others,
conduct SynQuest Activities in the Territory for a competitor of SynQuest,
without the prior express written consent of the Board of Directors of
SynQuest. It is specifically understood and agreed that accepting employment
with, or acting as a consultant to, any company that directly competes with
SynQuest during the Noncompete Period would constitute a breach of this
covenant. Notwithstanding this Section 13.3(b), Executive will be permitted to
(i) acquire up to five percent (5%) of any competitor of SynQuest whose common
stock is publicly traded on a national securities exchange or in the
over-the-counter market; or (ii) own shares of stock of SynQuest.
13.4 Nonsolicitation. Executive hereby agree that Executive must
not, during the Nonsolicitation Period, in any manner (other than as an
Executive of or a consultant to SynQuest), directly or by assisting others:
(a) solicit or attempt to solicit, any business from any
of SynQuest's customers, including actively sought prospective customers, with
whom Executive had material contact during Executive's employment under for
purposes of providing products or services that are competitive with those
provided by SynQuest; or
(b) solicit or attempt to solicit for employment, on
Executive's behalf or on
-10-
behalf of any other person, firm or corporation, any other Executive of
SynQuest or its affiliates with whom Executive had material contact during
Executive's employment under this Agreement.
13.5 Severability. If a judicial determination is made that any of
the provisions of this Section 13 constitute an unreasonable or otherwise
unenforceable restriction against Executive, the provisions of this Section 13
may be rendered void only to the extent that such judicial determination finds
such provisions to be unreasonable or otherwise unenforceable. In this regard,
Executive and SynQuest hereby agree that any judicial authority construing this
Agreement may be empowered to sever any portion of the Territory, any
prohibited business activity, or any time period from the coverage of this
Section 13, and to apply the provisions of this Section 13 to the remaining
portion of the Territory, the remaining business activities, and the remaining
time period not so severed by such judicial authority. Moreover,
notwithstanding the fact that any provision of this Section 13 is determined
not to be specifically enforceable, SynQuest will nevertheless be entitled to
recover monetary damages as a result of Executive's breach of such provision.
The time period during which the prohibitions set forth in this Section 13 will
apply may be tolled and suspended for a period equal to the aggregate quantity
of time during which Executive violates such prohibitions in any respect.
14. Miscellaneous.
14.1 Survival of Terms; Injunction. The covenants in Sections 9
through 13 of this Agreement will survive the execution and delivery of this
Agreement and the termination of Executive's employment, regardless of who
causes the termination and under what circumstances the termination occurred.
The covenants contained in Sections 9 through 13 are reasonably necessary to
protect the legitimate business interests of SynQuest and will not create undue
hardship for Executive in the event of termination of Executive's employment.
Executive acknowledges that damages for the violation of any such covenants
will not give full and sufficient relief to SynQuest. In the event of any
violation of any such covenants, SynQuest will be entitled to injunctive relief
against the continued violation thereof, in addition to any other rights which
SynQuest may have by reason of such violation.
14.2 Related Parties; Non-assignability. This Agreement will be
binding upon and inure to the benefit of and will be enforceable by, Executive
and SynQuest, their respective heirs, executors, administrators, successors and
assigns. In the event of any assignment of this Agreement by SynQuest, by
operation of law or otherwise, SynQuest will remain primarily liable for
SynQuest's obligations under this Agreement. This Agreement is not assignable
by Executive, by operation of law or otherwise.
14.3 Choice of Law. This Agreement will be governed by and
enforced under the laws of Georgia.
-11-
14.4 Notices. Every notice or other communication required or
permitted to be given under this Agreement must be in writing and must be
delivered by messenger, transmitted by facsimile, sent by next-day air courier
or mailed by United States registered or certified mail, return receipt
requested, postage prepaid, addressed to Executive at the last address on
SynQuest's records, and if to SynQuest, at SynQuest, Inc., 0000 Xxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxx, XX, 00000 or to such other address as any party may have
furnished to the other in writing in accordance with this Section.
14.5 Modifications; Termination; Waiver. This Agreement may not be
changed, terminated, modified or waived orally. Any change, termination or
modification must be signed by Executive and SynQuest. Any waiver must be
signed by the parties thereto and must be denominated as a waiver. No waiver by
either party of any provision of this Agreement will constitute a waiver of
such provision in any other instance or a waiver of any other provision.
14.6 Severability. The covenants in this Agreement will be
construed as covenants independent of one another and as obligations distinct
from any other contract between Executive and SynQuest. Any claim that
Executive may have against SynQuest will not constitute a defense to
enforcement of this Agreement by SynQuest.
14.7 Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the subject matter contained in
this Agreement and supersedes any and all prior agreements and understandings
with respect to the employment of Executive by SynQuest. To the extent any
terms contained in this Agreement are in conflict with or are inconsistent with
the terms of any other agreement to which Executive or Executive and SynQuest
are parties, the terms of this Agreement will govern.
14.8 Headings. The section headings in this Agreement are for
reference only and do not affect in any way the meaning or interpretation of
this Agreement.
14.9 Construction of Agreement. No provision of this Agreement or
any related document may be construed against or interpreted to the
disadvantage of any party hereto by any court or other government or judicial
authority by reason of such party having or being deemed to have structured or
drafted such provision.
-12-
The parties have caused this Agreement to be duly executed as of the
Effective Date.
SynQuest:
SYNQUEST, INC.
By /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: EVP Fin & Adm
Executive:
/s/ Xxxx Xxxxx
-----------------------------------
Xxxx Xxxxx
-13-
