EXHIBIT 9
SEVERANCE AGREEMENT
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This Severance Agreement (the "Agreement") is made and entered into
effective as of September 22, 1997 (the "effective Date"), by and between
XXXXXXX X. XXXXXXXX, an individual, whose address is 0000 Xxxxxxxxx Xxxxx, Xxxx,
Xxxxxxxx 00000 (the "Employee"), and STATE OF THE ART, INC., a California
corporation, of 00 Xxxx Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000-0000 (the
"Company").
R E C I T A L S
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A. It is expected that the Company may from time to time consider the
possibility of an acquisition by another company or other change of control.
The Board of Directors of the Company (the "Board") recognizes that such
consideration can be a distraction to the Employee and can cause the Employee to
consider alternative employment opportunities. The Board has determined that it
is in the best interests of the Company and the Company's shareholders to assure
that the Company will have the continued dedication and objectivity of the
Employee, notwithstanding the possibility, threat or occurrence of a Change of
Control (as defined below) of the Company.
B. The Board believes that it is in the best interests of the Company and
its shareholders to provide the Employee with an incentive to continue his
employment and to motivate the Employee to maximize the value of the Company
upon a Change Of Control for the benefit of its shareholders.
C. The Board believes that it is imperative to provide the Employee with
certain severance benefits upon the Employee's termination of employment
following a Change Of Control or otherwise which provides the Employee with
enhanced financial security and provides efficient incentive and encouragement
to the Employee to remain with the Company notwithstanding the possibility of a
Change Of Control.
D. Certain capitalized terms used in the Agreement are defined in Section
6 below.
In consideration of the mutual covenants herein contained, and
consideration of the continuing employment of Employee by the Company, the
parties agree as follows:
1. Duties and Scope of Employment.
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(a) Position. The Company shall employ the Employee in the position
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of Vice President, Client-Server Division, with such duties, responsibilities
and compensation as in effect as of the Effective Date; provided, however, that
the Board or the Chief Executive Officer of the Company (the "CEO") shall have
the right to revise such responsibilities and compensation from time to time as
the Board or the CEO may deem necessary or appropriate. If any such revision
constitutes "Involuntary Termination" as defined in this Agreement, the Employee
shall be entitled to benefits upon such Involuntary Termination as provided
under this Agreement.
(b) Obligations. The Employee shall devote his full business efforts
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and time to the Company and its subsidiaries. The foregoing, however, shall not
preclude the Employee from engaging in such activities and services as do not
interfere or conflict with his responsibilities to the Company.
2. At-Will Employment. The Company and the Employee acknowledge the
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Employee's employment is and shall continue to be at-will, as defined under
applicable law. If the Employee's employment terminates for any reason, the
Employee shall not be entitled to any payments, benefits, damages, awards or
compensation other than as provided by this Agreement. The terms of this
Agreement shall terminate upon the Earlier of (i) the date that all obligation
of the parties hereunder have been satisfied or (ii) two years after the
Effective Date; provided, however, that until such time as notice of non-renewal
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or termination of this agreement is given by either the Company or the Employee
to the other, beginning one year after the Effective Date, this Agreement shall
automatically be extended by one month effective as of the end of each month so
that the remaining outstanding term of the Agreement is approximately one year;
provided further that in no event shall the term of this Agreement be so
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extended to a date more than five years after the Effective Date.
Notwithstanding the foregoing, this Agreement may be extended for an additional
period or periods by mutual written agreement of the Company and the Employee.
A termination of the terms of this Agreement pursuant to the preceding sentence
shall be effective for all purposes, except that such termination shall not
affect the payment or provision of compensation or benefits on account of a
termination of employment occurring prior to the termination of the terms of
this Agreement.
3. Compensation and Benefits.
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(a) Base Compensation. The Company shall pay the Employee as
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compensation for services a base salary at the annualized rate of Once Hundred
Twenty Thousand Dollars ($120,000.00). Such salary shall be reviewed at least
annually and shall be adjusted from time to time. Such salary shall be paid
periodically in accordance with normal Company payroll. The annual compensation
specified in this Section 3(a), as adjusted from time to time, is referred to in
this Agreement as "Base Compensation.
(b) Bonus. Beginning with the Company's current fiscal year and for
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each fiscal year thereafter during the term of this Agreement, the Employee
shall be eligible to receive an annual bonus (the "Bonus") based upon an
earnings target approved by the Board (the "Target Bonus"). The Bonus payable
hereunder shall be payable in accordance with the Company's normal practices and
policies.
(c) Employee Benefits. The Employee shall be eligible to participate
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in the employee benefits plans and executive compensation programs maintained by
the Company of general applicability to other key executives of the Company,
including (without limitation) retirement plans, savings or profit-sharing
plans, deferred compensation plans, supplemental retirement or excess-benefit
plans, stock option, incentive or other bonus plans, life, disability,
health, accident and other insurance programs, paid vacations, and similar plans
or programs, subject in each case to the generally applicable terms and
conditions of the plan or program in question and to the determination of the
Board or any committee or Company employee administering such plan or program.
4. Severance Benefits.
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(a) Termination Following A Change of Control. If the Employee's
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employment with the Company terminates at any time within twelve (12) months
after a Change Of Control, then, subject to Section 5, the Employee shall be
entitled to receive severance benefits as follows:
(i) Involuntary Termination. If the Employee's employment
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terminates as a result of Involuntary Termination other than for Cause, then the
Company shall pay the Employee within ten (10) business days after the
Termination Date a lump sum amount equal to twelve (12) months Base Compensation
of the Employee at the time of such termination (without giving effect to any
reduction in Base Compensation that resulted in such Involuntary Termination).
In addition, the Employee shall be entitled to a payment of a pro-rata portion
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of the Target Bonus determined by multiplying the Target Bonus by a fraction,
the numerator of which shall be the number of days in which the Employee was
employed by the Company in the fiscal year in which termination occurs, and the
denominator of which shall be the number of days in such fiscal year, such
payment to be made in a lump sum within ten (10) business days after the
Termination Date.
(ii) Voluntary Resignation; Termination for Cause. If the
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Employee's employment terminates by reason of the Employee's voluntary
resignation (and it is not an Involuntary Termination), or if the Employee is
terminated for Cause, then the Employee shall not be entitled to receive
severance or other benefits except for those (if any) as may then be established
(and applicable) under the Company's then existing severance and benefits plans
and policies at the time of such termination.
(iii) Disability; Death. If the Company terminates the
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Employee's employment as a result of the Employee's Disability, or such
Employee's employment is terminated due to the death of the Employee, then the
Employee shall not be entitled to receive severance or other benefits except for
those (if any) as may then be established (and applicable) under the Company's
then existing severance and benefits plans and policies at the time of such
Disability or death.
(b) Benefits; Misc. In the event the Employee is entitled to
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severance benefits pursuant to subsection 4(a)(i), then in addition to such
severance benefits, the Employee shall receive 100% Company-paid health, dental
and life insurance coverage as provided to such employee immediately prior to
the Employee's termination (the "Company Paid Coverage"). If such coverage
included the Employee's dependents immediately prior to the Employee's
termination, such dependents shall also be covered at Company expense. Company-
Paid Coverage shall continue for twelve (12) months following termination until
(and to the extent) the Employee becomes covered
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under another employer's group health, dental or life insurance plan. In
addition, (i) the Company shall pay the Employee any unpaid base salary due for
periods prior to the Termination Date; (ii) the Company shall pay the Employee
all of the Employee's accrued and unused vacation through the Termination Date;
and (iii) following submission of proper expense reports by the Employee, the
Company shall reimburse the Employee for all expenses reasonably and necessarily
incurred by the Employee in connection with the business of the Company prior to
termination. These payments shall be made promptly upon termination and within
the period of time mandated by law.
(c) Options. In the event the Employee is entitled to severance
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benefits pursuant to subsection 4(a)(i), upon such termination, in addition to
any portion of the Employee's stock options that were exercisable immediately
prior to such termination, such options shall immediately become exercisable as
to an additional amount as though the Employee had remained continuously
employed for a period of thirty-six (36) months following such termination, for
the period prescribed in such option plans.
5. Limitation on Payments and Benefits.
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(a) Limitation. To the extent that any of the payments and benefits
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provided for in this Agreement constitute "parachute payments" within the
meaning of Section 280G of the Internal Revenue Code (the "Code") and, but for
this Section 5, would be subject to the excise tax imposed by Section 4999 of
the Code, the aggregate amount of such payments and benefits shall be reduced
such that the present value thereof (as determined under the Code and applicable
regulations) is equal to 2.99 time Employee's "base amount" (as defined in the
Code).
(b) Company Notice. Within thirty (30) days after the later of
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Termination or the related Change Of Control, the Company shall notify Employee
in writing if it believes that any reduction in the payments and benefits that
would otherwise be paid or provided to the Employee under the terms of this
Agreement is required to comply with the provisions of Section 5(a) hereof. If
the Company determines that any such reduction is required, it will provide
Employee with copies of the information used and calculations made by the
Company to determine the amount of such reduction.
(c) Employee Response; Dispute Resolution. Within thirty (30 days
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after the Employee's receipt of the Company's notice pursuant to Section 5(b)
hereof, Employee shall notify the Company in writing if Employee disagrees with
the amount of reduction determined by the Company. As part of such notice,
Employee shall also advise the Company of the amount of reduction, if any, that
Employee has, in good faith, determined to be necessary to comply with the
provisions of Section 5(a) hereof. Failure by Employee to provide this notice
within the time allowed will be treated as acceptance by Employee of the amount
of reduction determined by the Company. If any difference regarding the amount
of the reduction have not been resolved by mutual agreement within sixty (60)
days after Employee's receipt of the Company's notice pursuant to Section 5(b)
hereof, the amount of reduction determined by Employee will be conclusive and
binding on both parties unless, prior to the expiration of such sixty (60) day
period, the Company notifies Employee in writing of the Company's intention to
have the matter submitted to arbitration
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for resolution and proceeds to do so promptly. If the Company gives no notice to
Employee of a required reduction as provided in Section 5(b) hereof, Employee
may unilaterally determine the amount of reduction required, if any, and, upon
written notice to the Company, that amount will be conclusive and binding on
both parties.
(d) Determination of Payments Reduced. If a reduction in the
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payments and benefits that would otherwise be paid or provided to Employee under
the terms of this Agreement is necessary to comply with the provisions of
Section 5(a) hereof, Employee shall be entitled to select which payments or
benefits will be reduced (so long as the requirements of Section 5(a) hereof are
met). Within thirty (30) days after the amount of any required reduction of
payments and benefits is finally determined in accordance with the provisions of
Section 5(c) hereof, Employee will notify the Company in writing regarding which
payments of benefits are to be reduced. If no notification is given by Employee,
the Company will determine which amounts to reduce. If, as a result of the
reductions required by Section 5(a) hereof, the amounts previously paid to
Employee exceed the amount to which Employee is entitled, Employee will promptly
return the excess amount to the Company. In the event such excess amount (or any
portion therefor) is determined (by a final determination by the IRS or a court
decision or a binding agreement with the IRS) to be subject to the excise tax
imposed by Section 4999 of the Code notwithstanding the return of such excess
amount by Employee to the Company in accordance with the preceding sentence, the
Company shall promptly return such excess amount (or portion thereof) to
Employee. The Company shall have no obligation (as between Employee and the
Company) to pay any excise tax imposed on Employee by Section 4999 of the Code
with respect to any payments and benefits provided in this Agreement which
constitute "parachute payments" within the meaning of Section 280G of the Code
(other than to the extent the Company has withheld any such amounts).
6. Definition of Terms. The following terms referred to in this
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Agreement shall have the following meanings:
(a) Cause. "Cause" shall mean:
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(i) Employee's continued failure to substantially perform his
duties or responsibilities hereunder for a period of 30 days after notice
thereof from the Board of Directors or Chief Executive Officer of the Company to
Employee setting forth in reasonable detail the respects in which the Company
believes Employee has not substantially performed his duties or responsibilities
hereunder;
(ii) Employee personally engaging in wrongful or illegal
conduct which is injurious to the Company or its affiliates;
(iii) Employee being convicted of a felony, or committing an act
of dishonesty or fraud against, or the misappropriation of property belonging
to, the Company or its affiliates;
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(iv) The performance by Employee of those acts identified in
Section 2924 of the California Labor Code;
(v) Employee breaching in any material respect the terms of
this Agreement (or any other agreement with the Company);
(vi) Employee's commencement of employment with another
employer while he is an employee of the Company.
(b) Change of Control. "Change of Control" shall mean the occurrence
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of any of the following events:
(i) Any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) is
or becomes the "beneficial owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing 30% or more of
the total voting power represented by the Company's then outstanding voting
securities; or
(ii) A change in the composition of the Board of Directors of
the Company occurring within a two-year period, as a result of which fewer than
a majority of the directors are Incumbent Directors. "Incumbent Directors" shall
mean directors who either (A) are directors of the Company as of the date
hereof, or (B) are elected, or nominated for election, to the Board of Directors
of the Company with the affirmative votes of at least a majority of the
Incumbent Directors at the time of such election or nomination (but shall not
include and individual whose election or nomination is in connection with an
actual or threatened proxy contest relating to the election of directors to the
Company); or
(iii) The stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or being converted into voting securities of the surviving
entity) at least 50 percent (50%) of the total voting power represented by the
voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders of the
Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of all or substantially all of the
Company's assets (other than to a subsidiary or subsidiaries).
(c) Disability. "Disability" shall mean that the Employee has been
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or will be unable to perform his duties under this Agreement for a period of
three or more months due to illness, accident or other physical or mental
incapacity.
(d) Involuntary Termination. "Involuntary Termination" shall mean:
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(i) the continued assignment to Employee of any duties or the
continued significant reduction of Employee's duties, either of which is
substantially inconsistent with the level of Employee's position within the
Company, for a period of 30 days after notice thereof from Employee to the Chief
Executive Officer of the Company setting forth in reasonable detail the respects
in which Employee believes such assignments or duties are substantially
inconsistent with the level of Employee's position;
(ii) a material reduction in Employee's salary, other than any
such reduction which is part of, and generally consistent with, a general
reduction of officer salaries;
(iii) a material reduction by the Company in the kind or level
of employee benefits (other than salary or bonus) to which Employee is entitled
immediately prior to such reduction with the result that Employee's overall
benefits package (other than salary and bonus) is substantially reduced (other
than any such reduction applicable to officers of the Company generally);
(iv) the relocation of Employee's principal place for the
rendering of the services to be provided by him hereunder to a location more
than fifty (50) miles from the present location of the principal executive
office of the Company; or
(v) any material breach by the Company of any material
provision of this Agreement which continues uncured for thirty days following
notice thereof;
provided that none of the foregoing shall constitute Involuntary Termination to
the extent Employee has agreed thereto.
(e) Termination Date. "Termination Date" shall mean (i) if the
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Employee's employment is terminated by the Company for Disability, thirty (30)
days after notice of termination is given to the Employee (provided that the
Employee shall not have returned to the performance of the Employee's duties on
a full-time basis during such thirty (30) day period), (ii) if the Employee's
employment is terminated by the Company for any other reason, the date on which
a notice of termination is given, or (iii) if the Agreement is terminated by the
Employee, the earlier of: (A) the date on which the Employee delivers the notice
of termination to the Company, or (B) the date of the Company's confirmation of
the Employee's resignation given orally or by conduct.
7. Successors.
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(a) Company's Successors. Any successor to the Company (whether
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direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company's business
and/or assets shall assume the obligations under this Agreement and agree
expressly to perform the obligations under this Agreement in the same manner and
to the same extent as the Company would be required to perform such obligation
in the absence of a succession. For all purposes under this Agreement, the term
"Company" shall include any
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successor to the Company's business and/or assets which executes and delivers
the assumption agreement described in this subsection (a) or which becomes bound
by the terms of this Agreement by operation of law.
(b) Employee's Successors. The terms of this Agreement and all
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rights of the Employee hereunder shall inure to the benefit of, and be
enforceable by, the Employee's personal or legal representatives, executors,
successors, heirs, distributees, devisees and legatees.
8. Notice.
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(a) General. Notices and all other communications contemplated by
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this Agreement shall be in writing and shall be deemed to have been duly given
when personally delivered or when mailed by U.S. registered or certified mail,
return receipt requested and postage prepaid. In the case of the Employee,
mailed notices shall be addressed to him at the home address which he most
recently communicated to the Company in writing. In the case of the Company,
mailed notices shall be addressed to its corporate headquarters, and all notices
shall be directed to the attention of its Secretary.
(b) Notice of Termination. Any termination by the Company for Cause
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or by the Employee as a result of an Involuntary Termination shall be
communicated by a notice of termination to the other party hereto given in
accordance with Section 8 of this Agreement. Such notice shall indicate the
specific termination provision in this Agreement relied upon, shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination under the provision so indicated, and shall specify the termination
date (which shall be not more than 30 days after the giving of such notice). In
the event of a voluntary resignation by Employee not communicated by Employee in
writing, the Company shall confirm the Company's acceptance of the Employee's
resignation by written notice given to Employee within two business days from
the date of the Employee's tender of his or her resignation. Absent exceptional
circumstance rendering Employee unable to respond, the Employee's failure to
give written notice to the Company disputing the Company's confirmation of the
resignation, within five business days from the date of the Company's notice to
Employee, shall be deemed conclusive evidence the Employee has resigned. Any
dispute regarding whether Employee's resignation was a voluntary resignation
shall be subject to resolution exclusively by binding arbitration as provided in
this Agreement. This section shall only apply during the 12 months following a
Change Of Control.
9. Arbitration. At the option of either party, any and all disputes or
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controversies whether of law or fact and of any nature whatsoever arising from
or respecting this Agreement shall be decided by arbitration by the American
Arbitration Association in accordance with the rules and regulations of the
Association. By entering into this Agreement, the Company and the Employee
expressly waive any right to (1) a jury trial of any dispute or controversy
subject to arbitration under this Agreement; (2) any award of punitive damages;
and (3) judicial review of any arbitration award hereunder, except to the extent
expressly provided by this Agreement.
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The arbitrator shall be selected as follows: In the event the Company and
the Employee agree on one arbitrator, the arbitration shall be conducted by such
arbitrator. In the event the Company and the Employee do not so agree, the
Company and the Employee shall each select one independent, qualified arbitrator
and the two arbitrator so selected shall select the third arbitrator. The
Company reserves the right to object to any individual arbitrator who shall be
employed by or affiliated with a competing organization.
Arbitration shall take place in Orange County, California, or any other
location mutually agreeable to the parties. At the request of either party,
arbitration proceedings will be conducted in the utmost secrecy; in such case
all documents, testimony and records shall be received, heard and maintained by
the arbitrators in secrecy under seal, available for the inspection only of the
Company or the Employee and their respective attorneys and their respective
experts who shall agree in advance and in writing to receive all such
information confidentially and to maintain such information in secrecy until
such information shall become generally known. The arbitrator, who shall act by
majority vote, shall be able to decree any and all relief of an equitable
nature, including but not limited to such relief as a temporary restraining
order, a temporary and/or a permanent injunction, and shall also be able to
award damages, with or without an accounting and costs, provided that punitive
damages shall not be awarded. The decree or judgement of an award rendered by
the arbitrators may be entered in any court having jurisdiction thereof.
The arbitrator's authority shall be limited to considering and deciding
disputes or controversies arising from or respecting this Agreement, and to
awarding relief specifically provided for by Sections 3 and 4 of this Agreement.
The arbitrator shall not have authority to alter or waive provisions of this
Agreement, to award relief not expressly permitted by this Agreement, or to
modify existing policies or procedures of the Employer. The arbitrator's
decision shall be in writing and shall set forth the facts and reasons
supporting it. The arbitrator shall not have the power to commit errors of law
or legal reasoning, and the award may be vacated or corrected pursuant to
California Code of Civil Procedure section 1286.2 or 1286.6 for any such error.
The arbitrator's decision/award shall be final binding on all parties.
Reasonable notice of the time and place of arbitration shall be given to
all persons, other than the parties, as shall be required by the law, in which
case such persons or those authorized representatives shall have the right to
attend and/or participate in all the arbitration hearing in such manner as the
law shall require.
10. Miscellaneous Provisions.
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(a) Waiver. No provision of this Agreement shall be modified, waived
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or discharged unless the modification, waiver or discharge is agreed to in
writing and signed by the Employee and by an authorized officer of the Company
(other than the Employee). No waiver by either party of any breach of, or of
compliance with, any condition or provision of this Agreement by the other party
shall be considered a waiver of any other condition or provision or of the same
condition or provision at another time.
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(b) Whole Agreement. No agreements, representations or understanding
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(whether oral or written and whether express or implied) which are not expressly
set forth in this Agreement have been made or entered into by either party with
respect to the subject matter hereof.
(c) Choice of Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by the laws of the State of
California, not withstanding choice of law rules.
(d) Severability. The invalidity or unenforceability of any
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provision or provisions of the Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.
(e) No Assignment of Benefits. The rights of any person to payments
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or benefits under this Agreement shall not be made subject to option or
assignment, either by voluntary or involuntary assignment or by operation of
law, including (without limitation) bankruptcy, garnishment, attachment or other
creditor's process, and any action in violation of this subsection shall be
void.
(f) Employment Taxes. All payments made pursuant to this Agreement
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will be subject to withholding of applicable income and employment taxes.
(g) Assignment by Company. The Company may assign its rights under
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this Agreement to an affiliate, and an affiliate may assign its rights under
this agreement to another affiliate of the Company or to the Company; provided,
however, that no assignment shall be made if the net worth of the assignee is
less than the net worth of the Company at the time of assignment. In the case
of any such assignment, the term "Company" when used in a section of this
Agreement shall mean the corporation that actually employs the Employee.
(h) Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by its duly assigned officer, as of the day and year first
written above.
COMPANY: STATE OF THE ART, INC.
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
President and Chief Executive Officer
EMPLOYEE: XXXXXXX X. XXXXXXXX
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
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