Exhibit 10.7
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("AGREEMENT") is made effective as of
July 23, 2002 ("EFFECTIVE DATE"), by and between JDA Software Group, Inc., a
Delaware corporation ("COMPANY") and Xxxxxxx X. Xxxxxxxx ("EXECUTIVE") (either
party individually, a "PARTY"; collectively, the "PARTIES").
WHEREAS, Company desires to retain the services of Executive as Chief
Financial Officer;
WHEREAS, the Parties desire to enter into this Agreement to set forth the
terms and conditions of Executive's employment by Company and to address certain
matters related to Executive's employment with Company;
NOW, THEREFORE, in consideration of the foregoing and the mutual
provisions contained herein, and for other good and valuable consideration, the
Parties hereto agree as follows:
1. Employment. Company hereby employs Executive, and Executive hereby
accepts such employment, upon the terms and conditions set forth herein.
2. Duties.
2.1 Position. Executive is employed as Chief Financial Officer and
shall have the duties and responsibilities assigned by Company's Chief Executive
Officer ("CEO") both upon initial hire and as may be reasonably assigned from
time to time. Executive shall perform faithfully and diligently all duties
assigned to Executive. Company reserves the right to modify Executive's position
and duties at any time in its sole and absolute discretion, provided that the
duties assigned are consistent with the position of Chief Financial Officer and
that Executive continues to report directly to the CEO.
2.2 Standard of Conduct/Full-time. During the term of this
Agreement, Executive will act loyally and in good faith to discharge the duties
of Chief Financial Officer, and will abide by all policies and decisions made by
Company, as well as all applicable federal, state and local laws, regulations or
ordinances. Executive will act solely on behalf of Company at all times.
Executive shall devote Executive's full business time and efforts to the
performance of Executive's assigned duties for Company, unless Executive
notifies the CEO in advance of Executive's intent to engage in other paid work
and receives the CEO's express written consent to do so.
2.3 Work Location. Executive's principal place of work shall be
located in Scottsdale, Arizona or such other location as the parties may agree
upon from time to time.
3. Term.
3.1 Initial Term. The employment relationship pursuant to this
Agreement shall be for an initial term commencing on the Effective Date set
forth above and continuing for three (3) years from the Effective Date ("INITIAL
TERM"), unless sooner terminated in accordance with the terms of this Agreement.
3.2 Renewal. On completion of the Initial Term specified in Section
3.1 above, this Agreement will automatically renew for subsequent one-year terms
unless either party provides ninety (90) days' advance written notice to the
other that such party does not wish to renew the Agreement for a subsequent
one-year term. In the event either party gives notice of nonrenewal pursuant to
this Section 3.2, this Agreement will expire at the end of the then-current
term.
4. Compensation.
4.1 Base Salary. As compensation for Executive's performance of
Executive's duties hereunder, Company shall pay to Executive a salary of
$250,000 per year, payable in equal monthly installments and in accordance with
the normal payroll practices of Company, less required deductions for state and
federal withholding tax, social security and all other employment taxes and
authorized payroll deductions.
4.2 Stock Options. Subject to approval by Company's Board of
Directors (the "BOARD"), Company will from time to time grant to Executive an
option to purchase shares of Company's common stock (the "OPTION"). The Option
will be subject to the terms and conditions of one of Company's Stock Option
Plans as designated by the Board (the "PLAN"). The Option will also be subject
to the terms and conditions contained in the special form of option agreement
previously adopted by the Board for the position of Chief Financial Officer, a
form of which is attached hereto as Exhibit A (the "FORM OPTION AGREEMENT") and
shall vest over a period of three (3) years in accordance with the terms of the
Form Option Agreement and the Plan. The Option shall be subject to certain
acceleration provisions described in the Form Option Agreement and this
Agreement.
4.3 Incentive Compensation. In addition, Executive will also be
eligible to receive incentive compensation subject to the terms and conditions
contained in the Executive Bonus Plan, which is approved by the Board and is
subject to amendment from time to time by the Board in its sole and absolute
discretion (a "BONUS"). Unless otherwise provided herein, the payment of any
Bonus pursuant to this Section 4.3 shall be made in accordance with the normal
payroll practices of Company, less required deductions for state and federal
withholding tax, social security and all other employment taxes and authorized
payroll deductions.
4.4 Performance and Salary Review. The Board will periodically
review Executive's performance on no less than an annual basis. Adjustments to
salary or other compensation, if any, will be made by the Board in its sole and
absolute discretion.
5. Customary Fringe Benefits and Facilities. Executive will be eligible
for all customary and usual fringe benefits generally available to executives of
Company subject to the terms and conditions of Company's benefit plan documents.
Company reserves the right to change or eliminate the fringe benefits on a
prospective basis, at any time, effective upon notice to Executive; provided,
however, that during the period of employment under this Agreement, Executive
and her spouse and eligible dependents shall be entitled to receive all benefits
of employment generally available to other members of Company's management and
those benefits for which key executives are or shall become eligible, when and
as Executive becomes eligible therefore, including, without limitation, group
health, life and disability insurance benefits and participation in Company's
401(k) plan. Company further agrees to furnish Executive with such assistance
and accommodations (i.e., an office in the size, type and quality as provided to
Executive prior to the Effective Date) as shall be suitable to the character
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of Executive's position with Company and adequate for the performance of
Executive's duties hereunder.
6. Business Expenses. Executive will be reimbursed for all reasonable,
out-of-pocket business expenses incurred in the performance of Executive's
duties on behalf of Company. To obtain reimbursement, expenses must be submitted
promptly with appropriate supporting documentation in accordance with Company's
policies.
7. Termination of Executive's Employment.
7.1 Termination for Cause by Company. Company may terminate
Executive's employment immediately at any time for Cause. For purposes of this
Agreement, "CAUSE" is defined as: (a) theft, dishonesty, or intentional
falsification of any employment or Company records; improper disclosure of
Company's confidential or proprietary information; (b) Executive's conviction
(including any plea of guilty or nolo contendere) for any criminal act that
materially impairs her ability to perform her duties for Company; or (c) a
material breach of this Agreement by Executive which is not cured within thirty
(30) days of receipt by Executive of reasonably detailed written notice from
Company. In the event Executive's employment is terminated in accordance with
this Section 7.1, Executive shall be entitled to receive only unpaid Base Salary
then in effect, prorated to the date of termination, together with any amounts
to which Executive is entitled pursuant to Sections 5 or 6 hereof. There shall
be no additional vesting under Executive's Option. All other Company obligations
to Executive pursuant to this Agreement will become automatically terminated and
completely extinguished. Executive will not be entitled to receive the Severance
Payments described in Section 7.2, below.
7.2 Termination Without Cause by Company/Severance. Company may
terminate Executive's employment under this Agreement without Cause at any time
on sixty (60) days' advance written notice to Executive. In the event of such
termination, Executive will receive in one lump sum payment, (i) the unpaid Base
Salary then in effect, prorated to the effective date of termination; (ii) her
Base Salary for twenty-four (24) months from the termination date plus one
year's base Bonus pursuant to Section 4.3 of this Agreement for the calendar
year during which the termination occurs ($125,000 for calendar year 2002),
assuming satisfaction of all performance based milestones at the 100% level by
both Company and the Executive; and (iii) any amounts to which Executive is
entitled pursuant to Sections 5 or 6 hereof (the "SEVERANCE PAYMENTS"), provided
that Executive: (a) complies with all surviving provisions of this Agreement,
including without limitation those provisions specified in Section 14.8, below;
and (b) executes a full general release, releasing all claims, known or unknown,
that Executive may have against Company arising out of or any way related to
Executive's employment or termination of employment with Company, in
substantially the form attached hereto as Exhibit B, or in another form that is
acceptable to Company in its sole discretion. All other Company obligations to
Executive will be automatically terminated and completely extinguished upon
termination of employment.
7.3 Termination for Good Reason by Executive/Severance. Executive
may terminate Executive's employment under this Agreement for Good Reason
(defined below) at any time on five (5) days' advance written notice to Company.
In the event of such termination, Executive will be entitled to receive the
Severance Payments described in Section 7.2, above, provided that Executive
complies with the conditions to receiving the Severance Payments described in
Sections 7.2(a) and 7.2(b), above. All other Company obligations to Executive
will be automatically terminated and completely extinguished upon termination of
employment.
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For purposes of this Agreement, "GOOD REASON" is defined as the occurrence
of any of the following conditions:
(a) a material, adverse change in Executive's responsibilities
or duties, causing Executive's position to be of materially less stature or
responsibility; provided, that for purposes of this Agreement and without
limiting the generality of the foregoing, a material, adverse change shall be
deemed to occur if Executive no longer serves as Chief Financial Officer (who
shall be the most senior financial officer) of a publicly-traded company
reporting directly to the CEO;
(b) the relocation of Executive's work place for Company over
Executive's written objection, to a location more than thirty (30) miles from
Scottsdale, Arizona;
(c) a failure to pay, or any reduction of Executive's Base
Salary or Executive's Bonus without Executive's written consent (subject to
applicable performance requirements with respect to the actual amount of Bonus
earned by Executive); or
(d) any material breach of this Agreement by Company that is
not cured within thirty (30) days of Company's receipt of written notice from
Executive specifying the material breach of this Agreement.
7.4 Voluntary Resignation by Executive. Executive may voluntarily
resign Executive's position with Company for any reason, at any time after the
Effective Date, on five (5) days' advance written notice. In the event of
Executive's resignation, Executive will be entitled to receive only the Base
Salary for the five-day notice period and no other amount for the remaining
months of the current term, whether the Initial Term or a subsequent one-year
term (other than amounts to which Executive is entitled pursuant to Section 5 or
6 hereof). All other Company obligations to Executive pursuant to this Agreement
will become automatically terminated and completely extinguished upon
termination of employment. In addition, Executive will not be entitled to
receive any Severance Payments described in Section 7.2, above. The provisions
of this Section 7.4 shall not apply to Executive's resignation for Good Reason.
7.5 Federal Excise Tax Under Section 4999 of the Code.
(a) Additional Payment. In the event that any payment or benefit
received or to be received by Executive pursuant to this Agreement or otherwise
payable to Executive (collectively, the "PAYMENTS") would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended (the "CODE"), or any similar or successor provision (the "EXCISE TAX"),
Company shall pay to Executive within ninety (90) days of the date Executive
becomes subject to the Excise Tax, an additional amount (the "GROSS-UP PAYMENT")
such that the net amount retained by Executive from the Payments and the
Gross-Up Payment, after deduction of (1) any Excise Tax on the Payments and (2)
any federal, state and local income or employment tax and Excise Tax upon the
payment provided for by this Section, shall be equal to the Payments.
(b) Determination of Excise Tax. For purposes of determining whether
any of the Payments will be subject to the Excise Tax and the amount of such
Excise Tax:
(i) Any payments or benefits received or to be received by
Executive in connection with transactions contemplated by a Change of Control
(as defined below) event
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or Executive's termination of employment (whether pursuant to the terms of this
Agreement or any other plan, arrangement or agreement with Company), shall be
treated as "parachute payments" within the meaning of Section 280G of the Code
or any similar or successor provision, and all "excess parachute payments"
within the meaning of Section 280G of the Code or any similar or successor
provision shall be treated as subject to the Excise Tax, unless in the opinion
of tax counsel ("TAX COUNSEL") selected by Company and reasonably acceptable to
Executive such payments or benefits (in whole or in part) do not constitute
parachute payments, or such excess parachute payments (in whole or in part)
represent reasonable compensation for services actually rendered within the
meaning of Section 280G of the Code (or any similar or successor provision of
the Code) in excess of the base amount within the meaning of Section 280G of the
Code (or any similar or successor provision of the Code), or are otherwise not
subject to the Excise Tax.
(ii) The amount of the Payments which shall be treated as
subject to the Excise Tax shall be equal to the lesser of (i) the total amount
of the Payments or (ii) the amount of the excess parachute payments within the
meaning of Section 280G of the Code (after applying paragraph (b)(1) above).
(iii) The value of any non-cash benefits or any deferred
payment or benefit shall be determined by Tax Counsel in accordance with the
principles of Section 280G of the Code.
(iv) Change of Control. A "CHANGE OF CONTROL" is defined as
any one of the following occurrences:
a) Any "person" (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934 (the "EXCHANGE ACT")), other
than a trustee or other fiduciary holding securities of Company under an
employee benefit plan of Company, becomes the "beneficial owner" (as defined in
Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, of the
securities of Company representing 50% or more of (A) the outstanding shares of
common stock of Company or (B) the combined voting power of Company's
then-outstanding securities; or
b) the sale or disposition of all or substantially all
of Company's assets (or any transaction having similar effect is consummated);
or
c) Company is party to a merger or consolidation that
results in the holders of voting securities of Company outstanding immediately
prior thereto failing to continue to represent (either by remaining outstanding
or by being converted into voting securities of the surviving entity) at least
50% of the combined voting power of the voting securities of Company or such
surviving entity outstanding immediately after such merger or consolidation; or
d) a liquidation or dissolution of Company.
(c) Determination of Gross-Up Payment. For purposes of
determining the amount of the Gross-Up Payment, Executive shall be deemed to pay
federal income taxes at the highest marginal rate of federal income taxation in
the calendar year in which the Gross-Up Payment is to be made and state and
local income taxes at the highest marginal rate of taxation in the state and
locality of Executive's residence on the date the Gross-Up Payment is
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to be made, net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state and local taxes.
(d) Adjustments.
(i) In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder, Executive
shall repay to Company at the time that the amount of such reduction in Excise
Tax is finally determined the portion of the Gross-Up Payment attributable to
such reduction (plus the portion of the Gross-Up Payment attributable to the
Excise Tax and federal, state and local income and employment taxes imposed on
the Gross-Up Payment being repaid by Executive if such repayment results in a
reduction in Excise Tax and/or a federal, state or local income or employment
tax deduction) plus interest on the amount of such repayment at the rate
provided in Section 1274(b)(2)(B) of the Code.
(ii) In the event that the Excise Tax is determined to
exceed the amount taken into account hereunder (including by reason of any
payment the existence or amount of which cannot be determined at the time of the
Gross-Up Payment), Company shall make an additional gross-up payment in respect
of such excess (plus any interest payable with respect to such excess) at the
time that the amount of such excess is finally determined.
7.6 Termination of Employment Upon Nonrenewal. In the event either
party decides not to renew this Agreement for a subsequent one-year term in
accordance with Section 3.2 above, the Agreement will expire, Executive's
employment with Company will terminate and Executive will only be entitled to
Executive's Base Salary paid through the last day of the then-current term. All
other Company obligations to Executive pursuant to this Agreement will become
automatically terminated and completely extinguished. In addition, Executive
will not be entitled to any Severance Payments described in Section 7.2.
8. No Conflict of Interest. During the term of Executive's employment with
Company, Executive must not engage in any work, paid or unpaid, that creates an
actual or potential conflict of interest with Company. If the Board reasonably
believes such a conflict exists during the term of this Agreement, the Board may
ask Executive to choose to discontinue the other work or resign employment with
Company.
9. Post-Termination Non-Competition.
9.1 Consideration For Promise To Refrain From Competing. Executive
agrees that Executive's services are special and unique, that Company's
disclosure of confidential, proprietary information and specialized training and
knowledge to Executive, and that Executive's level of compensation and benefits,
including, without limitation, the severance payments provided for in this
Agreement, are partly in consideration of and conditioned upon Executive not
competing with Company. Executive acknowledges that such consideration is
adequate for Executive's promises contained within this Section 9.
9.2 Promise To Refrain From Competing. Executive understands
Company's need for Executive's promise not to compete with Company is based on
the following: (a) Company has expended, and will continue to expend,
substantial time, money and effort in developing its proprietary information;
(b) Executive will in the course of Executive's employment develop, be
personally entrusted with and exposed to Company's proprietary information; (c)
both during and after the term of Executive's employment, Company will be
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engaged in the highly competitive enterprise software industry; (d) Company
provides products and services nationally and internationally; and (e) Company
will suffer great loss and irreparable harm if Executive were to enter into
competition with Company. Therefore, in exchange for the consideration described
in Section 9.1 above, Executive agrees that for the period of two (2) years
following the date Executive ceases to render services to Company (the "COVENANT
PERIOD"), Executive will not either directly or indirectly, whether as an owner,
director, officer, manager, consultant, agent or employee: (i) work for any of
the following companies or any entity that succeeds to any part of the business
of any of the following Companies that is in competition with Company: Essentus,
Inc., GERS, Inc., Marketmax, Inc., Micro Strategies Incorporated, NONSTOP
Solutions, nsb Retail Systems PLC, Radius PLC, Retek, Inc., SAP AG or SVI
Holdings, Inc. (each a "RESTRICTED BUSINESS"); or (ii) make or hold any
investment in any Restricted Business, whether such investment be by way of
loan, purchase of stock or otherwise, provided that there shall be excluded from
the foregoing the ownership of not more than 1% of the listed or traded stock of
any publicly held corporation. For purposes of this Section 9, the term
"COMPANY" shall mean and include Company, any subsidiary or affiliate of
Company, any successor to the business of Company (by merger, consolidation,
sale of assets or stock or otherwise) and any other corporation or entity of
which Executive may serve as a director, officer or employee at the request of
Company or any successor of Company.
9.3 Reasonableness of Restrictions. Executive represents and agrees
that the restrictions on competition, as to time, geographic area, and scope of
activity, required by this Section 9 are reasonable, do not impose a greater
restraint than is necessary to protect the goodwill and business interests of
Company, and are not unduly burdensome to Executive. Executive expressly
acknowledges that Company competes on an international basis and that the
geographical scope of these limitations is reasonable and necessary for the
protection of Company's trade secrets and other confidential and proprietary
information. Executive further agrees that these restrictions allow Executive an
adequate number and variety of employment alternatives, based on Executive's
varied skills and abilities. Executive represents that Executive is willing and
able to compete in other employment not prohibited by this Agreement.
9.4 Reformation if Necessary. In the event a court of competent
jurisdiction determines that the geographic area, duration, or scope of activity
of any restriction under this Section 9 and its subsections is unenforceable,
the restrictions under this section and its subsections shall not be terminated
but shall be reformed and modified to the extent required to render them valid
and enforceable. Executive further agrees that the court may reform this
Agreement to extend the Covenant Period by an amount of time equal to any period
in which Executive is in breach of this covenant.
10. Confidentiality and Proprietary Rights. Executive agrees to read, sign
and abide by Company's Employee Innovations and Proprietary Rights Assignment
Agreement, which was previously executed by Executive and incorporated herein by
reference.
11. Nonsolicitation.
11.1 Nonsolicitation of Customers or Prospects. Executive
acknowledges that information about Company's customers is confidential and
constitutes trade secrets. Accordingly, Executive agrees that during the term of
this Agreement and for a period of two (2) years after the termination of this
Agreement, Executive will not, either directly or indirectly, separately or in
association with others, interfere with, impair, disrupt or damage Company's
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relationship with any of its customers or customer prospects by soliciting or
encouraging others to solicit any of them for the purpose of diverting or taking
away business from Company.
11.2 Nonsolicitation of Company's Employees. Executive agrees that
during the term of this Agreement and for a period of two (2) years after the
termination of this Agreement, Executive will not, either directly or
indirectly, separately or in association with others, interfere with, impair,
disrupt or damage Company's business by soliciting, encouraging, hiring or
attempting to hire any of Company's employees or causing others to solicit or
encourage any of Company's employees to discontinue their employment with
Company. Notwithstanding the previous sentence, the Executive may give
references for employees and tell headhunters the names of employees of Company,
in either event, where the Executive is aware that the employee has been
identified by Company as not being part of its long-term plans after a Change of
Control.
12. Injunctive Relief. Executive acknowledges that Executive's breach of
the covenants contained in Sections 9-11 (collectively "COVENANTS") would cause
irreparable injury to Company and agrees that in the event of any such breach,
Company shall be entitled to seek temporary, preliminary and permanent
injunctive relief without the necessity of proving actual damages or posting any
bond or other security.
13. Agreement to Arbitrate. To the fullest extent permitted by law,
Executive and Company agree to arbitrate any controversy, claim or dispute
between them arising out of or in any way related to this Agreement, the
employment relationship between Company and Executive and any disputes upon
termination of employment, including but not limited to breach of contract,
tort, discrimination, harassment, wrongful termination, demotion, discipline,
failure to accommodate, family and medical leave, compensation or benefits
claims, constitutional claims; and any claims for violation of any local, state
or federal law, statute, regulation or ordinance or common law. Claims for
breach of Company's Employee Innovations and Proprietary Rights Agreement,
workers' compensation, unemployment insurance benefits and Company's right to
obtain injunctive relief pursuant to Section 12 above are excluded. For the
purpose of this agreement to arbitrate, references to "Company" include all
parent, subsidiary or related entities and their employees, supervisors,
officers, directors, agents, pension or benefit plans, pension or benefit plan
sponsors, fiduciaries, administrators, affiliates and all successors and assigns
of any of them, and this Agreement shall apply to them to the extent Executive's
claims arise out of or relate to their actions on behalf of Company.
13.1 Initiation of Arbitration. Either party may exercise the right
to arbitrate by providing the other party with written notice of any and all
claims forming the basis of such right in sufficient detail to inform the other
party of the substance of such claims. In no event shall the request for
arbitration be made after the date when institution of legal or equitable
proceedings based on such claims would be barred by the applicable statute of
limitations.
13.2 Arbitration Procedure. The arbitration will be conducted in
Maricopa county, Arizona, by a single neutral arbitrator and in accordance with
the then current rules for resolution of employment disputes of the American
Arbitration Association ("AAA"). The parties are entitled to representation by
an attorney or other representative of their choosing. The arbitrator shall have
the power to enter any award that could be entered by a judge of the trial court
of the State of Arizona, and only such power, and shall follow the law. The
parties agree to abide by and perform any award rendered by the arbitrator.
Judgment on the award may be entered in any court having jurisdiction thereof.
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13.3 Costs of Arbitration. Each party shall bear one half the cost
of the arbitration filing and hearing fees, and the cost of the arbitrator.
14. General Provisions.
14.1 Successors and Assigns. The rights and obligations of Company
under this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of Company. Executive shall not be entitled to assign any
of Executive's rights or obligations under this Agreement.
14.2 Waiver. Either party's failure to enforce any provision of this
Agreement shall not in any way be construed as a waiver of any such provision,
or prevent that party thereafter from enforcing each and every other provision
of this Agreement.
14.3 Attorneys' Fees. In any dispute relating to this Agreement, the
losing party shall pay the attorneys' fees of the prevailing party in addition
to its own attorneys' fees.
14.4 Severability. In the event any provision of this Agreement is
found to be unenforceable by an arbitrator or court of competent jurisdiction,
such provision shall be deemed modified to the extent necessary to allow
enforceability of the provision as so limited, it being intended that the
parties shall receive the benefit contemplated herein to the fullest extent
permitted by law. If a deemed modification is not satisfactory in the judgment
of such arbitrator or court, the unenforceable provision shall be deemed
deleted, and the validity and enforceability of the remaining provisions shall
not be affected thereby.
14.5 Interpretation; Construction. The headings set forth in this
Agreement are for convenience only and shall not be used in interpreting this
Agreement. This Agreement has been drafted by legal counsel representing
Company, but Executive has participated in the negotiation of its terms.
Furthermore, Executive acknowledges that Executive has had an opportunity to
review and revise the Agreement and have it reviewed by legal counsel, if
desired, and, therefore, the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement.
14.6 Governing Law. This Agreement will be governed by and construed
in accordance with the laws of the United States and the State of Arizona. Each
party consents to the jurisdiction and venue of the state or federal courts in
Maricopa county, Arizona, if applicable, in any action, suit, or proceeding
arising out of or relating to this Agreement.
14.7 Notices. Any notice required or permitted by this Agreement
shall be in writing and shall be delivered as follows with notice deemed given
as indicated: (a) by personal delivery when delivered personally; (b) by
overnight courier upon written verification of receipt; (c) by telecopy or
facsimile transmission upon acknowledgment of receipt of electronic
transmission; or (d) by certified or registered mail, return receipt requested,
upon verification of receipt. Notice shall be sent to the addresses set forth
below, or such other address as either party may specify in writing.
14.8 Survival. Sections 8 ("No Conflict of Interest"), 9
("Post-Termination Non-Competition"), 10 ("Confidentiality and Proprietary
Rights"), 11 ("Nonsolicitation"), 12 ("Injunctive Relief"), 13 ("Agreement to
Arbitrate"), 14 ("General Provisions") and 15 ("Entire Agreement") of this
Agreement shall survive Executive's employment by Company.
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15. Entire Agreement. This Agreement, including Company Employee
Innovations and Proprietary Rights Assignment Agreement incorporated herein by
reference and the Form Option Agreement, constitutes the entire agreement
between the parties relating to this subject matter and supersedes all prior or
simultaneous representations, discussions, negotiations, and agreements, whether
written or oral. This Agreement may be amended or modified only with the written
consent of Executive and the Board of Company. No oral waiver, amendment or
modification will be effective under any circumstances whatsoever.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY
UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES
HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.
EXECUTIVE
Dated: 7-23-82 /s/ Xxxxxxx X. Xxxxxxxx
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XXXXXXX X. XXXXXXXX
ADDRESS
COMPANY
Dated: 7-23-02 By: /s/ Xxxxx X. Xxxxxxxxx
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XXXXX X. XXXXXXXXX, CEO
[SIGNATURE PAGE TO XXXXXXXX EMPLOYMENT AGREEMENT]
EXHIBIT A
Form of Option Agreement
See attached.
EXHIBIT B
Form of Mutual Release
See attached.
