Exhibit 10.4
BLUESTONE SOFTWARE, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT is made on this 18th day of April,
1997 by and between Xxx Xxxxxx, a resident of 000 Xxxxxxxx Xxxxxx Xxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000 (the "Employee"), and BLUESTONE SOFTWARE, INC., a
corporation organized and existing under the laws of the State of Delaware (the
"Company"), and successor by merger to Bluestone Consulting Inc., a New Jersey
corporation.
WHEREAS, the Company is engaged in the business of designing, developing,
supporting, marketing and selling Internet and intranet software development
tools and related products and services (as may be expanded by the Company
during the term of this Agreement, the "Business");
WHEREAS, the Employee currently owns all of the issued and outstanding
capital stock of the Company and, after the equity financing pursuant to the
Series A Preferred Stock Purchase Agreement (the "Stock Purchase Agreement")
among the Company and the investors listed therein, will hold a majority of the
issued and outstanding capital stock of the Company on a fully-diluted basis;
WHEREAS, the Employee owns all of the issued and outstanding capital
stock of Bluestone Consulting, Inc., a Delaware corporation (the "Services
Company"), an affiliate of the Company; and
WHEREAS, the Company desires to employ the Employee and the Employee
desires to be employed by the Company for a one (1) year period 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 as President and Chief Executive Officer of the
Company (the "Position"), for a period commencing on the date hereof (the
"Commencement Date") and continuing until April 18th, 1998 (the "Initial Term")
upon the terms and conditions hereinafter set forth.
(b) This Agreement shall automatically renew for successive
additional one (1) year terms (each, a "Renewal Period") unless notice of
termination is given under Section 8 or the Company elects not to renew the
Agreement based upon a majority vote of the entire Board of Directors of the
Company (the "Board") (which in the case of a Board consisting of four directors
shall mean at least three votes in favor of non-renewal) and written notice of
such intention is given to the Employee not later than thirty (30) days prior to
the expiration of the Initial Term or any Renewal Period, as applicable. The
Initial Term of employment and any Renewal Periods hereunder are hereinafter
referred to collectively as the "Term."
2. DUTIES.
(a) During the Term, the Employee shall serve the Company
faithfully and to the best of his ability and shall devote, subject to Section
2(b), his full time, attention, skill and efforts to the performance of the
duties required by or appropriate for the Position. The Employee shall assume
such duties and responsibilities as may be customarily incident to such a
position, and such additional and other duties as may be assigned to the
Employee from time to time by the Board, including, without limitation, the
duties and responsibilities set forth in SCHEDULE A attached hereto. The
Employee shall report to the Board.
(b) The Employee may serve as President and Chief Executive
Officer of Bluestone Consulting, Inc., a Delaware corporation (the "Services
Company"), until on or about December 31, 1997. The Employee may elect to serve
as chairman and/or a member of the board of directors of the Services Company
without restriction.
3. COMPENSATION. The Company shall pay the Employee, and the Employee
hereby agrees to accept, as compensation for all services rendered hereunder and
for the Employee's intellectual property and other covenants and assignments as
provided for in Sections 4, 5 and 6 hereof, the compensation set forth in this
Section 3.
3.1 SALARY. The Company shall pay the Employee an initial base
salary at the annual rate of One Hundred Fifty Thousand Dollars ($150,000) (as
the same may hereafter be adjusted, the "Base Salary"). The Base Salary shall be
inclusive of all applicable income, social security and other taxes and charges
that are required by law to be withheld by the Company, are requested to be
withheld by the Employee, and 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 adjusted from time to time by the
Board in its discretion in accordance with the normal executive employee
compensation review practices of the Company.
3.2 BONUS PROGRAM. The Company shall pay to the Employee a cash
bonus in the amount of Fifty Thousand Dollars ($50,000) (or such greater amount
as determined by the Board in its sole discretion) for the fiscal year ended
December 31, 1997. Such bonus will paid to the Employee on or before January 31,
1998. Thereafter, the Employee shall be entitled
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to participate in any executive bonus program that may be established by and at
the discretion of the Company pursuant to which the Board may award bonuses to
executive employees, based upon the achievement of written individual and
corporate objectives such as the Board shall determine.
3.3 REPURCHASE AGREEMENT The Employee and the Company shall enter
into a repurchase agreement in respect of certain shares of Common Stock of the
Company owned by the Employee. The Repurchase Agreement shall set forth, among
other things, the number of shares subject to the Company's repurchase right,
the vesting schedule and the purchase price per share.
3.4 FRINGE BENEFITS. The Employee shall be entitled to participate
in any health or dental programs of the Company. The Employee shall be entitled
to participate in all vacation and other fringe benefit programs of the Company
to the extent and on the same terms and conditions as are accorded to other
officers and key employees of the Company. Notwithstanding the above, the
Employee is entitled to three (3) weeks paid vacation per calendar year.
3.5 REIMBURSEMENT OF EXPENSES. The Employee shall be reimbursed
for all normal items of travel and entertainment and miscellaneous expenses
reasonably incurred by him on behalf of the Company, provided that such expenses
are documented and submitted to the Company all in accordance with the
reimbursement policies of the Company as in effect from time to time.
4. CONFIDENTIALITY. The Employee recognizes and acknowledges that the
Proprietary Information (as hereinafter defined) is a valuable, special and
unique asset of the Company. As a result, both during the Term and 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 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 employment with the Company. Proprietary Information shall include, but
shall not be limited to: the intangible personal property described in Section
5(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 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 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,
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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 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 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 4. 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.
5. PROPERTY.
(a) All right, title and interest in and to Proprietary
Information shall be and remain the sole and exclusive property of the Company.
During the Term, the Employee shall not remove from the Company's offices or
premises any documents, records, notebooks, files, correspondence, reports,
memoranda or similar materials of or containing Proprietary Information, or
other materials or property of any kind belonging to the Company unless
necessary or appropriate in accordance with the duties and responsibilities
required by or appropriate for the Position and, in the event that such
materials or property are removed, all of the foregoing shall be returned to
their proper files or places of safekeeping as promptly as possible after the
removal shall serve its specific purpose. The Employee shall not make, retain,
remove and/or distribute any copies of any of the foregoing for any reason
whatsoever, except as may be necessary in the discharge of the assigned duties,
and shall not divulge to any third person the nature of and/or contents of any
of the foregoing or of any other oral or written information to which he may
have access or with which for any reason he may become familiar, except as
disclosure shall be necessary in the performance of the duties; and upon the
termination of his employment with the Company, he 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
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GV: #44228 v6 (Y4K06!.WPD)
Product") shall be the sole and exclusive property of the Company. The Employee
shall promptly disclose to the Company all Intellectual Work Product, and the
Employee shall have no claim for additional compensation for the Intellectual
Work Product.
(ii) The Employee acknowledges that all the Intellectual Work
Product that is copyrightable shall be considered a work made for hire under
United States Copyright Law. To the extent that any copyrightable Intellectual
Work Product may not be considered a work made for hire under the applicable
provisions of the United States Copyright Law, or to the extent that,
notwithstanding the foregoing provisions, the Employee may retain an interest in
any Intellectual Work Product that is not copyrightable, the Employee hereby
irrevocably assigns and transfers to the Company any and all right, title, or
interest that the Employee may have in the Intellectual Work Product under
copyright, patent, trade secret, trademark and other intellectual property laws,
in perpetuity or for the longest period otherwise permitted by law, without the
necessity of further consideration. The Company shall be entitled to obtain and
hold in its own name all copyrights, patents, trade secrets, and trademarks with
respect thereto.
(iii) The Employee shall reveal promptly all information
relating to the Intellectual Work Product to an appropriate officer of the
Company, cooperate with the Company and execute such documents as may be
necessary or appropriate (A) in the event that the Company desires to seek
copyright, patent, trademark or other analogous protection thereafter relating
to the Intellectual Work Product, and when such protection is obtained, 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 5(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 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.
6. COVENANT NOT TO COMPETE.
(a) During the Term and for a period of one (1) year thereafter
(the "Restricted Period"), the Employee shall not, in the United States or in
any country in which the Company is conducting or has conducted business at any
time during the one (1) year period immediately preceding the termination of his
employment, 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 (other than the Services Company), as
conducted during the Term;
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(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 the
business of any subsidiary or affiliate (other than the Services Company) 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 (other than the Services Company) of the Company as conducted
during the Term (notwithstanding the foregoing, (i) the Employee may hold up to
five percent (5%) of the outstanding securities of any class of any
publicly-traded securities of a company that is engaged in activities referenced
in Section 6(a) hereof and (ii) the Employee may serve on the Board and the
board of directors of the Services Company);
(iii) solicit or call on, either directly or indirectly, any
(A) customer with whom the Company shall have dealt at any time during the one
(1) 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 one (1) year period immediately preceding the
termination of the Employee's employment hereunder, except in respect of
customers, suppliers or distributors of the Services Company;
(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 one (1) year 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 subsequent
employment by this Section 6 are reasonable and fair and will not prevent or
materially impair his ability to earn a livelihood.
7. 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
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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 has with
any other employer, person or entity.
(b) Upon and after his termination or cessation of employment with
the Company and until such time as no obligations of the Employee to the Company
hereunder exist under Section 6, the Employee (i) shall provide copies of
Sections 4, 5 and 6 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 employment, affiliation, engagement, association or the
establishment of any business or remunerative relationship.
8. EARLY TERMINATION. The Employee's employment hereunder may be
terminated during the Term upon the occurrence of any one of the events
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 by
reasons of illness, injury or incapacity for a period of more than one hundred
twenty (120) consecutive calendar days or more than ninety (90) working days, in
the aggregate, during any six (6) month period ("Disability"), the Employee's
employment hereunder may be terminated upon the majority vote of the entire
Board (which in the case of a Board consisting of four directors shall mean at
least three votes in favor of termination).
(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
benefits 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 any disability or life insurance
plan or arrangement in which he is a participant or to which he is a party as an
employee of the Company. In addition to he foregoing, in the event of a
termination under Section 8.1, the Employee shall receive a cash severance
payment in an amount equal to six (6) months of his Base Salary on the date of
termination.
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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, benefits and other compensation for the month in which he dies, as well
as a payment in an amount equal to six (6) months of his Base Salary on the date
of termination.
8.3 TERMINATION FOR CAUSE.
(a) Upon a majority vote of the entire Board (which in the
case of a Board consisting of four directors shall mean at least three votes in
favor of termination), the Company may elect to terminate the Employee's
employment hereunder at any time for cause upon written notice to the Employee.
For purposes of this Agreement, the term "cause" shall mean:
(i) a material breach by the Employee of any of the
obligations under Sections 5, 6 or 7 of this Agreement, which breach remains
uncured for a period of ninety (90) days after the Employee has received
written notice from the Company of such breach;
(ii) the Employee's willful or gross neglect of his
duties hereunder, or willful or gross misconduct in the performance of such
duties, so as to cause material harm to the Company;
(iii) a judicial determination that the Employee has
committed fraud, misappropriation or embezzlement against the Company; or
(iv) conviction of the Employee for any felony which,
as determined in good faith by the Board, constitutes a crime involving moral
turpitude and results in material harm to the Company.
(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.
8.4 TERMINATION BY EMPLOYEE.
(a) The Employee may terminate his employment hereunder,
upon at least four (4) weeks prior written notice to the Company.
(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 all accrued but
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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.
8.5 TERMINATION WITHOUT CAUSE.
(a) Upon a majority vote of the entire Board (which in
the case of a Board consisting of four directors shall mean at least three
votes in favor of termination), the Company may elect to terminate the
Employee's employment hereunder without cause 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 8.5(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. In addition to the foregoing,
in the event of a termination under Section 8.5, the Employee shall receive a
cash severance payment in an amount equal to six (6) months of his Base
Salary on the date of termination. 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.
9. SURVIVAL OF PROVISIONS. The provisions of this Agreement set forth
in Sections 3.3 and 4 through 20 hereof shall survive the termination of the
Employee's employment hereunder.
10. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the Company and the Employee and their respective
successors, executors, administrators, heirs and/or permitted assigns; provided
that the Employee may not assign this Agreement or any interest herein, by
operation of law or otherwise, without the prior written consent of the Company
in its sole discretion.
11. NOTICE. Any notice hereunder by either party shall be given by
personal delivery, by sending such notice by certified mail, return-receipt
requested, by overnight delivery with a reputable courier service, or by
telecopier, 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, or the date of delivery or, in the case of facsimile
transmission, when confirmed by the facsimile machine report.
If to the Employee:
Xxx Xxxxxx
000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
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Fax: (000) 000-0000
If to the Company:
Bluestone Software, Inc.
0000 Xxxxxx Xxxx
Xxxxx Xxxxxx, XX 00000
Attention: Board of Directors
Fax: (000) 000-0000
with a copy to:
Pepper, Xxxxxxxx & Xxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxx, Esquire
Fax: (000) 000-0000
12. ENTIRE AGREEMENT AND 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.
13. 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.
14. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of New Jersey, without regard to the
principles of conflicts of laws of any jurisdiction.
15. INVALIDITY. If any provision of this Agreement shall be determined
to be void, invalid, unenforceable or illegal for any reason, then the validity
and enforceability of all of the remaining provisions hereof shall not be
affected thereby. If any particular provision of this Agreement shall be
adjudicated to be invalid or unenforceable, then such provision shall be deemed
amended to delete therefrom the portion thus adjudicated to be invalid or
unenforceable, such amendment to apply only to the operation of such provision
in the particular jurisdiction in which such adjudication is made; provided
that, if any provision contained in this Agreement shall be adjudicated to be
invalid or unenforceable because such provision is held to be
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excessively broad as to duration, geographic scope, activity or subject, then
such provision shall be deemed amended by limiting and reducing it so as to be
valid and enforceable to the maximum extent compatible with the applicable laws
of such jurisdiction, such amendment only to apply with respect to the operation
of such provision in the applicable jurisdiction in which the adjudication is
made.
16. 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.
17. NUMBER OF DAYS. In computing the number of days for purposes of this
Agreement, all days shall be counted, including Saturdays, Sundays and legal
holidays; provided that, if the final day of any time period falls on a
Saturday, Sunday or day which is a legal holiday in New Jersey, then such final
day shall be deemed to be the next day which is not a Saturday, Sunday or legal
holiday.
18. SPECIFIC ENFORCEMENT; EXTENSION OF PERIOD.
(a) The Employee acknowledges that the restrictions contained in
Sections 4, 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 of Sections 4, 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 4, 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 Section 6 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 ending on the date of a final non-appealable order or settlement by the
parties relating to such litigation.
19. 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 New Jersey or in the Federal District Court for such
geographic location. The Employee hereby consents to the exclusive jurisdiction
and venue of the courts of the State of New Jersey 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
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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.
20. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the day and year first written above.
BLUESTONE SOFTWARE, INC.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------
Title: Chief Financial Officer
WITNESS:
/s/ Xxxxxx Xxxxxxxx /s/ Xxx Xxxxxx
--------------------- -------------------------
Name: Xxxxxx Xxxxxxxx XXX XXXXXX
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