EXHIBIT 4.3
CONSULTING AGREEMENT AND GENERAL RELEASE
THIS CONSULTING AGREEMENT AND GENERAL RELEASE (the "AGREEMENT") is made and
entered into effective September 1, 1998 by and between System Software
Associates, Inc., a Delaware corporation, including its affiliates,
subsidiaries, subdivisions, facilities and related organizations (collectively,
"SSA"), and Riz Shakir ("SHAKIR").
RECITALS
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X. Xxxxxx has been employed by SSA as Executive Vice President, Research
and Development.
B. SSA and Shakir agree that his employment terminated effective August
31, 1998.
C. SSA and Shakir agree that he will be engaged as a consultant to SSA
from and after September 1, 1998 through July 31, 1999, subject to the terms and
limitations of this Agreement.
D. SSA and Shakir acknowledge that Shakir will be available to perform
services as hereafter mutually agreed upon between Shakir and SSA and as
directed by SSA's Vice President of Product Management and, in consideration of
his consulting engagement and the other terms and conditions herein, Shakir will
release any and all claims and causes of action he may have against SSA and will
be governed by the confidentiality and non-competition agreement set forth
herein.
NOW, THEREFORE, in consideration of the above premises and the following
mutual covenants and conditions, the parties agree as follows:
I. Termination of Employment. Effective the close of business on August
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31, 1998, SSA and Shakir agree that his employment with SSA terminated. Shakir
agrees to resign his employment and all appointments he holds with SSA and its
affiliates effective as of such date. Shakir's termination shall be deemed to
have occurred by virtue of his voluntary resignation under mutually amicable
circumstances. From September 1, 1998 through July 31, 1999, Shakir shall be
engaged as a consultant to SSA. Shakir agrees that he will not hereinafter seek
reinstatement, recall or re-employment with SSA.
II. Consulting Services. Through July 31, 1999, Shakir agrees to make
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available to SSA his services, experience and knowledge with respect to
manufacturing, marketing and selling of products produced by SSA. SSA shall
make available to Shakir such information in the possession of SSA, as well as
access to SSA's employees and equipment, as determined by SSA and Shakir to be
reasonably necessary for Shakir to perform his services hereunder. Nothing
contained in this Agreement shall be deemed to create an employment relationship
between SSA and Shakir. In providing such consulting services, Shakir shall be
an independent contractor and shall not have the authority to bind SSA with
respect to any matter. SSA may terminate the consulting engagement at any time
for "cause" or for "non-performance." For purposes of this Agreement, Shakir
shall be deemed terminated "for cause" if Shakir shall have committed any felony
including, but not limited to, a felony involving fraud, theft,
misappropriation, dishonesty, or embezzlement, or shall have committed
intentional acts that materially impair the goodwill or business of SSA or cause
significant material damage to its property, goodwill, or business. For
purposes of this Agreement, Shakir shall be deemed terminated for "non-
performance" if SSA terminates Shakir after Shakir shall have refused to, or
failed to, perform his material duties hereunder, or shall have violated any
written SSA policies or procedures; provided, however, that no termination for
such non-performance shall be effective unless Shakir does not cure such
refusal, failure, or violation to SSA's satisfaction as soon as
practicable after SSA gives Shakir written notice identifying such refusal,
failure or violation (and, in any event, within thirty (30) days after receipt
of such written notice).
III. Duties. Through July 31, 1999, Shakir shall be available to perform
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projects to be mutually agreed upon by SSA and Shakir, such projects to be
performed at the direction of the Vice President of Product Management and
during such times as shall be mutually agreed upon. Shakir shall diligently,
competently, and faithfully perform all such assigned projects, which
assignments shall be performed, unless otherwise agreed upon by SSA and Shakir,
in the same manner as SSA provides consulting services to its customers under
SSA's "Client Solutions Policies and Practices." SSA shall provide to Shakir
for the term of this Agreement the personal computer currently in the possession
of Shakir, which computer shall be returned to SSA on the date this Agreement
terminates.
IV. Compensation for Consulting Services. SSA and Shakir shall agree upon
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the level of compensation for each assigned project at the time of such
assignment. SSA will promptly reimburse Shakir for all expenses reasonably
incurred by him in the scope of his engagement as a consultant under this
Agreement upon submission of an expense report and request for reimbursement in
accordance with SSA policies for reimbursement of expenses for senior officers.
As an independent contractor, the payments will not be subject to any payroll
taxes or withholding and a Form 1099-MISC will be issued at year end by SSA.
V. Release Payments.
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A. As a settlement payment hereunder, SSA shall pay Shakir in a
single sum the sum of $167,500, such amount to be paid to Shakir upon the
date this Agreement becomes effective as set forth in Paragraph 13C.
B. SSA and Shakir hereby agree that, in consideration of the release
of any claims Shakir may have for the delayed registration of certain
shares of common stock of SSA owned by him, SSA shall issue and deliver to
him 50,522 shares of SSA's common stock (the "SHARES"). Shakir understands
that the Shares are not currently being registered under the Securities Act
of 1933 ("SECURITIES ACT") by reason of their contemplated issuance in a
transaction exempt from the registration and prospectus delivery
requirements of the Securities Act pursuant to Section 4(2) thereof.
Shakir further agrees that he will not sell or otherwise dispose of the
Shares unless such sale or other disposition has been registered or is
exempt from registration under the Securities Act and has been registered
or qualified or is exempt from registration or qualification under
applicable securities law of any State. Shakir understands that a
restrictive legend consistent with the foregoing has been or will be placed
on the certificates evidencing the Shares, and related stop transfer
instructions will be noted in the stock transfer records of SSA and/or its
stock transfer agent for the Shares. The foregoing notwithstanding, SSA
agrees that it will prepare and file with the Securities and Exchange
Commission a registration statement for an offering to be made on a
continuous basis pursuant to Rule 415 of the Securities Act of 1933,
registering the resale from time to time by Shakir of the Shares on Form S-
3. The filing will be made within forty-five (45) calendar days of the
date SSA receives a written notice from Shakir requesting such a filing.
The Company, however, may restrict disposition of such Shares, in which
event Shakir agrees not to dispose of such Shares, provided that the
Company shall have delivered a notice in writing to Shakir stating that a
delay in the disposition of Shares is necessary because the Company, in its
reasonable judgment, exercised in good faith, has determined that such
sales of Shares would require public disclosure by the Company of material
nonpublic information that the Company deems advisable not to disclose.
C. Ten percent (10%) of the payments made in Paragraph 5A shall be in
consideration of the release of any claim under the Age Discrimination in
Employment Act of 1967, as amended, and as described in Paragraph 7, and
Shakir agrees that such consideration is in addition to anything of value
to which he already is entitled. The remainder of the payments shall be in
consideration of the duties described above in Paragraph 3, the release of
all other claims described below in Paragraph 7, and the Protective
Agreement described in Paragraph 10.
X. Xxxxxx agrees that he is owed $12,000 for all earned but unused
vacation pay, which amount shall be paid to him upon the date this Release
becomes effective as set forth in Paragraph 13C. Shakir acknowledges that
he has been paid the $10,000 to which he was entitled under the SSA
Management Bonus Plan. Except as set forth in this Agreement, no other
sums (contingent or otherwise) shall be paid to Shakir in respect of his
employment, or consulting relationship, with SSA, and any such sums
(whether or not owed) are hereby expressly waived by Shakir, provided,
however, that Shakir (i) may elect to continue his health insurance
coverage, as mandated by COBRA, which may continue to the extent required
by applicable law, and (ii) shall be entitled to receive his account
balance, if any, under SSA's 401(k) Plan in accordance with the terms of
such Plan.
VI. Stock Options. During the period in which Shakir is engaged as a
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consultant to SSA, and through July 31, 1999, if later, stock options previously
granted to Shakir under SSA's Long-Term Incentive Plan shall continue to vest in
accordance with their vesting schedule and the other terms of the Long-Term
Incentive Plan. Shakir also shall continue to vest in stock options granted to
him under SSA's Nonstatutory Stock Option Plan so long as he is engaged as a
consultant to SSA, and his rights with respect to the options granted under such
Nonstatutory Stock Option Plan shall be governed by the terms of the
Nonstatutory Stock Option Plan. In addition to the foregoing, Shakir shall be
entitled to exercise any options previously granted to him under SSA's Incentive
Stock Option Plan in accordance with the terms of such plan. In recognition of
the limitations of such Incentive Stock Option Plan, Shakir shall be given a
non-qualified stock option hereunder to purchase an additional 9,897 Shares
under SSA's Long-Term Incentive Plan, on the effective date hereof, exercisable
at 4-5/8 per Share, which options shall vest as follows:
Number of Shares Vesting Date
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1,631 January 14, 1999
2,266 March 14, 1999
6,000 June 1, 1999
The terms of such grant shall be governed by the provisions of the Long-Term
Incentive Plan.
VII. General Release.
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A. As a material inducement to SSA to enter into this Agreement and
in consideration of the payments to be made by SSA to Shakir in Paragraphs
5 and 6 above, Shakir, with full understanding of the contents and legal
effect of this Agreement, and having the right and opportunity to consult
with his counsel, releases and discharges SSA, its stockholders, officers,
directors, supervisors, managers, employees, agents, representatives,
attorneys, divisions, subsidiaries and affiliates, and its and their
predecessors, successors, heirs, executors, administrators, and assigns
(collectively, the "SSA RELEASED PARTIES") from any and all claims,
actions, causes of action, grievances, suits, charges, or complaints of any
kind or nature whatsoever, that he ever had or now has, whether fixed or
contingent, liquidated or unliquidated, known or unknown, suspected or
unsuspected, and whether arising in tort, contract, statute, or equity,
before any federal, state, local, or private court, agency, arbitrator,
mediator, or other entity, regardless of the relief or remedy. Without
limiting the generality of the foregoing, it being the intention of the
parties to make this Agreement as broad and as general as the law permits,
this Agreement specifically includes any and all claims arising from any
alleged violation by SSA Released Parties under the Age Discrimination in
Employment Act of 1967, as amended; Title VII of the Civil Rights Act of
1964, as amended; the Civil Rights Act of 1866, as amended by the Civil
Rights Act of 1991 (42 U.S.C. (S) 1981); the Rehabilitation Act of 1973, as
amended; the Employee Retirement Income Security Act of 1974, as amended;
the Illinois Wage Payment and Collection Act; the Illinois Human Rights
Act, the Chicago
Human Rights Ordinance, the Xxxx County Human Rights Ordinance, and other
similar state or local laws; the Americans with Disabilities Act; the
Family and Medical Leave Act; the Equal Pay Act; Executive Order 11246;
Executive Order 11141; and any other statutory claim, employment or other
contract claim or implied contract claim, or common law claim for wrongful
discharge, defamation, or invasion of privacy arising out of or involving
his employment or engagement with SSA, the termination of his employment or
engagement with SSA, or involving any continuing effects of his employment
or engagement with SSA or termination of his employment or engagement with
SSA. Shakir further acknowledges that he is aware that statutes exist that
render null and void releases and discharges of any claims, rights,
demands, liabilities, action and causes of action which are unknown to the
releasing or discharging party at the time of execution of the release and
discharge. Shakir hereby expressly waives, surrenders and agrees to forego
any protection to which he otherwise would be entitled by virtue of the
existence of any such statute in any jurisdiction including, but not
limited to, the State of Illinois. The foregoing notwithstanding, this
Paragraph 7A does not release SSA Released Parties from any claims Shakir
may have with respect to the enforcement of the terms of this Agreement nor
does this Agreement release SSA from any statutory or common law obligation
to defend, indemnify and hold harmless Shakir from any claims against him
which arose or are related to any actions taken by Shakir in the scope of
his employment for SSA.
B. As a material inducement to Shakir to enter into this Agreement
and in consideration of his releases and other items of value provided by
him hereunder, SSA, on behalf of itself and all of SSA Released Parties,
with full understanding of the contents and legal effect of this Agreement,
and having the right and opportunity to consult with its counsel, releases
and discharges Shakir and his successors, heirs, executors, administrators,
representatives and assigns (collectively, the "SHAKIR RELEASED PARTIES")
from any and all claims, actions, causes of action, grievances, suits,
charges, or complaints of any kind or nature whatsoever, that it and/or
they ever had or now has or have, whether fixed or contingent, liquidated
or unliquidated, known or unknown, suspected or unsuspected, and whether
arising in tort, contract, statute, or equity, before any federal, state,
local, or private court, agency, arbitrator, mediator, or other entity,
regardless of the relief or remedy. Without limiting the generality of the
foregoing, it being the intention of the parties to make this Agreement as
broad and as general as the law permits, this Agreement specifically
includes any and all claims arising from any alleged violation by the
Shakir Released Parties under any statute, law, ordinance, regulation, or
contract, and any other statutory claim, employment or other contract claim
or implied contract claim, or common law claim for defamation, or invasion
of privacy, or arising out of or involving his employment or engagement
with SSA, the termination of his employment or engagement with SSA, or
involving any continuing effects of his employment or engagement with SSA
or termination of his employment or engagement with SSA. SSA, on behalf of
SSA Released Parties, further acknowledges that it and they are aware that
statutes exist that render null and void releases and discharges of any
claims, rights, demands, liabilities, action and causes of action which are
unknown to the releasing or discharging party at the time of execution of
the release and discharge. SSA, on behalf of itself and SSA Released
Parties, hereby expressly waives, surrenders and agrees to forego any
protection to which it or they otherwise would be entitled by virtue of the
existence of any such statute in any jurisdiction including, but not
limited to, the State of Illinois. The foregoing notwithstanding, this
Paragraph 7B does not release the Shakir Released Parties from any claims
SSA may have with respect to the enforcement of the terms of this Agreement
nor does this Agreement release Shakir from any claims SSA may have with
respect to acts of negligence or misconduct by Shakir while employed or
engaged by SSA.
VIII. Covenant Not to Xxx.
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X. Xxxxxx, for himself, his heirs, executors, administrators,
successors and assigns covenants and agrees not to bring, file, charge,
claim, xxx or cause, assist, or permit to be brought, filed, charged or
claimed any action, cause of action, or proceeding based upon any of the
claims released under Paragraph 7A hereof, and further covenants and agrees
that this Agreement is, will constitute and may be pleaded as, a bar to any
such claim, action, cause of action or proceeding. If any government
agency or court assumes jurisdiction of any charge, complaint, or cause of
action released by this Agreement, Shakir will not seek and will not accept
any personal equitable or monetary relief in connection with such
investigation, civil action, suit or legal proceeding.
B. SSA, on behalf of all SSA Released Parties, covenants and agrees
not to bring, file, charge, claim, xxx or cause, assist, or permit to be
brought, filed, charged or claimed any action, cause of action, or
proceeding based upon any of the claims released under Paragraph 7B hereof,
and further covenants and agrees that this Agreement is, will constitute
and may be pleaded as, a bar to any such claim, action, cause of action or
proceeding. If any government agency or court assumes jurisdiction of any
charge, complaint, or cause of action released by this Agreement, SSA and
SSA Released Parties will not seek and will not accept any equitable or
monetary relief in connection with such investigation, civil action, suit
or legal proceeding.
IX. No Disparaging, Untrue Or Misleading Statements.
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X. Xxxxxx agrees that from and after July 31, 1998, he will not
make or authorize, to any third party any disparaging, untrue, or
misleading written or oral statements about or relating to SSA or its
products or services (or about or relating to any officer, director, agent,
employee, or other person acting on SSA's behalf). Shakir acknowledges that
his continuing entitlement to payments under Paragraphs 4, 5 and 6 of the
Agreement shall be conditioned upon his continuing compliance with
Paragraphs 9, 10, and 13 of the Agreement and any violation of Paragraphs
9, 10, or 13 by Shakir shall terminate SSA's obligation to continue to make
payments under Paragraphs 4, 5 and 6.
B. From and after July 31, 1998, SSA represents that it has taken
and will continue to take commercially reasonable efforts to ensure that it
has not made or authorized and will not make or authorize, to any third
party, any disparaging, untrue, or misleading written or oral statements
about or relating to Shakir or his job performance.
X. Protective Agreement.
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X. Xxxxxx agrees that he will not, for any reason whatsoever,
whether voluntarily or involuntarily (other than as required by statute,
regulation, or a court of competent jurisdiction), use for himself or
disclose to any person any "CONFIDENTIAL INFORMATION" of SSA acquired by
Shakir during his relationship with SSA. Confidential Information includes
but is not limited to: (a) any financial, business, planning, operations,
services, potential services, products, potential products, technical
information and/or know-how, formulas, production, purchasing, marketing,
sales, personnel, customer, broker, supplier or other information of SSA;
(b) any papers, data, records, processes, methods, techniques, systems,
models, samples, devices, equipment, compilations, invoices, customer lists
or documents of SSA; (c) any confidential information or trade secrets of
any third party provided to SSA in confidence or subject to other use or
disclosure restrictions or limitations; and (d) any other information,
written, oral or electronic, whether existing now or at some time in the
future, which pertains to SSA's affairs or interests or with whom or how
SSA does business. SSA acknowledges and agrees that Confidential
Information does not include (i) information properly in the public domain
(through no fault of Shakir's), or (ii) information in Shakir's possession
prior to the date of his original employment with SSA. In addition to the
foregoing, Shakir agrees that he shall not, directly or indirectly,
contact, solicit or direct any person, firm, corporation, association, or
other entity to contact or solicit, any of SSA's
customers or prospective customers (as hereinafter defined) for the purpose
of providing any products and/or services that are the same as or similar
to the products and services provided by SSA to its customers during or
prior to the term hereof. In addition, Shakir will not disclose the
identity of any such customers or prospective customers, or any part
thereof, to any person, firm, corporation, association, or other entity for
any reason or purpose whatsoever. For purposes of this paragraph "CUSTOMER"
shall be defined as any person, firm, corporation, association, or entity
that purchased any type of product and/or service from SSA or is or was
doing business with SSA or Shakir during the term of this Agreement or
within the twelve (12) month period immediately preceding termination of
Shakir's employment. For purposes of this paragraph, "PROSPECTIVE CUSTOMER"
shall be defined as any person, firm, corporation, association, or entity
contacted or solicited by SSA or Shakir (whether directly or indirectly) or
who contacted SSA or Shakir (whether directly or indirectly) during the
term of this Agreement or within the twelve (12) month period immediately
preceding termination of Shakir's employment for the purpose of having such
persons, firms, corporations, associations, or entities become a customer
of SSA. Shakir further expressly agrees that, during the term of this
Agreement, he will not, directly or indirectly, become employed by, or
engaged with, any of the following competitors of SSA, or with any other
enterprise resource planning business: SAP, BAAN, X.X. Xxxxxxx, QAD, Inc.,
PeopleSoft, Oracle, and JBA. For purposes of this paragraph, an "ENTERPRISE
RESOURCE PLANNING BUSINESS ("ERP")" is an entity in the business of
developing, marketing and distributing an integrated software suite that
balances manufacturing, distribution and financial business functions. ERP
is the technological evolution of MRP II through the introduction of the
RDBMSs, CASE, 4GL development tools and C/S architecture. When fully
implemented, ERP can enable enterprises to optimize their business
processes and allow for necessary management analysis and appropriate
decision-making in a quick and efficient manner. As more robust technology
is implemented, ERP improves an enterprise's ability to react to market
changes. Shakir further acknowledges and agrees that he is estopped from
and will not dispute in any proceeding the enforceability of this Paragraph
10(a).
B. It is agreed that breach of this Paragraph 10 will result in
irreparable harm and continuing damages to SSA and its business and that
SSA's remedy at law for any such breach or threatened breach, will be
inadequate and, accordingly, in addition to such other remedies as may be
available to SSA at law or in equity in such event, any court of competent
jurisdiction may issue a temporary and permanent injunction, without the
necessity of SSA posting bond and without proving special damages or
irreparable injury, enjoining and restricting the breach, or threatened
breach, of this Paragraph 10, including, but not limited to, any injunction
restraining the breaching party from disclosing, in whole or part, any
Confidential Information. If SSA does not prevail in any action it may
bring against Shakir, for which a final judgment has been rendered, SSA
will pay all of Shakir's costs and expenses, including reasonable
attorneys' and accountants' fees, incurred in any such action brought by
SSA to enforce this Paragraph 10. If SSA is the prevailing party in an
action to enforce this Paragraph 10, for which a final judgment has been
rendered, then Shakir will pay all of SSA's costs and expenses, including
reasonable attorneys' and accountants' fees, incurred in any such action
brought by SSA to enforce this Paragraph 10.
XI. Severability. If any provision of this Agreement shall be found by a
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court to be invalid or unenforceable, in whole or in part, then such provision
shall be construed and/or modified or restricted to the extent and in the manner
necessary to render the same valid and enforceable, or shall be deemed excised
from this Agreement, as the case may require, and this Agreement shall be
construed and enforced to the maximum extent permitted by law, as if such
provision had been originally incorporated herein as so modified or restricted,
or as if such provision had not been originally incorporated herein, as the case
may be. The parties further agree to seek a lawful substitute for any provision
found to be unlawful; provided, that, if the parties are unable to agree upon a
lawful substitute, the parties desire and request that a court or other
authority called upon to decide the enforceability of this Agreement modify the
Agreement so that, once modified, the Agreement will be enforceable to the
maximum extent permitted by the law in existence at the time of the requested
enforcement.
XII. Waiver. A waiver by either party of a breach of any provision of
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this Agreement by the other party shall not operate or be construed as a waiver
or estoppel of any subsequent breach. No waiver shall be valid unless in writing
and signed by an authorized officer of SSA (if an SSA waiver) or by Shakir (if a
Shakir waiver).
XIII. Miscellaneous Provisions.
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A. Both parties agree they will keep the terms, contents, and
amounts set forth in this Agreement completely confidential and, other than
as required by statute, regulation, a court of competent jurisdiction, or
the rules of any governmental agency, will not disclose any information
concerning this Agreement's terms and amounts to any person other than each
party's attorney, accountants, tax advisors, or (if disclosed by Shakir)
Shakir's immediate family.
X. Xxxxxx represents and certifies that he has carefully read and
fully understands all of the provisions and effects of this Agreement, has
knowingly and voluntarily entered into this Agreement freely and without
coercion, and acknowledges that on July 31, 1998, SSA advised him to
consult with an attorney prior to executing this Agreement and further
advised him that he had more than twenty-one (21) days (until October 9,
1998) within which to consider this Agreement. Shakir is voluntarily
entering into this Agreement and neither SSA nor its agents,
representatives, or attorneys made any representations concerning the terms
or effects of this Agreement other than those contained in the Agreement
itself.
X. Xxxxxx acknowledges that he has seven (7) days from the date
this Agreement is executed in which to revoke his acceptance of this
Agreement, and this Agreement will not be effective or enforceable until
such seven (7)-day period has expired.
XIV. Complete Agreement. This Agreement sets forth the entire
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agreement between the parties and fully supersedes any and all prior agreements
or understandings between the parties pertaining to actual or potential claims
arising from Shakir's employment or engagement with SSA or the termination of
Shakir's employment or engagement with SSA.
XV. Reimbursement. If Shakir or his heirs, executors, administrators,
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successors or assigns (a) breaches Paragraphs 9, 10 or 13A of this Agreement, or
(b) attempts to challenge the enforceability of this Agreement, or (c) files a
charge of discrimination, a lawsuit, or a claim of any kind for any matter
released herein, Shakir or his heirs, executors, administrators, successors or
assigns shall be obligated to tender back to SSA all consideration made to him
or them for the release by Shakir under this Agreement.
XVI. Amendment. This Agreement may not be altered, amended, or
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modified except in writing signed by both Shakir and SSA.
XVII. Future Cooperation. In connection with any and all claims,
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disputes, negotiations, investigations, lawsuits or administrative proceedings
involving SSA, Shakir agrees to make himself available, upon reasonable notice
from SSA, to provide information or documents, provide declarations or
statements to SSA, at reasonable times convenient to Shakir meet with attorneys
or other representatives of SSA, prepare for and give depositions or testimony,
and/or otherwise cooperate in the investigation, defense or prosecution of any
or all such matters. Shakir will be advanced all reasonable expenses he incurs
as a result of compliance with this Paragraph 17, including payment of
reasonable fees and expenses for retention by Shakir of independent legal
counsel for matters that are subject to this Paragraph 17, if he in good xxxxx
xxxxx legal counsel reasonably required.
XVIII. Joint Participation. The parties hereto participated jointly in
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the negotiation and preparation of this Agreement, and each party has had the
opportunity to obtain the advice of legal counsel and to review and comment upon
the Agreement. Accordingly, it is agreed that no rule of construction
shall apply against any party or in favor of any party. This Agreement shall be
construed as if the parties jointly prepared this Agreement, and any uncertainty
or ambiguity shall not be interpreted against one party and in favor of the
other.
XIX. Headings. The headings in this Agreement are inserted for
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convenience only and are not to be considered a construction of the provisions
hereof.
XX. Execution of Agreement. This Agreement may be executed in several
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counterparts, each of which shall be considered an original, but which when
taken together, shall constitute one Agreement.
XXI. Recitals. The recitals to this Agreement are an integral part
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hereof and shall be considered as substantive and not precatory language.
XXII. Notices. Any notice to be given hereunder shall be in writing and
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shall be deemed given when mailed by Certified Mail, Return Receipt Requested,
addressed as follows to
Shakir: Riz Shakir
0000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
with a copy to: Xxxxxxx X. Xxxxxx, Esq.
XxXxxxx Xxxxx Battle & Xxxxxx LLP
00 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
SSA: System Software Associates, Inc.
000 Xxxx Xxxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
with a copy to: Xxxxxxx X. London, Esq.
Xxxxxxxx & Xxxxxx, Ltd.
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
XXIII. Arbitration. Any controversy or claim arising out of or relating
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to this Agreement or breach thereof, other than any controversy or claim arising
under Paragraph 10, shall be resolved by arbitration in accordance with the
National Rules for the Resolution of Employment Disputes ("RULES") of the
American Arbitration Association through a single arbitrator selected in
accordance with the Rules. The decision of the arbitrator shall be rendered
within thirty (30) days of the close of the arbitration hearing and shall
include written findings of fact and conclusions of law reflecting the
appropriate substantive law. Judgment upon the award rendered by the arbitrator
may be entered in any court having jurisdiction thereof in the State of
Illinois. In reaching his or her decision, the arbitrator shall have no
authority (a) to authorize or require the parties to engage in discovery
(provided, however, that the arbitrator may schedule the time by which the
parties must exchange copies of the exhibits that, and the names of the
witnesses whom, the parties intend to present at the hearing), (b) to interpret
or enforce Paragraph 10 of the Agreement (for which Paragraph 24 shall provide
the exclusive venue), (c) to change or modify any provision of this Agreement,
(d) to base any part of his or her decision on the common law principle of
constructive termination, or (e) to award punitive damages or any other damages
not measured by the prevailing party's actual damages and may not make any
ruling, finding or award that does not conform to this Agreement.
Each party shall bear all of his or its own legal fees, costs and expenses of
arbitration and one-half ( 1/2) of the costs of the arbitrator.
XXIV. Applicable Law. This Agreement shall be governed by, and construed
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in accordance with, the laws of the State of Illinois, without reference to its
conflict of law provisions. Furthermore, as to Xxxxxxxxx 00, Xxxxxx agrees and
consents to submit to personal jurisdiction in the State of Illinois in any
state or federal court of competent subject matter jurisdiction situated in Xxxx
County, Illinois. Shakir further agrees that the sole and exclusive venue for
any suit arising out of, or seeking to enforce, the terms of Paragraph 10 of
this Agreement shall be in a state or federal court of competent subject matter
jurisdiction situated in Xxxx County, Illinois. In addition, Shakir waives any
right to challenge in another court any judgment entered by such Xxxx County
court or to assert that any action instituted by SSA in any such court is in the
improper venue or should be transferred to a more convenient forum.
PLEASE READ THIS AGREEMENT AND CAREFULLY CONSIDER ALL OF ITS PROVISIONS
BEFORE SIGNING IT. THIS AGREEMENT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN
CLAIMS, INCLUDING THOSE UNDER THE FEDERAL AGE DISCRIMINATION IN EMPLOYMENT ACT,
AND OTHER FEDERAL, STATE AND LOCAL LAWS PROHIBITING DISCRIMINATION IN
EMPLOYMENT.
IN WITNESS WHEREOF, the parties have set their signatures on the date first
written above.
SYSTEM SOFTWARE ASSOCIATES, INC. RIZ SHAKIR
By:__________________________________ ____________________________________
Its:_________________________________
