EXHIBIT 10.11
EBENX, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement") dated as of September
6, 2000, is made and entered into between eBenX, Inc., a Minnesota corporation,
("the Company") and Xxxxxxx Xxxxxxxxx, an individual resident of the State of
Pennsylvania, ("the Executive").
WHEREAS, the Executive currently is a senior management employee of
Arbor Administrative Services, Inc. ("Arbor"); and
WHEREAS, the Company and Arbor have agreed to a transaction whereby
Arbor will merge with and into a subsidiary of the Company (the "Transaction"),
according to the terms of a Merger Agreement dated August 29, 2000 (the "Merger
Agreement"); and
WHEREAS, according to the terms of the Merger Agreement and by virtue
of his existing employment relationship with Arbor, consummation of the
Transaction will result in significant economic benefit to the Executive; and
WHEREAS, because of the importance of the employment, non-competition,
non-solicitation and invention assignment provisions of this Agreement, the
Company has conditioned its obligation to consummate the Transaction, in part,
on the execution and delivery of this Agreement by the Executive; and
WHEREAS, following the closing of the Transaction, the Company desires
to employ the Executive as an executive management employee and the Executive
desires to be employed by Employer, according to the terms of this Agreement.
NOW, THEREFORE, in consideration of the promises and the respective
undertakings of the Company and the Executive set forth below, the Company and
the Executive agree as follows:
Article 1 Definitions. Capitalized terms in this Agreement shall have their
defined meaning throughout the Agreement. The following terms shall have the
meaning set forth below, unless the context clearly requires otherwise.
1.01 Board. "Board" shall mean the Board of Directors of the
Company.
1.02 Cause. "Cause" shall mean termination by the Company of
the Executive's employment based upon: (i) the Executive's willful
misconduct, dishonesty, or other material violation of law or Company
policies; or (ii) actions (or failures to act) by the Executive in bad
faith and to the detriment of the Company.
1.03 Change in Control. A "Change in Control" of the Company
shall be deemed to have occurred if:
(a) Any "person" (as such term is used in Sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) who did not own shares of the
capital stock of the Company on the date of this Agreement
shall, together with his, her or its "Affiliates" and
"Associates" (as such terms are defined in Rule 12b-2
promulgated under the Exchange Act), becomes the "Beneficial
Owner" (as such term is defined in Rule 13d-3 promulgated
under the Exchange Act), directly or indirectly, of securities
of the Company representing fifty percent 50% or more of the
combined voting power of the Company's then outstanding
securities (any such person being hereinafter referred to as
an "Acquiring Person");
(b) The "Continuing Directors" (as hereinafter
defined) shall cease to constitute a majority of the Board;
(c) There should occur (i) any consolidation or
merger involving the Company and the Company shall not be the
continuing or surviving corporation or the shares of the
Company's capital stock shall be converted into cash,
securities or other property; provided, however, that this
subclause (i) shall not apply to a merger or consolidation in
which (A) the Company is the surviving corporation and (B) the
shareholders of the Company immediately prior to the
transaction have the same proportionate ownership of the
capital stock of the surviving corporation immediately after
the transaction; (ii) any sale, lease, exchange or other
transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of the
Company; or (iii) any liquidation or dissolution of the
Company; or
(d) The number of directors on the Board exceeds nine
(9).
In the case of a Change in Control as described in
Subsections (c)(i) or (ii), the Options will be assumed by the
surviving or acquiring corporation as the case may be.
1.04 Confidential Information. "Confidential Information"
shall mean information that is proprietary to the Company or any of its
affiliates, or to others and is entrusted to the Company, whether or
not trade secrets. Confidential Information includes, but is not
limited to, information relating to designs, software (in source and
object code), technology strategies, business plans as to the business
as conducted or anticipated to be conducted by the Company or any of
its affiliates, and to past or current or anticipated products or
services of the Company or any of its affiliates. Confidential
Information also includes, without limitation, information concerning
the Company's or any Company affiliate's research, development,
purchasing, accounting, marketing, selling, and services. All
information that the Executive has a reasonable basis to consider
confidential is Confidential Information, whether or not originated by
the Executive and without regard to the manner in which the Executive
obtains access to it.
1.05 Continuing Director. "Continuing Director" shall mean any
person who is a member of the Board, while such person is a member of
the Board, who is not an Acquiring Person, an Affiliate or Associate of
an Acquiring Person or a representative of an Acquiring Person or of
any such Affiliate or Associate and who (i) was a member of the Board
on the date hereof or (ii) subsequently became a member of the Board,
upon the nomination or recommendation, or with the approval of, a
majority of the Continuing Directors.
1.06 Disability. "Disability" shall mean the Executive's
inability to perform the essential functions of the Executive's
position, with or without reasonable accommodation, provided the
Executive has exhausted his entitlement to any applicable leave, if the
Executive desires to take and satisfies all eligibility requirements
for such leave.
1.07 Effective Date. "Effective Date" shall mean the date on
page one hereof.
1.08 Good Reason. "Good Reason" shall mean the occurrence of
any of the following events, except for the occurrence of such an event
in connection with the termination of the Executive's employment by the
Company for Cause, for Disability, or for death: (a) a material
reduction in the Executive's duties and/or responsibilities; (b) a
material reduction in the Executive's total compensation, taking into
account the total amount of the Executive's salary, bonus target
percentage, and stock option grants and vesting; (c) a requirement that
the Executive relocate the Executive's primary permanent place of work
more than twenty (20) miles from Center City Philadelphia, Pennsylvania
(which shall include its current offices in King of Prussia,
Pennsylvania).
1.09 Inventions. "Inventions" shall mean ideas, improvements,
and discoveries, whether or not such are patentable or copyrightable,
and whether or not in writing or reduced to practice.
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1.10 Term. "Term" shall mean the period commencing on the
Effective Date and ending on the third anniversary of the Effective
Date.
1.11 Works of Authorship. "Works of Authorship" shall mean any
writings, drawings, diagrams, charts, tables, databases, software (in
object or source code and recorded on any medium), and any other works
of authorship, whether or not such are copyrightable.
Article 2 At Will Employment, Duties.
2.01 Service With The Company. Under the terms and conditions
set forth herein, the Company hereby employs the Executive as President
- Mid Market, and the Executive accepts such employment. The Executive
will report directly to the Company's Chief Executive Officer.
2.02 Performance of Duties.
(a) The Executive shall be primarily responsible for
managing the day-to-day operations of middle-market
administration services; provided that, the Executive shall
perform such other duties as the Chief Executive Officer of
the Company shall assign him from time to time which are
consistent with the responsibility typically performed by
Senior Vice Presidents of the Company and the terms and
conditions of this Agreement. The Executive agrees to serve
the Company faithfully and to the best of the Executive's
ability and to devote the Executive's full-time, attention,
and efforts to the business and affairs of the Company during
the term of the Executive's employment. The Executive hereby
confirms that he is under no contractual commitments
inconsistent with the Executive's obligation set forth in this
Agreement and that, during the Term, the Executive will not
render or perform any services for compensation for any other
corporation, firm, entity, or person.
(b) The Executive agrees not to engage in any other
work or occupation if such work or occupation involves a
direct or indirect conflict of interest or derogates from his
ability to perform his obligations under Sections 2.01 and
2.02(a) above in particular or this Agreement in general. The
Executive shall not be precluded from making passive
investments in other corporations, organizations and/or
projects; provided that the Executive shall not take an active
part in the routine management of any such corporation,
organization or project without the prior written consent of
the Company, which may be withheld in the sole discretion of
the Company but may serve as a member of the board of
directors or advisory board member of a corporation or other
organization but only with the prior written consent of the
Company, which will not be unreasonably withheld; and
provided, further that the sphere of activity of those
corporations, organizations or projects do not engage in or
otherwise constitute a Competing Business Activity (as defined
in Section 6.01 hereof) and the Executive does not otherwise
have a conflict of interest with his obligations under this
Agreement.
Article 3 Compensation and Benefits.
3.01 Base Salary. As base compensation for all services to be
rendered by the Executive under this Agreement during the Term, the
Company shall pay to the Executive an annualized salary of one hundred
and seventy-five thousand dollars ($175,000) ("Base Salary"). The Base
Salary shall be paid in accordance with the Company's normal payroll
procedures and policies, as such procedures and policies may be
modified from time to time. The Executive shall be eligible for
adjustments in the Base Salary in accordance with the policies and
procedures applicable to the Company's executive management employees.
3.02 Incentive Compensation. The Company shall make the
Executive eligible to earn an annual bonus payment. Earning an annual
bonus payment will be subject to the Executive achieving certain
objectives set annually by the Board, as well as any terms and
conditions the Company may establish from time to time. Subject to the
foregoing, the Executive's target bonus for each year of the Term will
be seventy-five thousand dollars ($75,000).
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3.03 Equity Participation. During the Term, the Compensation
Committee of the Board of Directors may, in its sole discretion,
determine to make the Executive eligible to receive options to purchase
the Company's common stock, subject to the terms and conditions of the
Company's stock option plan ("the Plan") and any stock option agreement
to signed pursuant to the Plan.
3.04 Participation in Benefits. During his employment, the
Executive shall be entitled to participate in the employee benefits
offered generally by the Company to its senior management employees, to
the extent that the Executive's position, tenure, salary, health, and
other qualifications make the Executive eligible to participate. The
Executive's participation in such benefits shall be subject to the
terms of the applicable plans, as the same may be amended from time to
time. The Company does not guarantee the adoption or continuance of any
particular employee benefit plan during the Executive's employment, and
nothing in this Agreement is intended to, or shall in any way restrict
the right of the Company to amend, modify, or terminate any of its
benefits at any time.
3.05 Board Visitation Rights. During the term of this
Agreement, the Executive shall have the right to be present in person
or by telephone at all meetings of the Company's Board and the Company
shall provide the Executive with advance notice of all such meetings
and all materials distributed to the Board as if the Executive was a
member of the Board.
Article 4 Term; Termination.
4.01 Term. Unless earlier terminated, this Agreement shall
remain in effect for the duration of the Term. If the Company and Arbor
do not effect the Transaction contemplated by the Merger Agreement,
this Agreement will become null and void, and have no further effect.
If the Company and the Executive mutually agree to continue the
Executive's employment beyond the end of the Term, the parties may do
so according to a written agreement setting forth mutually agreeable
terms and conditions of employment.
The Executive acknowledges that his employment by the Company
is "at will." Subject to the notice periods and termination payment
provisions set forth in this Article 4, this Agreement and the
Executive's employment may terminate at any time during the Term, as
set forth below:
4.02 Termination Due to the Executive's Death or Total
Disability. This Agreement and the Executive's employment shall
terminate immediately upon the Executive's death or the Executive's
Disability.
4.03 Termination of Employment by The Company. The Company may
terminate this Agreement and the Executive's employment at any time and
for any reason, to be effective upon the date stated in the written
notice of termination the Company provides the Executive.
4.04 Termination of Employment By the Executive. The Executive
may terminate this Agreement and resign his employment at any time and
for any reason, by giving written notice thereof to the Chief Executive
Officer at least thirty (30) days prior to the effective date of
resignation. Upon the Executive providing the Company with written
notice of his resignation, the Company may at its option elect to have
the Executive cease to provide services immediately; provided that, the
Executive shall be paid his Base Salary and any other compensation to
which he becomes entitled during that notice period.
4.05 Termination by Mutual Agreement. Notwithstanding Section
4.01 above, the parties may terminate this Agreement at any time and
upon any other terms or conditions by mutual written agreement.
4.06 Compensation Upon Termination. Except as is expressly
stated in Section 4.07 ("Termination of Employment Following a Change
In Control"), if the Executive's employment ends and this Agreement
terminates for any reason described in Sections 4.02 through 4.04, the
Company's sole and exclusive obligations to the Executive are as
follows:
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(a) Upon any termination of the Executive's
employment, within ten (10) days after the termination date,
Company's shall pay the Executive (i) his Base Salary earned
through the date of termination, together with any other
earned and unpaid amounts of accrued vacation pay or sick
leave, and (ii) any reimbursement for any business expenses
that may be owing the Executive under the Company's policies.
(b) If the Company terminates the Executive for Cause
or if the Executive terminates his employment without Good
Reason the Company's only obligation shall be to pay the
Executive the sums called for under Section 4.06(a). All
unvested option shares, if any, will be canceled immediately,
and the Company will have no further obligations to the
Executive under this Agreement.
(c) If the Company terminates the Executive's
employment for a reason other than Cause, or if the Executive
terminates his employment for Good Reason, the Company shall
pay the Executive the sums called for under Section 4.06(a).
In addition, the Company will:
(i) As a severance payment, pay the Executive six (6)
months of his then current Base Salary, to be paid
according to the Company's standard payroll practices
and payroll schedule, commencing on the first payroll
date following the termination date; and
(ii) Accelerate the vesting of fifty percent (50%) of
the Executive's unvested option shares, such that
those shares vest on the termination date. The
remaining 50% of any unvested option shares will be
canceled as of the termination date.
(d) The Company shall continue to pay or reimburse
the Executive's premiums for health coverage accorded to the
Executive under Section 3.04 hereof during any period of
salary continuation pursuant to subclause (c), above. In the
event that any payment or benefit required to be made by
Company under this Section 4.06, either alone or in
combination with any other payment or benefit the Executive is
then entitled to receive, would constitute a "parachute
payment" (under Section 280(g) of the Internal Revenue Code),
the Company and Executive will negotiate in good faith a
modification of this Section with the intention of maximizing
the Executive's net after tax benefit, while at the same time
not adversely affecting the Company.
(e) The Company shall have no duty or obligation to
employ the Executive following any such termination by the
Company or the Executive.
4.07 Termination of Employment Following a Change in Control.
Notwithstanding any provision in this Section 4, if the Company
terminates the Executive's employment within 90 days prior to the
execution of a definitive agreement that results in a Change of Control
or during the one (1) year period following a Change in Control, other
than for Cause, or if the Executive terminates his employment for Good
Reason, and if any such termination is effective prior to the end of
the one (1) year period described herein, the Company's exclusive
obligations to the Executive are as follows:
(a) The Company shall pay the Executive the sums called
for under Section 4.06(a);
(b) In addition, the Company will:
(i) As a severance payment, pay the Executive the
Base Salary in effect at the termination date for a
period of one (1) year, to be paid according to the
Company's standard payroll practices and payroll
schedule, commencing on the first payroll date
following the termination date; and
(ii) Accelerate the vesting of one hundred percent
(100%) of the Executive's unvested option shares,
such that those shares will vest on the termination
date.
4.08 Survival. The provisions of Article 4 (relating to
termination rights and the provision of compensation and benefits
beyond the termination of this Agreement) shall survive termination of
this
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Agreement for any reason. The provisions of Article 5 (relating to
confidential information and intellectual property rights of the
Company), the provisions of Article 6 (relating to non-competition, no
raiding, and non-solicitation), the provisions of Article 7 (relating
to dispute resolution) and the provisions of Article 8 (relating to
miscellaneous terms and conditions) shall survive the expiration of the
term of this Agreement and the termination of this Agreement for any
reason.
Article 5 Confidential Information; Intellectual Property.
5.01 Prohibitions Against Unauthorized Use. For so long as he
is employed by the Company and at all times thereafter, the Executive
shall not use or disclose, other than in connection with the
Executive's employment with the Company, any Confidential Information
to any person not employed by the Company or not authorized by the
Company to receive such Confidential Information, without the prior
written consent of the Company. The Executive shall use prudent care to
safeguard and prevent the unauthorized use and disclosure of
Confidential Information.
5.02 Exclusions. The Executive's obligations under Section
5.01 above shall not apply to any information that: (a) is now or
becomes generally available to the public through no fault of the
Executive; (b) was already known to the Executive, as shown by his
books and records, prior to disclosure of same by the Company; (c) is
or was independently developed or acquired by the Executive without any
use of or reliance on Confidential Information; (d) is or was provided
to the Executive by a third party not under any obligation of
confidentiality to the Company; or (e) is required to be disclosed by
law, provided, however, the Executive shall render reasonable
cooperation, at the Company's expense, to lawfully prevent or minimize
any such public disclosure of Confidential Information through
protective orders or other similar matters.
5.03 Ownership and Return of Company Property. All
Confidential Information or other Company property in the Executive's
possession, custody, or control, including, without limitation, all
documents, reports, manuals, business plans, minutes, memoranda,
computer software, computer databases, computer print-outs, member or
customer lists, credit cards, keys, identification, products, access
cards, and all other tangible or intangible property relating in any
way to the business of the Company, are the exclusive property of the
Company, even if the Executive authored, created, or assisted in
authoring or creating such property. The Executive shall return to the
Company all Confidential Information or other Company property within
his possession, custody or control immediately upon his termination of
his employment or at such earlier time as the Company requests.
5.04 Disclosure and Assignment of Inventions and Other Works.
The Executive shall communicate to the Company as promptly and fully as
practicable all Inventions which are conceived or reduced to practice
by the Executive (alone or jointly with others) (1) at any time during
the Executive's employment by the Company, or (2) within one (1) year
following the date on which the Executive ceases to be employed by the
Company (without regard to the reason for the cessation or whether such
cessation is occasioned by the Executive or the Company). The Executive
hereby assigns to the Company and/or its nominees, all of the
Executive's right, title, and interest in such Inventions, and all of
the Executive's right, title, and interest in any patents, copyrights,
patent applications or copyright applications based thereon. The
Executive shall assist the Company and/or its nominees (without charge
but at no expense to the Executive) at any time and in every proper way
to obtain for its and/or their own benefits, patents and copyrights for
all such Inventions anywhere in the world and to enforce its and/or
their rights in legal proceedings.
(a) Any provision in this Section 5.04 requiring the
Executive to assign the Executive's rights in any Invention
does not apply to an Invention that qualifies for exclusion
under the provisions of Minnesota Statute ss. 181.78. That
section provides that the requirement to assign "does not
apply to an invention for which no equipment, supplies,
facility or trade secret information of the Company was used
and which was developed entirely on the employee's own time,
and (i) which does not relate (a) directly to the business of
the Company or (b) to the Company's actual or demonstrably
anticipated research or development, or (ii) which does not
result from any work performed by the employee for the
Company." The Executive understands
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that the Executive bears the burden of proving that an
Invention qualifies for exclusion under Minnesota Statute ss.
181.78.
(b) The Executive hereby irrevocably designates and
appoints the Company and each of its duly authorized officers
and agents as the Executive's agent and attorney-in-fact to
act for and in the Executive's behalf and stead to execute and
file any document and to do all other lawfully permitted acts
to further the prosecution, issuance, and enforcement of
patents, copyrights and other proprietary rights with the same
force and effect as if executed and delivered by the
Executive.
(c) The Executive will keep complete and accurate
notes, data, and records of all Inventions assigned to the
Company in the manner and form requested by the Company. Such
notes, data, and records will be the property of the Company,
and, upon its request, the Executive will promptly surrender
them to it.
(d) The Executive has listed on Exhibit A attached to
this Agreement all Inventions and ideas to which the Executive
claims an interest, or has assigned or transferred interest in
to a previous employer or third party, as a result of events
occurring before the commencement of the Executive's
employment by the Company.
Article 6 Non-Competition, No Raid, and Non-Solicitation Covenants.
6.01 Non-Competition Covenant. Subject to Section 6.02 below,
during the "Restricted Period" (as defined below), the Executive shall
not, directly or indirectly, engage in any business activity (a
"Competing Business Activity") on his own behalf or as a partner,
shareholder, director, trustee, principal, agent, officer, employee,
consultant, or otherwise of any person or entity the business of which
is the same as, similar to, or competitive with any business of the
Company, or which is engaged in the development or production of
products intended to compete with the Company, or assist, solicit,
entice, or induce any other person to engage in any such activity. For
purposes hereof, "shareholder" shall not include beneficial ownership
of less than five percent (5%) of the combined voting power of all
issued and outstanding voting securities of a publicly-held corporation
whose stock is traded on a major stock exchange or quoted on NASDAQ.
6.02 Company's Option to Revise. At its sole option, the
Company may, by written notice to the Executive, after the termination
of the Executive's employment, waive or limit the line of business,
duration of, and/or geographic area in which the Executive is
prohibited from engaging in competitive activity under Section 6.01
above.
6.03 Covenant Not to Recruit. The Executive hereby
acknowledges that the Company's employees, consultants, and other
contractors constitute vital and valuable aspects of its business and
missions on a world-wide basis. In recognition of that fact, during the
"Restricted Period," the Executive shall not solicit, or assist anyone
else in the solicitation of, any of the Company's then current
employees, consultants, or other vendors or contractors to terminate
their respective relationships with the Company and to become
employees, consultants, or contractors of any enterprise with which the
Executive may then be associated, affiliated, or connected. Neither
shall the Executive do anything intended to interfere with or which has
the affect of interfering with, any relationship between the Company
and any of its employees, consultants, vendors or contractors.
6.04 Covenant Not to Solicit. The Executive hereby
acknowledges that the Company's customers constitute vital and valuable
aspects of its business on a world-wide basis. In recognition of that
fact, during the Restricted Period, the Executive shall not solicit, or
assist anyone else in the solicitation of, any of the Company's then
current customers to terminate their respective relationships with the
Company and to become customers of any enterprise with which the
Executive is in any way associated, affiliated, or connected. Neither
shall the Executive do anything intended to interfere with or which has
the affect of interfering with, any relationship between the Company
and any of its current or potential customers.
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6.05 Restricted Period. For purposes of this Article 6, the
"Restricted Period" shall be the period commencing on the Effective
Date and ending eighteen (18) months after the termination of the
Executive's employment by the Company (without regard to the reason for
termination and whether the termination is occasioned by the Company or
the Executive); provided, however, that if the Company terminates the
Executive's employment without Cause or the Executive terminates his
employment for Good Reason, the Restricted Period applicable to Section
6.01 shall end twelve (12) months after the termination of the
Executive's employment with the Company. In such a circumstance,
however, the Restricted Period applicable to the Executive's
obligations under Section 6.03 and 6.04 will remain as first defined
above.
Article 7 Dispute Resolution.
7.01 Procedure for Arbitration. Except as provided in Section
8.07 of this Agreement, any dispute arising out of or relating to this
Agreement or the alleged breach of it, or the making of this Agreement,
including claims of fraud in the inducement, or any dispute arising
from or related in any way to the Executive's employment, including any
statutory or tort claims, which has not been settled through
negotiation within a period of sixty (60) days after the date on which
either party shall first have notified the other party in writing of
the existence of a dispute, shall be settled by final and binding
arbitration pursuant to the provisions of this Agreement and under the
then applicable arbitration rules of the American Arbitration
Association ("AAA"), unless such rules are inconsistent with the
provisions of this Agreement. Any such arbitration shall be conducted
by: (a) neutral arbitrator appointed by mutual agreement of the
parties; or (b) failing such agreement, in accordance with said AAA
rules. The arbitrator shall be an experienced attorney with a
background in employment law. An arbitral award may be enforced in any
court of competent jurisdiction. Each party shall be permitted
reasonable discovery, including the production of relevant documents by
the other party, the exchange of witness lists, and a limited number of
depositions, including depositions of any expert who will testify at
the arbitration. The parties may bring motions for summary judgment in
any arbitration proceeding conducted pursuant to this Agreement, and
the provisions of Minn. R. Civ. P. 56 will apply to and govern any
motions for summary judgment.
Article 8 General Provisions.
8.01 Governing Law. This Agreement is made under and shall be
governed by and construed in accordance with the laws of the State of
Minnesota without regard to conflicts of laws principles thereof.
8.02 Prior Agreements. This Agreement (including other
agreements specifically mentioned in this Agreement) together with that
certain lock-up agreement entered into between the Executive and the
Company contains the entire agreement of the parties relating to the
employment of the Executive by the Company and the other matters
discussed herein and it supercedes all prior promises, contracts,
agreements, and understandings of any kind, whether express or implied,
oral or written, with respect to such subject matter (including, but
not limited to, any promise, contract, or understanding, whether
express or implied, oral or written, by and between the Company and the
Executive) and the parties hereto have made no agreements,
representations, or warranties relating to the subject matter of this
Agreement which are not set forth herein or in the other agreements
mentioned herein.
8.03 Withholding Taxes. The Company may take such action as it
deems appropriate to ensure that all applicable federal, state, city,
and other payroll, withholding, income, or other taxes arising from any
compensation, benefits, or any other payments made pursuant to this
Agreement, or any other contract, agreement, or understanding which
relates, in whole or in part, to the Executive's employment with the
Company, are withheld or collected from the Executive.
8.04 Amendments. No amendment or modification of this
Agreement shall be deemed effective unless made in writing and signed
by the Executive and the Company.
8.05 No Waiver. No term or condition of this Agreement shall
be deemed to have been waived, nor shall there be any estoppel to
enforce any provisions of this Agreement, except by a statement
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in writing signed by the party against whom enforcement of the waiver
or estoppel is sought. Any written waiver shall not be deemed a
continuing waiver unless specifically stated, shall operate only as to
the specific term or condition waived, and shall not constitute a
waiver of such term or condition for the future, or as to any act other
than as specifically set forth in the waiver.
8.06 Assignment. This Agreement shall not be assignable, in
whole or in part, by any party without the written consent of the other
party; provided, however, that the Company may, without the consent of
the Executive, assign its rights and obligations under this Agreement
to any corporation, firm, or other business entity with or into which
the Company may merge or consolidate, or to which the Company may sell
or transfer all or substantially all of its assets, or of which fifty
percent (50%) or more of the equity investment and of the voting
control is owned, directly or indirectly, by, or is under common
ownership with, the Company. After any such assignment by the Company,
the Company shall be discharged from all further liability hereunder
and such assignee shall thereafter be deemed to be the Company for the
purposes of all provisions of this Agreement including this Section
8.06.
8.07 Injunctive Relief. The Executive acknowledges and agrees
that the services to be rendered by the Executive hereunder are of a
special, unique, and extraordinary character, that it would be
difficult to replace such services and that any breach or threatened
breach of the covenants in Article 6 of this Agreement would be highly
injurious to the Company and that it would be extremely difficult to
compensate the Company fully for damages for any such violation.
Accordingly, the Executive specifically agrees that the provisions of
Article 7 notwithstanding, the Company shall be entitled to temporary
and permanent injunctive relief to enforce the provisions of the
covenants of Article 6 of this Agreement, and that such relief may be
granted without the necessity of proving actual damages and without
necessity of posting any bond. This provision with respect to
injunctive relief shall not, however, diminish the right of the Company
to claim and recover damages, or to seek and obtain any other relief
available to it at law or in equity, in addition to injunctive relief.
8.08 Construction, Severability. Where ever possible, each
provision of this Agreement shall be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of
this Agreement shall be prohibited by or invalid under applicable law,
such provision shall be ineffective only to the extent of such
prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Agreement. In furtherance
of and not in limitation of the foregoing, the parties agree that,
should the duration of, geographical extent of, or business activities
covered by, any provision of this Agreement be in excess of that which
is valid or enforceable under applicable law in a given jurisdiction,
then such provision, as to such jurisdiction only, shall be construed
to cover only that duration, extent, or activities that may validly or
enforceably be covered. The Executive acknowledges the uncertainty of
the law in this respect and expressly stipulates that this Agreement
shall be construed in a manner that renders its provisions valid and
enforceable to the maximum extent (not exceeding its express terms)
possible under applicable law in each applicable jurisdiction.
8.09 Captions. The various headings or captions in this
Agreement are for convenience only and shall not affect the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth in the first paragraph.
EBENX, INC.
By /s/ Xxxx X. Xxxxx
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Its President, Chief Executive Officer and Director
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/s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
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