EXE TECHNOLOGIES, INC.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of the 16th day of February, 1998
by and between Xxxxxx Xxxxxx, a resident of the state of Texas (the
"Employee"), and EXE Technologies, Inc., a corporation organized and existing
under the laws of the State of Delaware (the "Company").
WHEREAS, the Company is engaged in the business of providing supply
chain execution software and related services to the warehouse, distribution
and logistics industries worldwide (the "Business"); and
WHEREAS, the Company desires to employ the Employee and the Employee
desire.a to be employed by the Company for a period of time in the future
upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
contained herein, and intending to be legally bound, the parties, subject to
the terms and conditions set forth herein, agree as follows:
1. EMPLOYMENT AND TERM.
(a) The Company hereby employs the Employee and the Employee
hereby accepts employment with the Company for the position detailed in
Schedule A attached hereto (the "Position"), for a period of one (1) year
from the date of this Agreement (the "Initial Term"). During the Initial
Term, the Employee shall also be a member of the Executive Committee
appointed by the Board of Directors.
(b) At the end of the Initial Term, this Agreement shall
automatically renew for successive additional periods of one (1) year, unless
either party provides written notice to the other party at least ninety (90)
days prior to the expiration of the Initial Term or any such renewal period
indicating the notifying party's election not to renew this Agreement. The
Initial Term of employment and any renewal periods hereunder, subject to the
provisions of Section 8 hereof, are hereinafter referred to as the "Term."
2. DUTIES. During the Term, the Employee shall serve the Company
faithfully and to the best of his ability and shall devote his full time,
attention, skill and efforts to the performance of the duties required by or
appropriate for the Position. The Employee shall assume such duties and
responsibilities as may be customarily incident to such a position, and such
additional and other duties as may be assigned to the Employee from time to
time by the Chief Executive Officer or the Board of Directors of the Company
(the "Board"), including, without limitation, the duties and responsibilities
set forth in SCHEDULE A attached hereto. The Employee shall report to the
Reporting Manager designated in SCHEDULE A attached hereto.
3. OTHER BUSINESS ACTIVITIES. During the Term, the Employee shall not,
without the prior written consent of the Company in its sole discretion,
directly or indirectly engage in any other business activities or pursuits
whatsoever, except activities in connection with charitable or civic
activities, personal investments and serving as an executor, trustee or in
other similar fiduciary capacity; provided that such activities do not
interfere with his performance of his responsibilities and obligations
pursuant to this Agreement.
4. COMPENSATION. The Company shall pay the Employee, and the Employee
hereby agrees to accept, as compensation for all services rendered hereunder
and for the Employee's intellectual property covenants and assignments and
covenant not to compete as provided for in Sections 6 and 7 hereof, the
compensation set forth in this Section 4.
4.1 SALARY. The Company shall pay the Employee an initial base
salary at the annual rate detailed in Schedule A attached hereto (the "Base
Salary"). The Base Salary shall be inclusive of all applicable income, social
security and other taxes and charges that are required by law to be withheld
by the Company, or are requested to be withheld by the Employee. The Base
Salary shall be withheld and paid in accordance with the Company's normal
payroll practice for its similarly situated employees from time to time in
effect. The Base Salary may be increased from time to time by the
Compensation Committee of the Company in its sole discretion.
4.2 INCENTIVE COMPENSATION PROGRAM.
(a) The Employee shall be entitled to participate in the
incentive compensation program that will be established by the Company (the
"Incentive Program") pursuant to which the Board may award bonuses to
executive employees, based upon the achievement of written individual and
corporate objectives determined by the Board annually. The Employee shall be
eligible to receive under the
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Incentive Compensation Program up to Two Hundred Fifty Thousand Dollars
($250,000) or more annually as determined by the Board.
(b) During the Initial Term, the Employee shall receive in
addition to-the Base Salary, a non-refundable draw against any amounts due to
the Employee under Section 4.2(a). Such draw shall be in the amount of Two
Hundred Fifty Thousand Dollars ($250,000) and shall be payable in
installments similar to the payment of the Base Salary.
4.3 EQUITY PARTICIPATION.
(a) The Company shall grant to the Employee an initial stock
option to purchase Three Hundred Thousand (300,000) shares of the Class B
Common Stock, par value $.01 per share, of the Company ("Class B Common
Stock") (the "Initial Option"). The Initial Option shall vest in accordance
with the schedule set for on SCHEDULE B, and shall be an incentive stock
option to the extent allowed by the vesting schedule. The exercise price of
the Initial Option shall be Two Dollars ($2.00) per share, which is the fair
market value of the Class B Common Stock on the date of this Agreement as
determined by the Board. The Initial Option shall be subject to and in
accordance with the provisions of the 1997 Stock Option Plan of the Company,
as amended (the "Plan"), substantially in the form attached hereto as part of
SCHEDULE B.
(b) The Company shall grant to the Employee an additional
non-qualified stock option under the Plan to purchase up to Three Hundred
Thousand (300,000) shares of Class B Common Stock (the "Incentive-Based
Option"). The Incentive-Based Option shall vest in full on the fifth
anniversary of this Agreement, unless such option vests earlier pursuant to
the terms set forth on SCHEDULE B. The exercise price of the Incentive-Based
Option shall be Two Dollars ($2.00) per share.
(c) Notwithstanding the foregoing, one hundred percent (100%)
of the Employee's then remaining unvested options shall become vested upon
the occurrence of the acquisition of a majority of the capital stock of the
Company by an unrelated third party by way of merger, sale of assets, or sale
of capital stock of the Company that results in a change of the Company's
Chief Executive Officer within a period of 18 months following the
transaction.
(d) All shares of Class B Common Stock issued under the
either the Initial Option or the Incentive-Based Option shall be subject to
the terms and provisions of a Stock Purchase and Restriction Agreement as
required by the Plan.
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(e) During the sixty (60) day period following the effective
date of this Agreement, the Employee shall have the right to purchase up to
One Hundred Thousand (100,000) shares of the Company's Class A Common Stock,
par value $.01 per share, at a purchase price of Three Dollars ($3.00) per
share. The Employee may exercise such right by delivering a letter to the
Chief Financial Officer of the Company specifying the number of shares to be
purchased, accompanied by a check payable to the Company for the full
purchase price for the shares to be purchased.
4.4 FRINGE BENEFITS. The Employee shall be entitled to
participate in any health or dental programs or other non-salary
consideration (disability, vacation, sick leave) as are Company standard.
Such programs are described in SCHEDULE C attached hereto.
4.5 REIMBURSEMENT OF EXPENSES. The Employee shall be reimbursed
for all normal items of travel and entertainment and miscellaneous expenses
reasonably incurred by the Employee on behalf of the Company, provided that
such expenses are documented and submitted to the Company all in accordance
with the reimbursement policies of the Company as in effect from time to time.
4.6 REIMBURSEMENT OF CERTAIN RELOCATION EXPENSES. In the event
that the Employee's prior employer demands repayment by the Employee of the
prior employer's relocation payment, the Company will reimburse to the
Employee the amount of such repayment. If the Employee terminates his
employment with the Company prior to the first anniversary of the
Commencement Date, then such advance shall reduce the amount of the incentive
compensation payable pursuant to Section 4.2(a) and the draw payable pursuant
to Section 4.2(b).
5. CONFIDENTIALITY. The Employee recognizes and acknowledges that the
Proprietary Information (as hereinafter defined) is a valuable, proprietary
and unique asset of the Company. As a result, both during the Term and for a
period of five (5) years thereafter, the Employee shall not, without the
prior written consent of the Company, for any reason either directly or
indirectly divulge to any third-party or use for the Employee's own benefit,
or for any purpose other than the exclusive benefit of the Company, any
confidential, proprietary, business and technical information or trade
secrets of the Company or of any subsidiary or affiliate of the Company (the
"Proprietary Information") revealed, obtained or developed in the course of
the Employee's employment with the Company. Proprietary Information shall
include, but shall not be limited to: the intangible personal property
described in Section 6(b) hereof; any information relating to methods of
production, manufacture and research; hardware
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and software configurations, computer codes or instructions (including source
and object code listings, program logic algorithms, subroutines, modules or
other subparts of computer programs and related documentation, including
program notation), computer inputs and outputs (regardless of the media on
which stored or located) and computer.processing systems, techniques,
designs, architecture, and interfaces; the identities of, the Company's
relationship with, the terms of contracts and agreements with, the needs and
requirements of, and the Company's course of dealing with, the Company's
actual and prospective customers, contractors and suppliers; and any other
materials prepared by the Employee in the course of the Employee's employment
by the Company, or prepared by any other employee or contractor of the
Company for the Company or its customers, (including concepts, layouts, flow
charts, specifications, know-how, user or service manuals, plans, sketches,
blueprints, costs, business studies, business procedures, finances, marketing
data, methods, plans, personnel information, customer and vendor credit
information and any other materials that have not been made available to the
general public). Nothing contained herein shall restrict the Employee's
ability to make such disclosures during the course of the Employee's
employment as may be necessary or appropriate to the effective and efficient
discharge of the duties required by or appropriate for the Position or as
such disclosures may be required by law. Furthermore, nothing contained
herein shall restrict the Employee from divulging or using for the Employee's
own benefit or for any other purpose any Proprietary Information that is
readily available to the general public so long as such information did not
become available to the general public as a direct or indirect result of the
Employee's breach of this Section 5. Failure by the Company to xxxx any of
the Proprietary Information as confidential or proprietary shall not affect
its status as Proprietary Information under the terms of this Agreement.
6. PROPERTY.
(a) All right, title and interest in and to Proprietary
Information shall be and remain the sole and exclusive property of the
Company. During the Term, the Employee shall not remove from the Company's
offices or premises any documents, records, notebooks, files, correspondence,
reports, memoranda or similar materials of or containing Proprietary
Information, or other materials or property of any kind belonging to the
Company unless necessary or appropriate in accordance with the duties and
responsibilities required by or appropriate for the Position and, in the
event that such materials or property are removed, all of the foregoing shall
be returned to their proper files or places of safekeeping as promptly as
possible after the removal shall serve its specific purpose. The Employee
shall not make, retain, remove and/or distribute any copies of any of the
foregoing for any reason whatsoever, except as may be necessary in the
discharge of the assigned duties, and shall not divulge to any third
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person the nature of and/or contents of any of the foregoing or of any other
oral or written information to which the Employee may have access or with
which for any reason the Employee may become familiar, except as disclosure
shall be necessary in the performance of the duties; and upon the termination
of the Employee's employment with the Company, the Employee shall return to
the Company all originals and copies of the foregoing then in the possession,
whether prepared by the Employee or by others.
(b) (i) The Employee acknowledges that all right, title and
interest in and to any and all writings, documents, inventions, discoveries,
computer programs or instructions (whether in source code, object code, or
any other form), algorithms, formulae, plans, memoranda, tests, research,
designs, innovations, systems, analyses, specifications, models, data,
diagrams, flow charts, and/or techniques (whether reduced to written or
electronic form or otherwise) that the Employee creates, makes, conceives,
discovers or develops, either solely or jointly with any other person, at any
time during the Term, whether during working hours or at the Company's
facility or at any other time or location, and whether upon the request or
suggestion of the Company or otherwise, and that relate to or are useful in
any way in connection with the Business now or hereafter carried on by the
Company (collectively, "Intellectual Work Product") shall be the sole and
exclusive property of the Company. The Employee shall promptly disclose to
the Company all Intellectual Work Product, and the Employee shall have no
claim for additional compensation for the Intellectual Work Product.
(ii) The Employee acknowledges that all the Intellectual Work
Product that is copyrightable shall be considered a work made for hire under
United States Copyright Law. To the extent that any copyrightable
Intellectual Work Product may not be considered a work made for hire under
the applicable provisions of the United States Copyright Law, or to the
extent that, notwithstanding the foregoing provisions, the Employee may
retain an interest in any Intellectual Work Product that is not
copyrightable, the Employee hereby irrevocably assigns and transfers to the
Company any and all right, title, or interest that the Employee may have in
the Intellectual Work Product under copyright, patent, trade secret,
trademark and other intellectual property laws, in perpetuity or for the
longest period otherwise permitted by law, without' the necessity of further
consideration. The Company shall be entitled to obtain and hold in its own
name all copyrights, patents, trade secrets, and trademarks with respect
thereto.
(iii) The Employee shall reveal promptly all information relating
to the Intellectual Work Product to an appropriate officer of the Company,
cooperate with the Company and execute such documents as may be necessary or
appropriate (A) in the event that the Company desires to seek copyright,
patent, trademark or other
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analogous protection thereafter relating to the Intellectual Work Product,
and when such protection is obtained, to renew and restore the same, or (B)
to defend any opposition proceedings in respect of obtaining and maintaining
such copyright, patent, trademark or other analogous protection.
(iv) ln the event that the Company is unable after reasonable
effort to secure the Employee's signature on any of the documents referenced
in Section 6(b)(iii) hereof, whether because of the Employee's physical or
mental incapacity or for any other reason whatsoever, the Employee hereby
irrevocably designates and appoints the Company and its duly authorized
officers and agents as the Employee's agent and attorney-in-fact, to act for
and in the Employee's behalf and stead to execute and file any such documents
and to do all other lawfully permitted acts to further the prosecution and
issuance of any such copyright, patent, trademark or other analogous
protection with the same legal force and effect as if executed by the
Employee.
(v) The Employee represents that the innovations, designs, systems,
analyses, ideas for marketing programs, and all copyrights, patents,
trademarks and trade names, or similar intangible personal property
identified on SCHEDULE D hereof comprises all of the innovations, designs,
systems, analyses, ideas for marketing programs, and all copyrights, patents,
trademarks and trade names, or similar intangible personal property that the
Employee has made or conceived of prior to the date hereof, and same are
excluded from the operation of the other provisions of this Section 6(b).
7. COVENANT NOT TO COMPETE.
(a) The Employee shall not, anywhere in the world, during the Term
and for a period of two (2) years thereafter (the "Restricted Period"), do
any of the following directly or indirectly without the prior written consent
of the Company in its sole discretion:
(i) engage or participate in business of developing and/or
selling supply chain execution software, other than with the Company;
(ii) become interested (as owner, proprietor, promoter,
stockholder, lender, partner, co-venturer, director, officer, employee,
agent, consultant or otherwise) in any person, firm, corporation, association
or other entity engaged in any business that is competitive with the Business
or of the business of any subsidiary or affiliate of the Company as conducted
during the Term, or become interested in (as
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owner, stockholder, lender, partner, co-venturer, director, officer,
employee, agent, consultant or otherwise) any portion of the business of any
person, firm, corporation, association or other entity where such portion of
such business is competitive with the Business of the Company or the business
of any subsidiary or affiliate of the Company as conducted during the Term
(notwithstanding the foregoing, the Employee may hold not more than one
percent (1%) of the outstanding securities of any class of any
publicly-traded securities of a company that is engaged in business activity
competitive with the Business or the business of any of the Company's
subsidiaries or affiliates as conducted during the Term);
(iii) solicit or call on for a purpose competitive with the
Business, either directly or indirectly, any (A) customer with whom the
Company shall have dealt at any time during the two (2) year period
immediately preceding the termination of the Employee's employment hereunder,
or (B) supplier or distributor with whom the Company shall have dealt at any
time during the two (2) year period immediately preceding the termination of
the Employee's employment hereunder;
(iv) influence or attempt to influence any supplier,
distributor, customer or potential customer of the Company to terminate or
modify any written or oral agreement or course of dealing with the Company; or
(v) influence or attempt to influence any person either (A)
to terminate or modify the employment, consulting, agency, distributorship or
other arrangement with the Company, or (B) to employ or retain, or arrange to
have any other person or entity employ or retain, any person who has been
employed or retained by the Company as an employee, consultant, agent or
distributor of the Company at any time during the twelve (12) month period
immediately preceding the termination of the Employee's employment hereunder.
(b) The Employee hereby acknowledges that the limitations as to time,
character or nature and geographic scope placed on the Employee's subsequent
employment by this Section 7 are reasonable and fair and will not prevent or
materially impair the Employee's ability to earn a livelihood.
8. TERMINATION OF EMPLOYMENT. The Employee's employment hereunder may
be terminated upon the occurrence of any one of the events described in this
Section 8 or pursuant to a non-renewal of the Agreement under Section 1(b)
hereof. Upon termination of the Employee's employment, the Employee shall be
entitled only to such compensation and benefits as described in this Section
8.
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8.1 TERMINATION FOR DISABILITY.
(a) In the event of the disability of the Employee such that the
Employee is unable to perform the duties and responsibilities hereunder to
the full extent required by this Agreement by reasons of illness, injury or
incapacity for a period of more than sixty (60) consecutive days or more than
forty-five (45) days, in the aggregate, during any ninety (90) day period
("Disability"), the Employee's employment hereunder may be terminated by the
Company.
(b) In the event of a termination of the Employee's employment
hereunder pursuant to Section 8.1(a), the Employee will be entitled to
receive all accrued and unpaid (as of the date of such termination) Base
Salary and other forms of compensation and benefits payable or provided in
accordance with the terms of any then existing compensation or benefit plan
or arrangement, including payment prescribed under and disability of life
insurance plan or arrangement in which he is a participant or to which he is
a party as an employee of the Company; provided that the Employee has
complied with all of his obligations under this Agreement and continues to
comply with all of his surviving obligations hereunder listed in Section 10.
Except as specifically set forth in this Section 8.1(b), the Company shall
have no liability or obligation to the Employee for compensation or benefits
hereunder by reason of such termination.
8.2 TERMINATION BY DEATH. In the event that the Employee dies
during the Term, the Employee's employment hereunder shall be terminated
thereby and the Company shall pay to the Employee's executors, legal
representatives or administrators an amount equal to: the accrued and unpaid
portion of the Base Salary and other compensation for the month in which he
dies. Except as specifically set forth in this Section 8.2, the Company shall
have no liability or obligation hereunder to the Employee's executors, legal
representatives, administrators, heirs or assigns or any other person
claiming under or through him by reason of the Employee's death, except that
the Employee's executors, legal representatives or administrators will be
entitled to receive the payment prescribed under any death or disability
benefits plan in which he is a participant as an employee of the Company, and
to exercise any rights afforded under any compensation or benefit plan then
in effect.
8.3 TERMINATION FOR CAUSE.
(a) The Company may terminate the Employee's employment
hereunder at any time for "cause" upon written notice to the Employee. For
purposes of this Agreement, "cause" shall mean:
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(i) any material breach by the Employee of any of his
obligations under this Agreement;
(ii) failure by the Employee to perform satisfactorily the
duties required by or appropriate for the Position, as determined by the
President of the Company or the Board in his or its sole and reasonable
discretion;
(iii) conduct of the Employee involving any type of disloyalty
to the Company or willful misconduct with respect to the Company, including
without limitation fraud, embezzlement, theft or proven dishonesty in the
course of the employment, or any attempt by the Employee to secure any
personal profit related to the Business and the business opportunities of the
Company without the informed prior approval of the Board of Directors;
(iv) conviction of a felony;
(v) commission by the Employee of an intentional tort (i.e.,
assault, battery, false imprisonment, intentional infliction of emotional
distress, trespass to real or personal property or conversion) or an act
involving moral turpitude or constituting fraud; or
(vi) habitual alcohol or substance abuse or addiction.
(b) In the event of a termination of the Employee's employment
hereunder pursuant to Section 8.3(a), the Employee shall be entitled to
receive all accrued but unpaid (as of the effective date of such termination)
Base Salary, benefits and bonuses. All Base Salary, benefits and bonuses
shall cease at the time of such termination, subject to the terms of any
benefit or compensation plan then in force and applicable to the Employee. In
the event of a termination of the Employee's employment hereunder pursuant to
Sections 8.3(a) (iii), (iv), (v) or (vi), any options to purchase the
Company's common stock issued to Employee, including any vested or unvested
portion thereof, shall be canceled at the time of such termination, and the
Employee shall not be entitled to exercise any such options. Except as
specifically set forth in this Section 8.3, the Company shall have no
liability or obligation hereunder by reason of such termination.
8.4 TERMINATION WITHOUT CAUSE.
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(a) The Company may terminate the Employee's employment hereunder
at any time during the Term, for any reason, without cause, effective upon
the date designated by the Company upon thirty (30) days written notice to
the Employee.
(b) ln the event of a termination of the Employee's employment
hereunder pursuant to Section 8.4(a), the Employee shall be entitled to
receive an amount equal to any unpaid Base Salary plus any unpaid
Non-recoverable Draw against the Incentive Compensation pursuant to Schedule
A. The amounts to be paid to Employee hereunder shall be paid in accordance
with the Company's normal payroll and incentive compensation distribution
cycle then in effect. Employee acknowledges that, as a condition to receiving
any severance payments hereunder, Employee must complete in good faith such
employee exit forms then in use by the Company at the time Employee's
employment is terminated and acknowledge in writing on such forms then in use
by the Company, Employee's obligations to the Company including, but not
limited to, Employee's obligations with respect to confidentiality and
Company property set forth in Sections 5 and 6 hereof and Employee's
obligations with respect to the Covenant not to Compete set forth in Section
7 hereof. All benefits and unguaranteed incentive compensation shall cease at
the time of such termination, subject to the terms of any benefit or
compensation plan then in force and applicable to the Employee. Except as
specifically set forth in this Section 8.4, the Company shall have no
liability or obligation hereunder by reason of such termination.
8.5 NON-RENEWAL BY EITHER PARTY.
In the event of a non-renewal of the Agreement by either party pursuant
to Section 1(b) hereof, the Employee shall be eligible to receive an amount
equal to: (i) one (1) week's Base Salary for every year of employment with
EXE up to five (5) years; and (ii) two (2) week's Base Salary for every year
of employment with EXE over five (5) years. The amounts to be paid to
Employee hereunder shall be payable in twelve (12) equal monthly installments
in accordance with the Company's severance payment plan then in effect, if
any, at the time the Employee's employment ceases; provided that, if the
Employee obtains other employment during the twelve (12) month period
following non-renewal, then the Company shall only be obligated to pay the
Employee the difference between the monthly installments provided for in this
Section 8.5 and the monthly salary the Employee shall receive from his new
employer during such period of employment. Employee acknowledges that, as a
condition to participation in such severance plan, Employee must complete in
good faith such employee exit forms then in use by the Company at the time
Employee's employment is terminated and acknowledge in writing on such forms
then in use by the Company,
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Employee's obligations to the Company including, but not limited to,
Employee's obligations with respect to confidentiality and Company property
set forth in Sections 5 and 6 hereof and Employee's obligations with respect
to the Covenant not to Compete set forth in Section 7 hereof. All Base
Salary, benefits and bonuses shall cease at the time of such termination,
subject to the terms of any benefit or compensation plan then in force and
applicable to the Employee. Except as specifically set forth in this Section
8.5, the Company shall have no liability or obligation hereunder by reason of
such termination.
8.6 OPTIONS; REPURCHASE OF SHARES.
Upon the termination of the Employee's employment pursuant to Section 8
other than under Section 8.3, all further vesting on all stock options and/or
restricted stock in the Company held by the Employee shall immediately cease
as of such date and thereafter any vested stock options shall be exercisable
and any restricted stock or other equity securities held by the Employee
shall be subject to repurchase by the Company in accordance with their
respective terms and the terms of any related agreements between the Company
and the Employee.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE EMPLOYEE.
(a) The Employee represents and warrants to the Company that:
(i) There are no restrictions, agreements or understandings
whatsoever to which the Employee is a party which would prevent or make
unlawful the Employee's execution of this Agreement or the Employee's
employment hereunder, or which is or would be inconsistent or in conflict
with this Agreement or the Employee's employment hereunder, or would prevent,
limit or impair in any way the performance by the Employee of the obligations
hereunder; and
(ii) The Employee has disclosed to the Company all restraints,
confidentiality commitments or other employment restrictions that the
Employee has with any other employer, person or entity.
(b) Upon and after the Employee's termination or cessation of
employment with the Company and until such time as no obligations of the
Employee to the Company hereunder exist, the Employee (i) shall provide a
complete copy of this Agreement to any prospective employer or other person,
entity or association in the Business, with whom or which the Employee
proposes to be employed, affiliated,
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engaged, associated or to establish any business or remunerative relationship
prior to the commencement thereof and (ii) shall notify the Company of the
name and address of any such person, entity or association prior to the
Employee's employment, affiliation, engagement, association or the
establishment of any business or remunerative relationship.
10. SURVIVAL OF PROVISIONS. The provisions of this Agreement set forth
in Sections 5 through 20 hereof shall survive the termination of the
Employee's employment hereunder in accordance with their respective terms.
11. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the Company and the Employee and their respective
successors, executors, administrators, heirs and/or permitted assigns;
provided that neither the Employee nor the Company may make any assignments
of this Agreement or any interest herein, by operation of law or otherwise,
without the prior written consent of the other parties hereto, except that,
without such consent, the Company may assign this Agreement to any successor
to all or substantially all of its assets and business by means of
liquidation, dissolution, merger, consolidation, transfer of assets, or
otherwise, provided that such successor assumes in writing all of the
obligations of the Company under this Agreement.
12. NOTICE. Any notice hereunder by either party shall be given by
personal delivery or by sending such notice by certified mail, return-receipt
requested, or by overnight delivery with a reputable courier service, or
telecopied, addressed or telecopied, as the case may be, to the other party
at its address set forth below or at such other address designated by notice
in the manner provided in this section. Such notice shall be deemed to have
been received upon the date of actual delivery if personally delivered or, in
the case of mailing, two (2) days after deposit with the U.S. mail, or if by
overnight delivery, the date of delivery or, in the case of facsimile
transmission, when confirmed by the facsimile machine report.
If to the Employee:
Xxxxxx Xxxxxx
000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
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If to the Company:
EXE Technologies, Inc.
00000 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: President
with a copy to:
Xxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxx, Esquire
13. ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the entire
agreement and understanding of the parties hereto relating to the subject
matter hereof, and merges and supersedes all prior and contemporaneous
discussions, agreements and understandings of every nature between the
parties hereto relating to the employment of the Employee with the Company.
This Agreement may not be changed or modified, except by an agreement in
writing signed by each of the parties hereto.
14. WAIVER. The waiver of the breach of any term or provision of this
Agreement shall not operate as or be construed to be a waiver of any other or
subsequent breach of this Agreement.
15. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Texas, without regard to the
principles of conflicts of laws of any jurisdiction.
16. INVALIDITY. If any provision of this Agreement shall be determined
to be void, invalid, unenforceable or illegal for any reason, then the
validity and enforceability of all of the remaining provisions hereof shall
not be affected thereby. If any particular provision of this Agreement shall
be adjudicated to be invalid or unenforceable, then such provision shall be
deemed amended to delete therefrom the portion thus adjudicated to be
invalid or unenforceable, such amendment to apply only to the operation of
such provision in the particular jurisdiction in which such adjudication is
made; provided that, if any provision contained in this Agreement shall be
adjudicated to be invalid or unenforceable because such provision is held to
be
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excessively broad as to duration, geographic scope, activity or subject, then
such provision shall be deemed amended by limiting and reducing it so as to
be valid and enforceable to the maximum extent compatible with the applicable
laws of such jurisdiction, such amendment only to apply with respect to the
operation of such provision in the applicable jurisdiction in which the
adjudication is made.
17. SECTION HEADINGS. The section headings in this Agreement are for
convenience only; they form no part of this Agreement and shall not affect
its interpretation.
18. NUMBER OF DAYS. In computing the number of days for purposes of
this Agreement, all days shall be counted, including Saturdays, Sundays and
legal holidays; provided that, if the final day of any time period falls on a
Saturday, Sunday or day which is a legal holiday in Texas, then such final
day shall be deemed to be the next day which is not a Saturday, Sunday or
legal holiday.
19. SPECIFIC ENFORCEMENT; EXTENSION OF PERIOD.
(a) The Employee acknowledges that the restrictions contained in
Sections 5, 6, and 7 hereof are reasonable and necessary to protect the
legitimate interests of the Company and its affiliates and that the Company
would not have entered into this Agreement in the absence of such
restrictions. The Employee also acknowledges that any breach by the Employee
of Sections 5, 6, or 7 hereof will cause continuing and irreparable injury to
the Company for which monetary damages would not be an adequate remedy. The
Employee shall not, in any action or proceeding to enforce any of the
provisions of this Agreement, assert the claim or defense that an adequate
remedy at law exists. In the event of such breach by the Employee, the
Company shall have the right to enforce the provisions of Sections 5, 6, and
7 of this Agreement by seeking injunctive or other relief in any court, and
this Agreement shall not in any way limit remedies of law or in equity
otherwise available to the Company.
(b) The periods of time set forth in Sections 5, 6 and 7 hereof
shall not include, and shall be deemed extended by, any time required for
litigation to enforce the relevant covenant periods, provided that the
Company is successful on the merits in any such litigation. The "time
required for litigation" is herein defined to mean the period of time
commencing on the earlier of the Employee's first breach of such covenants or
the service of process upon the Employee and ending on the expiration of all
appeals related to such litigation.
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20. CONSENT TO SUIT. In the case of any dispute under or in connection
with this Agreement, the Employee may only bring suit against the Company in
the Courts of the State of Texas in and for the County of Dallas or in the
Federal District Court for such geographic location. The Employee hereby
consents to the jurisdiction and venue of the courts of the State of Texas in
and for the County of Dallas or the Federal District Court for such
geographic location, provided that such Federal Court has subject matter
jurisdiction over such dispute, and the Employee hereby waives any claim the
Employee may have at any time as to FORUM NON CONVENIENS with respect to such
venue. The Company shall have the right to institute any legal action arising
out of or relating to this Agreement in any appropriate court and in any
jurisdiction. Any judgment entered against either of the parties in any
proceeding hereunder may be entered and enforced by any court of competent
jurisdiction. If an action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, then the prevailing party shall be
entitled to recover, in addition to any other relief, reasonable attorneys'
fees, costs and disbursements.
21. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the day and year first written above.
EXE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxx
--------------------------------
Title: President
------------------------------
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx Xxxxxx
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SCHEDULE A
EMPLOYMENT AND COMPENSATION
POSITION: SENIOR VICE PRESIDENT WORLDWIDE SALES AND MARKETING
DUTIES: PER JOB DESCRIPTION
REPORTING MANAGER: CHIEF EXECUTIVE OFFICER
BASE SALARY: $250,000
NON-RECOVERABLE DRAW AGAINST
INCENTIVE COMPENSATION (INITIAL TERM ONLY): $250,000
SCHEDULE B
OPTION VESTING SCHEDULES
INITIAL OPTION:
(a) 100,000 shares on the date of this Agreement
(b) 100,000 shares on the first anniversary of this Agreement
(c) 50,000 shares on the second anniversary of this Agreement
(d) 50,000 shares on the third anniversary of this Agreement
INCENTIVE-BASED OPTION: The Incentive-Based Option shall vest as follows if
the revenue targets set forth below are achieved:
(a) 100,000 shares on January 31, 1999, if the prior calendar year Software
License Revenue equals or exceeds $34 million.
(b) 100,000 shares on January 31, 2000, if the prior calendar year Software
License Revenue equals or exceeds $68 million.
(c) 75,000 shares on January 31, 2001, if the prior calendar year Software
License Revenue equals or exceeds $136 million.
(d) 25,000 shares on January 31, 2002, if the prior calendar year Software
License Revenue equals or exceeds $272 million.
If the Company does not achieve the target Software License Revenue in any
year as set forth in (a) - (d) above, then the portion of the Incentive-Based
Option for such year shall not vest at that time. If the Company exceeds the
target Software License Revenue in any year by the cumulative amount of all
shortfalls in any previous years, the portion of the Incentive-Based Option
that had not vested previously shall then vest on the date indicated. If the
Incentive-Based Option has not vested fully by January 31, 2002, the Company,
in its sole discretion, may set certain revenue goals for the accelerated
vesting of any unvested portion of the Incentive-Based Option.
The foregoing Incentive-Based Option Grant Vesting targets will be adjusted
if during the term of the agreement the Company completes a merger or
acquisition of another entity with Software License Revenue greater than $10
million.
EXE TECHNOLOGIES, INC.
1997 INCENTIVE AND NON-QUALIFIED STOCK OPTION PLAN
(ATTACHED)
SCHEDULE C
NON SALARY CONSIDERATION
(COMPANY HUMAN RESOURCE POLICIES ATTACHED)
NON-SALARY CONSIDERATIONS
1. 7 paid holidays:
2. Vacation:
Years of continuous service No. of Days Vacation
--------------------------- --------------------
1 month but less than 3 years.... 1 day per month
3 years but less than 10......... 17 days per year
10 years and over................ 22 days per year
3. Medical Plan - Employer/Employee paid.
4. Dental Plan - Employer/Employee paid.
5. Life Insurance/AD&D - equal to $50,000 - Employer paid.
6. Vision plan - Employer paid - provides 20% to 60% discount on all vision
services.
7. Flexible Benefit Plan - enables employees to set aside pre-tax dollars for
the reimbursement of certain qualified expenses.
8. Short-term Disability - Employer paid - provides potential salary
continuation to regular, full-time employees who are unavoidably absent
from work due to personal illness injury or pregnancy.
9. Long-term Disability - Employer paid - provides income protection in the
event of a long-term disability, equal to 60% of basic monthly earnings.
10. 401(k) Plan - permits deferral of pre-tax dollars up to 15% of salary.
Company matches 100% of first 5% contribution.
11. Employee Assistance Plan - provides counseling or referral benefits to
eligible employees and their families.
12. Tuition Assistance - provides educational reimbursement benefits to
eligible employees.
SCHEDULE D
PRIOR INVENTIONS
1.
2.
3.
