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EXHIBIT 8
EMPLOYMENT AGREEMENT
This Employment Agreement is made as of August 1, 1997 and modified on
March 12, 1998 by and among Donnelley Enterprise Solutions
Incorporated, a Delaware corporation (the "Company"), and Xxx Xxxxx
(the "Executive").
WHEREAS, the Company desires to employ the Executive as its Chief
Financial Officer and the Executive desires to accept such employment,
for the term and upon the conditions set forth in this Agreement.
Agreement
Now, therefore, the parties hereto hereby agree as follows:
1. Employment. Subject to the terms and conditions set forth in this
Agreement, the Company offers and the Executive hereby accepts employment,
effective as of August 1, 1997.
2. Term. Subject to earlier termination as hereafter provided, the
Executive shall be employed hereunder for an original term commencing on the
Effective Date and ending at 5:00 p.m., Chicago time, on the third anniversary
of the Effective Date, or such later date to which the parties may agree. The
term of this Agreement is hereafter referred to as "the term of this Agreement"
or "the term hereof".
3. Capacity and Performance.
3.1. Offices. During the term hereof and for the compensation
described in Section 4 below, the Executive shall serve as the Chief
Financial Officer. The Executive shall be subject to the direction of
the CEO, Chairman, President (or any one of them to whom the Executive
then reports, hereinafter referred to as the "Reporting Executive"),
and shall have such other powers, duties and responsibilities
consistent with the Executive's position as Chief Financial Officer, as
may from time to time be prescribed by the Reporting Executive. In
addition, for so long as the Executive is employed by the Company and,
unless otherwise determined by the Reporting Executive, without further
compensation, the Executive shall serve as a director of one or more of
the Company's subsidiaries if so elected or appointed from time to
time.
3.2. Performance. During the term hereof, the Executive shall
be employed by
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the Company and shall perform and discharge (faithfully, diligently and
to the best of the Executive's ability) such duties and
responsibilities on behalf of the Company and its subsidiaries as may
be designated from time to time by the Reporting Executive. During the
term hereof, the Executive shall devote the Executive's full business
time and attention to the advancement of the business and interests of
the Company and its subsidiaries and to the discharge of the
Executive's duties and responsibilities hereunder. Nothing contained
herein shall be construed to prohibit or restrict the Executive from
(a) serving in various capacities in community, civic, religious or
charitable organizations, (b) serving as a member of the boards of
non-affiliated entities provided such entities do not compete with the
Company and such service does not create a conflict of interest as
determined by the Board, or (c) attending to personal business and
investment matters. It is expressly agreed that any such service or
activity permitted by the previous sentence shall not unreasonably
interfere with the performance of the Executive's duties and, if so,
the Executive, after consultation with the Board, will comply with the
reasonable requests to cease or limit the service or activity.
4. Compensation and Benefits. As compensation for all services
performed by the Executive under this Agreement and performance of the
Executive's duties and of the obligations to the Company and its subsidiaries,
pursuant to this Agreement or otherwise and subject to Section 5 hereof:
4.1. Base Salary. During the term hereof, the Company shall
pay the Executive a base salary at the rate of $170,000 per year,
payable in accordance with the payroll practices of the Company for
its executives but no less than monthly and subject to increase at any
time or from time to time by the Reporting Executive in his or her
sole discretion. Such base salary, as from time to time increased, is
hereafter referred to as the "Base Salary". The Base Salary payable
to the Executive shall be prorated for any subsequent period of
service less than one full year.
4.2. Bonus Compensation. During the term hereof, the Company
from time to time shall pay the Executive an annual bonus (the
"Bonus"). The Bonus will be calculated according to the Donnelley
Enterprise Solutions Incorporated Employee Incentive Compensation
Plan.
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4.2.1. Any compensation paid to the Executive as
Bonus shall be in addition to the Base Salary. All bonus and
benefit plans are subject to annual review and change by the
Board relative to key strategic objectives for the year. Bonus
payments to the Executive shall be prorated for any subsequent
period of service less than one full year.
4.3. Vacations. During the term hereof, the Executive shall
be entitled to four (4) weeks of vacation per annual vacation period of
the Company, such vacation to be taken at such times and intervals as
shall be determined by the Executive in the Executive's reasonable
discretion. The Executive may not accumulate or carry over from one
calendar year to another any unused, accrued vacation time, unless the
Reporting Executive determines that business demands require deferral
and carry over of vacation from any year into up to the first six (6)
months of the succeeding year. The Executive shall not be entitled to
compensation for vacation time not taken, except that upon termination
of employment, the Executive shall be paid for all vacation time
accrued but not taken.
4.4. Other Benefits. During the term hereof and subject to
any contribution therefor generally required of executives of the
Company, the Executive shall be entitled to participate in all
employee benefit plans and other programs (including, but not limited
to, any medical, dental, retirement, disability, life insurance, sick
leave and other benefits) from time to time adopted by the Board and
in effect for executives of the Company generally, except to the
extent such plans are in a category of benefit otherwise already
provided to the Executive. Such participation shall be subject to (i)
the terms of the applicable plan documents, (ii) generally applicable
Company policies and (iii) the discretion of the Board or any
administrative or other committee provided for in or contemplated by
such plan. The Company may alter, modify, add to or delete its
employee benefit plans at any time as the Board, in its sole judgment,
determines to be appropriate.
4.5. Business Expenses. The Company shall pay or reimburse
the Executive for all reasonable business expenses incurred or paid by
the Executive in the performance of the Executive's duties and
responsibilities hereunder, subject to (i) any expense policy of the
Company set by the Board from time to time, and (ii) such reasonable
substantiation and documentation requirements as may be specified by
the Board from time to time.
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4.6. Severance. In the event the Executive's employment with
the Company is (i) terminated by the Company other than for Cause in
accordance with Section 5.4 or (ii) terminated by the Executive in
accordance with Section 5.5, the Executive will be entitled to receive
twenty-four (24) monthly payments equal to the Executive's then
applicable Base Salary calculated on a monthly basis at the time of
such termination ( i.e., 1/12th of the Base Salary), paid on the last
day of a calendar month.
5. Termination of Employment and Severance Benefits. Notwithstanding
the provisions of Section 2 hereof, the Executive's employment hereunder shall
terminate prior to the expiration of the term of this Agreement under the
following circumstances:
5.1. Retirement or Death. In the event of the Executive's
retirement or death during the term hereof, the Executive's employment
hereunder shall immediately and automatically terminate. In the event
of the Executive's retirement after the age of sixty- five, age
fifty-five with the prior consent of the Board or death during the
term hereof, the Company shall pay to the Executive (or in the case of
death, the Executive's designated beneficiary or, if no beneficiary
has been designated by the Executive, to the Executive's estate) (i)
Base Salary earned but unpaid through and including the date of such
retirement or death, (ii) any amount payable pursuant to Section 4.6,
(iii) any unpaid portion of any Bonus for any fiscal year preceding
the year in which such retirement or death occurs that was earned but
had not previously been paid and (iv) at the times the Company pays
its executives bonuses in accordance with its general payroll
policies, any Bonus which would have been paid had such retirement or
death not occurred during the fiscal year of such retirement or death
(pro-rated based on a formula, the numerator of which shall be the
number of days during the fiscal year of such retirement or death in
which the Executive was employed by the Company and the denominator of
which shall be 365 or 366, as the case may be).
5.2. Disability.
5.2.1. The Company may terminate the Executive's
employment hereunder, upon written notice to the Executive,
in the event that the Executive becomes disabled during the
Executive's employment hereunder through any illness, injury,
accident or condition of either a physical or psychological
nature and, as a result, is unable to perform substantially
all of the Executive's duties
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and responsibilities hereunder for an aggregate of one hundred
eighty (180) days during any period of three hundred and
sixty-five (365) consecutive calendar days.
5.2.2. The Board may designate another employee to
act temporarily in the Executive's place during any period of
the Executive's disability. Notwithstanding any such
designation, the Executive shall continue to receive the Base
Salary in accordance with Section 4.1 and to receive benefits
in accordance with Section 4.5, to the extent permitted by the
then current terms of the applicable benefit plans, until the
Executive becomes eligible for disability income benefits
under any disability income plan maintained by the Company or
until the termination of the Executive's employment, whichever
shall first occur. Upon becoming so eligible, or upon such
termination, whichever shall first occur, the Company shall
pay to the Executive (i) Base Salary earned but unpaid through
and including the date of such eligibility or termination,
(ii) any amount payable pursuant to Section 4.6, (iii) any
unpaid portion of any Bonus for any fiscal year preceding the
year in which such eligibility or termination occurs that was
earned but had not previously been paid and (iv) at the times
the Company pays its executives bonuses in accordance with its
general payroll policies, any Bonus which would have been paid
had disability not occurred during the fiscal year in which
such eligibility or termination occurs (pro-rated based on a
formula, the numerator of which shall be, as applicable, (i)
the number of days from and including January 1 of the fiscal
year in which such eligibility occurs to but excluding the
date of such eligibility or (ii) the number of days on which
the Executive was employed by the Company during the fiscal
year in which such termination occurs and the denominator of
which shall be 365 or 366, as the case may be).
5.2.3.Except as provided in Section 5.2.2, while
receiving disability income payments under any disability
income plan maintained by the Company, the Executive shall not
be entitled to receive any Base Salary under Section 4.1 or
Bonus payments under Section 4.2 but shall continue to
participate in the Company's benefit plans in accordance with
Section 4.5 and the terms of such plans, until the termination
of the Executive's employment. During the twelve (12) month
period from and including the date of termination, the Company
shall pay for the cost of the Executive's participation in the
Company's group medical and dental plans, provided that the
Executive
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is entitled to continue such participation under applicable law
and the terms of such plan.
5.2.4. If any question shall arise as to whether
during any period the Executive is disabled through any
illness, injury, accident or condition of either a physical or
psychological nature so as to be unable to perform
substantially all of the Executive's duties and
responsibilities hereunder, the Executive may, and at the
request of the Company shall, submit to a medical examination
by a physician either (i) mutually selected by the Company and
the Executive or the Executive's duly appointed guardian or
(ii) failing mutual agreement, a physician selected by each of
a physician selected by the Company and a physician selected
by the Executive, to determine whether the Executive is so
disabled and such determination shall for the purposes of this
Agreement be conclusive of the issue. If such question shall
arise and the Executive shall fail to submit to such medical
examination, the Board's determination of the issue shall be
binding on the Executive.
5.3. By the Company for Cause. The Company may terminate the
Executive's employment hereunder for Cause as provided in Section
11.2. If the Executive's employment hereunder is terminated for
Cause, the Company shall have no further obligation or liability to
the Executive relating to the Executive's employment hereunder, or the
termination thereof, except that the Company shall pay to the
Executive (i) Base Salary earned but unpaid through and including the
date of termination, (ii) any amount payable pursuant to Section 4.6,
and (iii) any other amounts accrued by the Executive but unpaid
through and including the date of termination (it being understood
that a Bonus does not accrue until December 31 of the year on which
such Bonus is based).
5.4. By the Company other than for Cause. The Company may
terminate the Executive's employment hereunder other than for Cause at
any time after the Effective Date upon two weeks prior written notice
to the Executive. In the event of such termination, then the Company
shall pay the Executive (i) Base Salary earned but unpaid through and
including the date of termination, (ii) any amount payable pursuant to
Section 4.6, (iii) the amounts specified in Section 4.7, (iv) any
unpaid portion of any Bonus for any fiscal year preceding the year in
which such termination occurs that was earned but had not previously
been paid, (v) at the times the Company pays its executives bonuses in
accordance with its general payroll policies, any Bonus which
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would have been paid had termination not occurred during the fiscal
year in which such termination occurs (pro-rated based on a formula,
the numerator of which shall be the number of days during the fiscal
year in which such termination occurs the Executive was employed by
the Company and the denominator of which shall be 365 or 366, as the
case may be), and (vi) any other amounts accrued by the Executive but
unpaid through and including the date of termination. In addition,
100% of the number of shares of Common Stock subject to each option,
including the Options, held by the Executive on the date of such
termination and which are then unexercisable shall become exercisable
as of the date of such termination, and such Options may be exercised
for a period up to ninety (90) days following termination of the
Executive's employment.
5.5. By the Executive upon Breach or for Good Reason. The
Executive may terminate the Executive's employment hereunder (i) in
the event that the Company fails to perform, in any material respect,
its obligations under this Agreement, after written notice to the
Company setting forth in reasonable detail the nature of such breach
if such breach remains uncured for a period of 30 days following such
written notice to the Company provided that said notice shall not be
required in the event of repeated, intentional or willful failure to
perform by the Company, or (ii) there is a material diminution in the
responsibilities, duties and powers of the Executive. In the event of
termination in accordance with this Section 5.5, then the Company
shall pay to the Executive (i) Base Salary earned but unpaid through
and including the date of termination, (ii) any amount payable
pursuant to Section 4.6, (iii) the amounts specified in Section 4.7,
(iv) any unpaid portion of any Bonus for any fiscal year preceding the
year in which such termination occurs that was earned but had not
previously been paid, (v) at the times the Company pays its executives
bonuses in accordance with its general payroll policies, any Bonus
which would have been paid had termination not occurred during the
fiscal year in which such termination occurs (pro-rated based on a
formula, the numerator of which shall be the number of days during the
fiscal year in which such termination occurs the Executive was
employed by the Company and the denominator of which shall be 365 or
366, as the case may be), and (vi) any other amounts accrued by the
Executive but unpaid through and including the date of termination. In
addition, 100% of the number of shares of Common Stock subject to each
option, including the Options, held by the Executive on the date of
such termination and which are then unexercisable shall become
exercisable as of the date of such termination, and such Options may
be exercised for a period up to ninety (90) days following termination
of the Executive's employment.
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5.6. By the Executive Other than upon Breach or for Good
Reason. The Executive may terminate the Executive's employment
hereunder at any time upon ninety (90) days' written notice to the
Company. In the event of termination of the Executive pursuant to
this Section 5.6, the Board may elect to waive the period of notice,
or any portion thereof, and, whether or not the Board so elects, the
Company shall pay to the Executive (i) Base Salary for the full notice
period, (ii) any amount payable pursuant to Section 4.6, (iii) at the
times the Company pays its executives bonuses in accordance with its
general payroll policies, any Bonus which would have been paid had
termination not occurred during the fiscal year in which such
termination occurs (pro-rated as set forth in Section 5.5 above), and
(iv) any other amounts accrued by the Executive but unpaid through and
including the date of termination.
5.7. Post-Agreement Employment. In the event the Executive
remains in the employ of the Company or any of its Affiliates
following termination of this Agreement, by the expiration of the term
hereof or otherwise, then such employment shall be at will, unless
otherwise agreed in writing.
6. Effect of Termination. The provisions of this Section 6
shall apply in the event of termination due to the expiration of the
term of this Agreement, pursuant to Section 5 or otherwise.
6.1. Receipt of Certain Benefits. It is the mutual intention
of the Company and the Executive that the Executive receive the full
benefit of the compensation and benefits provided to the Executive
during the term hereof which compensation and benefits may be payable
over periods beyond the particular year of employment. The Executive
shall not be obligated to seek other employment by way of mitigation
of the amounts due to the Executive nor shall the Executive's earnings
after termination reduce the Company's obligations hereunder. Nothing
in this Section 6.1 is intended or shall be construed to affect the
rights and obligations of the Company and its Affiliates, on the one
hand, and the Executive, on the other, with respect to any loans,
stock pledge arrangements, option plans or other agreements to the
extent said rights or obligations survive termination of employment
under the provisions of the documents relating thereto.
6.2. Termination of Health and Welfare Benefits. Except for
medical and
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dental insurance coverage continued pursuant to Sections 5.2 hereof
and any right of continuation of health coverage to the extent
provided by Sections 601 through 608 of ERISA, health and welfare
benefits shall terminate pursuant to the terms of the applicable
benefit plans based on the date of termination of the Executive's
employment without regard to any continuation of Base Salary or other
payments to the Executive following such date of termination pursuant
to Section 5.
6.3. Survival of Certain Provisions. Provisions of this
Agreement shall survive any termination if so provided herein or if
necessary or desirable fully to accomplish the purposes of such
provision, including, without limitation, the obligations of the
Executive under Sections 7 and 8 hereof. The obligation of the
Company to make payments to or on behalf of the Executive under
Sections 4.7, 5.4 or 5.5 hereof is expressly conditioned upon the
Executive's continued full performance of obligations under Sections 7
and 8 hereof. The Executive recognizes that, except as expressly
provided in Section 4.7, 5.4 or 5.5, no compensation is earned after
termination of employment.
7. Confidential Information; Intellectual Property.
7.1. Confidentiality. The Executive acknowledges that the
Company and its Affiliates continually develop Confidential
Information, that the Executive may develop Confidential Information
for the Company or its Affiliates and that the Executive may learn of
Confidential Information during the course of employment. The
Executive will comply with the policies and procedures of the Company
for protecting Confidential Information and shall never disclose to
any Person (except as required by applicable law or for the proper
performance of the Executive's duties and responsibilities to the
Company and its Affiliates), or use for the Executive's own benefit or
gain or otherwise use in a manner adverse to the interests of the
Company and its Affiliates, any Confidential Information obtained by
the Executive incident to the Executive's employment or other
association with the Company or any of its Affiliates. The Executive
understands that this restriction shall continue to apply after the
Executive's employment terminates, regardless of the reason for such
termination. Notwithstanding the foregoing, the Executive's covenant
not to disclose Confidential Information does not apply to information
which (i) becomes generally available to the public or otherwise
becomes known through sources other than the Executive, (ii) is
subsequently disclosed to the Executive by a source other than the
Company who was under no duty of confidence or (iii) is required to be
disclosed by the Executive
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through discovery in litigation or by order of a court or otherwise as
required by law.
7.2. Return of Documents. All documents, records, tapes and
other media of every kind and description relating to the business,
present or otherwise, of the Company or its Affiliates and any copies,
in whole or in part, thereof (the " Documents"), whether or not
prepared by the Executive, shall be the sole and exclusive property of
the Company and its Affiliates, provided, however, that Executive
shall in all cases be entitled to retain copies of documents relating
to the Executive's employment rights, compensation, benefits or other
obligations of the Company to the Executive and the Executive to the
Company. The Executive shall safeguard all Documents and shall
surrender to the Company at the time the Executive's employment
terminates, or at such earlier time or times as the Board or its
designee may specify, all Documents then in the Executive's possession
or control.
7.3. Assignment of Rights to Intellectual Property. The
Executive shall promptly and fully disclose all Intellectual Property
to the Company. The Executive hereby assigns and agrees to assign to
the Company (or as otherwise directed by the Company) the Executive's
full right, title and interest in and to all Intellectual Property.
The Executive agrees to execute any and all applications for domestic
and foreign patents, copyrights or other proprietary rights and to do
such other acts (including without limitation the execution and
delivery of instruments of further assurance or confirmation)
requested by the Company to assign the Intellectual Property to the
Company and to permit the Company to enforce any patents, copyrights
or other proprietary rights to the Intellectual Property. The
Executive will not charge the Company for time spent in complying with
these obligations. All copyrightable works that the Executive creates
shall be considered "work made for hire".
8. Agreement not to Compete with the Business. The Executive agrees
that during the term of the Executive's employment hereunder and for a period of
two (2) years following the date of termination thereof (the "Non-Competition
Period"), the Executive will not, directly or indirectly (a) own, manage,
operate, control or participate in any manner in the ownership, management,
operation or control of, or be connected as an officer, employee, partner,
director, principal, consultant, agent or otherwise with, or have any financial
interest in, or aid or assist anyone else in the conduct of, any business,
venture or activity which
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competes with the business of the Company, or any group, division or subsidiary
of the Company, as described in the Company's Registration Statement on Form
S-1 relating to the Company's initial public offering of Common Stock or,
beginning with the Company's Annual Report on Form 10-K for the year ending
December 31, 1996, the Company's most recent Annual Report on Form 10-K filed
with the Securities and Exchange Commission prior to the date (the "Date of
Termination") the Executive's employment under this Agreement is terminated
(hereinafter, "Competitive Business") in the United States or any other
geographic area where such Competitive Business is being conducted at the Date
of Termination or (b) recruit or otherwise seek to induce any employees of the
Company or any of its subsidiaries to terminate their employment or violate any
agreement with or duty to the Company or any of its subsidiaries. It is
understood and agreed that, for the purposes of the foregoing provisions of
this Section 8, (i) no business, venture or activity shall be deemed to be a
Competitive Business unless not less than five percent of the Company's
consolidated gross sales or operating income is derived from, or not less than
five percent of the Company's consolidated assets are devoted to, such
business, venture or activity; and (ii) no business, venture or activity
conducted by any entity by which the Executive is employed or in which the
Executive is interested or with which the Executive is connected or associated
shall be deemed to be a Competitive Business unless it is one from which five
percent or more of such entity's consolidated gross sales or operating income
is derived, or to which five percent or more of such entity's consolidated
assets are devoted; provided, however, that if the actual gross sales or
operating income or assets of such entity derived from or devoted to such
business, venture or activity is equal to or in excess of 10% of the most
nearly comparable figure for the Company, such business, venture or activity of
such entity shall be deemed to be a Competitive Business. Further, ownership
of not more than five percent of the voting stock of any publicly held
corporation shall not, of itself, constitute a violation of this Section 8.
9. Enforcement of Covenants. The Executive acknowledges that the
Executive has carefully read and considered all the terms and conditions of this
Agreement, including without limitation the restraints imposed upon the
Executive pursuant to Sections 7 and 8 hereof. The Executive agrees that said
restraints are necessary for the reasonable and proper protection of the Company
and its Affiliates and that the restraints are reasonable as to the definition
of Competitive Business and length of time. The Executive further acknowledges
that, were the Executive to breach any of the covenants or agreements contained
in Sections 7 or 8 hereof, the damage to the Company could be irreparable. The
Executive therefore agrees that the Company, in addition to any other remedies
available to it, shall be entitled to preliminary and permanent injunctive
relief against any breach or threatened breach by the
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Executive of any of said covenants or agreements. The parties further agree
that in the event that any provision of Section 7 or 8 hereof shall be
determined by any Court of competent jurisdiction to be unenforceable by reason
of its being extended over too great a time, too large a geographic area or too
great a range of activities, such provision shall be deemed to be modified to
permit its enforcement to the maximum extent permitted by law.
10. Conflicting Agreements. The Executive hereby represents and
warrants that the execution of this Agreement and the performance of the
Executive's obligations hereunder will not breach or be in conflict with any
other agreement to which or by which the Executive is a party or is bound and
that the Executive is not now subject to any covenants against competition or
similar covenants that would affect the performance of the Executive's
obligations hereunder. The Executive will not disclose to or use on behalf of
the Company or any of its Affiliates any proprietary information of a third
party without such party's consent.
11. Definitions. Terms defined elsewhere in this Agreement are used
herein as so defined. In addition, the following terms shall have the
following meanings:
11.1. Affiliates. "Affiliates" means all persons and
entities directly or indirectly controlling, controlled by or under
common control with the Company.
11.2. Cause. The following events or conditions shall
constitute "Cause" for termination: (i) the willful refusal of the
Executive to substantially perform the Executive's duties to the
Company (other than any refusal resulting from the Executive's
incapacity due to physical or mental illness), including the
Executive's obligations under this Agreement or (ii) a willful and
material breach by the Executive of Section 7.1, 7.3 or 8 or (iii) a
conviction for fraud, embezzlement or other act of dishonesty by the
Executive that causes material injury to the Company or any of its
Affiliates or (iv) conviction of, or plea of nolo contendere to, any
felony involving dishonesty or moral turpitude; or (v) the Executive's
engaging in activities (A) which constitute a violation of any policy,
rule or regulation adopted by the Company, including policies related
to conflicts of interest, xxxxxxx xxxxxxx, reimbursement of business
expenses and the like, or (B) which result in a material injury to the
business, financial condition, results of operations or prospects of
the Company or its Affiliates, as determined by the Board or a
committee thereof.
For purposes of this Section 11.2, no act or failure to act on
the Executive's part shall be deemed "willful" unless done, or omitted
to be done, by the Executive not
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in good faith and without reasonable belief that the actions or
omissions were in the best interest of the Company.
11.3. Confidential Information. "Confidential Information"
means any and all information of the Company and its Affiliates that
is not generally known by others with whom they compete or do
business, or with whom they plan to compete or do business and any and
all information the disclosure of which would otherwise be adverse to
the interests of the Company or any of its Affiliates. Confidential
Information includes without limitation such information relating to
(i) the services or products sold or offered by the Company or any of
its Affiliates, (ii) the costs, sources of supply, financial
performance and strategic plans of the Company and its Affiliates,
(iii) the identity and special needs of the customers of the Company
and its Affiliates and (iv) the people and organizations with whom the
Company and its Affiliates have business relationships and those
relationships. Confidential Information also includes comparable
information that the Company or any of its Affiliates have received
belonging to others or which was received by the Company or any of its
Affiliates with any understanding that it would not be disclosed.
11.4. ERISA. "ERISA" means the federal Employee Retirement
Income Security Act of 1974 or any successor statute, and the rules
and regulations thereunder, and in the case of any referenced section
thereof any successor section thereto, collectively and as from time
to time amended and in effect.
11.5. Intellectual Property. "Intellectual Property" means
inventions, discoveries, developments, methods, processes,
compositions, works, concepts and ideas (whether or not patentable or
copyrightable or constituting trade secrets) conceived, made, created,
developed or reduced to practice by the Executive (whether alone or
with others, whether or not during normal business hours or on or off
Company premises) during the Executive's employment that relate to
either the business of the Company or any of its Affiliates or any
prospective activity of the Company or any of its Affiliates.
11.6. Person. "Person" means an individual, a corporation,
an association, a partnership, a limited liability company, an estate,
a trust and any other entity or organization.
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12. Withholding. All payments made by the Company under this
Agreement shall be reduced by any tax or other amounts required to be
withheld by the Company under applicable law.
13. Miscellaneous.
13.1. Assignment. Neither the Company nor the Executive may
make any assignment of this Agreement or any interest herein
(provided, however, that nothing contained herein shall be construed
to place any limitation or restriction on the transfer of the Common
Stock in addition to any restrictions set forth in any agreement
applicable to such shares) without the prior written consent of the
other. This Agreement shall inure to the benefit of and be binding
upon the Company and the Executive, and their respective successors,
executors, administrators, heirs and permitted assigns.
13.2. Severability. If any portion or provision of this
Agreement shall to any extent be declared illegal or unenforceable by
a court of competent jurisdiction, then the application of such
provision in such circumstances shall be deemed modified to permit its
enforcement to the maximum extent permitted by law, and both the
application of such portion or provision in circumstances other than
those as to which it is so declared illegal or unenforceable and the
remainder of this Agreement shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
13.3. Waiver; Amendment. No waiver of any provision hereof
shall be effective unless made in writing and signed by the waiving
party. The failure of either party to require the performance of any
term or obligation of this Agreement, or the waiver by either party of
any breach of this Agreement, shall not prevent any subsequent
enforcement of such term or obligation or be deemed a waiver of any
subsequent breach. This Agreement may be amended or modified only by
a written instrument signed by the Executive and the Company.
13.4. Notices. Any and all notices, requests, demands and
other communications provided for by this Agreement shall be in
writing and shall be effective when delivered in person or two
business days after being deposited in the United States mail, postage
prepaid, registered or certified, and addressed (a) in the case of the
Executive, to Xxx Xxxxx at his home address or, (b) in the case of the
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Company, at its principal place of business and to the attention of
the Chairman, President & CEO; or to such other address as either
party may specify by notice to the other.
13.5. Entire Agreement. This Agreement constitutes the
entire agreement between the parties with respect to the terms and
conditions of the Executive's employment and, except as otherwise
provided herein, supersedes all prior communications, agreements and
understandings, written or oral, with the Company with respect to the
terms and conditions of the Executive's employment, including the
Original Agreement.
13.6. Headings. The headings and captions in this Agreement
are for convenience only and in no way define or describe the scope or
content of any provision of this Agreement.
13.7. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original and all of
which together shall constitute one and the same instrument.
13.8. Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic substantive laws of the
State of Illinois without giving effect to any choice or conflict of
laws provision or rule that would cause the application of the
domestic substantive laws of any other jurisdiction.
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IN WITNESS WHEREOF, this agreement has been executed by the COMPANY,
by its duly authorized representative, and by the Executive, as of the date
first above written.
THE COMPANY: DONNELLEY ENTERPRISE SOLUTIONS INCORPORATED
By /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx Xxxxxxxx Date:
Title: Chairman, President & CEO
THE EXECUTIVE: /s/ XXX XXXXX 3/27/98
--------------------------------------------------
Xxx Xxxxx Date:
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