EXHIBIT 10.8
EMPLOYMENT AGREEMENT
EXE TECHNOLOGIES, INC.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of the 16th day of March, 1998 by
and between Xxxxxxx Xxxxxxx, a resident of Tokyo, Japan (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
desires 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").
(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."
1. DUTIES. During the Term, the Employee shall serve the
Company faithfully and to the best of his/her ability and shall devote
his/her 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 his/her Reporting Manager, 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.
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/her
performance of his/her 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
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EMPLOYMENT AGREEMENT
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, 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 BONUS PROGRAM. The Employee shall be entitled to
participate in any bonus program that may be established by and at the
discretion of the Company, based upon the achievement of written individual and
corporate objectives as his/her Supervisor and the President of the Company
shall determine.
4.3 EQUITY PARTICIPATION.
(a) The Company shall grant to the Employee an incentive
stock option (the "Options") to purchase shares of Class B Common Stock of the
Company ("Common Stock"), the exercise price, par value and other details of
which are detailed in Schedule B attached hereto. The Options shall be subject
to and in accordance with the provisions of the 1997 Stock Option Plan of the
Company (the "Plan") substantially in the form attached hereto as Schedule B.
(b) All shares of Common Stock issued under the Options
shall be subject to the terms and provisions of a Stock Purchase and Restriction
Agreement as required by the Plan.
4.4 FRINGE BENEFITS. The Employee shall be entitled to
participate in any benefit or other non-salary consideration as are typical for
the country. These 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 him/her 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.
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 his/her 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 his/her 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 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
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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 his/her 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 his/her 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 his/her 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
his/her 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 person the nature of and/or contents of any
of the foregoing or of any other oral or written information to which he/she may
have access or with which for any reason he/she may become familiar, except as
disclosure shall be necessary in the performance of the duties. Upon the
termination of his/her employment with the Company, he/she 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
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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 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) In 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 his/her 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, directly or indirectly, in any
business activity competitive with the Business or the business of any of the
Company's subsidiaries or affiliates as conducted during the Term;
(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 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
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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 his/her subsequent
employment by this Section 7 are reasonable and fair and will not prevent or
materially impair his/her 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.
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/she is a participant or to which he/she is a
party as an employee of the Company; provided that the Employee has complied
with all of his/her obligations under this Agreement and continues to comply
with all of his/her 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/she dies. Except as
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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/her 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/she 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:
(i) any material breach by the Employee of any of
his/her obligations under this Agreement;
(ii) willful failure or inability by the Employee
to perform satisfactorily the duties required by or appropriate for the
Position, as determined by the President of the Company in his sole 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 or other criminal act
punishable by more than one (1) year in prison;
(v) commission by the Employee of an intentional
tort 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. 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.
(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) In 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 the
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lesser of: (i) all unpaid Base Salary from the effective date of the
Employee's termination through the remainder of the Term; or (ii) three (3)
months Base Salary. Employee also shall be entitled to receive all accrued
(as of the effective date of the Employee's termination) but unpaid benefits
and bonuses. In addition, Employee will be eligible to receive a liquidated
termination fee equivalent 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 Company terminates Employee's
employment pursuant to Section 8.4(a); provided that, if the Employee obtains
other employment during the twelve (12) month period following termination,
then the Company shall only be obligated to pay the Employee the difference
between the monthly installments provided for in this Section 8.4 and the
monthly salary the Employee shall receive from his/her 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, 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 8.4, 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 (or its predecessor companies Neptune Systems, Inc. or Dallas
Systems Corporation) up to five (5) years; and (ii) two (2) week's Base
Salary for every year of employment with EXE (or its predecessor companies
Neptune Systems, Inc. or Dallas Systems Corporation) 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/her 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, 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.
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8.6. OPTIONS; REPURCHASE OF SHARES.
Upon the termination of the Employee's employment pursuant to
Section 8 other than under Sections 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
he/she has with any other employer, person or entity.
(b) Upon and after his/her 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, 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 his/her 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.
11. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the Company and the Employee and his/her
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.
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If to the Employee:
Xxxxxxx Xxxxxxx
Tokyo, Japan
If to the Company:
EXE Technologies, Inc.
00000 Xxxxxxxxx Xxxx
Xxxxxx XX 00000
Attention: President
with a copy to:
Pepper, Xxxxxxxx & Xxxxxxx 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 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
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the final day of any time period falls on a Saturday, Sunday or day which is
a legal holiday in Pennsylvania, 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 him/her 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.
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 he 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.
Confidential Page 10 of 16 (rev. 11-Nov-97)
EMPLOYMENT AGREEMENT
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first written above.
EXE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxx
----------------------------
Xxxxxxx X. Xxxx
Title: President
-------------------------
EMPLOYEE
/s/ Xxxxxxx Xxxxxxx
-------------------------------
Confidential Page 11 of 16 (rev. 11-Nov-97)
EMPLOYMENT AGREEMENT
SCHEDULE A
EMPLOYMENT AND COMPENSATION
POSITION: PRESIDENT AND CEO - EXE TECHNOLOGIES - JAPAN
REPORTING MANAGER: XXX XXXXXX FOR SALES & MARKETING
XXX XXXXXX FOR PROFESSIONAL SERVICES AND CUSTOMER SUPPORT
BASE ANNUAL SALARY: 30,000,000 JAPANESE YEN
(APPROX. US$238,000 AT 126 YEN PER DOLLAR)
Confidential Page 12 of 16 (rev. 11-Nov-97)
EMPLOYMENT AGREEMENT
SCHEDULE B
INITIAL STOCK OPTION GRANT: 25,000
VESTING: 5,000 EFFECTIVE WITH DATE OF AGREEMENT. THE
BALANCE TO VEST OVER A 4-YEAR PERIOD,
SPECIFICALLY, 5,000 ON THE FIRST, SECOND,
THIRD AND FOURTH ANNIVERSARY OF THE DATE OF
AGREEMENT.
Confidential Page 13 of 16 (rev. 11-Nov-97)
EMPLOYMENT AGREEMENT
EXE TECHNOLOGIES, INC.
1997 INCENTIVE AND NON-QUALIFIED STOCK OPTION PLAN
[ATTACHED]
Confidential Page 14 of 16 (rev. 11-Nov-97)
EMPLOYMENT AGREEMENT
SCHEDULE C
NON SALARY CONSIDERATIONS
1. Annual Vacation Leave: In accordance with the country standard.
2. Medical & Insurance Benefits: Competitive medical and insurance
benefits in accordance with the
company's policy and country standard.
Confidential Page 15 of 16 (rev. 11-Nov-97)
EMPLOYMENT AGREEMENT
SCHEDULE D
PRIOR INVENTIONS
1.
2.
3.
Confidential Page 16 of 16 (rev. 11-Nov-97)
