EMPLOYMENT AGREEMENT
|
Exhibit 10.16 |
This Employment Agreement (“Agreement”) is made as of 18th June 2006 and shall become effective as set forth below, by and between RedPrairie Corporation, a Delaware corporation (“Company”), and Xxxx Xxxx, an individual (“Executive”).
WHEREAS, pursuant to the Share Purchase Agreement dated by and among RedPrairie Holding, Inc., the Company, BlueCube Software, Inc. (“BlueCube”) and Xxxx Xxxxx dated 18th of June 2006, the Company will acquire the entire share capital of BlueCube;
WHEREAS, Executive desires to accept such employment on the terms hereinafter specified;
provided the other party notice of non-renewal at least sixty (60) days prior to such renewal date. In each case, the period of Executive’s employment is subject to earlier termination as set forth in Sections 6 and 7 hereof or by mutual agreement of the parties hereto.
3. Confidential Information and Covenant Not to Compete.
(i) maintain the confidentiality of all Confidential Information (as defined below) and not mechanically copy or otherwise reproduce, publish, sell, use, make any commercial use of, disclose, demonstrate or make possible the reverse engineering and/or reverse compilation of any Confidential Information of the Company or any of its Affiliates, to any person or entity (other than the Company or any of its Affiliates or designees), except (A) at the request of or with the authorization of the Company, (B) to the extent he has been advised by counsel that to do so is necessary to comply with the law or the valid final order of a court or governmental agency of competent jurisdiction (after giving reasonable advance notice to the Company of any such contemplated disclosure so as to provide the Company with an opportunity to contest any such disclosure), and (C) in order to properly carry out Executive’s duties to the Company hereunder in the normal course of business; and
(ii) assign, and hereby does assign, to the Company any and all rights which Executive might otherwise claim in and to any Confidential Information and to all granted or applications for letters patent or copyrights therefor in all countries where the business of the Company is carried on or conducted by the Company or any entity directly or indirectly controlled by the Company (collectively with the Company, the “Company Group”), and shall promptly deliver to the Company such written instruments and cooperate and do such other acts as may be reasonably necessary to preserve the Company’s rights in and to the Confidential Information.
Executive further agrees and acknowledges that such Confidential Information, as between the Company and Executive, shall be deemed and at all times remain and constitute the exclusive property of the Company, whether or not patentable or copyrightable.
In the event Executive’s employment with the Company terminates for any reason, Executive shall, upon request by the Company, promptly return to the Company all property of the Company and its Affiliates in his possession or under his direct or indirect control, including, without limitation, all Confidential Information and all equipment and materials in paper, electronic or any other form.
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to, customers of the Company or any of it Affiliates on whom Executive called or with whom Executive became acquainted during the term of Executive’s employment), software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, pricing information, finances or other business information of the Company, howsoever produced or reproduced, whether written or oral, whether or not denoted or marked confidential, provided, however, that Confidential Information does not include any of the foregoing items which have become publicly known and made generally available in the industry through no wrongful act of Executive or of others known to the Executive to be under confidentiality obligations as to the item or items involved.
(i) authorize his name to be used by any Business Entity;
(ii) solicit for any Business Entity the employment of any individual who is then currently or was, within the six (6) months preceding the Separation Date, an employee of the Company;
(iii) induce on behalf of any Business Entity (A) any licensee of a Company product or service; (B) any person or entity for whom the Company provided or was to provide, within six (6) months preceding the Separation Date, maintenance or other services for a fee, pursuant to a formal agreement or otherwise; (C) any person or entity to whom, within six (6) months preceding the Separation Date, the Company had made a presentation or solicitation wholly or partially in writing, or for whom the Company had performed or provided a “savings analysis;” and (D) any joint venturer or subcontractor of the Company (collectively, a “Customer”) to cancel any order previously placed or not place any future orders with the Company;
(iv) solicit for any Business Entity from any then-Customer of the Company any business opportunity which is competitive or potentially competitive, to any business related to the logistics execution software and support services to the supply chain marketplace carried on by the Company or to the relationship between the Company and the Customer;
(v) render for any Business Entity any service, for or without any compensation, in connection with the design, development, manufacture, marketing or sale of any product reasonably deemed competitive with any service or product then, or within six (6) months preceding the Separation Date, offered by the Company; or
(vi) participate in, directly or indirectly, (whether as advisor, principal, agent, partner, officer, director, employee, stockholder, associate or consultant of) any Business Entity (provided that any interest of Executive through investment in up to an aggregate of two percent (2%) in any class of any person whose securities are required to be registered
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under the Securities Exchange Act of 1934, as amended, shall not be considered participation hereunder).
For the purpose of this Section 3(c), the term “Business Entity” shall mean any person, partnership, corporation or other business entity that at the time is, or within the six (6) months preceding that time was, in competition with any business related to the logistics execution software and support services to the supply chain marketplace carried on by the Company prior to the Effective Date or hereafter conducted by the Company during the term of this Agreement in any county of any state in the United States or any other county of a state or nation where business is then carried on or conducted by the Company.
“Business Entities” shall include, but shall not be limited to, Catalyst International, Inc., The Descartes Systems Group, Inc., SSA Global Technologies, Inc., HighJump Software, Inc. (a 3M Company), HK Systems, Inc., i2 Technologies, Inc. Manhattan Associates, Inc., Manugistics, Inc., Optum, Inc. (now owned by Click Commerce, Inc.), Oracle®, Provia Software (now owned by SSA Global Technologies, Inc.), G-Log (now owned by Oracle), SAP®, JDA Software Group, Inc., Professional Datasolutions, Inc., Datamax Corporation, Kernow Software, Alphameric Plc, Radiant Systems, Inc., Menulink (a Radiant company), Workbrain, Inc., Workplace Software Systems, Inc., Torex Retail Plc, Kronos Incorporated, and Retalix Ltd. and each of their respective successors and affiliates.
Prior to the Company taking any legal action in connection with an alleged breach by Executive of his obligations set forth in this Section 3, the Company shall inform Executive by written notice with reasonable specificity of the basis for its belief that Executive has breached its obligations and provide Executive with five (5) business days to cure any such alleged breach.
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effective are reasonable and necessary to protect the goodwill and Confidential Information of the Company and its affiliates, and will not cause an undue hardship on Executive. In the event that any court determines that the breadth, time period and/or the area are unreasonable and that such covenant is to that extent unenforceable, the parties hereto agree that the covenant shall remain in full force and effect for the greatest breadth, greatest time period and in the greatest area that would not render it unenforceable. The parties intend that this covenant shall be deemed to be a series of separate covenants, one for each and every county within the United States of America where this covenant is intended to be effective. In the event that any court determines that the requirement that Executive assign a certain class or classes of Confidential Information to the Company is unreasonable and that such covenant is to that extent unenforceable, the parties hereto expressly agree that the covenant shall be interpreted to not apply to any Confidential Information which falls into such a class or classes.
As used herein, the term “Affiliate” shall mean and include any other corporation, partnership or other entity or enterprise which, directly or indirectly, is controlled by, controls, or is under common control with, the Company. For the purposes of the preceding sentence, the word “control” (including the terms “controlling,” “controlled by” and “under common control with”) shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities or partnership interests or by contract.
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reviewed at least annually commencing in January 2007 to determine whether the salary should be increased.
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shall terminate effective on the 30th day after receipt of such notice by Executive, provided that, within the 30 days after such receipt, Executive shall not have returned to full-time performance of his duties. For purposes of this Agreement, “Disability” shall mean a physical or mental impairment which substantially limits a major life activity of Executive and which renders Executive unable to perform the essential functions of his position, even with reasonable accommodation which does not impose an undue hardship on the Company, for a period of no less than ninety (90) days. The Company reserves the right, in good faith, to make the determination of disability under this Agreement based upon information supplied by Executive and/or his medical personnel, as well as information from medical personnel (or others) selected by the Company or its insurers. If Executive’s employment is terminated by reason of Executive’s death or Disability, the Company shall have no further obligations to Executive or his legal representatives under this Agreement, other than for (a) payment of the sum of (i) Executive’s annual base salary through Executive’s Separation Date to the extent not theretofore paid (ii) any earned but unpaid annual bonus related to the Company’s performance for any period preceding the current fiscal quarter; (iii) a prorated portion of Executive’s annual bonus for the fiscal quarter in which his employment terminates to the extent the annual bonus is payable to all employees for such time period; (iv) any accrued vacation pay of Executive to the extent not theretofore paid; (iv) if not otherwise paid, a prorated portion of Executive’s stay bonus prorated to the effective date of termination; and (v) reimbursement of any nonreimbursed business expenses of Executive incurred prior to his Separation Date (the sum of the amounts described in clauses (i), (iv) and (vi) shall be hereinafter referred to as the “Accrued Obligations”), which shall be paid to Executive or his estate or beneficiary, as applicable, in a lump sum in cash within 30 days of Executive’s Separation Date; and (b) payment to Executive or his estate or beneficiary, as applicable, any amounts due pursuant to the terms of any applicable welfare benefit plans.
7. Termination with or without Cause, Termination by Executive.
• | is convicted of, or has pled guilty or nolo contendere to, a felony under the laws of the United States or applicable state law; |
• | has engaged in acts of material fraud, material dishonesty or other acts of willful and material misconduct in the course of his employment by the Company, unless Executive believed in good faith that such acts were in the best interests of the Company; |
• | willfully fails to comply with reasonable directives of the Board; or |
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• | any breach of any material term of this Agreement; |
provided that “Cause” shall not exist under the third or fourth bullet point above if a cure is reasonably possible in the circumstances unless the Company gives detailed written notice to Executive of the event or circumstances that would otherwise constitute Cause and Executive fails to cure the event or circumstances constituting Cause within fifteen (15) days after receiving such notice.
(b) Termination without Cause. Notwithstanding anything herein to the contrary, it is understood and agreed that the Company may terminate Executive’s employment for any reason or for no reason at any time or elect not to renew the period of Executive’s employment pursuant to this Agreement. If the Company terminates Executive’s employment for other than Cause or death or Disability or if the Company elects not to renew the period of Executive’s employment pursuant to this Agreement, the Company shall have no further obligations to Executive under this Agreement other than (a) the timely payment of the Accrued Obligations, and (b) provided Executive executes a Separation and General Release Agreement in a form reasonably satisfactory to the Company, (i) a payment of severance pay in the aggregate amount of one times Executive’s annualized rate of base salary from the Company in effect immediately prior to his Separation Date (“Severance Pay”); (ii) any earned but unpaid annual bonus related to the Company’s performance for any period preceding the current fiscal quarter; (iii) a prorated portion of Executive’s annual bonus for the fiscal quarter in which his employment terminates to the extent the annual bonus is payable to all employees for such time period; (iv) if not otherwise paid, a prorated portion of Executive’s stay bonus prorated to the effective date of termination; and (v) the COBRA Benefit (as hereinafter defined). Such Severance Pay, if any, shall be paid in twelve substantially equal monthly installments (without interest, with each installment equal to approximately 1/12th of the aggregate Severance Pay amount) beginning thirty days after Executive’s Separation Date. The Company’s obligation to provide such Severance Pay, bonus pay, and COBRA Benefit (or continue to provide such benefits, as the case may be) is subject to the condition precedent that Executive not breach any material term of this Agreement. Provided Executive timely elects COBRA coverage, the Company will continue Executive’s coverage under the Company’s health insurance plan under COBRA during the period that the Executive is receiving Severance Pay, on the same basis as if the Executive had remained an Executive of the Company during that period. Following expiration of the Company’s obligation to make such Severance Pay, Executive will have the right to continue COBRA coverage according to the COBRA guidelines and at the rates outlined in the COBRA notice.
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Agreement. In the event Executive terminates his employment for Good Reason, the Company shall have no further obligations to Executive under this Agreement other than (a) the timely payment of Accrued Obligations, and (b) provided Executive executes a Separation and General Release Agreement in a form satisfactory to the Company, (i) payment of the Severance Pay (as defined in (b) above); (ii) any earned but unpaid annual bonus related to the Company’s performance for any period preceding the current fiscal quarter; (iii) a prorated portion of Executive’s annual bonus for the fiscal quarter in which his employment terminates to the extent the annual bonus is payable to all employees for such time period; (iv) if not otherwise paid, a prorated portion of Executive’s stay bonus prorated to the effective date of termination; and (v) the COBRA Benefit. Such Severance Pay, if any, shall be paid in twelve substantially equal monthly installments (without interest, with each installment equal to approximately 1/12th of the aggregate Severance Pay amount) beginning thirty days after Executive’s Separation Date. The Company’s obligation to provide such Severance Pay, bonus pay, and COBRA Benefit (or continue to provide such benefits, as the case may be) is subject to the condition precedent that Executive not breach any material term of this Agreement. Executive shall not be entitled to any additional compensation.
8. Change of Control. In the event Executive’s employment by the Company terminates within the first twelve (12) months following a Change of Control in circumstances that entitle Executive to payment of the Severance Pay pursuant to Section 7(b) or 7(c) above, provided Executive satisfies the release provisions set forth therein, Executive shall receive in lieu of the above referenced Severance Pay, a Change of Control severance payment equal to one and one half (1.5) times the Executive’s annualized rate of base salary from the Company in effect immediately prior to the Separation Date, payable in eighteen (18) substantially equal monthly installments (without interest, with each installment equal to approximately 1/18th of the aggregate amount) beginning thirty (30) days after Executive’s Separation Date. All of Executive’s then-outstanding and otherwise unvested stock options and other equity-based awards granted by the Company or Parent shall become fully vested upon the Change of Control. In such circumstances, Executive shall have the remaining life of the original option to exercise
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such options or equity-based award (subject to the Company’s or Parent’s right to earlier terminate such options or equity-based awards pursuant to the change of control provisions applicable to such awards in the applicable Company or Parent stock incentive plan or award agreement thereunder).
“Change of Control” shall mean the acquisition by any individual or business entity (“Person”) after the Effective Date of legal or beneficial ownership of more than fifty percent (50%) of the equity or voting power of the Company, excluding any acquisition by the Company or any Company employee benefit plan or trust or any current shareholder with at least a five percent (5%) legal or beneficial ownership interest in the equity or voting power of the Company (or any affiliate of any such entity).
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If to the Company, to: |
RedPrairie Corporation 00000 Xxxxxxx Xxxxx Xxxxxxxx, Xxxxxxxxx 00000 Attention: General Counsel | |
if to Executive, to: |
Xxxx Xxxx |
Either party may change his or its name and/or address for purposes of this Section by giving the other written notice of the new name and/or address in the manner set forth above.
(e) Entire Agreement/Modification. This Agreement contains all of the covenants and agreements between Executive on one hand, and the Company on the other hand, with respect to Executive’s employment in any manner whatsoever and supersede any prior agreements between Executive on one hand, and the Company on the other hand (including, without limitation, any employment agreement or change of control agreement between them). Any prior negotiations, correspondence, agreements, proposals or understandings relating to the subject matter hereof shall be deemed to have been merged into this Agreement, and to the extent inconsistent herewith, such negotiations, correspondence, agreements, proposals, or understandings shall be deemed to be of no force or effect. There are no representations, warranties, or agreements, whether express or implied, or oral or written, with respect to the subject matter hereof, except as expressly set forth herein. Any modification of this Agreement will be effective only if it is in writing and signed by both parties.
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(g) Governing Law. The validity of this Agreement and the interpretation and performance of all of its terms shall be governed by the laws of the State of Wisconsin without reference to its conflict of laws provisions.
(h) Resolution of Disputes. Any controversy arising out of or relating to this Agreement, its enforcement or interpretation, or because of an alleged breach, default, or misrepresentation in connection with any of its provisions, or any other controversy arising out of Executive’s employment, including, but not limited to, any state or federal statutory claims, shall be submitted to arbitration in Milwaukee, Wisconsin, before a sole arbitrator selected from the American Arbitration Association, as the exclusive forum for the resolution of such dispute; provided, however, that provisional injunctive relief may, but need not, be sought by either party to this Agreement in a court of law while arbitration proceedings are pending, and any provisional injunctive relief granted by such court shall remain effective until the matter is finally determined by the Arbitrator. Final resolution of any dispute through arbitration may include any remedy or relief which the Arbitrator deems just and equitable, including any and all remedies provided by applicable state or federal statutes. At the conclusion of the arbitration, the Arbitrator shall issue a written decision that sets forth the essential findings and conclusions upon which the Arbitrator’s award or decision is based. Any award or relief granted by the Arbitrator hereunder shall be final and binding on the parties hereto and may be enforced by any court of competent jurisdiction. The parties acknowledge and agree that they are hereby waiving any rights to trial by jury in any action, proceeding or counterclaim brought by either of the parties against the other in connection with any matter whatsoever arising out of or in any way connected with this Agreement or Executive’s employment. The parties agree that the Company shall be responsible for payment of the forum costs of any arbitration hereunder, including the Arbitrator’s fee.
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provision similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid, and enforceable.
REDPRAIRIE CORPORATION, a Delaware corporation | ||
By: | /s/ Xxxxx X. Xxxx | |
Xxxxx X. Xxxx General Counsel & Corporate Secretary |
/s/ Xxxx Xxxx |
XXXX ISLE |
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Amendment to Employment Agreement
Between
RedPrairie Corporation
and
Xxxx Xxxx
This Amendment effective as of the 31st day of January 2007, is attached to and made a part of the Employment Agreement dated July 20, 2006 (the “Agreement”) between RedPrairie Corporation (hereafter “Company”) and Xxxx Xxxx (hereinafter “Executive”). Wherever possible, the terms of this Amendment shall be read in such a manner so as to avoid conflict with the terms of the Agreement but, in the event of an unavoidable conflict, the terms of this Amendment shall control over the terms and conditions of the Agreement. For good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree to revise the Agreement, which revisions are retroactively effective as of the date set forth above, in accordance with the following terms:
1. |
Paragraph 1 is revised by deleting the title “Retail Financial Leader” and replacing it with the following new title “Chief Financial Officer”. |
2. |
Paragraph 4(a) is deleted in its entirety and replaced with the following language: “(a) Salary. During the term of Executive’s employment by the Company, the Company shall pay Executive a base salary, payable in accordance with the Company’s normal payroll practice, at a rate of $290,000 per year. Executive’s salary will be reviewed at least annually commencing in January 2008 to determine whether the salary should be increased.” |
3. |
4. |
Paragraph 4(d) is deleted in its entirety and replaced with the following language: “(d) Executive shall be issued a Stock Option Agreement reflecting a grant of 82,500 options with a Fair Market Value exercise price established as of the date of such grant.” |
5. |
A new Paragraph 5(d) is added as follows: “(e) Corporate Housing and Travel Reimbursement. The Company shall be responsible for all reasonable expenses related to corporate housing for a period of one year after the date of this Addendum. During this one year period, the Company shall reimburse Executive for travel expenses related to the between Company Headquarters located in Waukesha Wisconsin and Executive’s residence.” |
6. |
Paragraph 7(b) is deleted in its entirety and replaced with the following language: “Notwithstanding anything herein to the contrary, it is understood and agreed that the Company may terminate Executive’s employment for any reason or for no reason at any time or elect not to renew the period of Executive’s employment pursuant to this Agreement. If the Company terminates Executive’s employment for other than Cause or death or Disability or if the Company elects not to renew the period of Executive’s employment pursuant to this Agreement, the Company shall have no further obligations to Executive under this Agreement other than (a) the timely payment of the Accrued Obligations, and (b) provided Executive executes a Separation and General Release Agreement in a form reasonably satisfactory to the Company, (i) a payment of severance pay in the aggregate amount of one times Executive’s annualized rate of base salary from the Company in effect immediately prior to his Separation Date (“Severance Pay”); (ii) any earned but unpaid annual bonus related to the Company’s performance for any period preceding the current fiscal quarter; (iii) a prorated portion of Executive’s annual bonus for the fiscal quarter in which his employment terminates to the extent the annual bonus is payable to all employees for such time period; (iv) two year acceleration of the vesting of unvested stock options; and (v) the COBRA Benefit (as hereinafter defined). Such Severance Pay, if any, shall be paid in twelve substantially equal monthly installments (without interest, with each installment equal to approximately 1/12th of the aggregate Severance Pay amount) beginning thirty days after Executive’s Separation Date. The Company’s obligation to provide such Severance Pay, bonus pay, and COBRA Benefit (or continue to provide such benefits, as the case may be) is subject to the condition precedent that Executive not breach any material term of this Agreement. Provided Executive timely elects COBRA coverage, the Company will continue Executive’s coverage under the Company’s health insurance plan under COBRA during the period that the Executive is receiving Severance Pay, on the same basis as if the Executive had remained an Executive of the Company during that period. Following expiration of the Company’s obligation to make such Severance Pay, Executive will have the right to continue COBRA coverage according to the COBRA guidelines and at the rates outlined in the COBRA notice.” |
7. |
Paragraph 7(b) is deleted in its entirety and replaced with the following language: Executive may terminate his employment for “Good Reason” after giving the Company detailed written notice thereof, if the Company fails to cure the event or circumstance constituting “Good Reason” within fifteen (15) days after receiving such notice. “Good Reason” means that, without Executive’s express written consent, the occurrence of any one or more of the following: (1) the Company requires Executive to relocate his principal place of employment for the Company more than twenty-five (25) miles from the Company’s principal office location as of the Effective Date, unless closer to Executive’s residence; (2) the Company materially diminishes Executive’s duties or responsibilities in a manner which is inconsistent with the provisions of this Agreement or with his status as Chief Financial Officer; or (3) the Company breaches any material term of this Agreement. In the event Executive terminates his employment for Good Reason, the Company shall have no further obligations to Executive under this Agreement other than (a) the timely payment of Accrued Obligations, and (b) provided Executive executes a Separation and General Release Agreement in a form satisfactory to the Company, (i) payment of the Severance Pay (as defined in (b) above); (ii) any earned but unpaid bonus related to the Company’s performance for any period preceding the current fiscal quarter; (iii) a prorated portion of Executive’s bonus for the fiscal quarter in which his employment terminates to the extent the bonus is payable to all employees for such time period; (iv) two year acceleration of the vesting of unvested stock options; and (v) the COBRA Benefit. Such Severance Pay, if any, shall be paid in twelve substantially equal monthly installments (without interest, with each installment equal to approximately 1/12th of the aggregate Severance Pay amount) beginning thirty days after Executive’s Separation Date. The Company’s obligation to provide such Severance Pay, bonus pay, and COBRA Benefit (or continue to provide such benefits, as the case may be) is subject |
to the condition precedent that Executive not breach any material term of this Agreement. Executive shall not be entitled to any additional compensation. |
8. |
Paragraph 8 is revised by deleting the following sentence: “In such circumstances, Executive shall have the remaining life of the original option to exercise such options or equity-based award (subject to the Company’s or Parent’s right to earlier terminate such options or equity-based awards pursuant to the change of control provisions applicable to such awards in the applicable Company or Parent stock incentive plan or award agreement thereunder).” |
9. |
REDPRAIRIE CORPORATION |
XXXX XXXX | |||||||
By: |
/s/ Xxxx X. Xxxxxxx |
/s/ Xxxx Xxxx | ||||||
Name: |
Xxxx X. Xxxxxxx |
|||||||
Title: |
CEO |
Second Amendment to Employment Agreement
Between
RedPrairie Corporation
and
Xxxx Xxxx
This Second Amendment dated as of the 1st day of January 2009, is attached to and made a part of the Employment Agreement dated 18 June 2006, as amended (the “Agreement”) between RedPrairie Corporation (hereafter “Company”) and Xxxx Xxxx (hereinafter “Executive”). Wherever possible, the terms of this Amendment shall be read in such a manner so as to avoid conflict with the terms of the Agreement but, in the event of an unavoidable conflict, the terms of this Amendment shall control over the terms and conditions of the Agreement. For good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree to revise the Agreement, which revisions are retroactively effective as of the date set forth above, in accordance with the following terms:
1. Section 8 of the Agreement is deleted in its entirety and replaced with the following new language:
“8. Change of Control. In the event Executive’s employment by the Company terminates within the first twelve (12) months following a Change of Control in circumstances that entitle Executive to payment of the Severance Pay pursuant to Section 7(b) or 7(c) above, provided Executive satisfies the release provisions set forth therein, Executive shall receive in lieu of the above referenced Severance Pay, a Change of Control severance payment equal to one and one half (1.5) times the Executive’s annualized rate of base salary from the Company in effect immediately prior to the Separation Date, payable in eighteen (18) substantially equal monthly installments (without interest, with each installment equal to approximately 1/18th of the aggregate amount) beginning thirty (30) days after Executive’s Separation Date. If a Change of Control occurs while the Executive is still employed by the Company (or any of its Affiliates), then all of Executive’s then-outstanding and otherwise unvested stock options and other equity-based awards granted by the Company or RedPrairie Holding, Inc. (the “Parent”) shall become fully vested as of immediately prior to the Change of Control, except as expressly provided otherwise in the agreement governing such stock option or other equity-based awards.
“Change of Control” shall mean the acquisition by any individual, corporation, partnership or other entity (each, a “Person”) after the Effective Date of legal or beneficial ownership of more than fifty percent (50%) of the equity or voting power of the Parent or the Company; provided, however, the following acquisitions of equity or voting power of the Parent or the Company shall not constitute a Change in Control (regardless of the resulting changes in percentage ownership of the Parent or the Company by any of its shareholders by reason of such acquisition): any acquisition by (i) the Parent or the Company, (ii) any employee benefit plan (or related trust) sponsored or maintained by the Parent, the Company or any affiliate or a successor thereof, or (iii) any Person who is the legal or beneficial owner of at least five percent (5%) of the equity or voting power of the Parent or the Company (or any affiliate of any such Person) as of immediately prior to the date of such acquisition As used in the definition of Change of Control, “affiliate” means, with respect to any Person, any other Person which, directly or indirectly, is controlled by, controls, or is under common control with, such Person. For the purposes of the preceding sentence, the word “control” (including the terms “controlling,” “controlled by” and “under common control with”) shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the entity, whether through the ownership of voting securities or partnership interests or by contract.”
REDPRAIRIE CORPORATION |
XXXX XXXX | |||||||
By: |
/s/ Xxxxxxx Xxxxxxx |
/s/ Xxxx Xxxx | ||||||
Name: |
Xxxxxxx Xxxxxxx |
|||||||
Title: |
CEO |