EMPLOYMENT AGREEMENT
BY AND BETWEEN
NEWGEN RESULTS CORPORATION
AND
XXXXXX X. SILVER
TABLE OF CONTENTS
PAGE
1. Employment..............................................................................................1
2. Loyal And Conscientious Performance; Noncompetition; Nonsolicitation....................................2
3. Compensation Of THE Employee............................................................................3
4. Termination.............................................................................................4
5. Confidential And Proprietary Information; Nonsolicitation...............................................8
6. Release of Claims.......................................................................................8
7. Assignment And Binding Effect..........................................................................10
8. Notices................................................................................................10
9. Choice Of Law..........................................................................................11
10. Integration............................................................................................11
11. Amendment..............................................................................................11
12. Waiver.................................................................................................11
13. Severability...........................................................................................11
14. Interpretation; Construction...........................................................................11
15. Representations And Warranties.........................................................................12
16. Counterparts...........................................................................................12
17. Arbitration............................................................................................12
18. Injunctive Relief......................................................................................12
19. Trade Secrets Of Others................................................................................13
20. Advertising waiver.....................................................................................13
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
effective as of January 1, 2000 (the "Effective Date"), by and between NEWGEN
RESULTS CORPORATION, a Delaware corporation (the "Company"), and XXXXXX X.
SILVER (the "Employee"). The Company and the Employee are hereinafter
collectively referred to as the "Parties", and individually referred to as a
"Party".
RECITALS
A. The Company desires assurance of the association and services
of the Employee in order to retain the Employee's experience, skills,
abilities, background and knowledge, and is willing to engage the Employee's
services on the terms and conditions set forth in this Agreement.
B. The Employee desires to be in the employ of the Company, and is
willing to accept such employment on the terms and conditions set forth in
this Agreement.
AGREEMENT
In consideration of the foregoing Recitals and the mutual promises and
covenants herein contained, and for other good and valuable consideration, the
Parties, intending to be legally bound, agree as follows:
1. EMPLOYMENT.
1.1 TERM. The Company hereby employs the Employee, and the
Employee hereby accepts employment by the Company, upon the terms and conditions
set forth in this Agreement. The term of this Agreement shall commence on the
Effective Date and shall continue for five years from the Effective Date (the
"Term"), unless terminated earlier in accordance with Section 4 and/or 5 herein.
1.2 TITLE. The Employee shall have the title of Executive
Vice-President of the Company and President of Newgen Management Services, Inc.,
("NMS") a wholly owned subsidiary of the Company and shall serve in such other
capacity or capacities as the Board of Directors of the Company may from time to
time prescribe.
1.3 DUTIES. The Employee shall do and perform all services,
acts or things necessary or advisable to manage and conduct the business of the
Company and which are normally associated with his position consistent with the
bylaws of the Company and as required by the Company's Board of Directors of
Newgen and/or NMS, as the case may be.
1.4 POLICIES AND PRACTICES. The employment relationship
between the Parties shall be governed by the policies and practices established
by the Company and its Board of Directors. The Employee will acknowledge in
writing that he has read the Company's Employee
1.
Handbook, which will govern the terms and conditions of his employment with
the Company, along with this Agreement. In the event that the terms of this
Agreement differ from or are in conflict with the Company's policies or
practices or the Company's Employee Handbook, this Agreement shall control.
1.5 LOCATION. Unless the Parties otherwise agree in writing,
during the term of this Agreement, the Employee shall perform the services
Employee is required to perform pursuant to this Agreement at the Company's
offices, located in San Diego; provided, however, that the Company will
frequently require the Employee to travel temporarily to other locations in
connection with the Company's business.
2. LOYAL AND CONSCIENTIOUS PERFORMANCE; NONCOMPETITION;
NONSOLICITATION
2.1 LOYALTY. During the Employee's employment by the Company,
the Employee shall devote Employee's full business energies, interest, abilities
and productive time to the proper and efficient performance of Employee's duties
under this Agreement.
2.2 COVENANT NOT TO COMPETE. Except with the prior written
consent of the Company's Board of Directors, the Employee will not, during the
Term of this Agreement, and any period during which the Employee is receiving
compensation or any other consideration from the Company, including severance
pay pursuant to Section 4.4.3 herein, engage in competition with the Company or
any of its affiliates, either directly or indirectly, in any manner or capacity,
as adviser, principal, agent, affiliate, promoter, partner, officer, director,
employee, stockholder, owner, co-owner, consultant, or member of any association
or otherwise, in any phase of the business of developing, manufacturing and
marketing of products or services which are in the same field of use or which
otherwise directly or indirectly compete or could reasonably be expected to
compete, directly or indirectly, with the products or services or proposed
products or services of the Company or any of its affiliates.
2.3 AGREEMENT NOT TO PARTICIPATE IN COMPANY'S COMPETITORS.
During the Term of this Agreement, and any period during which he receives
compensation or any other consideration from the Company, including severance
pay pursuant to Section 4.4.3 herein, the Employee agrees not to acquire, assume
or participate in, directly or indirectly, any position, investment or interest
known by Employee to be adverse or antagonistic to the Company, its business or
prospects, financial or otherwise or in any company, person or entity that is,
directly or indirectly, in competition with the business of the Company or any
of its affiliates including without limitation NMS and Xxxxxxxxx.xxx. Ownership
by the Employee, as a passive investment, of less than two percent (2%) of the
outstanding shares of capital stock of any corporation with one or more classes
of its capital stock listed on a national securities exchange or publicly traded
on the Nasdaq Stock Market or in the over-the-counter market shall not
constitute a breach of this paragraph.
2.4 NONSOLICITATION. While employed by the Company and
for any period during which he receives compensation or any other
consideration from the Company, including severance pay pursuant to section
4.4.3 herein, the Executive agrees that in order to protect the Company's
Confidential and Proprietary Information from unauthorized use, that the
Executive agrees that he will not, either
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directly or through others: i) solicit or attempt to solicit any employee,
consultant or independent contractor of the Company or any of its affiliates
to terminate his or her relationship with the Company in order to become an
employee, consultant or independent contractor to or for any other person or
business entity; or ii) to solicit or attempt to solicit the business of any
customer, supplier, service provider, vendor or distributor of the Company or
any of its affiliates, which, at the time of termination or two (2) years
immediately prior thereto, was doing business with the Company or any of its
affiliates or listed on Company's or any of its affiliates' customer,
supplier, service provider, vendor or distributor lists.
3. COMPENSATION OF THE EMPLOYEE.
3.1 BASE SALARY. The Company shall pay the Employee a base
salary of two hundred sixty-six thousand Dollars ($266,000) per year (the "Base
Salary"), less payroll deductions and all required withholdings payable in
regular periodic payments in accordance with Company policy. Such Base Salary
shall be prorated for any partial year of employment on the basis of a 365-day
fiscal year.
3.2 CHANGES TO COMPENSATION. The Employee's Base Salary may be
changed from time to time by mutual agreement of the Employee and the Company,
although the Company retains the right to reduce Employee's Base Salary to the
same extent it reduces other executive employees' base salaries as part of
Company cost saving measures. Nothing herein should be construed as providing
Employee with any right to an increase in compensation.
3.3 BENEFITS. The Employee shall, in accordance with Company
policy and the terms of the applicable plan documents, be eligible to
participate in benefits under any Employee benefit plan or arrangement which may
be in effect from time to time and made available to the Company's employees or
key management employees.
3.4 STOCK OPTIONS. In exchange for the promises and covenants
herein and pursuant to a separate stock option agreement, the Employee will be
granted an incentive stock option to purchase 100,000 shares of Common Stock of
the Company at an exercise price equal to 100% of the fair market value of the
Company's Common Stock on the date of grant (the "Option") under the standard
terms of the Company's 1998 Stock Incentive Plan or any successor stock option
plan. One hundred percent (100%) of the shares subject to the Option will vest
on the date that is five (5) years from the date of this Agreement, except as
otherwise provided herein. If the Company signs a contract with Ford Motor
Company ("Ford"), whereby the Company is designated as the preferred provider of
Customer Retention Management ("CRM") services to Ford and Ford automobile
dealerships as evidenced by a contract between the Company and Ford which
significantly improves the Company's position in the marketplace as determined
by the Company's Board of Directors in sole and absolute discretion then one
hundred percent (100%) of the shares subject to the Option will vest as of the
date such contract is signed.
Employee will be solely responsible for all tax returns and
payments required to be filed with or made to any federal, state, or local tax
authority as a result of the Option grant or the exercise of shares pursuant to
the Option. Employee agrees to comply with and to accept
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exclusive liability for complying with all applicable state and federal laws
relating to taxation arising as a result of the Option or the exercise of
shares pursuant to the Option. Employee agrees to indemnify and defend the
Company against any and all taxes and/or liability arising from the Option or
the exercise of shares pursuant to the Option, including penalties and
interest.
3.5 POSSIBLE RECOMMENDATION FOR BOARD SEAT. Assuming the
Employee's continuous employment for one (1) year from the Effective Date of
this Agreement, the Chief Executive Officer may, in his sole and absolute
discretion, recommend Employee for a seat on the Company's Board of Directors.
Any such recommendation if made, shall be further subject to approval by a
majority of the then current members of the Company's Board of Directors.
4. TERMINATION.
4.1 TERMINATION BY THE COMPANY. The Employee's employment with
the Company may be terminated under the following conditions:
4.1.1 DEATH OR DISABILITY. The Employee's employment with
the Company shall terminate effective upon the date of the Employee's death or
"Complete Disability" (as defined in Section 4.5.1).
4.1.2 FOR CAUSE. The Company may terminate the Employee's
employment under this Agreement for "Cause" (as defined in Section 4.5.3) by
delivery of written notice to the Employee specifying the Cause or Causes relied
upon for such termination. Any notice of termination given pursuant to this
Section 4.1.2 shall effect termination as of the date specified in such notice
or, in the event no such date is specified, on the last day of the month in
which such notice is delivered or deemed delivered as provided in Section 10
below.
4.1.3 WITHOUT CAUSE. The Company may terminate the
Employee's employment under this Agreement at any time and for any reason by
delivery of written notice of such termination to the Employee. Any notice of
termination given pursuant to this Section 4.1.3 shall effect termination as of
the date specified in such notice or, in the event no such date is specified, on
the last day of the month in which such notice is delivered or deemed delivered
as provided in Section 10 below.
4.2 TERMINATION BY THE EMPLOYEE. The Employee may terminate
the Employee's employment with the Company under the following conditions:
4.2.1 GOOD REASON. The Employee may terminate the
Employee's employment under this Agreement for "Good Reason" (as defined below
in Section 4.5.2) by delivery of written notice to the Company specifying the
"Good Reason" relied upon by the Employee for such termination, provided that
such notice is delivered within six (6) months following the occurrence of any
event or events constituting Good Reason and that Employee has given the Company
a minimum of sixty (60) days written notice and an opportunity to cure the event
which constitutes "Good Reason."
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4.2.2 WITHOUT GOOD REASON. The Employee may terminate
the Employee's employment hereunder for other than "Good Reason" upon sixty
(60) days written notice to the Company.
4.3 TERMINATION BY MUTUAL AGREEMENT OF THE PARTIES. The
Employee's employment pursuant to this Agreement may be terminated at any time
upon a mutual agreement in writing of the Parties. Any such termination of
employment shall have the consequences specified in such agreement.
4.4 COMPENSATION UPON TERMINATION.
4.4.1 DEATH OR COMPLETE DISABILITY. If the Employee's
employment shall be terminated by death or Complete Disability as provided in
Section 4.5.1, the Company shall pay the Employee's accrued Base Salary, less
standard deductions and withholdings, and accrued and unused vacation benefits
earned through the date of termination at the rate in effect at the time of
termination to Employee and/or Employee's heirs, and the Company shall
thereafter have no further obligations to the Employee and/or Employee's heirs
under this Agreement. Employee's stock options to purchase the Company's Common
Stock will cease to vest upon termination of employment for Death or Complete
Disability and will be governed by the terms of the applicable Stock Option
Agreement and the Company's equity incentive plan except as provided herein. In
the event of termination for Death or Complete Disability, the Option referenced
in Section 3.4 herein, will be treated as if it were subject to a four (4) year
vesting period in which twenty-five percent (25%) of the shares subject to the
Option vested on the last day of each year following the date of the grant.
4.4.2 WITH CAUSE OR WITHOUT GOOD REASON. If the
Employee's employment shall be terminated by the Company with Cause or if the
Employee resigns without Good Reason, the Company shall pay the Employee's
accrued Base Salary and accrued and unused vacation benefits earned through the
date of termination at the rate in effect at the time of the notice of
termination to Employee, and the Company shall thereafter have no further
obligations to the Employee under this Agreement. Employee's stock options to
purchase the Company's Common Stock will cease to vest upon termination of
employment with Cause or without Good Reason and will be governed by the terms
of the applicable Stock Option Agreement and the Company's equity incentive
plan.
4.4.3 WITHOUT CAUSE OR WITH GOOD REASON. If the Company
terminates the Employee's employment without Cause or the Employee resigns
with Good Reason, the Employee shall be entitled to the Employee's Base
Salary, a pro-rata portion of the bonus received by Executive during the
preceding year and accrued and unused vacation earned through the Employee's
last day of employment, subject to standard deductions and withholdings. In
addition, upon the Employee's furnishing to the Company an effective release
and waiver of claims ("Release and Waiver") (a form of which is attached
hereto as Exhibit A), and in exchange for the consulting services provided by
the Employee to the Company pursuant to Section 4.4.6 herein and the
Consulting Agreement attached hereto as Exhibit C, the Employee shall be
entitled to:
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(i) monthly payments of one-twelfth (1/12) the
Employee's annual Base Salary in effect at the time of termination and
one-twelfth (1/12) the bonus Employee received in the preceding year, for a
period of one (1) year (the "Severance Period") after the Employee's last day
of employment, subject to standard deductions and withholdings plus COBRA
benefits as set forth in the Consulting Agreement; and
(ii) acceleration of the vesting of all stock options
held by Employee or granted to Employee hereafter (the "Stock Options") so that
the shares subject to the Stock Options will be fully vested and immediately
exercisable as of the effective date of the Release and Waiver.
4.4.4 COVENANT NOT TO COMPETE. Notwithstanding any
provisions in this Agreement to the contrary, including any provisions contained
in this Section 4.4, the Company's obligations, and the Employee's rights,
pursuant to Section 4.4.3 shall cease and be rendered a nullity immediately
should the Employee violate the provision of Sections 2.2 or 4.4.6 herein, or
should the Employee violate the terms and conditions of the Employee's
Proprietary Information and Inventions Agreement.
4.4.5 TERMINATION OF OBLIGATIONS. In the event of the
termination of the Employee's employment hereunder and pursuant to this Section
4, the Company shall have no obligation to pay Employee any Base Salary, bonus
or other compensation or benefits, except as provided in this Section 4 or for
benefits due to the Employee (and/or the Employee's dependents under the terms
of the Company's benefit plans). The Company may offset any amounts Employee
owes it or its subsidiaries against any amount it owes Employee pursuant to this
Section 4.4.
4.4.6 POST-TERMINATION CONSULTING AGREEMENT. Upon
termination or resignation of Employee's employment with the Company for any
reason, and at the Company's sole and absolute discretion, the Company and
Employee may enter into a Consulting Agreement in the form attached hereto as
Exhibit C, as provided herein. If the Employee's employment is terminated
without "Cause" or Employee resigns with Good Reason, the Company will enter
into the Consulting Agreement and the term of the Consulting Agreement will be
equivalent to the Severance Period (as defined in Section 4.4.3(i)). If the
Employee's employment is terminated for "Cause," or the Employee resigns without
Good Reason, the Company may in its sole and absolute discretion decide to enter
into a Consulting Agreement with the Employee for a term no shorter than sixty
(60) days and no longer then one (1) year. The Company will notify Employee in
writing of its intent to enter into such Consulting Agreement within 14 days of
the termination of employment. Notwithstanding the foregoing, if the Company
requires that Employee enter into the Consulting Agreement, and Employee fails
to deliver an executed copy of the Consulting Agreement to the Company, the
Consulting Agreement will be deemed to be entered into by both parties and shall
continue in full force and effect.
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4.5 DEFINITIONS. For purposes of this Agreement, the
following terms shall have the following meanings:
4.5.1 COMPLETE DISABILITY. "Complete Disability" shall
mean the inability of the Employee to perform the Employee's duties under this
Agreement because the Employee has become permanently disabled within the
meaning of any policy of disability income insurance covering employees of the
Company then in force. In the event the Company has no policy of disability
income insurance covering employees of the Company in force when the Employee
becomes disabled, the term "Complete Disability" shall mean the inability of the
Employee to perform the Employee's duties under this Agreement by reason of any
incapacity, physical or mental, which the Board, based upon medical advice or an
opinion provided by a licensed physician acceptable to the Board, determines to
have incapacitated the Employee from satisfactorily performing all of the
Employee'S usual services for the Company for a period of at least one hundred
twenty (120) days during any twelve (12) month period (whether or not
consecutive). Based upon such medical advice or opinion, the determination of
the Board shall be final and binding and the date such determination is made
shall be the date of such Complete Disability for purposes of this Agreement.
4.5.2 GOOD REASON. "Good Reason" for the Employee to
terminate the Employee's employment hereunder shall mean the Company's failure
to appoint Employee as successor to Xxxxx Xxxxxxxx as Chief Executive Officer of
the Company within one hundred twenty (120) days after Xxxxx Xxxxxxxx ceases to
be Chief Executive Officer of the Company. In the event of such appointment,
the compensation committee will review Employee's compensation.
4.5.3 FOR CAUSE. "Cause" for the Company to terminate
Employee's employment hereunder shall mean the Company's good faith
determination that any of the following circumstances has occurred:
(i) the Employee's repeated failure to satisfactorily
perform the Employee's job duties under this Agreement after thirty (30) days
written notice from the Company of such deficiencies and an opportunity to cure
such deficiencies;
(ii) excessive demands for increased compensation by the
Employee;
(iii) failure by the Employee to comply with all material
applicable laws in performing the Employee's job duties or in directing the
conduct of the Company'S business;
(iv) commission by the Employee of any felony or
intentionally fraudulent or other act against the Company, or its affiliates,
employees, agents or customers which demonstrates the Employee's
untrustworthiness or lack of integrity;
(v) the Employee's engaging or in any manner
participating in any activity which is competitive with or intentionally
injurious to the Company or any of its affiliates or which violates any material
provisions of Section 5 hereof; or
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(vi) the Employee's commission of any fraud against
the Company or any of its affiliates or use or intentional appropriation for
his personal use or benefit of any funds or properties of the Company not
authorized by the Board to be so used or appropriated.
4.6 SURVIVAL OF CERTAIN Sections. Sections 2.2, 4.4.3, 4.4.4,
5, 8, 16, 17, 18 and 19 of this Agreement will survive the termination of this
Agreement.
5. CONFIDENTIAL AND PROPRIETARY INFORMATION; NONSOLICITATION.
5.1 The Employee agrees to continue to abide by the Proprietary
Information and Inventions Agreement executed by Employee on _____________ and
attached hereto as Exhibit B.
5.2 The Employee recognizes that Employee's continued
employment with the Company will involve contact with information of substantial
value to the Company, which is not old and generally known in the trade, and
which gives the Company an advantage over its competitors who do not know or use
it, including but not limited to, techniques, designs, drawings, processes,
inventions know how, strategies, marketing, and/or advertising plans or
arrangements, developments, equipment, prototypes, sales, supplier, service
provider, vendor, distributor and customer information, and business and
financial information relating to the business, products, services, practices
and techniques of the Company, (hereinafter referred to as "Confidential and
Proprietary Information"). The Employee will at all times regard and preserve
as confidential such Confidential and Proprietary Information obtained by the
Employee from whatever source and will not, either during Employee's employment
with the Company or thereafter, publish or disclose any part of such
Confidential and Proprietary Information in any manner at any time, or use the
same except on behalf of the Company, without the prior written consent of the
Company.
5.3 While employed by the Company and for any period during
which he receives compensation or any other consideration from the Company,
including severance pay pursuant to section 4.4.3 herein, the Employee agrees
that in order to protect the Company's Confidential and Proprietary
Information from unauthorized use, that the Employee will not, either
directly or through others, solicit or attempt to solicit any employee,
consultant or independent contractor of the Company to terminate his or her
relationship with the Company in order to become an employee, consultant or
independent contractor to or for any other person or business entity; or the
business of any customer, supplier, service provider, vendor or distributor
of the Company which, at the time of termination or two (2) years immediately
prior thereto, was doing business with the Company or listed on Company's
customer, supplier, service provider, vendor or distributor list.
6. RELEASE OF CLAIMS.
6.1 In consideration of entering into this Agreement and in
exchange for the promises and covenants set forth herein, the Employee hereby
releases, acquits, and forever discharges Xxxxxxx X. Xxxxxx, Xxxx X. Xxxxxx,
Xxxxxxx X.X. Xxxxxx, Xxxxxx Xxxxxx, Xxxxxx Xxxxxx (collectively referred to
herein as the "Xxxxxx Family"), all family members of each and every member
of the Xxxxxx Family, all Companies affiliated with or related to each and
every
8
member of the Xxxxxx Family, the Company, the Company's parents,
subsidiaries and affiliates, including, but not limited to Newgen Results
Corporation, Newgen Services, LP, Newgen Management Services, Inc., and
Newgen Dealer Services, Inc., Newgen Dealer Services (1992), NMS and
Xxxxxxxxx.xxx Inc., and the Company's, its parents', its subsidiaries' and
its affiliates' officers, directors, agents, servants, employees, attorneys,
shareholders, partners, successors, assigns, affiliates, customers, and
clients of and from any and all claims liabilities, demands, causes of
action, costs, expenses, attorneys' fees, damages, indemnities and
obligations of every kind and nature, in law, equity, or otherwise, known and
unknown, suspected and unsuspected, disclosed and undisclosed, arising out of
or in any way related to agreements, acts or conduct at any time prior to the
Effective Date of this Agreement, including, but not limited to: all such
claims and demands directly or indirectly arising out of or in any way
connected with the Company's employment of Employee, the Company's
performance of its obligations as the Employee's employer; claims or demands
related to salary, bonuses, commissions, stock, stock options, or any other
ownership interests in the Company or its affiliates, vacation pay, fringe
benefits, expense reimbursements, severance pay, or any form of compensation;
claims pursuant to any federal, state or local law or cause of action
including, but not limited to, the California Fair Employment and Housing
Act, the federal Civil Rights Act of 1964, as amended; the federal Age
Discrimination in Employment Act of 1967, as amended; the federal Americans
With Disabilities Act; tort law; contract law; discrimination; harassment;
fraud; defamation; emotional distress; and breach of the implied covenant of
good faith and fair dealing.
6.2 ADEA WAIVER. Employee further acknowledges that
Employee is knowingly and voluntarily waiving and releasing any rights
Employee may have under the Age Discrimination in Employment Act of 1967
("ADEA") as of the Effective Date of this Agreement. Employee also
acknowledges that the consideration given for the waiver and release in the
preceding Section 8.1 hereof is in addition to anything of value to which
Employee was already entitled. Employee hereby provides the further
acknowledgment that Employee is advised by this writing, as required by the
Older Workers Benefit Protection Act, that: (a) Employee's waiver and release
do not apply to any rights or claims that may arise after the Effective Date
of this Agreement; (b) Employee has the right to consult with an attorney
prior to executing this Agreement (although Employee may voluntarily choose
not to do so); (c) Employee may have at least twenty-one (21) days to
consider this Agreement (although Employee may by Employee's own choice
execute this Agreement earlier); (d) Employee has seven (7) days following
the execution of this Agreement to revoke this Agreement; and (e) this
Agreement shall not be effective until the date upon which the revocation
period has expired, therefore making the effective date the eighth day after
this Agreement is signed by Employee (the "Effective Date").
6.3 SECTION 1542 WAIVER. In giving this release, which
includes claims which may be unknown to Employee at present, Employee hereby
acknowledges that Employee has read and understands Section 1542 of the Civil
Code of the State of California which reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE,
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WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT
WITH THE DEBTOR.
Employee hereby expressly waives and relinquishes all rights and benefits
under this section and any law or legal principle of similar effect in any
jurisdiction with respect to claims released hereby.
7. ASSIGNMENT AND BINDING EFFECT.
This Agreement shall be binding upon and inure to the benefit of
the Employee and the Employee's heirs, executors, personal representatives,
assigns, administrators and legal representatives. Because of the unique and
personal nature of the Employee's duties under this Agreement, neither this
Agreement nor any rights or obligations under this Agreement shall be assignable
by the Employee. This Agreement shall be binding upon and inure to the benefit
of the Company and its successors, assigns and legal representatives.
8. NOTICES.
All notices or demands of any kind required or permitted to be
given by the Company or the Employee under this Agreement shall be given in
writing and shall be personally delivered (and receipted for) faxed during
normal business hours or mailed by certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Company:
NEWGEN RESULTS CORPORATION
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Tel: (000) 000-0000
Fax: (858) ________
With copy to:
Xxxxxxxxx Xxxxxxxx, Esq.
Xxxxxx Godward LLP
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
If to the Employee:
000 Xxxxxx Xxx
----------------------------
Xxxxxxxxxx, XX 00000
----------------------------
Any such written notice shall be deemed received when personally delivered or
faxed to the other party or three (3) days after its deposit in the United
States mail as specified above. Either Party
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may change its address for notices by giving notice to the other Party in the
manner specified in this section.
9. CHOICE OF LAW.
This Agreement is made in San Diego, California. This Agreement
shall be construed and interpreted in accordance with the laws of the State of
California.
10. INTEGRATION.
This Agreement contains the complete, final and exclusive
agreement of the Parties relating to the terms and conditions of the Employee's
employment, and supersedes all prior and contemporaneous oral and written
employment agreements or arrangements between the Parties.
11. AMENDMENT.
This Agreement cannot be amended or modified except by a written
agreement signed by the Employee and the Company.
12. WAIVER.
No term, covenant or condition of this Agreement or any breach
thereof shall be deemed waived, except with the written consent of the Party
against whom the wavier is claimed, and any waiver or any such term, covenant,
condition or breach shall not be deemed to be a waiver of any preceding or
succeeding breach of the same or any other term, covenant, condition or breach.
13. SEVERABILITY.
The finding by a court of competent jurisdiction of the
unenforceability, invalidity or illegality of any provision of this Agreement
shall not render any other provision of this Agreement unenforceable, invalid or
illegal. Such court shall have the authority to modify or replace the invalid
or unenforceable term or provision with a valid and enforceable term or
provision which most accurately represents the Parties' intention with respect
to the invalid or unenforceable term or provision.
14. INTERPRETATION; CONSTRUCTION.
The headings set forth in this Agreement are for convenience of
reference only and shall not be used in interpreting this Agreement. This
Agreement has been drafted by legal counsel representing the Company, but the
Employee has been provided with substantial opportunity to and has consulted
with Employee's own independent counsel and tax advisors with respect to the
terms of this Agreement. The Parties acknowledge that each Party and its
counsel has reviewed and revised, or had an opportunity to review and revise,
this Agreement, and the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement.
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15. REPRESENTATIONS AND WARRANTIES.
The Employee represents and warrants that Employee is not
restricted or prohibited, contractually or otherwise, from entering into and
performing each of the terms and covenants contained in this Agreement, and that
Employee's execution and performance of this Agreement will not violate or
breach any other agreements between the Employee and any other person or entity.
16. COUNTERPARTS.
This Agreement may be executed in two counterparts, each of which
shall be deemed an original, all of which together shall contribute one and the
same instrument.
17. ARBITRATION.
To ensure rapid and economical resolution of any disputes which
may arise under this Agreement, the Employee and the Company agree that any
and all disputes or controversies of any nature whatsoever, arising from or
regarding the interpretation, performance, enforcement or breach of this
Agreement or the Consulting Agreement shall be resolved by confidential,
final and binding arbitration (rather than trial by jury or court or
resolution in some other forum) to the fullest extent permitted by law. Any
arbitration proceeding pursuant to this Agreement shall be conducted by the
American Arbitration Association ("AAA") in San Diego under the then existing
employment-related AAA arbitration rules. If for any reason all or part of
this arbitration provision is held to be invalid, illegal, or unenforceable
in any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other portion
of this arbitration provision or any other jurisdiction, but this provision
will be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable part or parts of this provision had never
been contained herein, consistent with the general intent of the Parties
insofar as possible.
I HAVE READ Section 19 AND IRREVOCABLY AGREE TO ARBITRATE ANY DISPUTE
IDENTIFIED ABOVE.
/s/ LS (EMPLOYEE'S INITIALS)
-------
18. INJUNCTIVE RELIEF.
The Employee is obligated under this Agreement to render services
and comply with covenants of a special, unique, unusual and extraordinary
character, thereby giving this Agreement peculiar value, so that the loss of
such service or violation by the Employee of this Agreement, including, but not
limited to, the Proprietary Information and Inventions Agreement, could not
reasonably or adequately be compensated in damages in an action at law.
Therefore, notwithstanding Section 17 herein, in addition to any other remedies
or sanctions provided by law, whether criminal or civil, and without limiting
the right of the Company and successors or assigns to pursue all other legal and
equitable rights available to them, the Company shall have the right during the
Employee's employment hereunder (or thereafter with respect to obligations
continuing after the termination of this Agreement) to compel specific
performance hereof by the Employee or to obtain temporary and permanent
injunctive relief against violations hereof by the Employee, including, but not
limited to violations of the Proprietary Information and Inventions
12
Agreement, and, in furtherance thereof, to apply to any court with
jurisdiction over the Parties to enforce the provisions hereof.
19. TRADE SECRETS OF OTHERS.
It is the understanding of both the Company and the Employee that
the Employee shall not divulge to the Company and/or its subsidiaries any
confidential information or trade secrets belonging to others, including the
Employee'S former employers, nor shall the Company and/or its affiliates seek to
elicit from the Employee any such information. Consistent with the foregoing,
the Employee shall not provide to the Company and/or its affiliates, and the
Company and/or its affiliates shall not request, any documents or copies of
documents containing such information.
20. ADVERTISING WAIVER.
The Employee agrees to permit the Company and/or its affiliates,
and persons or other organizations authorized by the Company and/or its
affiliates, to use, publish and distribute advertising or sales promotional
literature concerning the products and/or services of the Company and/or its
affiliates, or the machinery and equipment used in the provision thereof, in
which the Employee's name and/or pictures of the Employee taken in the course of
the Employee'S provision of services to the Company and/or its affiliates,
appear. The Employee hereby waives and releases any claim or right the Employee
may otherwise have arising out of such use, publication or distribution.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
NEWGEN RESULTS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxxx
President and Chief Executive Officer
EMPLOYEE:
/s/ Xxxxxx X. Silver
------------------------------------------
XXXXXX X. SILVER
13
EXHIBIT A
RELEASE AND WAIVER OF CLAIMS
In consideration of the payments and other benefits set forth in
Section __ of the Employment Agreement dated ___________, to which this form
is attached, I, XXXXXX X. SILVER, hereby furnish NEWGEN RESULTS CORPORATION
(the "Company"), with the following release and waiver ("Release and Waiver").
I hereby release, acquit, and forever discharge Xxxxxxx X. Xxxxxx,
Xxxx X. Xxxxxx, Xxxxxxx X.X. Xxxxxx, Xxxxxx Xxxxxx, Xxxxxx Xxxxxx
(collectively referred to herein as the "Xxxxxx Family"), all family members
of each and every member of the Xxxxxx Family, all Companies affiliated with
or related to each and every member of the Xxxxxx Family, the Company, the
Company's parents, subsidiaries and affiliates, including, but not limited to
Newgen Results Corporation, Newgen Services, LP, Newgen Management Services,
Inc., and Newgen Dealer Services, Inc., Newgen Dealer Services (1992), NMS
and Xxxxxxxxx.xxx Inc., and the Company's, its parents', its subsidiaries'
and its affiliates' officers, directors, agents, servants, employees,
attorneys, shareholders, partners, successors, assigns, affiliates,
customers, and clients of and from any and all claims liabilities, demands,
causes of action, costs, expenses, attorneys' fees, damages, indemnities and
obligations of every kind and nature, in law, equity, or otherwise, known and
unknown, suspected and unsuspected, disclosed and undisclosed, arising out of
or in any way related to agreements, acts or conduct at any time prior to the
Effective Date of this Release and Waiver, including, but not limited to: all
such claims and demands directly or indirectly arising out of or in any way
connected with the Company's employment of Employee or the termination of
such employment, the Company's performance of its obligations as the
Employee's former employer; claims or demands related to salary, bonuses,
commissions, stock, stock options, or any other ownership interests in the
Company or its affiliates, vacation pay, fringe benefits, expense
reimbursements, severance pay, or any form of compensation; claims pursuant
to any federal, state or local law or cause of action including, but not
limited to, the California Fair Employment and Housing Act, the federal Civil
Rights Act of 1964, as amended; the federal Age Discrimination in Employment
Act of 1967, as amended; the federal Americans With Disabilities Act; tort
law; contract law; discrimination; harassment; fraud; defamation; emotional
distress; and breach of the implied covenant of good faith and fair dealing.
I also acknowledge that I have read and understand Section 1542 of the
California Civil Code which reads as follows: "A GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." I hereby expressly waive
and relinquish all rights and benefits under that section and any law of any
jurisdiction of similar effect with respect to any claims I may have against
the Company.
I acknowledge that, among other rights, I am waiving and releasing any
rights I may have under ADEA, that this Release and Waiver is knowing and
voluntary, and that the consideration given for this Release and Waiver is in
addition to anything of value to which I was already entitled as an Employee of
the Company. I further acknowledge that I have been advised, as required by the
Older Workers Benefit Protection Act, that: (a) the Release and Waiver granted
herein does not relate to claims which may arise after this Release and
Waiver is executed; (b) I have the right to consult with an attorney prior to
executing this Release and Waiver (although I may choose voluntarily not to
do so); and if I am over 40 years of age upon execution of this Release and
Waiver: (c) I have twenty-one (21) days from the date of termination of my
employment with the Company in which to consider this Release and Waiver
(although I may choose voluntarily to execute this Release and Waiver
earlier); (d) I have seven (7) days following the execution of this Release
and Waiver to revoke my consent to this Release and Waiver; and (e) this
Release and Waiver shall not be effective until the seven (7) day revocation
period has expired.
Date: __________________ By:________________________________________
XXXXXX X. SILVER
2.
EXHIBIT B
NEWGEN RESULTS CORPORATION
EMPLOYEE INVENTION ASSIGNMENT
AND
CONFIDENTIALITY AGREEMENT
EXHIBIT C
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into
effective as of ________________, 200__ by and between Newgen Results
Corporation, a Delaware limited liability company (the "Company") and Xxxxxx X.
Silver ("Consultant").
A. Consultant and the Company previously entered into an employment
agreement dated as of _____________(the "Employment Agreement"); and
B. Consultant and the Company desire to enter into a consultancy
arrangement upon the terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the above facts and the mutual
promises set forth in this Agreement, the parties agree as follows:
1. CONSULTING.
1.1 In consideration for the promises and covenants set forth
herein, if the Consultant is terminated for Cause or resigns
without Good Reason under the Employment Agreement, the
Engagement Period shall be the period beginning on the
effective date of Consultant's termination of employment under
the Employment Agreement (the "Consulting Date") and
continuing for a minimum of sixty (60) days and a maximum of
one (1) year following the Consulting Date, as determined by
the Company in its sole discretion.
1.2 In consideration for the promises and covenants set forth herein,
if the Consultant is terminated without Cause or resigns for
Good Reason under the Employment Agreement, the Engagement Period
shall be the period beginning on the Consulting Date and
continuing for one (1) year.
1.3 During the Engagement Period, the Company and Consultant agree
that Consultant shall perform the services and undertake the
duties and responsibilities requested by the Company pursuant to
the terms and conditions set forth in this Agreement; Consultant
will not be considered an agent or an employee of the Company;
Consultant will not have authority to make any representation,
contract, or commitment on behalf of the Company and Consultant
agrees not to do so; and Consultant will not be entitled to any
of the benefits which the Company may make available to its
employees, such as group insurance, profit sharing, or retirement
benefits.
1.4 During the Engagement Period, Consultant will be solely
responsible for all tax returns and payments to any federal,
state, or local tax authority with respect to
Consultant's performance of services and the receipt of fees
or other compensation and benefits under this Agreement. The
Company will report amounts paid to Consultant by filing Form
1099-MISC with the Internal Revenue Service as required by
law. The Company will not: make withholdings or deductions
from Consultant's payment checks; make contributions for
Social Security, employment insurance or disability insurance;
or obtain workers' compensation insurance on Consultant's
behalf. During the Engagement Period, Consultant shall comply
with all applicable state and federal laws governing
self-employed individuals, including obligations such as
payment of taxes, Social Security, disability and other
contributions based on compensation and benefits paid to
Consultant under this Agreement. Consultant hereby indemnifies
the Company against any and all such taxes or contributions,
including penalties and interest.
1.5 The Company shall pay on Consultant's behalf, or reimburse
Consultant for, any expenses reasonably incurred in connection
with his rendering of the services pursuant to this Agreement
and which are not incurred in violation of any policy or
policies regarding expenses which may be adopted by the Board
of Directors from time to time. Consultant agrees to submit
receipts and other documentation to support the above expenses
as a condition of reimbursement therefor. Consultant will
fully and completely cooperate with the Company with respect
to all matters associated with the taxation or potential
taxation of any payments and reimbursements hereunder.
Consultant acknowledges that Consultant is responsible for
consulting his or her own tax advisor with respect to any
taxation matters.
1.6 During the Engagement Period, subject to the terms and
restrictions of this Agreement, Consultant may engage in
full-time employment, consulting or other work relationships
in addition to Consultant's work for the Company. The Company
agrees to make reasonable arrangements to enable Consultant to
perform Consultant's consulting services for the Company at
such times and in such a manner so that it does not
unreasonably interfere with other work activities in which
Consultant may engage.
2. TERM. The term of this Agreement (the "Term") shall commence upon
the Consulting Date and shall remain in full force and effect until
completion of the Engagement Period.
3. CONSULTING FEES. As payment for the services rendered hereunder
during the Term of this Agreement, the Company shall pay Consultant the
following fees:
3.1 If Consultant's employment with the Company was terminated
without Cause (as defined in the Employment Agreement) or
Consultant resigned for Good Reason (as defined in the
Employment Agreement), as determined by the Company's Board in
its sole discretion, the Company will: (i) pay Consultant
monthly payments equivalent to one-twelfth (1/12) the
Consultant's annual Base Salary in effect at the time of
termination and one-twelfth (1/12) the bonus Consultant
5.
received in the preceding year, subject to standard deductions
and withholdings, and (ii) in the event that Consultant elects
continued coverage under COBRA, the Company, as part of this
Agreement and in consideration thereof, will reimburse
Consultant for the same portion of Consultant's COBRA health
insurance premium that it paid during Consultant's employment
up until the earlier of either (i) the termination of this
Agreement or, (ii) the date in which Consultant begins
full-time employment with another company or business entity.
Consultant will be responsible for the same portion of the
COBRA health insurance premium that Consultant paid during
Consultant's employment with the Company.
3.2 If Consultant's employment with the Company was terminated
with Cause or Consultant resigned without Good Reason, as
determined by the Company's Board in its sole discretion, the
Company will pay Consultant monthly payments equivalent to the
Consultant's annual Base Salary in effect at the time of
termination and point (ii) above, subject to standard deductions
and withholdings, during the Term of this Agreement.
4. NO OTHER BENEFITS. During the Term, Consultant shall not be
entitled to any other compensation or benefits, including benefits provided
generally to employees of the Company, and Consultant's compensation shall
not be subject to withholding, unless, in the Company's view, withholding is
required by applicable law.
5. CONFIDENTIAL INFORMATION. In connection with the performance of
Services under the Employment Agreement and this Agreement, Consultant may
become familiar with trade secrets and confidential information of the
Company (which shall include all trade secrets and work product resulting
from Consultant's provision of the Services to the Company), which derive
independent economic value, actual or potential, from not being generally
known to the public or to other persons who can obtain economic value from
its disclosure or use ("Confidential Information"). Except as may be
reasonably necessary while providing the Services, Consultant agrees that,
during the Term of this Agreement and thereafter, Consultant and any agents
and employees of Consultant will not disclose or utilize any of the
Confidential Information (including without limitation techniques, designs,
buying plans, drawings, leases, store designs, rollout plans, developments,
equipment, prototypes, sales, supplier and customer information and
relationships, and business and financial information relating to the
business, products, practices and techniques of the Company) to which
Consultant has been privy, unless Consultant becomes legally required to
disclose any such Confidential Information, in which event Consultant shall
provide the Company with prompt notice thereof so that the Company may seek a
protective order or other appropriate remedy. Upon the termination of this
Agreement, Consultant shall deliver to the Company all equipment, notes,
documents, memoranda, reports, files, books, correspondence, lists or other
written or graphic records and the like belonging to the company which are or
have been in Consultant's possession or control.
6. PRESERVATION OF CONFIDENTIAL INFORMATION; NONCOMPETITION.
6.1 Consultant agrees that, in order to protect the Confidential
Information of the Company and in consideration of the fees
received hereunder, during the Term of
6.
this Agreement, Consultant shall not, without first obtaining
the prior written approval of the Company, engage as an
advisor, principal, agent, partner, officer, director,
stockholder, employee, member of any association or otherwise
in any business or activity which: (i) is substantially
similar to any business or activity of the Company or any of
its affiliates as the same is conducted or proposed to be
conducted by the Company or any of its affiliates as of the
first date of the Term; or (ii) is competitive with any
business or activity of the Company or any of its affiliates
as of the first date of the Term.
6.2 Ownership by Consultant, as a passive investment, of less than
one percent (1%) of the outstanding shares of capital stock of
any corporation with one or more classes of its capital stock
listed on a national securities exchange or publicly traded in
the over-the-counter market shall not constitute a breach of
this Section 6.
7. SEVERABILITY. To the extent any provision of this Agreement shall be
adjudicated to be invalid or unenforceable, it shall be considered deleted
herefrom and the remainder of such provision and of this Agreement shall be
unaffected, such deletion to apply only with respect to the operation of this
Agreement in the particular jurisdiction in which such adjudication is made.
In furtherance and not in limitation of the foregoing, should the duration or
geographical extent of, or business activities covered by, any provision of
this Agreement be in excess of that which is valid and enforceable under
applicable law, then such provision shall be construed to cover only the
duration, extent or activities which may validly and enforceably be covered.
8. REMEDIES. In any event of a breach of Consultant's obligations under
this Agreement, Consultant agrees that (a) any and all proceeds, funds,
payments and proprietary interests, of every kind and description, arising
from, or attributable to, such breach shall be the sole and exclusive
property of the Company and (b) the Company shall be entitled to recover any
additional actual damages incurred as a result of such breach.
9. INJUNCTIVE RELIEF. Consultant understands and agrees that the Company
could not be reasonably or adequately compensated in damages in an action at
law for Consultant's breach of his obligations under this Agreement.
Accordingly, Consultant specifically agrees that the Company shall be
entitled to an injunction enjoining Consultant or any person or persons
acting for or with Consultant in any capacity whatsoever from violating any
of the terms herein. This provision with respect to injunctive relief shall
not diminish the right of the Company to claim and recover damages pursuant
to Section 9 in addition to injunctive relief.
10. REPRESENTATIONS AND WARRANTIES. Consultant represents and warrants
that (a) Consultant is not restricted or prohibited, contractually or
otherwise, from entering into and performing each of the terms and covenants
contained in this Agreement, and (b) Consultant's execution and performance
of this Agreement is not a violation or breach of any other agreement to
which Consultant is a party.
11. GOVERNING LAW. This Agreement is made in San Diego, California and
shall be interpreted and enforced under the internal laws of the State of
California.
7.
12. ENTIRE AGREEMENT. This Agreement and any agreements referenced herein
constitute the entire agreement between the parties and may be waived,
modified or amended only by an agreement in writing signed by both parties.
13. ASSIGNMENT. This Agreement shall inure to the benefit of, and be
binding upon, the successors and permitted assigns of the parties hereto.
This Agreement may not be assigned by Consultant. This Agreement may not be
assigned by the Company except in connection with a merger of the Company or
pursuant to the sale, transfer or other conveyance of all or substantially
all of the assets of the Company.
14. WAIVER. No covenant, term or condition of this Agreement or breach
thereof shall be deemed waived unless the waiver is in writing, signed by the
party against whom enforcement is sought, and any waiver shall not be deemed
to be a waiver of any preceding or succeeding breach of the same or any other
covenant, term or condition.
15. NOTICE. All notices and other communications required or permitted to
be given under this Agreement shall be in writing and shall be deemed to have
been given if delivered personally or sent by certified mail, return receipt
requested, postage prepaid, to the parties at the following addresses or to
such other address as either party to this Agreement shall specify by notice
to the other:
If to the Company:
NEWGEN RESULTS CORPORATION
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Tel: (000) 000-0000
Fax: (858) ________
If to Consultant:
000 Xxxxxx Xxx
---------------------
Xxxxxxxxxx, XX 00000
16. HEADINGS. Headings or captions of paragraphs or sections of this
Agreement are for convenience of reference only and shall not be considered
in the interpretation of this Agreement.
17. COUNTERPART. This Agreements may be executed in two counterparts,
each of which shall be deemed an original, all of which together shall
constitute one and the same instrument.
18. ATTORNEY CONSULTATION. Each party has been informed of his/her/its
right to consult with his/her/its attorney prior to signing this Agreement
and has either done so or has considered the matter and decided not to do so.
8.
IN WITNESS WHEREOF, the parties hereto have executed this Consulting
Agreement as of the date set forth in the first paragraph hereof.
The Company:
Newgen Results Corporation
a Delaware limited liability company
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Consultant:
________________________________
XXXXXX X. SILVER
9.
