1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of the 27th day of May, 1999, by
and between PROLOGIC MANAGEMENT SYSTEMS, INC., an Arizona corporation (the
"Company"), and Xxxxx X. Xxxx, an individual residing in Tucson, Arizona (the
"Executive").
R E C I T A L S :
WHEREAS, the Company desires that the Executive be employed by the
Company in order to ensure that the services of Executive shall be available to
the Company on a long term basis;
WHEREAS, Executive desires to be employed by the Company on the
following terms and conditions;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties agree as follows:
A G R E E M E N T :
1. The Employment Period.
(a) Initial Period. The "Employment Period," shall be April 1,
1999 to March 31, 2002 ("Original Employment Period"), unless terminated or
renewed pursuant to the terms of this Agreement.
(b) Renewal. Subject to Section 4, upon written notice to the
Company of Executive's interest in continuing his employment with the Company no
less than ninety (90) days prior to the expiration of the Employment Period, the
Company may elect to renew the Employment Period for one additional one (1) year
period on substantially the same terms as the original Employment Period,
provided, however, that at the option of the Executive, in place of the salary
and options granted under Section 3 and the severance benefits provided in
Section 5, any renewal agreement will contain salary provisions, option grants
and severance benefits which are similar in terms and conditions to those
offered in general to the principal executive officers of the Company, its
subsidiaries and affiliates.
(c) In the event that the Company does not exercise its option
to renew the contract upon notice provided to Company in accordance with Section
1(b), Executive will receive a termination payment equal to six (6) months
salary, to be paid on a monthly basis in accordance with the Company's policies
as described in Section 3(a)(i).
2
2. Employment and Duties.
(a) Employment. The Company hereby employs Executive for the
Employment Period to perform such duties for the Company, its subsidiaries and
affiliates as may be reasonably specified from time to time by the Company's
Board of Directors or the representative designated by the Board of Directors
(the "Board"). Executive hereby accepts employment with the Company as President
and Chief Executive Officer (or an alternative executive officer position if
there is a restructuring of the Company, or their subsidiaries or affiliates),
reporting directly to the Board of the Company. It is understood that Executive
will use best efforts to perform his duties in the manner directed by the Board
and in compliance with all federal, state and local laws, ordinances and
regulations.
(b) Time Devoted to Duties. Executive shall devote
substantially all of his non-personal time and efforts to the business of the
Company, its subsidiaries and affiliates, the amount of such time to be
sufficient to permit him to diligently and faithfully to serve and endeavor to
further the Company's interests to the best of his ability. Executive shall not,
during the Employment Period, (i) accept any other employment, or (ii) engage,
directly or indirectly, in any other business activity (whether or not pursued
for pecuniary gain) that is or may be competitive with, or that might place him
in a competing position to that of the Company or its subsidiaries or
affiliates, provided, however, that an investment of less than one percent (1%)
in a public company which competes with the Company but with which Executive has
no other involvement will not violate the terms hereof. The Executive hereby
represents that his employment hereunder and compliance by him of the terms and
conditions of this Agreement will not conflict with or result in the breach of
any agreement by which he may be bound.
3. Compensation.
(a) Monetary Remuneration and Benefits. During the Employment
Period, the Company shall pay to Executive for all services rendered by him in
any capacity:
(i) Salary. An annual salary of One Hundred Sixty
Thousand Dollars ($160,000), payable pursuant to the procedures
regularly established, and as they may be amended, by the Company
during the course of this Agreement. This rate may be subject to
increases from time to time in the sole and exclusive discretion of the
Board.
(ii) Acquisition Bonus. A bonus based on the value of
all acquisitions completed during the term of this agreement which
shall be one quarter of one percent (0.25%) of the purchase price of
each acquisition payable over six months following each acquisition. At
the option of the Executive, up to fifty percent (50%) of this bonus
may be paid in common stock of the Company, wherein, for valuation
purposes herein, the price of the stock would be set by the Board of
Directors.
2
3
(iii) Consolidated Earnings Bonus. A bonus based on
the increase of "Consolidated Earnings before Taxes, Depreciation and
Amortization," (EBTDA) which shall be an amount equal to two percent
(2%) of the annual increase in the Consolidated EBTDA earnings of the
Company for each fiscal years ending March 31, 2000, March 31, 2001 and
March 31, 2002 ("Consolidated Earnings Bonus"). These annual earnings
calculations will be subject to adjustment for acquisitions that were
made during each fiscal year on a prorated basis. For example, if an
acquisition with an EBTDA of $2.6M (based on final purchase price
valuation purposes) completed at the end of the second quarter, then
for purposed of calculating performance under this section, $1.3M would
be added to the prior year's fiscal Consolidated EBTDA earnings. The
calculations regarding EBTDA shall be in conformance with general
accepted accounting standards as specified by the AICPA.
(iv) Company Bonus Plan. In the event that the Board
of Directors of the Company shall adopt a company-wide bonus plan for
which all executive-level employees shall be eligible (the "Company
Plan"), then Executive shall be entitled to make an election to
participate in the Company Plan. Such plan will become effective only
at the commencement of Company's fiscal year, and Executive shall have
the opportunity to make his election to participate at that point in
time. If Executive elects to participate in the Company Plan, Executive
shall irrevocably forfeit all of his future rights under the
Consolidated Earnings Bonus as specified in Section 3 (a) (iii) above,
and shall be entitled to participate only in the Company Plan from that
point forward.
All bonuses set forth in Section 3(a) (iii) shall be paid annually,
within ninety (90) days after the completion of each annual period.
However, upon review and approval by the Compensation Committee
appointed by the Board of Directors, Executive shall be entitled to
receive a quarterly draw against his Consolidated Earnings Bonus in an
amount equal to fifty percent (50%) of such bonus earned during the
fiscal quarter. Such quarterly draws shall be paid within thirty (30)
days after the close of the quarter. The remainder of the Consolidated
Earnings Bonus shall be paid annually pursuant to the terms contained
herein. In the event that the quarterly draws paid to Executive should
exceed the total of the Consolidated Earnings Bonus earned for the
annual period, then any such excess payment shall be deducted from the
Executive's salary.
(b) Upon execution of this Agreement, Executive shall be
granted an option to purchase, for a period of five years from the date of
grant, an aggregate total of two hundred and fifty thousand (250,000) shares of
Prologic Common Stock (the "Options") at $.50 per share, in the form of a
standard Option Agreement made in accordance with, and subject to, the Prologic
1994 Stock Option Plan or its successor plan (the "Plan"). The Options shall
become exercisable as follows:
(i) Consolidated Earnings Incentive. The Options
shall become exercisable at the rate of 20,000 shares per $1,000,000 of
the consolidated EBTDA earnings as described herein on a cumulative
basis starting April 1, 1999 through the term of this agreement; and
3
4
(ii) Acquisition Incentive. The Options shall become
exercisable at the rate of 10,000 shares per each successive $5,000,000
of acquisition value completed during the term of this agreement; and
(iii) Time Incentive. The Options shall become
exercisable at the rate of 25,000 shares per year of employment by
Executive completed during the term of this agreement beginning with
the completion of the first year of employment effective on March 31,
2000.
(iv) Limitation. The total number of shares
exercisable under option under this agreement shall be limited to the
total as specified in Section 3 (b) above.
(v) The Company will diligently endeavor to comply
with all applicable securities laws in connection with any Options to
be granted in connection with the Plan and before any shares are issued
pursuant to Options. Without limiting the generality of the foregoing,
the Company may require from the optionee such investment
representation or such agreement, if any, as counsel for the Company
may consider necessary or advisable in order to comply with the
Securities Act of 1933 as then in effect ("Securities Act"), and may
require that the optionee agree that any sale of the shares will be
made only in such manner as is permitted by the Board. The committee
supervising the Plan may, in its sole discretion, cause the Shares
underlying the Options to be registered under the Securities Act, and
the committee will give positive consideration to effecting such
registration. Optionee shall take any action reasonably requested by
the Company in connection with registration or qualification of the
Shares under federal or state securities laws.
(vi) In place of the standard Option Agreement as
described at the beginning of this Section, the Executive may elect to
purchase the total amount of shares eligible (250,000 shares) under the
Option Agreement on or before June 30, 1999. If the Executive makes
such election, the shares issued shall be subject to a repurchase
provision of the Company based on the amount of shares that have not
been earned under Sections 3 (b) (i), (ii) and (iii). The amount to be
paid by the Company under the repurchase provision shall be paid on the
earlier of ninety days of the termination of employment of Executive
under this agreement or June 30, 2002. The amount due shall be $0.50
per share plus interest on the original stock purchase by the Executive
at a rate equivalent to the increase in the Consumer Price Index for
Greater Los Angeles Area for the period of time beginning with the
purchase by the Executive and ending with the repurchase by the
Company.
(c) Vacation. During the Employment Period, Executive will be
given four (4) weeks vacation with full pay and benefits each year, exclusive of
the Company holidays, pursuant to the policies regularly established and as they
may be amended by the Company; provided, however, that Executive will use his
best efforts to ensure that such vacation does not unduly interfere with the
operation and performance of the business of the Company, its subsidiaries and
4
5
affiliates. The Company acknowledges that Executive also has accumulated
vacation time as of March 31, 1999 of eight weeks as an employee of the Company
which he will not lose during the Employment Period and without prejudice to
accruing new vacation time during the term of this agreement.
(d) Expenses. During the Employment Period, the Company agrees
to reimburse Executive for reasonable travel and other business expenses
incurred by Executive in the performance of his duties hereunder, in accordance
with the Company's reimbursement policies as they may be amended from time to
time during the Employment Period, including expenses related to company
provided transportation. The Parties agree that company will provide
transportation during the term of this agreement with a maximum lease payment of
$850.00 per month.
(e) Office and Staff. The Company will provide Executive with
appropriate facilities and support services as may reasonably be required by the
Executive for the proper discharge of his duties hereunder.
(f) Participation in Plans. As he becomes eligible and
continues to be eligible therefor, the Company shall provide the Executive with
the right to participate in such plans or programs generally made available by
the Company to or for the benefit of, its executives.
(g) Other Executive Benefits. As he becomes eligible and
continues to be eligible therefor, the Company will provide such employee
benefits as are provided by the Company to its other principal executives
hereunder, including insurance coverage, if any, on any policy for the Company's
principal executive officers and directors, and when applicable, coverage as
reasonably available to Executive as an Executive Officer of the Company.
4. Termination of Employment.
(a) By Death. The Company shall pay to Executive's
beneficiaries or estate, as appropriate, the compensation to which he is
entitled pursuant to Section 3 (a) through the end of the month in which death
of the Executive occurs. During the term of the agreement, the Company will
provide a term life insurance policy of $500,000 on the Executive with
beneficiaries to be specified by the Executive. Thereafter, the Company's
obligations hereunder shall terminate. Nothing in this Section shall affect any
entitlement of Executive's heirs to the benefits of any life insurance plan
purchased by the Company.
(b) By Disability. If, in the sole opinion of the Board,
Executive shall be prevented from properly performing his duties hereunder by
reason of any physical or mental incapacity for a period of more than ninety
(90) days in the aggregate or sixty (60) consecutive days in any twelve-month
period (the "Disability Period"), then, to the extent permitted by law, the
Employment Period shall terminate on, and the compensation to which Executive is
entitled pursuant to Section 3(a) shall be paid up through, the last day of the
month of the Disability Period (of ninety (90) days or sixty (60) days, as
applicable) and the severance payments to which he is entitled pursuant to
Section 5(a), and thereafter the Company's obligations hereunder shall
5
6
terminate. Nothing in this Section shall affect Executive's rights under any
disability insurance plan in which he is a participant.
(c) By the Company for Cause. The Company may terminate,
without liability and without prejudice to any other remedy to which Employer
may be entitled either at law, in equity or under this Agreement, the Employment
Period for Cause (as defined below) at any time and without advance notice. The
Company shall pay Executive the compensation to which he is entitled pursuant to
Section 3 including vacation and other benefits through the end of the day upon
which notice is received and that which he is entitled to under Section 5 (b),
and thereafter the Company's obligations hereunder this Agreement shall
terminate. Termination shall be for "Cause" if:
(i) Executive acts or fails to act and such act or
failure to act is, in the reasonable opinion of the Board, in bad faith
and to the material detriment of the Company or its subsidiaries or
affiliates;
(ii) Executive refuses or fails to act in accordance
with any direction or order of the Board if such failures or refusals,
individually or in the aggregate, are, in the reasonable opinion of the
Board, material to Executive's performance and such performance does
not, in the good faith and reasonable judgment of the Executive, result
in or violate any applicable federal, state or local law, ordinances or
regulations;
(iii) Executive commits any act of dishonesty or a
felony affecting the Company, its subsidiaries or affiliates and such
act of dishonesty or felony adversely affects the Company, its
subsidiaries or affiliates or their or its reputation, business or
business relationships in a material manner;
(iv) Executive has a chemical or alcohol dependency,
which interferes with the performance of the Executive's duties and
responsibilities under this Agreement;
(v) Executive commits gross misconduct or neglect,
or, in the reasonable opinion of the Board, demonstrates gross
incompetence in the management of the affairs of the Company or its
subsidiaries or affiliates;
(vi) Executive is convicted of a felony or any crime
involving moral turpitude, fraud or misrepresentation; or
(vii) Executive materially breaches any term of this
Agreement, if such breach is not cured within ten (10) days after
written notice thereof is provided by the Company to the Executive.
(d) By the Company without Cause. The Employment Period may be
terminated without Cause by the Company only upon the written consent of the
Executive. In the event the Company terminates the Employment Period without
Cause and without the written consent of the Executive, the Company shall
provide thirty (30) days advance written notice to
6
7
Executive and shall pay to Executive the severance payment to which he is
entitled to pursuant to Section 5(a), and thereafter the Company's obligations
hereunder shall terminate.
(e) By Executive for Good Reason. The Executive may terminate
his employment hereunder for "Good Reason" (as described below) upon thirty (30)
days written notice. The Company shall pay to Executive the severance payment to
which he is entitled to pursuant to Section 5(a), and thereafter the Executive's
and the Company's obligations hereunder shall terminate. Termination by
Executive shall be for "Good Reason" if:
(i) The duties and responsibilities and status
assigned to Executive are not reasonably consistent with the position
and responsibilities originally assumed by Executive under this
Agreement or there is a material adverse change (which is under the
reasonable control of the Company) in the work environment as it
applies to Executive, in each case having a material negative effect on
Executive's employment position; or
(ii) The Company, without the Executive's consent,
requires the relocation of the offices at which Executive is
principally employed on the date hereof to a location more than 50
miles from such location or requires Executive to be based other than
the Company's offices at such location, except for business travel by
Executive as shall be required only as reasonably necessary to permit
Executive to properly perform his duties hereunder; and
(iii) The Company fails to cure within thirty (30)
days of the Company's receipt of notice from Executive of Company's
failure to perform its material obligations to Executive under this
Agreement.
(f) By Executive without Good Reason. The Employment Period
may be terminated without Good Reason by the Executive only upon the written
consent of the Company. In the event the Executive terminates the Employment
Period without Good Reason and without the written consent of the Company, the
Executive shall provide thirty (30) days advance written notice to the Company
and the Company shall have the rights set forth in Section 5(b). Thereafter,
Executive's obligations hereunder, except for those set forth in Section 6,
shall terminate.
(g) By Company and Executive upon Mutual Agreement. The
Employment Period may be terminated upon the written consent of both the Company
and the Executive on terms to be mutually agreed upon. Thereafter, the Company's
and Executive's obligations hereunder shall terminate.
5. Benefits Upon Termination of Employment Period.
(a) Termination of Employment by Disability, by the Company
without Cause or by Executive for Good Reason. In the event of termination prior
to the completion of the Original Employment Period by the Company as a result
of Executive's Disability or, by the Company without Cause, or by the Executive
for Good Reason (as defined in Section 4(e)),
7
8
Executive shall be entitled to all compensation and accrued benefits earned by
him, including bonuses, prior to the date of termination as provided for in this
Agreement, pro rata up to and including that date, together with an amount equal
to the greater of twelve (12) months compensation or the balance of the
compensation remaining in the Original Employment Period (the "Severance
Period"), as full and complete severance compensation. Compensation as used in
this section is to be based on estimated compensation based on benefits and
salary as well as Consolidated Earnings Bonuses due under Sections 3 (a) (iii)
or (iv) during the Severance Period as well as any bonuses due under Section 3
(a) (ii) based on any acquisition which the Executive was in contact with during
his employment that closes within six months of the date of termination
Thereafter, the Company's obligations to the Executive shall terminate.
Furthermore, to the extent permitted by applicable laws and the Plan, all stock
options granted to Executive in connection with this Agreement shall become
immediately and fully exercisable.
(b) Termination of Employment by Company for Cause or by
Executive for Other Than Good Reason. In the event of termination prior to the
completion of the Original Employment Period by the Company for Cause or by
Executive other than for Good Reason, the Company shall pay to the Executive the
compensation set forth in Section 3 earned and accrued by him prior to the date
of termination. Upon such payment, the Company's obligations to the Executive
shall terminate. The Executive shall not be entitled to any other compensation
or other severance payment, including those set forth in Section 1(b).
Thereafter, the Executive's obligations to the Company, except those set forth
in Section 6, shall terminate. Furthermore, to the extent permitted by
applicable laws and the Plan, all stock options granted to Executive in
connection with this Agreement, but not yet exercisable on a pro rata basis at
the date of termination, shall become null and void.
(c) Excess Payments. Notwithstanding anything contained in
this Section or any other section of this Agreement to the contrary, if any
compensation or benefit payment shall be considered in the aggregate to be an
"excess parachute payment" as that term is defined in Section 280G of the
Internal Revenue Code of 1986, as amended, all such compensation and benefits
shall be reduced and, or extended over a period of time, upon the written
request of the Executive, to the extent required to prevent such compensation
and benefits, in the aggregate, from being considered an "excess parachute
payment".
6. Preservation of Business.
(a) General. During the Employment Period and subject to the
provisions of Section 2(b), Executive will use his best efforts to advance the
business and organization of the Company, its subsidiaries and affiliates, the
services of present and future employees and to advance its business relations
with its joint venture partners, suppliers, distributors, customers and others.
(b) Uniqueness of Services; Interference with Business;
Competitive Activities. The parties agree that the services that Executive will
perform hereunder are special, unique and extraordinary in nature and that, if
the Executive breaches the terms of this Agreement, it may reduce the value of
the Company and the Company may be entitled in appropriate instances (and
8
9
in addition to any remedy that it may have at law) to any equitable relief,
including injunctive relief, that may rightfully be awarded under applicable
law. Executive agrees that during the Employment Period and for one year after
termination thereof (the "Restricted Period"), he shall not, for himself or any
third party, directly or indirectly (i) divert or attempt to divert from the
Company or its subsidiaries or affiliates any strategic business opportunities
in terms of acquisitions and, or mergers in which it, the Company, its
subsidiaries or affiliates are engaged, or have the reasonable expectation of
engaging in, including, without limitation, the solicitation of or interference
with any of its potential acquisitions, business partners, or prospective merger
candidates within the United States (the "Restricted Area"), or (ii) employ,
solicit for employment, or recommend for employment during the Restricted Period
any person employed by the Company, or by any of its subsidiaries or affiliates,
during the period of such person's employment and for a period of six (6) months
after such employee's termination. Executive expressly acknowledges that the
subject matter, territorial and time restrictions contained in this paragraph
are reasonable and are properly required for the adequate protection of the
Company's property interests.
(c) Consequences of Termination by Company without Cause or
Termination by Executive with Good Reason. The covenants contained in Section
6(b) will terminate immediately if the Company terminates this Agreement without
cause or Executive terminates this Agreement with Good Reason, provided that,
during the period that the Executive continues to receive payment of severance
benefits as provided in Section 5 hereof, Executive will not compete with the
Company or their affiliates, or contact or attempt to contact the Company's or
their affiliates', employees or customers (except with respect to matters
unrelated to his services hereunder); shall not utilize the property of the
Company or it's affiliates, including intellectual property, and shall under no
circumstances act for, with or on behalf of, as an employee or otherwise, a
competitor where he would be involved in direct competition with the Company, or
it's affiliates.
(d) Confidentiality and Non-Disclosure. During the course of
employment, Executive may become aware of certain methods, practices, procedures
and other proprietary information and inventions with which the Company conduct
their business, including but not limited to, trade secrets, confidential
information, knowledge, inventions, data or other information related to the
Company relating to products, processes, know-how, designs, customer lists,
business plan, marketing plans and strategies, and pricing strategies or any
subject matter pertaining to any business of the Company, or any of their
clients, licensees or affiliates, all of which the Company, and Executive agree
are proprietary information and as such are trade secrets and the property of
the Company, including any Confidential Property created by Executive during the
term of his employment and other proprietary information and inventions (herein
"Confidential Property"). Executive agrees to keep confidential, except as the
Company may otherwise consent in writing in advance, and not to disclose, or
make any use of except for the benefit of the Company, at any time either during
or subsequent to his employment, any Confidential Property which Executive may
produce, obtain, learn or otherwise acquire. Executive further agrees not to use
or encourage the use by others, including other employees of the Company, of any
Confidential Property. In the event of Executive's termination of employment
with the Company for any reason whatsoever, Executive will promptly surrender
and
9
10
deliver to the Company all property of the Company including any Confidential
Property and records, materials, equipment, drawings and data of any nature
pertaining to any Confidential Property of the Company. Executive will not take
any written description containing or pertaining to any Confidential Property of
the Company.
7. Dispute Resolution; Remedies.
(a) Mediation. In the event of any controversy or claim
arising out of or related to this Agreement, or the breach thereof, which has
not been settled through informal discussion and negotiation, the parties agree
first to try in good faith to settle the dispute by mediation administered by
the American Arbitration Association (AAA) under its Employment Mediation Rules,
and held in the Las Vegas, Nevada Offices of the AAA, or if not available, the
Phoenix Regional Offices of the AAA, subject to the laws of the State of
Arizona, before resorting to arbitration, provided, however, that any
controversy or claims arising out of or related to Section 6 shall not be
governed by this Section.
(b) Arbitration. In the event of any controversy or claim
arising out of or related to this Agreement, or the breach thereof, which has
not been settled through negotiation or the mediation procedures provided for in
the previous paragraph, such controversy or claim shall be settled by binding
arbitration administered by the American Arbitration Association (AAA) under its
National Rules for the Resolution of Employment Disputes and held in the Las
Vegas, Nevada Offices of the AAA, or if not available, the Phoenix Regional
Offices of the AAA, subject to the laws of the state of Arizona, and judgment on
the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof, provided, however, that any controversy or claims arising
out of or related to Section 6 shall not be governed by this Section.
8. Miscellaneous.
(a) Entire Agreement; Amendment. This Agreement constitutes
the entire agreement between the parties with respect to the matters covered
herein, and may not be modified, amended or terminated except by a written
instrument executed by the parties hereto. All other agreements between the
parties pertaining to the employment or remuneration of Executive not
specifically contemplated hereby or incorporated herein are terminated and shall
be of no further force or effect.
(b) Assignment. Executive agrees that he will not assign,
sell, transfer, delegate or otherwise dispose of, whether voluntarily or
involuntarily, or by operation of law, any rights or obligations under this
Agreement, nor shall Executive's rights be subject to encumbrance or the claims
of creditors. Any purported assignment, transfer, or delegation by the Executive
shall be null and void. Executive hereby consents to the assignment of this
Agreement to any of the Company's direct or indirect subsidiaries or any of
their affiliates or any of their successors in interest, provided that such
assignment shall not materially and adversely effect the employment and duties
of Executive hereunder. Nothing in this Agreement shall prevent the
consolidation of the Company with, or its merger into, any other corporation, or
the sale by the Company of all or substantially all of its properties or assets,
or the assignment by the Company of this Agreement
10
11
and the performance of its obligations hereunder to any of their direct or
indirect subsidiaries or any of their affiliates or any of their successors in
interest. Subject to the foregoing, this Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective heirs, legal
representatives, successors, and permitted assigns, and shall not benefit any
person or entity other than those enumerated above.
(c) No Waiver. No waiver of any breach or default hereunder
shall be considered valid unless in writing and no such waiver shall be deemed a
waiver of any subsequent breach or default of the same or similar nature. The
failure of any party to insist upon strict adherence to any term of this
Agreement on any occasion shall not operate or be construed as a waiver of the
right to insist upon strict adherence to that term or any other term of this
Agreement on that or any other occasion.
(d) Enforcement; Severability. In the event that any term or
provision of this Agreement shall be deemed by a court of competent jurisdiction
to be overly broad in scope, duration or area of applicability, the court
considering the same shall have the power and is hereby authorized and directed
to modify such term or provision to limit such scope, duration or area, or all
of them, so that such term or provision is no longer overly broad and to enforce
the same as so limited. Subject to the foregoing sentence, in the event that any
provision of this Agreement shall be held to be invalid or unenforceable for any
reason, such invalidity or unenforceability shall attach only to such provision
and shall not affect or render invalid or unenforceable any other provision of
this Agreement. The Executive agrees that the provisions of Section 6 hereof
constitute independent and separable covenants which shall survive the
termination of the Employment Period.
(e) Notices. Any notice permitted or required hereunder shall
be in writing and shall be deemed to have been given on the date of delivery or,
if mailed by registered or certified mail, postage prepaid, on the date of
mailing:
If to Executive to:
Xxxxx X. Xxxx
0000 Xxxx Xxxxxxxx
Xxxxxx, Xxxxxxx 00000
If to the Company to:
Prologic Management Systems, Inc.
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxx 00000
Either party may, by notice to the other, change his or its address for notice
hereunder.
11
12
(f) Executive Acknowledgment. Executive acknowledges that (i)
he has consulted with or has had the opportunity to consult with independent
counsel of his own choice concerning this Agreement and has been advised to do
so by the Company, and (ii) he has read and understands the Agreement, is fully
aware of its legal effect, and has entered into it freely based on his own
judgment.
(g) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same instrument.
(h) Headings. All headings appear in this Agreement for
convenience only and shall not be used in construing the terms hereof.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the day and year first above written.
PROLOGIC MANAGEMENT SYSTEMS, INC. EXECUTIVE
By: /s/ Xxxxxxx X. Xxxx /s/ Xxxxx X. Xxxx
--------------------------------- ---------------------
Its: Executive Vice President Xxxxx X. Xxxx
12
