Exhibit 10.5
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "AGREEMENT") is
entered into and shall be effective as of July 23, 2002 (the "EFFECTIVE DATE"),
by and among JDA SOFTWARE GROUP, INC., a Delaware corporation ("COMPANY") and
XXXXX X. XXXXXXXXX ("EXECUTIVE").
RECITALS
A. Company, Executive and JDA Software, Inc., an Arizona corporation and
wholly-owned subsidiary of Company, are parties to an Employment Agreement
entered into effective as of January 1, 1998 (the "EMPLOYMENT AGREEMENT"),
pursuant to which Executive has been employed as Co-Chairman of the Board of
Directors of Company.
B. Company's former Co-Chief Executive Officer resigned effective as of
January 4, 1999, and Executive has served as Company's Chief Executive Officer
since such resignation.
C. Company's former Co-Chairman of the Board of Directors resigned
effective June 23, 2000, and Executive has served as Company's sole Chairman of
the Board of Directors since such resignation.
D. Company and Executive desire to amend and restate the Employment
Agreement in its entirety in accordance with Section 9(i) thereof as hereafter
set forth.
NOW, THEREFORE, in consideration of the mutual premises herein contained,
the sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
The Employment Agreement is hereby amended and restated in its entirety as
of the Effective Date.
1. Employment. Company hereby employs Executive, and Executive hereby
accepts such employment, upon the terms and conditions set forth herein.
2. Duties.
2.1 Position. Executive is employed as Chairman of the Board of
Directors ("CHAIRMAN") and Chief Executive Officer ("CEO") of Company. Executive
shall perform faithfully and diligently all duties assigned to Executive. The
Board of Directors of Company ("BOARD") reserves the right to modify Executive's
position and duties at any time in its sole and absolute discretion, provided
that the duties assigned are consistent with the position of Chairman and CEO.
2.2 Standard of Conduct/Full-time. During the term of this Agreement,
Executive will act loyally and in good faith to discharge the duties of Chairman
and CEO, and will abide by all policies and decisions made by Company, as well
as all applicable federal, state and local laws, regulations or ordinances.
Executive will act solely on behalf of Company at all times. Executive shall
devote Executive's full business time and efforts to the performance of
Executive's assigned duties for Company, unless Executive notifies the Board in
advance of
Executive's intent to engage in other paid work and receives the Board's express
written consent to do so.
2.3 Work Location. Executive's principal place of work shall be
located in Scottsdale, Arizona or such other location as the parties may agree
upon from time to time.
3. Term. The employment relationship pursuant to this Agreement shall
commence on the Effective Date set forth above and continue until terminated in
accordance with the terms of this Agreement (the "EMPLOYMENT TERM").
4. Compensation.
4.1 Base Salary. As compensation for Executive's performance of
Executive's duties hereunder, Company shall pay to Executive a salary of
$400,000 per year, payable in equal semi-monthly installments of $16,666.67 and
in accordance with the normal payroll practices of Company, less required
deductions for state and federal withholding tax, social security and all other
employment taxes and authorized payroll deductions. Executive's Base Salary will
be reviewed by the parties on or before each anniversary of the Effective Date
and may be increased or decreased from time to time during the Employment Term
by such amount(s) as Company and Executive may agree to in writing.
4.2 Incentive Compensation. In addition, Executive will also be
eligible to receive incentive compensation subject to the terms and conditions
as the Board may from time to time deem appropriate in its sole and absolute
discretion ("BONUS"). Unless otherwise provided herein, the payment of any Bonus
pursuant to this Section 4.2 shall be made in accordance with the normal payroll
practices of Company, less required deductions for state and federal withholding
tax, social security and all other employment taxes and authorized payroll
deductions.
4.3 Performance and Salary Review. The Board will periodically
review Executive's performance on no less than an annual basis. Adjustments to
salary or other compensation, if any, will be made by the Board in its sole and
absolute discretion.
5. Benefits.
5.1 Fringe Benefits and Facilities. Executive will be eligible for
all customary and usual fringe benefits generally available to executives of
Company subject to the terms and conditions of Company's benefit plan documents.
Company reserves the right to change or eliminate the fringe benefits on a
prospective basis, at any time, effective upon notice to Executive; provided,
however, that during the period of employment under this Agreement, Executive
(and his spouse and eligible dependents) shall be entitled to receive all
benefits of employment generally available to other members of Company's
management and those benefits for which key executives are or shall become
eligible, when and as Executive becomes eligible therefore, including, without
limitation, group health, life and disability insurance benefits and
participation in Company's 401(k) plan. Company further agrees to furnish
Executive with such assistance and accommodations (i.e., an office in the size,
type and quality as provided to Executive prior to the Effective Date) as shall
be suitable to the character of Executive's position with Company and adequate
for the performance of Executive's duties hereunder.
5.2 Benefits Payable Upon Disability or Death. If Executive shall be
prevented during the term of this Agreement from properly performing services
hereunder by
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reason of illness or other physical or mental incapacity ("DISABILITIES"),
Company shall continue to pay Executive the then current salary hereunder for a
period of twelve (12) months, following the onset of such disability. In the
event of the death of Executive during the term of this Agreement, Executive's
then current salary payable hereunder shall continue to be paid, as a death
benefit, to Executive's surviving spouse, or if there is no spouse surviving,
then to Executive's personal representative (as the case may be) for a period of
twelve (12) months following Executive's death.
6. Business Expenses. Executive will be reimbursed for all reasonable,
out-of-pocket business expenses incurred in the performance of Executive's
duties on behalf of Company. To obtain reimbursement, expenses must be submitted
promptly with appropriate supporting documentation in accordance with Company's
policies.
7. Termination of Executive's Employment.
7.1 Termination for Cause by Company. The Board may terminate
Executive's employment immediately at any time for Cause by delivering written
notice specifying the cause to Executive; provided, however, that such written
notice shall not be delivered until after the Board shall have given Executive
written notice specifying the conduct alleged to have constituted such cause,
and Executive has failed to cure such conduct within thirty (30) days following
receipt of such notice. For purposes of this Agreement, "CAUSE" is defined as:
(a) theft, dishonesty, or intentional falsification of any employment or Company
records; improper disclosure of Company's confidential or proprietary
information; (b) Executive's conviction (including any plea of guilty or nolo
contendere) for any criminal act that materially impairs his ability to perform
his duties for Company; or (c) a material breach of this Agreement by Executive
which is not cured within thirty (30) days of receipt by Executive of reasonably
detailed written notice from Company. In the event Executive's employment is
terminated in accordance with this Section 7.1, Executive shall be entitled to
receive only unpaid Base Salary then in effect, prorated to the date of
termination, together with any amounts to which Executive is entitled pursuant
to Sections 5 or 6 hereof. All other Company obligations to Executive pursuant
to this Agreement will become automatically terminated and completely
extinguished. Executive will not be entitled to receive the Severance Payments
described in Section 7.2, below.
7.2 Termination Without Cause by Company/Severance. Company may
terminate Executive's employment under this Agreement without Cause at any time
on sixty (60) days' advance written notice to Executive. In the event of such
termination, Executive will receive in one lump sum payment (i) the unpaid Base
Salary then in effect, prorated to the effective date of termination; (ii) his
Base Salary for thirty-six (36) months from the termination date; and (iii) any
amounts to which Executive is entitled pursuant to Sections 5 or 6 hereof (the
"SEVERANCE PAYMENTS"), provided that Executive: (a) complies with all surviving
provisions of this Agreement, including without limitation those provisions
specified in Section 14.8, below; and (b) executes a full general release,
releasing all claims, known or unknown, that Executive may have against Company
arising out of or any way related to Executive's employment or termination of
employment with Company, in substantially the form attached hereto as Exhibit A,
or in another form that is acceptable to Company in its sole discretion. All
other Company obligations to Executive will be automatically terminated and
completely extinguished upon termination of employment.
7.3 Termination for Good Reason by Executive/Severance. Executive may
terminate Executive's employment under this Agreement for Good Reason (defined
below) at
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any time on five (5) days' advance written notice to Company. In the event of
such termination, Executive will be entitled to receive the Severance Payments
described in Section 7.2, above, provided that Executive complies with the
conditions to receiving the Severance Payments described in Section 7.2(a) -
7.2(b), above. All other Company obligations to Executive will be automatically
terminated and completely extinguished upon termination of employment.
For purposes of this Agreement, "GOOD REASON" is defined as the
occurrence of any of the following conditions:
(a) a material, adverse change in Executive's responsibilities or
duties, causing Executive's position to be of materially less stature or
responsibility; provided, that for purposes of this Agreement and without
limiting the generality of the foregoing, a material, adverse change shall be
deemed to occur if Executive no longer serves as Chairman and CEO of a
publicly-traded company;
(b) the relocation of Executive's work place for Company over
Executive's written objection to a location more than thirty (30) miles from
Scottsdale, Arizona;
(c) a failure to pay, or any reduction of Executive's Base Salary or
Executive's Bonus without Executive's written consent (subject to applicable
performance requirements with respect to the actual amount of Bonus earned by
Executive); or
(d) any material breach of this Agreement by Company that is not
cured within thirty (30) days of Company's receipt of written notice from
Executive specifying the material breach of this Agreement.
7.4 Voluntary Resignation by Executive. Executive may voluntarily
resign Executive's position with Company for any reason, at any time after the
Effective Date, on five (5) days' advance written notice. In the event of
Executive's resignation, Executive will be entitled to receive only the Base
Salary for the five-day notice period and no other amount for the remaining
Employment Term (other than amounts to which Executive is entitled pursuant to
Section 5 or 6 hereof). All other Company obligations to Executive pursuant to
this Agreement will become automatically terminated and completely extinguished
upon termination of employment. In addition, Executive will not be entitled to
receive any Severance Payments described in Section 7.2, above. The provisions
of this Section 7.4 shall not apply to Executive's resignation for Good Reason.
7.5 Federal Excise Tax Under Section 4999 of the Code.
(a) Additional Payment. In the event that any payment or benefit
received or to be received by Executive pursuant to this Agreement or otherwise
payable to Executive (collectively, the "PAYMENTS") would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended (the "CODE"), or any similar or successor provision (the "EXCISE TAX"),
Company shall pay to Executive within ninety (90) days of the date Executive
becomes subject to the Excise Tax, an additional amount (the "GROSS-UP PAYMENT")
such that the net amount retained by Executive from the Payments and the
Gross-Up Payment, after deduction of (1) any Excise Tax on the Payments and (2)
any federal, state and local income or employment tax and Excise Tax upon the
payment provided for by this Section, shall be equal to the Payments.
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(b) Determination of Excise Tax. For purposes of determining whether
any of the Payments will be subject to the Excise Tax and the amount of such
Excise Tax:
(i) Any payments or benefits received or to be received by
Executive in connection with transactions contemplated by a Change of Control
(as defined below) event or Executive's termination of employment (whether
pursuant to the terms of this Agreement or any other plan, arrangement or
agreement with Company), shall be treated as "parachute payments" within the
meaning of Section 280G of the Code or any similar or successor provision, and
all "excess parachute payments" within the meaning of Section 280G of the Code
or any similar or successor provision shall be treated as subject to the Excise
Tax, unless in the opinion of tax counsel ("TAX COUNSEL") selected by Company
and reasonably acceptable to Executive such payments or benefits (in whole or in
part) do not constitute parachute payments, or such excess parachute payments
(in whole or in part) represent reasonable compensation for services actually
rendered within the meaning of Section 280G of the Code (or any similar or
successor provision of the Code) in excess of the base amount within the meaning
of Section 280G of the Code (or any similar or successor provision of the Code),
or are otherwise not subject to the Excise Tax.
(ii) The amount of the Payments which shall be treated as
subject to the Excise Tax shall be equal to the lesser of (i) the total amount
of the Payments or (ii) the amount of the excess parachute payments within the
meaning of Section 280G of the Code (after applying paragraph (b)(1) above).
(iii) The value of any non-cash benefits or any deferred
payment or benefit shall be determined by Tax Counsel in accordance with the
principles of Section 280G of the Code.
(iv) Change of Control. A "CHANGE OF CONTROL" is defined as
any one of the following occurrences:
a) Any "person" (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934 (the "EXCHANGE ACT")), other
than a trustee or other fiduciary holding securities of Company under an
employee benefit plan of Company, becomes the "beneficial owner" (as defined in
Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, of the
securities of Company representing 50% or more of (A) the outstanding shares of
common stock of Company or (B) the combined voting power of Company's
then-outstanding securities; or
b) the sale or disposition of all or substantially all
of Company's assets (or any transaction having similar effect is consummated);
or
c) Company is party to a merger or consolidation that
results in the holders of voting securities of Company outstanding immediately
prior thereto failing to continue to represent (either by remaining outstanding
or by being converted into voting securities of the surviving entity) at least
50% of the combined voting power of the voting securities of Company or such
surviving entity outstanding immediately after such merger or consolidation; or
d) a liquidation or dissolution of Company.
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(c) Determination of Gross-Up Payment. For purposes of determining
the amount of the Gross-Up Payment, Executive shall be deemed to pay federal
income taxes at the highest marginal rate of federal income taxation in the
calendar year in which the Gross-Up Payment is to be made and state and local
income taxes at the highest marginal rate of taxation in the state and locality
of Executive's residence on the date the Gross-Up Payment is to be made, net of
the maximum reduction in federal income taxes which could be obtained from
deduction of such state and local taxes.
(d) Adjustments.
(i) In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder, Executive
shall repay to Company at the time that the amount of such reduction in Excise
Tax is finally determined the portion of the Gross-Up Payment attributable to
such reduction (plus the portion of the Gross-Up Payment attributable to the
Excise Tax and federal, state and local income and employment taxes imposed on
the Gross-Up Payment being repaid by Executive if such repayment results in a
reduction in Excise Tax and/or a federal, state or local income or employment
tax deduction) plus interest on the amount of such repayment at the rate
provided in Section 1274(b)(2)(B) of the Code.
(ii) In the event that the Excise Tax is determined to exceed
the amount taken into account hereunder (including by reason of any payment the
existence or amount of which cannot be determined at the time of the Gross-Up
Payment), Company shall make an additional gross-up payment in respect of such
excess (plus any interest payable with respect to such excess) at the time that
the amount of such excess is finally determined.
7.6 Termination for Death or Permanent Disability. Upon Executive's
death or permanent disability (a disability which has continued for a period of
twelve (12) months from the date of onset of such disability), this Agreement
shall terminate; provided that Executive and Executive's spouse (or surviving
spouse, as the case may be) and eligible dependents shall be entitled to
continuation rights under Company's group health plans as required under COBRA,
with the "qualifying event" occurring and minimum required period of coverage to
commence upon the termination of this Agreement; and provided further that, in
the event of Executive's death, Executive's surviving spouse or personal
representative, as the case may be, shall be entitled to the death benefits
described in Section 5.2.
8. No Conflict of Interest. During the term of Executive's employment with
Company, Executive must not engage in any work, paid or unpaid, that creates an
actual or potential conflict of interest with Company. If the Board reasonably
believes such a conflict exists during the term of this Agreement, the Board may
ask Executive to choose to discontinue the other work or resign employment with
Company.
9. Post-Termination Non-Competition.
9.1 Consideration For Promise To Refrain From Competing. Executive
agrees that Executive's services are special and unique, that Company's
disclosure of confidential, proprietary information and specialized training and
knowledge to Executive, and that Executive's level of compensation and benefits,
including, without limitation, the severance payments provided for in this
Agreement, are partly in consideration of and conditioned upon Executive not
competing with Company. Executive acknowledges that such consideration is
adequate for Executive's promises contained within this Section 9.
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9.2 Promise To Refrain From Competing. Executive understands
Company's need for Executive's promise not to compete with Company is based on
the following: (a) Company has expended, and will continue to expend,
substantial time, money and effort in developing its proprietary information;
(b) Executive will in the course of Executive's employment develop, be
personally entrusted with and exposed to Company's proprietary information; (c)
both during and after the term of Executive's employment, Company will be
engaged in the highly competitive enterprise software industry; (d) Company
provides products and services nationally and internationally; and (e) Company
will suffer great loss and irreparable harm if Executive were to enter into
competition with Company. Therefore, in exchange for the consideration described
in Section 9.1 above, Executive agrees that for the period of three (3) years
following the date Executive ceases to render services to Company (the "COVENANT
PERIOD"), Executive will not either directly or indirectly, whether as an owner,
director, officer, manager, consultant, agent or employee: (i) work for a
competitor of Company, which is defined to include those entities or persons in
the business of developing, marketing, selling and supporting software designed
for businesses in the retail and consumer packaged goods markets or in the
business of helping companies synchronize their inventory decisions with
advanced supply chain, inventory management and data mining solutions, in any
country in which Company does business (the "RESTRICTED BUSINESS"); or (ii) make
or hold any investment in any Restricted Business, whether such investment be by
way of loan, purchase of stock or otherwise, provided that there shall be
excluded from the foregoing the ownership of not more than 5% of the listed or
traded stock of any publicly held corporation. For purposes of this Section 9,
the term "COMPANY" shall mean and include Company, any subsidiary or affiliate
of Company, any successor to the business of Company (by merger, consolidation,
sale of assets or stock or otherwise) and any other corporation or entity of
which Executive may serve as a director, officer or employee at the request of
Company or any successor of Company.
9.3 Reasonableness of Restrictions. Executive represents and agrees
that the restrictions on competition, as to time, geographic area, and scope of
activity, required by this Section 9 are reasonable, do not impose a greater
restraint than is necessary to protect the goodwill and business interests of
Company, and are not unduly burdensome to Executive. Executive expressly
acknowledges that Company competes on an international basis and that the
geographical scope of these limitations is reasonable and necessary for the
protection of Company's trade secrets and other confidential and proprietary
information. Executive further agrees that these restrictions allow Executive an
adequate number and variety of employment alternatives, based on Executive's
varied skills and abilities. Executive represents that Executive is willing and
able to compete in other employment not prohibited by this Agreement.
9.4 Reformation if Necessary. In the event a court of competent
jurisdiction determines that the geographic area, duration, or scope of activity
of any restriction under this Section 9 and its subsections is unenforceable,
the restrictions under this section and its subsections shall not be terminated
but shall be reformed and modified to the extent required to render them valid
and enforceable. Executive further agrees that the court may reform this
Agreement to extend the Covenant Period by an amount of time equal to any period
in which Executive is in breach of this covenant.
10. Confidentiality. Executive agrees to abide by Company's letter
agreement dated as of January 1, 1998, which is incorporated by this reference
whereby Executive covenants and agrees to keep confidential that information
known by or made available to Executive on account of his relationship with
Company (the "LETTER AGREEMENT").
11. Nonsolicitation.
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11.1 Nonsolicitation of Customers or Prospects. Executive
acknowledges that information about Company's customers is confidential and
constitutes trade secrets. Accordingly, Executive agrees that during the term of
this Agreement and for a period of two (2) years after the termination of this
Agreement, Executive will not, either directly or indirectly, separately or in
association with others, interfere with, impair, disrupt or damage Company's
relationship with any of its customers or customer prospects by soliciting or
encouraging others to solicit any of them for the purpose of diverting or taking
away business from Company.
11.2 Nonsolicitation of Company's Employees. Executive agrees that
during the term of this Agreement and for a period of three (3) years after the
termination of this Agreement, Executive will not, either directly or
indirectly, separately or in association with others, interfere with, impair,
disrupt or damage Company's business by soliciting, encouraging, hiring or
attempting to hire any of Company's employees or causing others to solicit or
encourage any of Company's employees to discontinue their employment with
Company. Notwithstanding the previous sentence, the Executive may give
references for employees and tell headhunters the names of employees of Company,
in either event, where the Executive is aware that the employee has been
identified by Company as not being part of its long-term plans after a Change of
Control.
12. Injunctive Relief. Executive acknowledges that Executive's breach of
the covenants contained in Sections 9-11 (collectively "COVENANTS") would cause
irreparable injury to Company and agrees that in the event of any such breach,
Company shall be entitled to seek temporary, preliminary and permanent
injunctive relief without the necessity of proving actual damages or posting any
bond or other security.
13. Agreement to Arbitrate. To the fullest extent permitted by law,
Executive and Company agree to arbitrate any controversy, claim or dispute
between them arising out of or in any way related to this Agreement, the
employment relationship between Company and Executive and any disputes upon
termination of employment, including but not limited to breach of contract,
tort, discrimination, harassment, wrongful termination, demotion, discipline,
failure to accommodate, family and medical leave, compensation or benefits
claims, constitutional claims; and any claims for violation of any local, state
or federal law, statute, regulation or ordinance or common law. Claims for
breach of Company's Employee Innovations and Proprietary Rights Agreement,
workers' compensation, unemployment insurance benefits and Company's right to
obtain injunctive relief pursuant to Section 12 above are excluded. For the
purpose of this agreement to arbitrate, references to "Company" include all
parent, subsidiary or related entities and their employees, supervisors,
officers, directors, agents, pension or benefit plans, pension or benefit plan
sponsors, fiduciaries, administrators, affiliates and all successors and assigns
of any of them, and this Agreement shall apply to them to the extent Executive's
claims arise out of or relate to their actions on behalf of Company.
13.1 Initiation of Arbitration. Either party may exercise the right
to arbitrate by providing the other party with written notice of any and all
claims forming the basis of such right in sufficient detail to inform the other
party of the substance of such claims. In no event shall the request for
arbitration be made after the date when institution of legal or equitable
proceedings based on such claims would be barred by the applicable statute of
limitations.
13.2 Arbitration Procedure. The arbitration will be conducted in
Maricopa county, Arizona, by a single neutral arbitrator and in accordance with
the then current rules for resolution of employment disputes of the American
Arbitration Association ("AAA"). The parties
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are entitled to representation by an attorney or other representative of their
choosing. The arbitrator shall have the power to enter any award that could be
entered by a judge of the trial court of the State of Arizona, and only such
power, and shall follow the law. The parties agree to abide by and perform any
award rendered by the arbitrator. Judgment on the award may be entered in any
court having jurisdiction thereof.
13.3 Costs of Arbitration. Each party shall bear one half the cost
of the arbitration filing and hearing fees, and the cost of the arbitrator.
14. General Provisions.
14.1 Successors and Assigns. The rights and obligations of Company
under this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of Company. Executive shall not be entitled to assign any
of Executive's rights or obligations under this Agreement.
14.2 Waiver. Either party's failure to enforce any provision of this
Agreement shall not in any way be construed as a waiver of any such provision,
or prevent that party thereafter from enforcing each and every other provision
of this Agreement.
14.3 Attorneys' Fees. In any dispute relating to this Agreement, the
losing party shall pay the attorneys' fees of the prevailing party in addition
to its own attorneys' fees.
14.4 Severability. In the event any provision of this Agreement is
found to be unenforceable by an arbitrator or court of competent jurisdiction,
such provision shall be deemed modified to the extent necessary to allow
enforceability of the provision as so limited, it being intended that the
parties shall receive the benefit contemplated herein to the fullest extent
permitted by law. If a deemed modification is not satisfactory in the judgment
of such arbitrator or court, the unenforceable provision shall be deemed
deleted, and the validity and enforceability of the remaining provisions shall
not be affected thereby.
14.5 Interpretation; Construction. The headings set forth in this
Agreement are for convenience only and shall not be used in interpreting this
Agreement. This Agreement has been drafted by legal counsel representing
Company, but Executive has participated in the negotiation of its terms.
Furthermore, Executive acknowledges that Executive has had an opportunity to
review and revise the Agreement and have it reviewed by legal counsel, if
desired, and, therefore, 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.
14.6 Governing Law. This Agreement will be governed by and construed
in accordance with the laws of the United States and the State of Arizona. Each
party consents to the jurisdiction and venue of the state or federal courts in
Maricopa county, Arizona, if applicable, in any action, suit, or proceeding
arising out of or relating to this Agreement.
14.7 Notices. Any notice required or permitted by this Agreement
shall be in writing and shall be delivered as follows with notice deemed given
as indicated: (a) by personal delivery when delivered personally; (b) by
overnight courier upon written verification of receipt; (c) by telecopy or
facsimile transmission upon acknowledgment of receipt of electronic
transmission; or (d) by certified or registered mail, return receipt requested,
upon verification of
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receipt. Notice shall be sent to the addresses set forth below, or such other
address as either party may specify in writing.
14.8 Survival. Sections 8 ("No Conflict of Interest"), 9
("Post-Termination Non-Competition"), 10 ("Confidentiality and Proprietary
Rights"), 11 ("Nonsolicitation"), 12 ("Injunctive Relief"), 13 ("Agreement to
Arbitrate"), 14 ("General Provisions") and 15 ("Entire Agreement") of this
Agreement shall survive Executive's employment by Company.
15. Entire Agreement. This Agreement, including the Letter Agreement
incorporated herein by reference, constitutes the entire agreement between the
parties relating to this subject matter and supersedes all prior or simultaneous
representations, discussions, negotiations, and agreements, whether written or
oral. This Agreement may be amended or modified only with the written consent of
Executive and the Board. No oral waiver, amendment or modification will be
effective under any circumstances whatsoever.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY
UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES
HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.
EXECUTIVE
Dated: 7-23-02 /s/ Xxxxx X. Xxxxxxxxx
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XXXXX X. XXXXXXXXX
ADDRESS
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COMPANY
Dated: 7-23-02 By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: XXXXXXX X. XXXXXXXX
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Title: CFO
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[SIGNATURE PAGE TO XXXXXXXXX EMPLOYMENT AGREEMENT]
EXHIBIT A
Form of Mutual Release
See attached.
