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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of August 15, 1996 (the "Agreement"), between
SynQuest, Inc., a New York corporation (the "Corporation"), and Xxxxxxx X.
Xxxxxx (the "Executive") residing at 000 Xxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxxxxxx
00000.
WHEREAS, the parties hereto desire to establish and set forth the terms
of the Executive's employment by the Corporation.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained the parties do hereby agree as follows:
1. Employment. The Corporation hereby employs the Executive and
the Executive hereby accepts employment all upon the terms and conditions set
forth herein. The Executive shall serve as Vice President Field Operations of
the Corporation and shall perform such duties and exercise such supervision and
powers over and with regard to the business of the Corporation customarily
associated with such position, as well as such other services for the
Corporation and its subsidiaries as the Board of Directors of tile Corporation
(the "Board") shall from time to time assign.
2. Term. The initial term of this Agreement shall be
from August 15,. 1996 through August 15, 1999 unless the Executive's employment
is sooner terminated as hereinafter provided in Section 9 hereof. After the
initial term, the term of employment hereunder shall automatically be extended
on the same terms and conditions contained herein for successive one-year
periods, except that if the Executive gives notice in writing to the Board or
the Board gives notice in writing to the Executive not less than 90 days prior
to the date on which such term of employment would otherwise have been renewed
indicating such party's intent to terminate this Agreement at the end of the
period in which such notice is given, then this Agreement shall terminate on the
date such period expires. The initial term of employment and the renewal periods
are each referred to herein as a "Period of Employment".
3. Compensation: Grant of Stock Options.
(a) During the first year of employment, the Corporation shall pay
the Executive a base salary of $120,000 per annum payable in accordance with the
Corporation's payroll practice as from time to time in effect (the "Base
Salary").
(b) Executive shall be paid a draw against bonus of $65,000 paid
by the Corporation in 24 equal installments annually.
(c) Executive shall be paid an annual bonus of $80,000 based on
mutually acceptable objectives.
(d) On the date hereof, the Corporation will grant to the
Executive options (the "Options") to purchase 108,487 shares of common Stock,
par value $.01 per share, of the
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Corporation pursuant to a stock option agreement between the Executive and the
Corporation as follows:
(i) The Options shall be granted under the Corporation's
Incentive Stock Option Plan, as amended (the "Option Plan");
(ii) 36,162 Options shall vest on each of the first and second
anniversaries of the date of grant and 36,163 Options shall vest on the third
anniversary of the date of grant;
(iii) Each of the Options shall have a exercise Price; and
(iv) The issuance of the Options shall be conditioned upon the
Option Plan being amended by the Corporation's shareholders to increase the
number of shares available for issuance under the Option Plan to cover the
Options.
(e) The company hereby grants to the executive the option to
purchase 125,000 shares of common stock at $1.80 per share. This option expires
90 days following the execution of this agreement.
4. Reimbursement of Business Expenses. The Corporation shall
reimburse the Executive for all reasonable business expenses incurred by the
Executive in the performance of his duties hereunder, provided that the
Executive presents vouchers therefor or other evidence thereof to the
Corporation in accordance with the Corporation's general reimbursement policy as
in effect from time to time for executives of the Corporation.
5. Additional Benefits and Perquisites. The Executive shall have
those additional benefits and perquisites from time to time hereafter authorized
for the Executive in accordance with the Corporation's policies in effect from
time to time.
6. Participation in Group Plans: Life Insurance. The
Executive shall be eligible to participate in the Corporation's existing benefit
plans and any other employee compensation, welfare, insurance and other benefit
plans that may from time to time be provided by the Corporation to key executive
personnel.
7. Vacation. The Executive shall be entitled to paid vacation in
accordance with the Corporation's policies in effect from time to time.
8. Termination of Employment.
(a) Death. The Executive's employment hereunder shall terminate
upon his death.
(b) Disability. If the Board determines in good faith, based on
medical evidence considered by it to be reliable and after giving the Executive
an opportunity to present evidence on his own behalf, that as a result of a
medically determinable physical or mental impairment the Executive has become
substantially unable to perform his duties hereunder at the principal executive
offices of the Corporation for any period of six consecutive months, or nine
months in any 12-month period, then the Executive shall be deemed to be disabled
for the purposes of this Agreement and the Board may give the Executive a Notice
of Termination (as hereinafter
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defined) and terminate the Executive's employment hereunder. The Executive's
compensation, title and status shall continue during any such period of
disability until the Date of Termination (as hereinafter defined). All
determinations by the Board pursuant to this Section 9 9b) shall be final and
binding upon the Executive.
(c) Termination for Cause. The Board may terminate the Executive's
employment hereunder for Cause. For the purpose of this Agreement, the Board
shall have "Cause" to terminate the Executive's employment hereunder upon: (i)
tile determination by the Board that Executive has ceased to perform his duties
hereunder (other than as a result of his incapacity due to physical or mental
illness or injury), which failure amounts to an intentional and extended neglect
of his duties hereunder; (ii) conviction of the Executive for a felony or any
crime involving theft, fraud or moral turpitude; (iii) commission by the
Executive of any act involving dishonesty or fraud against the Corporation or
its subsidiaries, or which adversely affects the .Corporation or its
subsidiaries; (iv) failure by the Executive to comply with a reasonable, written
order of the Board; (v) a misrepresentation made willfully, recklessly or in bad
faith by the Executive to the stockholders of the Corporation or the Board which
causes injury to the Corporation or its subsidiaries or the stockholders or the
Corporation; or (vi) a material breach by the Executive of his obligations under
Sections 11 or 12 hereof. The Executive's employment shall not be deemed to have
been terminated for Cause unless and until there shall have been delivered to
the Executive a Notice of termination specifying the particulars thereof in
reasonable detail.
(d) Termination Without Cause.
(i) The Board may terminate the Executive's employment without
Cause at any time by delivering to the Executive a Notice of Termination.
(ii) The Executive shall be permitted to terminate his
employment, as hereinafter provided, and such employment shall be considered to
have been constructively terminated without Cause if there occurs a material
change in the position held by the Executive, or in the duties of the Executive,
without the Executive's consent such that the position held by the Executive or
the duties of the Executive shall not be comparable to the position and duties
of the Executive prior to such change.
(e) Voluntary Termination. The Executive may effect a Voluntary
Termination (as hereinafter defined) of his employment hereunder at any time by
delivering to the Board a Notice of Termination at least 60 days (or such
shorter period of time as the Board shall specify in its sole discretion after
receiving such Notice of Termination) before the effective date of such
termination. For the purposes of this Agreement, "Voluntary Termination" means
the termination by the Executive of his employment with Corporation for any
reason other than death or disability or as permitted by Section 9(d) hereof;
provided, however, that if at the time of such Voluntary Termination the
Executive could be terminated by the Board for Cause, the Executive shall be
deemed to have been terminated for Cause.
(f) Notice of Termination. Any termination by the Board pursuant
to Sections 9(b), (c) or (d) hereof shall be communicated by Notice of
Termination to the Executive. Any termination by the Executive pursuant to
sections 9((1) or (e) hereof shall be communicated by Notice of Termination to
the Board. For purposes of this Agreement, a "Notice of Termination" shall mean
a notice that shall indicate the specific termination provision in this
Agreement relied upon and, if delivered pursuant to Sections 9(b), (c) or (d)
hereof, shall set forth the basis for
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termination of the Executive's employment under the provisions
indicated and, if delivered by the Board pursuant to Sections 9(c ) or (d)
hereof or by the Executive pursuant to Section 9(e) hereof, shall specify the
effective date of termination.
(g) Date of Termination. "Date of Termination" shall mean:
(i) If the Executive's employment is terminated by reason of
death pursuant to Section 9(a) hereof, the date of death;
(ii) If the Executive's employment is terminated for
disability pursuant to Section 9(b) hereof, 30 days after Notice of Termination
is given;
(iii) If the Executive's employment is terminated by the Board
pursuant to Sections 9(c ) or (d) hereof, the date specified in the Notice of
Termination;
(iv) If the Executive's employment is terminated by the
Executive pursuant to Section 9(d) hereof, the date of the Notice of Termination
is given; and
(v) If the Executive effects a Voluntary Termination pursuant
to Section 9(e) hereof, 60 days after Notice of Termination is given (or such
shorter period of time as the Board shall specify in its discretion after
receiving such Notice of Termination).
(h) Employment Rights. Nothing in this Agreement shall confer on
the Executive any right to continue in the employ of the Corporation or its
subsidiaries, or to interfere in any way with the right of the Board to
terminate the Executive's employment at any time.
(i) Survival of Terms. The rights and obligations of the
Corporation and the Executive pursuant to Sections 11, 12 and 13 of this
Agreement shall survive the expiration or earlier termination of this Agreement.
9. Compensation upon Termination or During Disability.
(a) No Further Obligation. Upon any termination of employment, the
Corporation and its subsidiaries shall have no further obligation to the
Executive except to pay the Executive (or his estate in the case of death) the
compensation and other benefits provided in this Section 10.
(b) Death. If the Executive's employment shall be terminated by
reason of his death, the Corporation shall pay to his estate his Base Salary and
any other amounts due to the Executive from the Corporation (whether pursuant to
benefit plans or otherwise) through the Date of Termination.
(c) Disability. During any period that the Executive fails to
perform his duties hereunder as a result of disability referred to in Section
9(b) hereof, the Executive shall continue to receive payment of his Base Salary
earned and any other amounts due to the Executive from the Corporation (whether
pursuant to benefit plans or otherwise) through the Date of Termination. After
payment of amounts set forth in this Section 10(c), the Executive's
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compensation shall be in accordance with such long-term disability plans, if
any, of the Corporation as may then be in effect with respect to the Executive.
(d) Cause: Voluntary Termination. If the Executive's employment is
terminated for Cause or if the Executive effects a Voluntary termination of his
employment, he shall receive payment of his Base Salary earned and any other
amounts due to him from the Corporation (whether pursuant to benefit plans or
otherwise) through the Date of Termination.
(e) Termination Without Cause. If the Executive's employment is
terminated without Cause pursuant to Section 9(d) hereof, then if the Executive
is not then in violation of the provisions of the Section 11 or 12 hereof, (I)
within 15 days after the Date of Termination, the Corporation shall pay the
Executive his Base Salary earned and any other amounts due to him from the
Corporation (whether pursuant to benefit plans or otherwise) through the Date of
Termination; and (ii) the Corporation shall pay to the Executive $120,000 in
accordance with the Corporation's payroll practice as then in effect over the
applicable period of time specified below and shall permit the Executive to
participate in the Corporation's group benefit plans on the same basis that the
Executive participated before termination, in each case until the earlier off
(A) the first anniversary of the Date of Termination, or (B) the date the
Executive accepts other employment, including, without limitation, employment as
a full time consultant in any enterprise. Notwithstanding the foregoing, if the
Executive accepts other employment prior to the first anniversary of the Date of
Termination and the total annual compensation for the Executive under such new
position is less than $120,000 the Corporation shall only pay the Executive, for
the period from the date the Executive accepts such other employment until the
first anniversary of the Date of Termination, the difference between the annual
compensation payable from such other employment and $120,000 prorated over such
remaining period.
10. Confidential Information: Inventions.
(a) Confidential Information. The Executive recognizes and
acknowledges that the Confidential Information (as hereinafter defined) are
valuable, special and unique assets of the Corporation's business, access to and
'knowledge of which are essential to the performance of the Executive's duties
hereunder. The Executive shall not, while employed by the Corporation or at any
time thereafter, for any reason or purpose whatsoever, disclose to any Person
(as hereinafter defined) any Confidential Information (except as such disclosure
may be required in the course of the performance of his duties hereunder during
the term of his employment and except as such disclosure may be required by law
after reasonable notice to the Corporation), and shall not use for his own
purposes or for the benefit of any other Person (except the Corporation and its
subsidiaries) any Confidential Information under any circumstances. Ail records,
files, memoranda, reports, business plans, customer lists and other property
relating to the Business of the Corporation (as hereinafter defined) which he
will use, prepare or come into contact with, will be and remain the sole
property of the Corporation, as applicable, will be returned by him to the
Corporation upon the termination of his employment and will not be copied or
used by him (except to the extent required in the course of his employment by
the Corporation).
(b) Inventions. The Executive shall disclose promptly and make
available to the Corporation all information, details and data pertaining to all
Inventions (as hereinafter defined) conceived, made or acquired by him, jointly
or severally, during tile term of his employment. All
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inventions which he may conceive, make or acquire during the term of his
employment shall remain the exclusive property of the Corporation, and the
Executive hereby sells, transfers and assigns to the Corporation, or to any
Person designated by the Corporation, the entire right, title and interest of
the Executive in and to all such Inventions. The Executive shall execute and
deliver to the Corporation such documents, formal transfers and assignments as
may be necessary or required to transfer such Inventions to the Corporation or
any Person designated by the Corporation, and to permit the Corporation or any
Person designated by the Corporation to file and prosecute patent applications,
and, as to copyrightable material, to obtain copyright thereof, including
patent, trademark and copyright applications and assignments, and shall deliver
to the Corporation any and all codes, documentation, facts, sketches, drawings,
models, figures and other information with respect to such Inventions. Any
Invention disclosed by the Executive within one year following termination of
his employment shall be deemed to fall within the provisions of this Section 11
(b) unless proved to have been first conceived and made following such
termination.
(c) Definitions. As used herein, the following terms shall have
the meanings set forth below:
(i) "Business of the Corporation" means the business of
developing, manufacturing, execution and scheduling software for large
discrete-part manufacturers and all other products, services, and business
activities attendant thereto or in which the Corporation or its subsidiaries
engages, or which are under consideration or in development, at any time during
the term of the Executive's employment.
(ii) "Confidential Information" means any and all trade
secrets, know-how and proprietary or confidential business data of the
Corporation and its subsidiaries, including, without limitation, customer lists,
customer activity, business plans or projections and other information of the
Corporation and its subsidiaries not generally known in the industry in which
the Corporation and its subsidiaries are engaged.
(iii) "Inventions" means any and all discoveries, concepts,
software codes, ideas, designs, applications, processes, disclosures,
(pound)ormulae, know-how, methods, inventions and/or improvements whether
patented or unpatented, or patentable or unpatentable, and copyrighted or
copyrightable material which relate to, or have application with respect to, the
products, processes or services, sold, leased, used or under consideration or
development by the Corporation or its subsidiaries, or which otherwise arise
from the efforts of the Executive during the course of his employment hereunder.
11. Interference with Relationships with Employees, Suppliers and
Customers: Non-Competition.
(a) Non-Interference. During the term of his employment by the
Corporation and for the greater of the remaining portion of the applicable
Period of Employment or two years following the termination of such employment,
the Executive shall not, for himself or on behalf of any other Person, directly
or indirectly, entice or in any other manner persuade or induce, or attempt to
persuade or induce, any employee, customer, principal, supplier of, lessor,
lessee, partner or other person with any material business relationship with
the Corporation or its
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subsidiaries to discontinue and/or reduce such relationship, and shall not
interfere with, disrupt or attempt to disrupt any such relationship.
(b) Non-Competition. During the term of his employment with the
Corporation and for the greater of the remaining portion of the applicable
Period of Employment or two years following the termination of such employment,
the Executive shall not, directly or indirectly, engage, and shall not be
interested as a partner, trustee, director, officer, employee, shareholder,
option holder, consultant or other direct or indirect participant or beneficiary
in any Person that is a direct competitor of the Corporation or a customer of
the Corporation. Not withstanding the foregoing, the ownership for investment
purposes as a passive investor of common stock constituting not more than 2% of
the outstanding common stock of a Person which is traded on the New York Stock
Exchange or the American Stock Exchange or which is authorized to be quoted on
the Nasdaq National Market, even though that Person is a competitor of the
Corporation, shall not be prohibited by this Section 12.
(c) Specific Performance. It is the desire and intent of the
parties that the provisions of this Section 12 shall be enforced to the fullest
extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, if any particular
portion of this Section 12 shall be adjudicated to be invalid or unenforceable,
this Section 12 shall be deemed amended to delete therefrom the portion thus
adjudicated to be invalid or unenforceable, such deletion to apply only with
respect to the operation of this Section 12 in the particular jurisdiction in
which such adjudication is made.
12. Miscellaneous.
(a) The covenants contained in Sections 11 and 12 hereof are
reasonably necessary to protect the legitimate business interests of the
Corporation and will not create undue hardship for the Executive in the event of
termination of employment. The Executive acknowledges that damages for the
violation of any such covenants will not give full and sufficient relief to the
Corporation. In the event of any violation of any such covenants, the
Corporation shall be entitled to injunctive relief against the continued
violation thereof, in addition to any other rights which the Corporation may
have by reason of such violation.
(b) This Agreement shall be binding upon and inure to the benefit
of, and shall be enforceable by, the Executive and the Corporation, their
respective heirs, executors, administrators, successors and assigns. In the
event of any assignment of this Agreement by the Corporation, by operation of
law or otherwise, the Corporation, as applicable, shall remain primarily liable
for its obligations hereunder. This Agreement shall not be assignable by the
Executive.
(c) This Agreement shall for all purposes be construed as an
Agreement made within and to be wholly performed within the State of New York,
it being the intention of the parties that the substantive law of that state
control the construction and enforcement hereof.
(d) Every notice or other communication required or permitted to
be given hereunder shall be in writing and shall be delivered by messenger,
transmitted by facsimile, sent by next-
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day air courier or mailed by United States registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
(i) If to the Executive:
Xxxxxxx X. Xxxxxx
000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxx, XX 00000
(ii) If to the Corporation:
SynQuest, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Board of Directors
Facsimile: (000) 000-0000
or to such other address as any party may have furnished to the other in writing
in accordance herewith. All such notices and communications shall be deemed to
have been duly given: when delivered by hand, if personally delivered; when
receipt is acknowledged if by facsimile; one business day after being sent by
next-day air courier; and two business days after being deposited in the mail,
postage prepaid, if mailed, except that notices of change of address shall be
effective only upon receipt.
(e) This Agreement may not be changed, terminated, modified or
waived orally. Any change or termination must be signed by the Executive and the
Corporation. Any waiver must be signed by the parties thereto and must be
denominated as a waiver. No waiver of any provision in one instance shall be a
waiver of such provision in any other instance or be a waiver of any other
provision.
(f) This Agreement shall be construed and interpreted so as to be
enforceable to the fullest extent permitted by law and to the extent it shall be
deemed unenforceable or invalid in any jurisdiction, such invalidity and
unenforceability shall not affect its validity or enforceability or validity of
any other jurisdiction, nor shall it affect the enforceability or validity of
any provision hereof.
(g) Words of the masculine gender used herein shall include import
words of the feminine or neuter gender where appropriate.
(h) The term "Person" as used herein shall mean a natural person,
or any partnership, proprietorship, association, corporation or other entity.
(i) The term "affiliate" as used herein shall mean with respect to
any Person, any other Person that directly or indirectly, by itself or through
one or more intermediaries, controls, or is controlled by, or is under direct or
indirect common control with, such person.
(j) This Agreement sets forth the entire agreement among the
parties hereto in respect of the subject matter hereof and supersedes any and
all prior agreements and understandings with respect tot he employment of the
Executive by the Corporation. To the extent any terms contained herein are in
conflict with or are inconsistent with the terms of any
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other agreement to which the Executive or the Executive and the Corporation are
parties, the terms of this Agreement shall govern.
(k) The Corporation shall deduct from all amounts payable under
this Agreement all Federal, state, local and other taxes required by law to be
withheld with respect to such payments.
(l) The section headings in this Agreement are for convenience of
reference only and shall not be deemed to alter or affect any provision hereof.
Accepted and Approved:
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxx
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By: Xxxxxxx X. Xxxxxx By: Xxxxxx X. Xxxxx
Title: President
Date: Date:
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