Exhibit 10.13
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT, made and entered into as of the 27th day of
June, 1996 by and between CONCURRENT COMPUTER CORPORATION, a Delaware
corporation ("Concurrent" or the "Company"), and Xxxxxx X. Xxxxxx (the
"Employee").
W I T N E S S E T H :
- - - - - - - - - - -
WHEREAS, the Company desires to employ the Employee and the Employee
desires to accept such employment with the Company;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. Employment
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The Company hereby employs the Employee and the Employee hereby
accepts employment with the Company for the term set forth in Section 2 below,
in the position and with the duties and responsibilities set forth in Section 3
below, and upon other terms and conditions hereinafter stated.
2. Term
----
The term of employment hereunder shall commence on the date hereof and
shall continue until otherwise terminated by either party at any time in
accordance with the terms hereof.
3. Position; Duties; Responsibilities
------------------------------------
3.1 It is intended that at all times during the term of employment
hereunder, the Employee shall serve in such senior executive position as Vice
President as shall be assigned to the Employee by the Chief Executive Officer of
the Company (the "Chief Executive Officer") or by the Company's Board of
Directors (the "Board of Directors") from time to time. The Employee agrees to
perform such senior executive and managerial services customary to such position
as are necessary to the operations of the Company and as may be assigned to him
from time to time by the Chief Executive Officer or the Board of Directors.
3.2 Throughout the term of employment hereunder, the Employee shall
devote his full time and undivided attention during normal business hours to the
business and affairs of the Company, as appropriate to his responsibilities and
duties hereunder, except for reasonable vacations and illness or other
disability, but nothing in the Agreement shall preclude the Employee from
devoting reasonable periods required for serving as a director or member of any
advisory committee of not more than two (at any time) organizations involving no
conflict of interest with the interests of the Company (subject to approval by
the Board of Directors, which approval shall not be unreasonably withheld), from
engaging in charitable and community activities, and from managing his personal
investments, provided such activities do not materially interfere with the
performance of his duties and responsibilities under the Agreement.
4. Compensation
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4.1 Salary
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For services rendered by the Employee during the term of
employment hereunder, the Employee shall be paid a salary, payable in equal
biweekly installments (or, if different, payable in accordance with the then
existing applicable payroll policy of the Company, but in no event less
frequently than equal monthly installments) at an annualized rate of no less
than $135,000, such salary to be reviewed for increase annually with such
increases as shall be awarded in the discretion of the Board of Directors taking
into account such factors as corporate and individual performance and general
business conditions, including changes in the Miami-Fort Lauderdale metropolitan
area cost of living index.
4.2 Annual bonus
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During the term of employment hereunder, the Employee will be
provided an annual bonus opportunity in a target amount not less than 45% of the
then current salary, the actual amount to be paid depending upon the degree of
achievement of various objectives. The objectives for each year and other terms
and conditions of the bonus opportunity shall be established by the Board of
Directors or a committee thereof and shall be reasonably consistent with the
business plan of the Company for such year established in advance.
4.3 Employee Benefit Plans
------------------------
During the term of employment hereunder, the Employee will be
eligible to participate in all employee benefit programs of the Company now or
hereafter made available to senior executives, in accordance with the provisions
thereof as in effect from time to time; for example, to the extent made
available to senior executives of the Company from time to time, any incentive
compensation plan, profit sharing and savings or other retirement plans, stock
option and purchase plans, group life insurance, hospitalization, medical and
dental coverage, disability plans, annual physical examination, car phone,
holidays and accrued vacations. In any event, the Employee shall be entitled to
vacation days at the rate of four weeks per year or such greater amount as may
be provided by Company policies in effect from time to time.
4.4 Stock and Stock Options
--------------------------
On June 27, 1996 the Board of Directors granted to the Employee a
stock option to purchase an aggregate of 320,000 shares with an exercise price
equal to $2.10, pursuant to resolutions duly adopted. The employee was also
granted an additional stock option to purchase an aggregate of 80,000 shares
with an exercise price equal to $2.10 pursuant to resolutions duly adopted and
the terms of the Long-Term Incentive Compensation Plan for the 3-year cycle
ending June 30, 1999.
4.5 Business Expense Reimbursements
---------------------------------
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During the term of employment hereunder, the Employee will be
entitled to receive reimbursement by the Company for all reasonable
out-of-pocket expenses incurred by him (in accordance with the policies and
procedures established by the Company for its senior level executives), in
connection with his performing services hereunder.
5. Consequences of Termination of Employment
---------------------------------------------
5.1 Death
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In the event of the death of the Employee during the term of
employment hereunder, the estate or other legal representatives of the Employee
shall be entitled to continuation of the salary provided for in Section 4.1 for
a period of 12 months from the date of the Employee's death, at the rate in
effect at such date. Other rights and benefits under employee benefit plans and
programs of the Company, generally, will be determined in accordance with the
terms and provisions of such plans and programs.
5.2 Continuing Disability
----------------------
Notwithstanding anything in this Agreement to the contrary, the
Company is hereby given the option to terminate the Employee's employment in the
event of the Employee's Continuing Disability. Such option shall be exercised
by the Company by giving notice to the employee by certified mail of the
Company's intention to terminate his employment due to Continuing Disability not
earlier than 15 days from the receipt of such notice.
In the event of the termination of the Employee's employment due
to Continuing Disability, the Employee shall be entitled to compensation in
accordance with the terms of all disability plan(s) made available to the
Employee in which he is a participant at the time of such termination, if any;
provided, however, that for a period of 12 months from such date of termination,
the Employee shall receive an amount at least equal to the salary provided for
in Section 4.1 above, at the rate in effect at the time of such termination, to
the extent not provided under any such disability plan.
For purposes hereof, Continuing Disability shall mean the
inability to perform the normal activities and functions connected with the
Employee's duties hereunder, which inability shall have existed for a period of
250 days, even though not consecutive, in any 24 month period. In the event
the Employee does not agree with the Company that his inability may reasonably
be expected to exist for such period, the opinion of a qualified medical doctor
selected by the Employee and reasonably satisfactory to the Company shall be
determinative.
If, following a termination of employment hereunder due to
Continuing Disability, the Employee becomes otherwise employed (whether as an
employee, consultant or otherwise, but not solely as a member of a board of
directors), any salary or other benefits earned by him from such employment
shall be offset against comparable amounts of disability compensation due
hereunder.
5.3 Termination by the Company for Due Cause
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Nothing herein shall prevent the Company from terminating the
employment of the employee for Due Cause. The Employee shall continue to
receive salary and bonus payments provided for herein only through the period
ending with the date of such termination and any rights and benefits he may have
under employee benefit plans and programs of the Company, generally, shall be
determined in accordance with the terms of such plans and programs. The term
"Due Cause", as used herein, shall mean that (a) the Employee has committed a
willful serious act, such as embezzlement, against the Company intended to
enrich himself at the expense of the Company or has been convicted of a felony
involving moral turpitude or (b) the Employee has (i) willfully and grossly
neglected his duties hereunder or (ii) intentionally failed to observe specific
directives or policies of the Board of Directors, which directives or policies
were consistent with his positions, duties and responsibilities hereunder, and
which failure had, or continuing failure will have, a material adverse effect on
the Company. Prior to any such termination, the Employee shall be given written
notice by the Board of Directors that the Company intends to terminate his
employment for Due Cause under this Section 5.3, which written notice shall
specify the particular acts or omissions on the basis of which the Company
intends to so terminate the Employee's employment, and the Employee (with his
counsel, if he so chooses) shall be given the opportunity, within 15 days of his
receipt of such notice, to have a meeting with the Board of Directors to discuss
such acts or omissions and given reasonable time to remedy the situation. In
the event of such termination, the Employee shall be promptly furnished written
specification of the basis therefor in reasonable detail.
5.4 Termination by the Company other than for Due Cause
-----------------------------------------------------------
The foregoing notwithstanding, the Company may terminate the
Employee's employment for whatever reason it deems appropriate; provided,
however, that in the event such termination is not based on disability as
provided in Section 5.2, above, or on Due Cause as provided in Section 5.3
above, or the Employee's voluntary retirement, the Employee will be entitled to
receive Severance Compensation (as defined below) for a period of 12 months from
the date of such termination.
For purposes of the foregoing, Severance Compensation shall
consist of cash compensation, payable in equal biweekly installments (or, if
different, payable in accordance with the then existing applicable payroll
policy of the Company, but in no event less frequently than equal monthly
installments), at an annualized rate equal to (i) the Employee's salary at the
annual rate in effect, pursuant to Section 4.1 above, immediately prior to such
termination plus (ii) an amount equal to the then most recent annual bonus
payable or paid to the Employee in respect to the last bonus opportunity,
pursuant to Section 4.2 above, prior to such termination (zero if, in respect of
such opportunity, none of the target amount was achieved).
During the period for which Severance Compensation is paid
hereunder, the Employee shall be entitled to purchase shares of the Company's
common stock pursuant to offerings under an employee stock purchase plan if the
offering commenced prior to such termination of employment, provided that, if
such offering shall not have terminated during such period, any such purchase
shall not be pursuant to such plan but, for purposes of price and other terms,
shall be effected as though the offering terminated on the last day of such
period.
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Although the Employee shall be under no obligation to seek
subsequent employment, any compensation earned by the Employee from such
employment (whether as an employee, consultant or otherwise, but not solely as a
member of a board of directors) during the period for which Severance
Compensation is payable hereunder shall reduce the amounts of Severance
Compensation due hereunder by $1 for every $2 in subsequent employment
compensation.
During the period beginning with the Employee's termination and
continuing through the period for which Severance Compensation is paid
hereunder, the Company will use its best efforts to continue the Employee's
existing coverage under its group life insurance, hospitalization, medical and
dental plans. To the extent he is not eligible under the terms of one or more of
such plans and programs, the Company will provide the Employee with the economic
equivalent. For this purpose, "economic equivalent" shall mean the cost the
Employee would incur if he were to provide himself with a benefit comparable to
the reduced or eliminated benefit. The amount paid the Employee to provide the
economic equivalent will be "grossed-up" (that is, the amount necessary to make
the Employee whole after taking into account (i) the cost of the benefit and
(ii) additional income taxes, if any, incurred by the employee on amounts paid
to him pursuant to this sentence).
The foregoing notwithstanding, upon a termination triggering
Severance Compensation payments hereunder the Company shall be under no
obligation to continue the Employee's coverage under any long term disability
plan or program; and the date of such termination shall be considered a
termination for purposes of participation in the Company's Retirement Savings
Plan.
In addition to the foregoing, the Employee shall be entitled to
(i) one "annual" executive physical during the Severance Compensation period in
accordance with the normal schedule for annual physicals and (ii) payment for
accrued but unused vacation through the date of such termination payable within
30 days and based on his annual base salary in effect as of such date, and the
Company at its expense shall retain an outplacement organization to provide the
following services to the Employee during the period for which Severance
Compensation is paid hereunder: psychological and skills/preference testing and
counseling; career assessment and objectives counseling; assessment/interview
training; resume and cover letter preparation; network training; financial
planning and counseling; the use of an office and a telephone and secretarial
assistance; and such other outplacement services typical for persons in senior
executive positions.
Except as specifically set forth in this Section 5.4, the
Employee shall not be entitled to any other compensation or benefits, and shall
not be deemed an employee of the Company for any purpose, following a
termination of employment by the Company as provided in this Section 5.4.
5.5 Constructive Termination of Employment by the Company without
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Due Cause
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Anything herein to the contrary notwithstanding, if the Company:
(A) demotes or otherwise elects or appoints the Employee to
lesser offices than set forth in Section 3.1 or fails to elect or appoint him to
such positions;
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(B) causes a material change in the nature or scope of the
authorities, powers, functions, duties or responsibilities attached to the
Employee's positions as described in Section 3.1;
(C) decreases the Employee's compensation below the levels
provided for by the terms of Section 4 (taking into account increases made from
time to time in accordance with Section 4);
(D) materially reduces the Employee's benefits under any
employee benefit plan, program, or arrangement of the Company (other than a
change that affects all employees similarly situated) from the level in effect
upon the Employee's commencement of participation; or
(E) commits any other material breach of this Agreement; then
such action (or inaction) by the Company, unless consented to in writing by the
Employee, shall constitute a termination of the Employee's employment by the
Company other than for Due Cause pursuant to Section 5.4 above. If, within
thirty (30) days of learning of the action (or inaction) described herein as a
basis for a constructive termination of employment, the Employee (unless he has
given written consent thereto) advises the Company in writing that he wishes to
effect a constructive termination of his employment pursuant to this Section
5.5, and such action (or inaction) is not reversed within 30 days following
receipt by the Company of such written advice, then, effective at the end of
such second 30 day period, the employment of the Employee hereunder shall be
deemed to have terminated pursuant to Section 5.4 above.
5.6 Voluntary Termination
----------------------
In the event the Employee terminates his employment of his own
volition (other than as provided in Section 5.5 above), such termination shall
constitute a voluntary termination and in such event the Employee shall be
limited to the same rights and benefits as provided in connection with
termination for Due Cause under the second sentence of Section 5.3 above. For
the purposes hereof, a decision by the Employee to voluntarily retire shall
constitute a voluntary termination.
6. Non-Compete and Confidential Information
-------------------------------------------
The Company and the Employee will enter into a non-compete and
confidentiality agreement substantially in the form attached as Exhibit A
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hereto.
7. Successors and Assigns
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7.1 Assignment by the Company
----------------------------
This Agreement shall be binding upon and inure to the benefit of
the Company or any corporation or other entity to which the Company may transfer
all or substantially all its assets and business and to which the Company may
assign this Agreement, in which case "Company" as used herein shall mean such
corporation or other entity.
7.2 Assignment by the Employee
-----------------------------
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The Employee may not assign this Agreement or any part thereof
without the prior written consent of the Company, which consent may be withheld
by the Company for any reason it deems appropriate; provided, however, nothing
herein shall preclude the Employee from designating one or more beneficiaries to
receive any amount that may be payable following the occurrence of his legal
incompetency or his death and shall not preclude the legal representative of his
estate from assigning any right hereunder to the person or persons entitled
thereto under his will or, in the case of intestacy, to the person or persons
entitled thereto under the laws of intestacy applicable to his estate. The term
"beneficiaries", as used in this Agreement, shall mean a beneficiary or
beneficiaries so designated to receive any such amount or if no beneficiary has
been so designated the legal representative of the Employee (in the event of his
incompetency) or the Employee's estate.
8. Arbitration
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Any dispute or controversy under or in connection with this Agreement
shall be settled exclusively by arbitration in Florida by one arbitrator in
accordance with the labor arbitration rules of the American Arbitration
Association then in effect. The arbitrator's award may include the manner in
which fees of counsel and other expenses in connection with the dispute or
controversy are to be borne. The arbitrator's authority and jurisdiction is
limited to interpreting and applying the express provisions of this agreement
and the arbitrator shall not have the authority to alter or add to the
provisions of this agreement. Judgment may be entered upon the arbitrator's
award in any court having jurisdiction.
9. Governing Law
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This Agreement shall be deemed a contract made under, and for all
purposes shall be construed in accordance with, the laws of the State of Florida
without reference to the principles of conflicts of law.
10. Entire Agreement
-----------------
This Agreement contains all the understandings and representations
between the parties hereto pertaining to the subject matter hereof and
supersedes all undertakings and agreements, whether oral or in writing, if any
there be, previously entered into by them with respect thereto.
11. Amendment or Modification; Waiver
------------------------------------
No provision in this Agreement may be amended or waived unless such
amendment or waiver is agreed to in writing, signed by the Employee and an
officer of the Company thereunto duly authorized. Except as otherwise
specifically provided in the Agreement, no waiver by any party hereto of any
breach by another party hereto of any condition or provision of the Agreement to
be performed by such other party shall be deemed a waiver of a similar or
dissimilar provision or condition at the same or any prior or subsequent time.
12. Notices
-------
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Any notice to be given hereunder shall be in writing and delivered
personally or sent by certified mail, postage prepaid, return receipt requested,
addressed to the party concerned at the address indicated below or to such other
address as such party may subsequently give notice of hereunder in writing:
COMPANY: Concurrent Computer Corporation
0000 X. Xxxxxxx Xxxxx Xxxx
Xx. Xxxxxxxxxx, XX 00000
Attn: Chief Executive Officer
With a copy to:
General Counsel
Concurrent Computer Corporation
0000 X. Xxxxxxx Xxxxx Xxxx
Xx. Xxxxxxxxxx, XX 00000
EMPLOYEE: Xxxxxx X. Xxxxxx
0000 X.X. 000 Xxxxx
Xxxxx Xxxxxxx, XX 00000
13. Severability
------------
In the event that any provision or portion of the Agreement shall be
determined to be invalid or unenforceable for any reason, the remaining
provisions or portions of the Agreement shall be unaffected thereby and shall
remain in full force and effect to the fullest extent permitted by law.
14. Withholding
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Anything to the contrary notwithstanding, all payments required to be
made by the Company hereunder to the Employee or his estate or beneficiaries,
shall be subject to withholding of such amounts relating to taxes as the Company
may reasonably determine it should withhold pursuant to any applicable law or
regulation. In lieu of withholding such amounts, in whole or in part, the
Company may, in its sole discretion, accept other provision for payment of taxes
as required by law, provided it is satisfied that all requirements of law
affecting its responsibilities to withhold such taxes have been satisfied.
15. Survivorship
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The respective rights and obligations of the parties hereunder shall
survive any termination of this Agreement to the extent necessary to the
intended preservation of such rights and obligations.
16. References
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In the event of the Employee's death or judicial determination of his
incompetence, reference in the Agreement to the Employee shall be deemed, where
appropriate, to refer to his legal representatives, or, where appropriate, to
his beneficiary or beneficiaries.
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17. Titles
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Titles to the sections in this Agreement are intended solely for
convenience and no provision of the Agreement is to be construed by reference to
the title of any section.
18. Counterparts
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This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original but all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
CONCURRENT COMPUTER CORPORATION
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Xxxxx X. Xxxx
Vice President, General Counsel and
Secretary
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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Exhibit 10.13
Exhibit A
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NON-COMPETE AND CONFIDENTIALITY AGREEMENT
-----------------------------------------
I, the undersigned, in consideration of and as a condition to my employment
by Concurrent Computer Corporation (the "Company), do hereby agree with the
Company as follows:
1. Competition. During the period of my employment by the Company, I
------------
will devote my full time and best efforts to the business of the Company and I
will not, directly or indirectly, alone or as a partner, officer, director,
employee or holder of more than 5% of the common stock of any other
organization, engage in any business activity which competes directly or
indirectly with the products or services being developed, manufactured or sold
by the Company. I also agree that, following any termination of such
employment, I will not, for any periods in respect of which I receive
compensation continuation payments from the Company and, if longer, but only
with respect to (b) below, for a period of one year after such termination, (a)
solicit or seek to obtain orders for any products or services similar to those
being developed, manufactured or sold by the Company from any person or
organization that is or was a customer of the Company or (b) recruit or
otherwise seek to induce employees of the Company to terminate their employment
or violate any agreement with the Company.
2. Confidential Information. Except as may be required in the
--------------------------
performance of my duties with the Company, or as may be necessary to comply with
any order or decree issues by a court having competent jurisdiction, I will not
at any time, whether during or after termination of my employment with the
Company, reveal to any person or organization any of the trade secrets or
confidential information of the Company, and I will not use or attempt to use
any such information in any manner that may directly or indirectly injure or
cause loss to the Company. All information concerning the business of the
Company, including technical, financial and business information, shall be
considered confidential unless it is or becomes
publicly available through no fault of mine or unless it is disclosed by the
Company to third parties without similar restrictions.
Further, I agree that any and all documents, notes, or memoranda prepared
by me or others and containing trade secrets or confidential information shall
be and remain the sole and exclusive property of the Company, and that upon
termination of my employment I will immediately deliver all of such documents,
notes or memoranda, including all copies, to the Company at its main office.
3. Inventions and Copyrights. If at any time or times during my
----------------------------
employment (or within six months thereafter if based on confidential information
within the meaning of Paragraph 2 above), I make or discover, either alone or
with others, any invention, modification, development, improvement, process or
secret, whether or not patented or patentable (collectively, "inventions") in
the field of computer science or instrumentation, I will disclose in reasonable
detail the nature of such invention to the Company in writing, and if it relates
to the business of the Company or any of the products or services being
developed, manufactured or sold by the Company, such invention and the benefits
thereof shall immediately become the sole and absolute property of the Company
provided the Company notifies me in reasonable detail within 90 days after
receipt of my disclosure of such invention that it believes such invention
relates to the business of the Company or any of the products or services being
developed, manufactured or sold by the Company. I also agree to transfer such
inventions and benefits and rights resulting from such inventions to the Company
without compensation and will communicate without cost, delay or prior
publications all available information relating to the inventions to the
Company. At the Company's expense I will also, whether before or after
termination of my employment, sign all documents (including patent applications)
and do all acts and things that the Company may deem necessary or desirable to
effect the full assignment to the Company of my right and title to the
inventions or necessary to defend any opposition thereto. I also agree to
assign to the Company all copyrights and reproduction rights to any materials
prepared by me in connection with my employment.
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4. Conflicting Agreements. I represent that I have attached to this
------------------------
Agreement a copy of any agreement which presently affects my ability to comply
with the terms of this Agreement, and that to the best of my knowledge my
employment with the Company will not conflict with any agreement to which I am
subject. I have returned all documents and materials belonging to any of my
former employers. I will not disclose to the Company or induce any of the
Company's employees to use confidential information of any of my former
employers.
5. Miscellaneous.
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(a) I hereby give the Company permission to use photographs of me,
during my employment, with or without using my name, for any purposes the
Company deems necessary or desirable.
(b) The Company shall have, in addition to any and all remedies of
law, the right to an injunction, specific performance and other equitable relief
as may be appropriate to prevent the violation of my obligations hereunder.
(c) I understand that this Agreement does not create an obligation
on the Company or any other person to continue my employment.
(d) This Agreement shall be construed in accordance with the laws
of the State of Florida. I agree that each provision of this Agreement shall be
treated as a separate and independent clause, and the unenforceability of any
clause shall in no way impair the enforceability of any of the other clauses.
Moreover, if one or more of the provisions contained in this Agreement shall for
any reason be held to be extensively broad as to scope, activity, geographical
area or subject so as to be unenforceable at law, such provision or provisions
shall be construed by the appropriate judicial body by limiting and reducing it
or them so as to be enforceable to the extent compatible with applicable law as
it shall then appear.
(e) My obligations under this Agreement shall survive the
termination of my employment regardless of the manner of such termination for
the time periods set forth in
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paragraphs 1 and 3, above, with respect to the matters covered therein and shall
be binding upon my heirs, executors and administrators.
(f) The term "Company" as used in this Agreement includes
Concurrent Computer Corporation and any of its subdivisions or affiliates. The
Company shall have the right to assign this Agreement to its successors and
assigns.
(g) The foregoing is the entire agreement between the Company and
me with regard to its subject matter, and may not be amended or supplemented
except by a written instrument signed by both the Company and me. The section
headings are inserted for convenience only, and are not intended to affect the
meaning of this Agreement.
---------------------------------
Xxxxxx X. Xxxxxx
Date:
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