EXE TECHNOLOGIES, INC.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made as of the
1st day of July 2000 ("Effective Date") by and between Xxxxxxx Xxxx, a
resident of Dallas, Texas (the "Employee"), and EXE Technologies, Inc., a
corporation organized and existing under the laws of the State of Delaware
(the "Company") with its headquarters in Dallas, Texas.
WHEREAS, since the commencement of its operations on
September 15, 1997, the Company has employed the Employee as its Chief
Executive Officer and President; and
WHEREAS, the Company desires to continue to employ the
Employee and the Employee desires to continue 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. The Company hereby employs the Employee
and the Employee hereby accepts employment with the Company for the position
detailed in paragraph 2, for a period of three (3) years from the Effective
Date through and ending on June 30, 2003 unless sooner terminated as provided
herein (the "Initial Term"). At the end of the Initial Term, this Agreement
shall automatically renew for successive additional periods of one (1) year
(the "Renewal Term"), unless earlier terminated by either party upon no less
than ninety (90) days prior written notice to the other party prior to the
expiration of the Initial Term or any such Renewal Term. The Initial Term of
employment and any Renewal Term hereunder, subject to the provisions of
Section 8 hereof, are hereinafter referred to as the "Term." Each twelve-month
period running from July 1 through June 30 during the Term shall be referred
to herein as an "Annual Period."
2. POSITION AND DUTIES. During the Term, the Employee shall
serve as President and Chief Executive Officer of the Company. In such
capacity, the Employee, subject to the ultimate control and direction of the
Board of Directors of the Company, shall have and exercise direct charge of
and general supervision over the business and affairs of the Company. In
addition, the Employee shall have such other duties, functions,
responsibilities, and authority as are from time to time delegated to the
Employee by the Board of Directors of the Company, provided that such duties,
functions, responsibilities, and authority are reasonable and customary for a
person serving as President and Chief Executive Officer of an enterprise
comparable to the Company. The Employee shall report and be accountable only
to the Board of Directors of the Company.
1
3. OTHER BUSINESS ACTIVITIES. During the Term, the Employee
shall devote his full time, skill, and attention and his best efforts to the
business and affairs of the Company to the extent necessary to discharge
fully, faithfully and efficiently the duties and responsibilities delegated
and assigned to the Employee herein or pursuant hereto, except for usual,
ordinary, and customary periods of vacation and absence due to illness or
other disability. Nothing in this Agreement prohibits the Employee's (i)
serving as a director of other entities that are not competitive with the
Company, (ii) involvement in community or charitable activities, or (iii)
personal or family investment-related activities, so long as such activities
do not materially and adversely interfere with the Employee's duties under
this Agreement.
4. COMPENSATION AND RELATED MATTERS. The Company shall pay the
Employee, and the Employee hereby agrees to accept, as compensation for all
services rendered hereunder and for the Employee's intellectual property
covenants and assignments and covenant not to compete as provided for in
Sections 5, 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 of $250,000.00 per annum (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
increased annually by the Compensation Committee of the Company in its
discretion, provided, however, that at no time shall Employee's salary be less
than the Base Salary.
4.2. LOAN. The parties acknowledge as of the date hereof
the Employee's total indebtedness to the Company collectively amounts to one
hundred twenty thousand dollars ($120,000.00) (the "Prior Debt"). The Prior
Debt shall be renewed and extended and, in addition, the Company shall loan
the Employee an additional five hundred thousand dollars ($500,000.00), which
combined with the Prior Debt shall equal an aggregate amount of six hundred
twenty thousand dollars ($620,000.00) (the "Loan"), evidenced by a promissory
note substantially in the form attached hereto as Exhibit A. The notes
evidencing the Prior Debt shall be marked canceled and shall be returned to
Employee upon execution of the promissory note in the amount of $620,000.00.
The Loan shall become due and payable upon the third anniversary of the
Effective Date and interest shall be payable annually at a rate of eight and
one half percent (8.5%); provided, however, that notwithstanding any other
provisions of this Agreement to the contrary, in the event that (i) the
Employee's employment with the Company is terminated because of the Employee's
death or Disability (as such term is hereinafter defined), or (ii) the
Employee's employment with the Company is terminated without Cause or for Good
Reason following a Change in Control (such as terms are hereafter defined),
the then unpaid amount thereof shall be forgiven by the Company. As security
for the Loan, the Employee shall enter into a Stock Pledge Agreement in the
form attached as Exhibit B hereto pursuant to which the Employee shall pledge
to the Company 77,500 shares of the Class A Common Stock of the
2
Company. The Loan is being made to facilitate the Employee's other financial
commitments and not to purchase any additional capital stock of the Company.
4.3. BONUS PROGRAM. During each Annual Period, the
Company will pay an annual cash bonus to the Employee based upon the
achievement of criteria to be determined as mutually agreed upon in writing
by the Employee and the Board of Directors of the Company within 60 days of
the Effective Date. The Employee's bonus target will be one hundred percent
(100%) of the Employee's Base Salary. The Employee's actual bonus payments
will vary depending on Company performance and will be payable quarterly in
accordance with the Company's normal practices.
4.4. APARTMENT. The Company shall continue to provide
Employee with an apartment to use as his residence in Dallas, Texas through
December 31, 2000.
4.5. EQUITY PARTICIPATION.
(a) The Employee acknowledges that the Company
granted the Employee stock options (the "Option") to purchase shares of the
Class A Common Stock, par value $.01 per share, of the Company ("Common
Stock") as listed in the chart below. The exercise price of the Option is
also listed in the chart below. Except as may otherwise be provided herein,
the Option shall continue to vest in accordance with the schedule set forth
on Exhibit "C."
Date Number of Shares Granted Exercise Price Per Share
---- ------------------------ ------------------------
August 1, 1998 500,000 $13.00
(b) The Option shall be subject to and in
accordance with the provisions of the 1997 Stock Option Plan of the Company,
as amended (the "Plan") previously provided to Employee.
(c) All shares of Common Stock issued under the
Option shall be subject to the terms and provisions of a Stock Purchase and
Restriction Agreement as required by the Plan.
4.6. FRINGE BENEFITS. During the Term, the Employee
shall be entitled to participate in all employee benefit plans, programs and
arrangements that are generally made available by the Company to its senior
executives, including, without limitation, the Company's life, long-term
disability and health/PPO plans and the Company's stock option and other
equity incentive plans. The Employee agrees to cooperate and participate in
any medical or physical examinations as may be required by any insurance
company in connection with the applications for such life and/or disability
insurance policies.
4.7. REIMBURSEMENT OF EXPENSES. The Employee shall be promptly
3
reimbursed for all 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 in accordance with
the reimbursement policies of the Company.
4.8. VACATIONS. During the Term, the Employee shall be
entitled to four (4) weeks of paid vacation each year. The Employee shall
also be entitled to all paid holidays given by the Company to its senior
executives. The Employee agrees to utilize his vacation at such time or times
as are (i) consistent with the proper performance of his duties and
responsibilities hereunder and (ii) mutually convenient for the Company and
the Employee.
4.9. BOARD SEAT. The Employee currently serves on the
Company's Board of Directors. So long as the Employee remains an employee of
the Company, the Company agrees to use its best efforts to cause the Employee
to be nominated for election to the Company's Board of Directors at each
annual or special meeting of the stockholders of the Company at which the
general election of directors of the Company is to take place and to use its
best efforts to cause the Employee to be so elected to such Board of
Directors.
4.10. INDEMNIFICATION. The Employee, in any capacity on
behalf of the Company or any of its subsidiaries or affiliates, shall be
entitled to exculpation, indemnification, and advancement of expenses to the
fullest extent not prohibited by Delaware or other applicable law. The
Employee shall also be entitled to coverage under each director's and
officer's liability insurance policy, if any, maintained by or on behalf of
the Company's directors and officers.
4.11. ATTORNEYS' FEES TO NEGOTIATE AGREEMENT. The
Company shall pay, or reimburse Employee for, the reasonable attorneys' fees
and expenses incurred in connection with the Employee's negotiation of this
Agreement within thirty (30) days after presentation of each invoice from the
Employee's attorneys.
5. 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 for a period of three (3) 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,
4
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/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: (i) during the course of his employment as
may be necessary or appropriate to the effective and efficient discharge of
his duties; (ii) as such disclosures may be required by law; or, (iii) in
accordance with the prior consent of the Company duly authorized by its Board
of Directors. 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 for the performance of his
duties and responsibilities 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,
5
models, data, diagrams, flow charts, and/or techniques (whether reduced to
written or electronic form or otherwise) that the Employee creates, makes,
conceives, discovers or develops, either solely or jointly with any other
person, at any time during the Term, whether during working hours or at the
Company's facility or at any other time or location, and whether upon the
request or suggestion of the Company or otherwise, and that relate to or are
useful in any way in connection with the Business now or hereafter carried on
by the Company (collectively, "Intellectual Work Product") shall be the sole
and exclusive property of the Company. The Employee shall promptly disclose
to the Company all Intellectual Work Product, and the Employee shall have no
claim for additional compensation for the Intellectual Work Product.
(ii) The Employee acknowledges that all
the Intellectual Work Product that is copyrightable shall be considered a
work made for hire under United States Copyright Law. To the extent that any
copyrightable Intellectual Work Product may not be considered a work made for
hire under the applicable provisions of the United States Copyright Law, or
to the extent that, notwithstanding the foregoing provisions, the Employee
may retain an interest in any Intellectual Work Product that is not
copyrightable, the Employee hereby irrevocably assigns and transfers to the
Company any and all right, title, or interest that the Employee may have in
the Intellectual Work Product under copyright, patent, trade secret,
trademark and other intellectual property laws, in perpetuity or for the
longest period otherwise permitted by law, without the necessity of further
consideration. The Company shall be entitled to obtain and hold in its own
name all copyrights, patents, trade secrets, and trademarks with respect
thereto.
(iii) The Employee shall reveal promptly
all information relating to the Intellectual Work Product to an appropriate
officer of the Company, cooperate with the Company and execute such documents
as may be necessary or appropriate (A) in the event that the Company desires
to seek copyright, patent, trademark or other 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 7(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.
7. COVENANT NOT TO COMPETE.
(a) The Employee shall not, anywhere in the
world, during the Term
6
and for a period of one (1) year 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 whose primary or principal business derives
thirty percent (30%) of its gross revenues from providing software for
warehouse management, supply chain execution and order fulfillment and
related services for warehouse, distribution and related facilities (a
"Competitive Business");
(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 Competitive Business,
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 considered a Competitive Business
(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 a Competitive
Business;
(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 twelve
(12) month 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 twelve (12) month 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 subsequent employment by this Section 7 are reasonable and fair and will
not prevent or materially impair his ability to earn a livelihood.
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. Upon termination, the Employee shall be entitled
only to such compensation and benefits as described
7
in this Section 8.
8.1. TERMINATION FOR DISABILITY.
(a) If the Disability (as defined below) of the
Employee occurs during the Term, the Company may notify the Employee of the
Company's intention to terminate the Employee's employment hereunder for
Disability. In such event, the Employee's employment hereunder shall
terminate effective on the 15th day following the date such notice of
termination is received by the Employee (the "Disability Effective Date").
For purposes of this Agreement a Disability occurs if the Employee is
determined to be "totally disabled" by a vote of at least eighty percent
(80%) of the Board of Directors of the Company (excluding Employee) based
upon the advice of a board-certified physician reasonably satisfactory to the
Company and the Employee, which may include a determination that the Employee
is unable, because of physical or mental illness or incapacity or otherwise,
to fulfill his duties under this Agreement for one hundred eighty (180)
consecutive days.
(b) In the event of a termination of the
Employee's employment hereunder pursuant to Section 8.1(a) and provided that
the Employee has complied with all of his obligations under this Agreement
and continues to comply with all of his surviving obligations hereunder
listed in Section 10, the Employee will be entitled to receive: (i)
continuation of the Base Salary in effect as of the Disability Effective Date
for a period of twelve (12) months following the date of Disability, payable
on the Company's standard payroll cycle; (ii) the Employee's annual bonus for
the twelve (12) month period specified in 8.1(b)(i) above, in an amount equal
to: (A) the percentage of target bonus actually received by the Employee for
the final fully served Annual Period, multiplied by (B) the Employee's
current target bonus on the date of termination, payable on the dates it
otherwise would have been payable; (iii) the right to exercise any stock
option held by Employee on the Disability Effective Date for the remainder of
its term, whether or not exercisable by Employee on the Disability Effective
Date; (iv) any amounts payable on Disability pursuant to any plans or
policies of the Company; and (v) any other amounts due but not yet paid from
the Company to Employee.
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: (i) the Employee's Base Salary in
effect as of the date of death for a period of twelve (12) months following
the date of death, which shall be payable in a lump-sum thirty (30) days
following the date of death; (ii) the Employee's annual bonus for the twelve
(12) month period specified in 8.2(i) above, in an amount equal to: (A) the
percentage of target bonus actually received by the Employee for the final
fully served Annual Period, multiplied by (B) the Employee's current target
bonus on the date of termination, payable on the dates it otherwise would
have been payable; (iii) the right to exercise any stock option held by
Employee on the date of death for the remainder of its term, whether or not
exercisable by Employee on the date of death; (iv) any amounts payable on
death pursuant to any plans or policies of the Company; and (v) any other
amounts due but not yet paid
8
from the Company to Employee.
8.3. TERMINATION BY THE COMPANY 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 only mean:
(i) (1) the Employee is convicted of fraud,
embezzlement, theft or other criminal conduct constituting a felony and such
conviction is final and non-appealable or (2) willful misconduct or gross
negligence in the performance of, or willful neglect of, the Employee's
duties, which has caused demonstrable and serious injury to the Company.
(ii) REQUIRED NOTICE. A termination for Cause
under section 8.3(a)(i)(2) shall not take effect unless the following has
occurred:
(1) the Board of Directors has given
Employee written notice of its intention to terminate
Employee for Cause, specifying with particularity the
grounds on which the proposed termination for Cause
is contemplated, which shall be acts or failures to
act on the part of Employee which occurred no more
than six (6) months prior to the Board having
knowledge of such acts or failures to act;
(2) the Employee shall have thirty (30)
days after such written notice to cure such conduct;
(3) if Employee fails to cure such
conduct, Employee shall have the right to request, by
notice to the Secretary of the Company given within
ten (10) days after Employee receives notice from the
Board that he has not cured the conduct within the
period described in subsection (b) above, a hearing
before the full Board of Directors, with his counsel;
and
(4) if, within five (5) days after
Employee's hearing by the Board, he receives a
certified copy of a resolution duly adopted by eighty
percent (80%) of the full Board (exclusive of
Employee) confirming that in its judgment the grounds
for termination for (Cause) described in the initial
notice given under subsection (a) above are
justified, the Employee's employment shall be
terminated.
(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 (prorated
9
for the number of days in the Annual Period prior to the effective date of
such 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. The unvested portion of
the Option shall be canceled at the time of such termination, and the
Employee shall be entitled to exercise only such options which vested as of
the effective date of such termination. 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 BY THE COMPANY WITHOUT CAUSE.
(a) The Company may terminate the Employee's
employment hereunder at any time, 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: (i) continuation of the Base Salary (in effect
as of the date of termination) for twelve (12) months after the date of
Termination, payable on the Company's standard payroll cycle; (ii) the
Employee's annual bonus for the twelve (12) month period specified in
8.4(b)(i) in an amount equal to: (A) the percentage of target bonus actually
received by the Employee for the final fully served Annual Period, multiplied
by (B) the Employee's current target bonus on the date of termination,
payable on the dates such payments would have been payable; (iii) the
immediate vesting of the unvested portion of the Option that would have
vested if the Employee had continued to be employed by the Company for a
period of twelve (12) months following his actual termination date; (iv) the
right to exercise any stock option which is exercisable by Employee on the
date of the termination of his employment; and (v) any other amounts due but
not yet paid from the Company to Employee.
8.5. TERMINATION BY THE EMPLOYEE FOR GOOD REASON.
(a) The Employee may terminate the Employee's
employment hereunder at any time for "Good Reason" following a written notice
of the termination of employment hereunder pursuant to this Section 8.5(a),
as more fully described below.
(b) For purposed of this Agreement, "Good Reason"
shall mean:
(i) (1) any reduction by the Company in the
Base Salary as in effect on the date hereof or as the same may be increased
from time to time; (2) any reduction in potential bonus compensation; (3) the
failure by the Company to continue in effect any benefit or compensation
plan, life insurance plan, health and accident plan or disability plan in
which the Employee was participating, which would adversely affect the
Employee's participation in or materially reduce the Employee's benefits
under any of such plans, (unless such reduction is pursuant to the general
change in benefits applicable to all similarly situated employees of the
10
Company); (4) taking of any action by the Company that would adversely affect
the Employee's participation in or materially reduce the Employee's benefits
under any of such plans (unless such reduction is pursuant to the general
change in benefits applicable to all similarly situated employees of the
Company) or (5) the failure by the Company to provide the Employee with the
number of paid vacation days to which the Employee is entitled;
(ii) the removal of Employee from his position
as President and Chief Executive Officer of the Company or as a member of the
Board of Directors of the Company without his prior written permission; or
(iii) any material and willful breach of the
Company of any provision of this Agreement or any written employment
agreement with Employee.
(c) For the purposes of this Agreement, a "Change
of Control" shall mean: (i) the sale, transfer, assignment or other
disposition (including by merger or consolidation) by stockholders of the
Company, in one transaction or a series of related transactions, of more than
a majority of the voting power represented by the then outstanding capital
stock of the Company to one or more stockholders or other third parties,
other than any such sales, transfers, assignments or other dispositions by
such stockholders to their respective heirs or affiliates such that the then
existing shareholders of the Company do not own more than fifty percent (50%)
of the outstanding equity; or (ii) a sale, transfer, assignment or other
disposition (including by merger or consolidation), of all of the outstanding
stock of the Company, or of all or substantially all of the assets of the
Company or a liquidation or dissolution of the Company.
(d) A Termination for Good Reason shall not take
effect until the following has occurred:
(i) the Employee has given the Board of
Directors written notice of his intention to terminate his employment for
Good Reason, specifying with particularity the grounds on which the proposed
Good Reason Termination is contemplated;
(ii) the Board of Directors shall have thirty
(30) days after such written notice to cure such grounds;
(iii) if the Board of Directors fails to cure
such grounds, then the Employee may terminate his employment by giving
written notice to the Board of Directors confirming that the grounds has not
been cured, whereupon the Employee's employment shall terminate.
(e) In the event of a termination of the
Employee's employment Without Cause or for Good Cause with one (1) year of a
Change in Control, the Employee, in addition to receiving the same
consideration set forth in Section 8.4(b) hereof, shall be entitled to
11
(1) exercise any stock option for the remainder of its term, whether or not
exercisable by Employee on the date of the termination of his employment, and
(2) the outstanding amounts of the Loan will be forgiven.
(f) In the event of a termination of the
Employee's employment hereunder pursuant to Section 8.5(a) hereof, except for
during the twelve (12) month period following a Change in Control the
Employee shall be entitled to receive the same consideration set forth in
Section 8.4(b) hereof.
8.6 OPTIONS; REPURCHASE OF SHARES. Except as otherwise
expressly provided in this Agreement, upon the termination of the Employee's
employment pursuant to this Section 8 for any reason, 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.
8.7. NO MITIGATION OR OFFSET. The Employee shall not be
obligated to seek or secure new employment or to become self-employed after
termination of his employment with the Company, but shall be obligated to
report promptly to the Company any actual employment obtained during the
period for which Employee benefits continue. There shall be no offset against
any amounts due to Employee under this Agreement on account of any
remuneration or benefits attributable to any subsequent employment
(including, without limitation, any self-employment) that he may obtain.
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 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 shall provide a
complete copy of this Agreement to any prospective
12
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.
10. SURVIVAL OF PROVISIONS. The provisions of this Agreement
set forth in Sections 5 through 22 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 their
respective successors, executors, administrators, heirs and/or permitted
assigns; provided that neither the Employee nor the Company may make any
assignments of this Agreement or any interest herein, by operation of law or
otherwise, without the prior written consent of the other parties hereto,
except that, without such consent, the Company may assign this Agreement to
any successor to all or substantially all of its assets and business by means
of liquidation, dissolution, merger, consolidation, transfer of assets, or
otherwise, provided that such successor assumes in writing all of the
obligations of the Company under this/her Agreement.
12. NOTICE. Any notice hereunder by either party shall be given
by personal delivery or by sending such notice by certified mail,
return-receipt requested, or by overnight delivery with a reputable courier
service, or telecopied, addressed or telecopied, as the case may be, to the
other party at its address set forth below or at such other address
designated by notice in the manner provided in this section. Such notice
shall be deemed to have been received upon the date of actual delivery if
personally delivered or, in the case of mailing, two (2) days after deposit
with the U.S. mail, or if by overnight delivery, the date of delivery or, in
the case of facsimile transmission, when confirmed by the facsimile machine
report.
If to the Employee:
Xxxxxxx X. Xxxx
0000 Xxxxxxxxx, Xxxx 0X
Xxxxxx, Xxxxx 00000
13
with a copy to:
Xxxxxx X. Xxxxxxxxx, Esq.
Gardere & Xxxxx, L.L.P.
3000 Thanksgiving Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
If to the Company:
EXE Technologies, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxx, XX 00000
Attention: CFO
with a copy to:
EXE Technologies, Inc.
000 Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
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,
14
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 the final day of any time
period falls on a Saturday, Sunday or day which is a legal holiday in Texas,
then such final day shall be deemed to be the next day which is not a
Saturday, Sunday or legal holiday.
19. ARBITRATION. Except for claims or disputes related to the
rights and obligations of the parties set forth in Sections 5,6 and 7 hereof,
the parties hereto agree that any controversy or claims arising out of or
relating to this Agreement shall be settled exclusively by arbitration in
accordance with the National Rules for the Resolution of Employment Disputes
of the American Arbitration Association ("AAA") as then in effect. The
parties hereto further agree that any arbitration proceeding commenced in
connection with this Agreement shall take place in Dallas, Texas under the
auspices of the AAA and judgement upon the award rendered by the
Arbitrator(s) may be entered in any court having jurisdiction thereof. The
prevailing party shall be entitled to recover, in addition to any other
relief, reasonable attorneys' fees, costs and disbursements.
20. 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 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.
15
(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 ending on the expiration of all
appeals related to such litigation.
21. CONSENT TO SUIT. Any dispute relating to the rights and
obligations of the parties set forth in Sections 5,6 and 7 hereof, may only
be brought in the Courts of the State of Texas in and for the County of
Dallas or in the United States District Court for the Northern District of
Texas. The Employee and the Company hereby consent to the jurisdiction and
venue of the courts of the State of Texas in and for the County of Dallas or
the United States District Court for the Northern District of Texas, provided
that such Federal Court has subject matter jurisdiction over such dispute,
and the Employee and the Company hereby waive any claim they may have at any
time as to FORUM NON CONVENIENS with respect to such venue. Any judgment
entered against either of the parties in any proceeding hereunder may be
entered and enforced by any court of competent jurisdiction. The prevailing
party shall be entitled to recover, in addition to any other relief,
reasonable attorneys' fees, costs and disbursements.
22. 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 this day and year first written above.
Approved: EXE TECHNOLOGIES, INC.
By: /s/ J. Xxxxxxx Xxxxx By: /s/ Xxxxxxxxxxx X. Xxxxxx
--------------------------- -----------------------------
J. Xxxxxxx Xxxxx,
As the Representative of the Title: Senior Vice President -
Compensation Committee of the Administration
Board of Directors of --------------------------
EXE Technologies, Inc.
/s/ Xxxxxxx Xxxx
--------------------------------
XXXXXXX XXXX
July 11, 2000
16
