EXE TECHNOLOGIES, INC.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of the 13th day of July,
1998 by and between ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, a resident of the Commonwealth of
Pennsylvania (the "Employee"), and EXE Technologies, Inc., a corporation
organized and existing under the laws of the State of Delaware (the
"Company").
WHEREAS, the Company is engaged in the business of providing
supply chain execution software and related services to the warehouse,
distribution and logistics industries worldwide (the "Business"); and
WHEREAS, the Company desires to employ the Employee and the
Employee desires to be employed by the Company for a period of time in the
future upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations contained herein, and intending to be legally bound, the parties,
subject to the terms and conditions set forth herein, agree as follows:
1. EMPLOYMENT AND TERM.
(a) The Company hereby employs the Employee, and
the Employee hereby accepts employment with the Company, for the position
detailed in Schedule A attached hereto (the "Position"), for a period of
three (3) years from the date of the commencement of employment (the "Start
Date") specified in SCHEDULE A attached hereto (the "Initial Term"). The
Employee shall also be a member of the Executive Committee appointed by the
Board of Directors and shall serve as Secretary of the meetings. The
Employee shall also serve as the Corporate Secretary of the Company and
attend all Board Meetings of the Company as an observer and as Secretary of
the meetings.
(b) At the end of the Initial Term, this
Agreement shall automatically renew for successive additional periods of one
(1) year, unless either party provides written notice to the other party at
least ninety (90) days prior to the expiration of the Initial Term or any
such renewal period indicating the notifying party's election not to renew
this Agreement. The
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Initial Term of employment and any renewal periods hereunder, subject to the
provisions of Section 8 hereof, are hereinafter referred to as the "Term."
(c) The Employee's principal office shall be
located at the Company's offices for the Philadelphia region, currently
Eddystone, PA. The Company shall not relocate the Employee's principal office
outside the Philadelphia Metropolitan area. The Company and the Employee
expect that the Employee's travel time will be limited to three (3) to four
(4) days per month, principally from Philadelphia to the Company's
headquarters in Dallas, TX.
2. DUTIES. During the Term, the Employee shall serve
the Company faithfully and to the best of his ability and, subject to Section
3, shall devote his full time, attention, skill and efforts to the
performance of the duties required by or appropriate for the Position. The
Employee shall assume such duties and responsibilities as may be customarily
incident to such a position, and such additional and other duties as may be
determined jointly from time to time by the Employee and the Reporting
Manager designated in SCHEDULE A attached hereto or the Board of Directors of
the Company (the "Board"), including, without limitation, the duties and
responsibilities set forth in SCHEDULE A. The Employee shall report to the
Reporting Manager.
3. OTHER BUSINESS ACTIVITIES. During the Term, the
Employee shall not directly or indirectly engage in any other business
activities or pursuits whatsoever, without the prior consent of the Reporting
Manager in his sole discretion, except: (a) serving on Boards of Directors or
Advisory Boards in connection with non-profit or for profit organizations,
which are not competitors of the Company; (b) managing personal investments;
(c) participating in charitable or civic activities; (d) winding down his
private law practice at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP; and (e) serving as an executor,
trustee or in other similar fiduciary capacity; provided that such activities
do not interfere materially with his performance of his responsibilities and
obligations pursuant to this Agreement; and provided further that the
Employee may retain personally any fees, expense reimbursements, equity or
other compensation received by the Employee from such activities, including
without limitation any transition payments from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, executor
fees or referral fees.
4. COMPENSATION. The Company shall pay the Employee,
and the Employee hereby agrees to accept, as compensation for all services
rendered hereunder and for the Employee's intellectual property covenants and
assignments and covenant not to compete as provided for in Sections 6 and 7
hereof, the compensation set forth in this Section 4.
4.1 SALARY. The Company shall pay the Employee
an initial base salary at the annual rate detailed in SCHEDULE A attached
hereto (the "Base Salary"). The Base
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Salary shall be inclusive of all applicable income, social security and other
taxes and charges that are required by law to be withheld by the Company, or
are requested to be withheld by the Employee. The Base Salary shall be
withheld and paid in accordance with the Company's normal payroll practice
for its similarly situated employees from time to time in effect. The Base
Salary may be increased from time to time by the Compensation Committee of
the Board in its sole discretion.
4.2 INCENTIVE COMPENSATION PROGRAM.
(a) The Employee shall be entitled to
participate in the Incentive Compensation Plan that has been established by
the Company (the "Incentive Program") pursuant to which the Board may award
bonuses to executive employees, based upon the achievement of written
individual and corporate objectives determined jointly by the Employee and
the Chief Executive Officer or the Board annually. The Employee shall be
eligible to receive under the Incentive Compensation Program a minimum of
fifty percent (50%) and a maximum of seventy-five percent (75%) of the
Employee's Base Salary or more annually as determined by the Board. Bonuses
under the Incentive Program will be payable quarterly in accordance with the
Company's normal practices.
(b) The Employee shall receive in
addition to the Base Salary, a signing bonus of Forty Thousand Dollars
($40,000), payable upon execution of the Employment Agreement and fully
credited against the amounts payable to the Employee pursuant to the
Incentive Program, which credits will accrue in equal amounts of Ten Thousand
Dollars ($10,000) each quarter for four (4) quarters or until the signing
bonus has been fully credited.
4.3 EQUITY PARTICIPATION.
(a) The Company shall grant to the
Employee an initial stock option (the "Initial Option") to purchase Eighty
Thousand (80,000) shares of the Class B Common Stock, par value $.01 per
share, of the Company ("Class B Common Stock"). The Initial Option shall
vest in accordance with the schedule set forth on SCHEDULE B and shall be an
incentive stock option. The exercise price of the Initial Option shall be
the fair market value of the Class B Common Stock on the date of this
Agreement. The parties expect that such fair market value will be Five
Dollars ($5.00) per share. The actual dollar amount of such fair market
value, however, shall be determined by the Board. The Initial Option shall
be subject to and in accordance with the provisions of the 1997 Stock Option
Plan of the Company, as amended (the "Plan"), substantially in the form
attached hereto as part of SCHEDULE C.
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(b) The Company may grant to the Employee
additional stock options under the Plan as determined by the Option Committee
of the Board from time to time in its sole discretion.
(c) All shares of Class B Common Stock
issued under the Initial Option shall be subject to the terms and provisions
of a Stock Purchase and Restriction Agreement as required by the Plan.
(d) Notwithstanding the foregoing, all of
the Employee's then remaining unvested options shall automatically become
vested upon the termination of this Agreement pursuant to Sections 8.1(a),
8.2 or 8.4(a) or immediately prior to the occurrence of a Change of Control
of the Company. For the purposes of this Agreement, a "Change of Control"
shall mean: (i) the sale, transfer, assignment or other disposition
(including by merger or consolidation) by stockholders of the Company, in one
transaction or a series of related transactions, of more than a majority of
the voting power represented by the then outstanding capital stock of the
Company to one or more stockholders or other third parties, other than any
such sales, transfers, assignments or other dispositions by such stockholders
to their respective heirs or affiliates; or (ii) a sale, transfer, assignment
or other disposition (including by merger or consolidation), of all of the
outstanding stock of the Company, or of all or substantially all of the
assets of the Company or a liquidation or dissolution of the Company.
4.4 FRINGE BENEFITS. The Employee shall be
entitled to participate in any health or dental programs or other non-salary
consideration (such as disability, sick leave) as are Company standard. Such
programs are described in SCHEDULE D attached hereto.
4.5 CAR ALLOWANCE. The Company shall pay to the
Employee a monthly car allowance to compensate the Employee for the cost of
leasing, insuring and purchasing fuel for a vehicle of similar quality as the
Company's other executive employees. The car allowance is payable monthly,
commencing on the date of this Agreement, in accordance with the Company's
normal payroll practices.
4.6 REIMBURSEMENT OF EXPENSES. The Employee
shall be reimbursed for all normal items of travel and entertainment and
miscellaneous expenses reasonably incurred by the Employee on behalf of the
Company, provided that such expenses are documented and submitted to the
Company all in accordance with the reimbursement policies of the Company as
in effect from time to time.
4.7 PROFESSIONAL FEES. In addition to the
general reimbursement of expenses pursuant to Section 4.6 and the Tuition
Assistance plan referenced in SCHEDULE D, the Company shall reimburse the
Employee in full for: tuition and related travel expenses for
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Continuing Legal Education courses; Bar Association dues; bar exam fees and
related expenses incident to the Employee obtaining and maintaining a license
or licenses to practice law; dues, sponsorship fees and related expenses for
other professional organizations, such as the Information Technology Business
Center, the Computer Law Association, the Licensing Executive Society and
DelVaCCA, related to the Position or the Employee's responsibilities; and
such other tuition, fees and travel and other expenses in connection with
speaking engagements, professional seminars and related activities, as may be
approved in advance from time to time by the Reporting Manager.
5. CONFIDENTIALITY. The Employee recognizes and
acknowledges that the Proprietary Information (as hereinafter defined) is a
valuable, proprietary and unique asset of the Company. As a result, both
during the Term and for a period of five (5) years thereafter, the Employee
shall not, without the prior written consent of the Company, for any reason
either directly or indirectly divulge to any third-party or use for the
Employee's own benefit, or for any purpose other than the exclusive benefit
of the Company, any confidential, proprietary, business and technical
information or trade secrets of the Company or of any subsidiary or affiliate
of the Company (the "Proprietary Information") revealed, obtained or
developed in the course of the Employee's employment with the Company.
Proprietary Information shall include, but shall not be limited to: the
intangible personal property described in Section 6(b) hereof; any
information relating to methods of production, manufacture and research;
hardware and software configurations, computer codes or instructions
(including source and object code listings, program logic algorithms,
subroutines, modules or other subparts of computer programs and related
documentation, including program notation), computer inputs and outputs
(regardless of the media on which stored or located) and computer processing
systems, techniques, designs, architecture, and interfaces; the identities
of, the Company's relationship with, the terms of contracts and agreements
with, the needs and requirements of, and the Company's course of dealing
with, the Company's actual and prospective customers, contractors and
suppliers; and any other materials prepared by the Employee in the course of
the Employee's employment by the Company, or prepared by any other employee
or contractor of the Company for the Company or its customers, (including
concepts, layouts, flow charts, specifications, know-how, user or service
manuals, plans, sketches, blueprints, costs, business studies, business
procedures, finances, marketing data, methods, plans, personnel information,
customer and vendor credit information and any other materials that have not
been made available to the general public). Nothing contained herein shall
restrict the Employee's ability to make such disclosures during the course of
the Employee's employment as may be necessary or appropriate to the effective
and efficient discharge of the duties required by or appropriate for the
Position or as such disclosures may be required by law. Furthermore, nothing
contained herein shall restrict the Employee from divulging or using for the
Employee's own benefit or for any other purpose any Proprietary Information
that is readily available to the general public so long as such information
did not become available to the general public as a direct or indirect result
of the Employee's
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breach of this Section 5. Failure by the Company to ▇▇▇▇ any of the
Proprietary Information as confidential or proprietary shall not affect its
status as Proprietary Information under the terms of this Agreement. The
Employee acknowledges that this Section 5 shall not limit any other duties of
the Employee to protect client's confidences under the applicable rules of
legal ethics regarding confidentiality.
6. PROPERTY.
(a) All right, title and interest in and to
Proprietary Information shall be and remain the sole and exclusive property
of the Company. During the Term, the Employee shall not remove from the
Company's offices or premises any documents, records, notebooks, files,
correspondence, reports, memoranda or similar materials of or containing
Proprietary Information, or other materials or property of any kind belonging
to the Company unless necessary or appropriate in accordance with the duties
and responsibilities required by or appropriate for the Position and, in the
event that such materials or property are removed, all of the foregoing shall
be returned to their proper files or places of safekeeping as promptly as
possible after the removal shall serve its specific purpose. The Employee
shall not make, retain, remove and/or distribute any copies of any of the
foregoing for any reason whatsoever, except as may be necessary in the
discharge of the assigned duties, and shall not divulge to any third person
the nature of and/or contents of any of the foregoing or of any other oral or
written information to which the Employee may have access or with which for
any reason the Employee may become familiar, except as disclosure shall be
necessary in the performance of the duties; and upon the termination of the
Employee's employment with the Company, the Employee shall return to the
Company all originals and copies of the foregoing then in his possession,
whether prepared by the Employee or by others.
(b) (i) The Employee acknowledges that all right,
title and interest in and to any and all writings, documents, inventions,
discoveries, computer programs or instructions (whether in source code,
object code or any other form), algorithms, formulae, plans, memoranda,
tests, research, designs, innovations, systems, analyses, specifications,
models, data, diagrams, flow charts and/or techniques (whether reduced to
written or electronic form or otherwise) that the Employee creates, makes,
conceives, discovers or develops, either solely or jointly with any other
person, at any time during the Term, whether during working hours or at the
Company's facility or at any other time or location, and whether upon the
request or suggestion of the Company or otherwise, and that relate to or are
useful in any way in connection with the Business now or hereafter carried on
by the Company (collectively, the "Intellectual Work Product") shall be the
sole and exclusive property of the Company. The Employee shall promptly
disclose to the Company all Intellectual Work Product, and the Employee shall
have no claim for additional compensation for the Intellectual Work Product.
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(ii) The Employee acknowledges that all the
Intellectual Work Product that is copyrightable shall be considered a work
made for hire under United States Copyright Law. To the extent that any
copyrightable Intellectual Work Product may not be considered a work made for
hire under the applicable provisions of the United States Copyright Law, or
to the extent that, notwithstanding the foregoing provisions, the Employee
may retain an interest in any Intellectual Work Product that is not
copyrightable, the Employee hereby irrevocably assigns and transfers to the
Company any and all right, title, or interest that the Employee may have in
the Intellectual Work Product under copyright, patent, trade secret,
trademark and other intellectual property laws, in perpetuity or for the
longest period otherwise permitted by law, without the necessity of further
consideration. The Company shall be entitled to obtain and hold in its own
name all copyrights, patents, trade secrets, and trademarks with respect
thereto.
(iii) The Employee shall reveal promptly all
information relating to the Intellectual Work Product to an appropriate
officer of the Company, cooperate with the Company and execute such documents
as may be necessary or appropriate (A) in the event that the Company desires
to seek copyright, patent, trademark or other analogous protection thereafter
relating to the Intellectual Work Product, and when such protection is
obtained, to renew and restore the same, or (B) to defend any opposition
proceedings in respect of obtaining and maintaining such copyright, patent,
trademark or other analogous protection.
(iv) In the event that the Company is unable
after reasonable effort to secure the Employee's signature on any of the
documents referenced in Section 6(b)(iii) hereof, whether because of the
Employee's physical or mental incapacity or for any other reason whatsoever,
the Employee hereby irrevocably designates and appoints the Company and its
duly authorized officers and agents as the Employee's agent and
attorney-in-fact, to act for and in the Employee's behalf and stead to
execute and file any such documents and to do all other lawfully permitted
acts to further the prosecution and issuance of any such copyright, patent,
trademark or other analogous protection with the same legal force and effect
as if executed by the Employee.
(v) The Employee represents that the
innovations, designs, systems, analyses, ideas for marketing programs, and
all copyrights, patents, trademarks and trade names, or similar intangible
personal property identified on SCHEDULE E hereof comprises all of the
innovations, designs, systems, analyses, ideas for marketing programs, and
all copyrights, patents, trademarks and trade names, or similar intangible
personal property that the Employee has made or conceived of prior to the
date hereof, and same are excluded from the operation of the other provisions
of this Section 6(b).
7. COVENANT NOT TO COMPETE.
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(a) The Employee shall not, anywhere in the
world, during the Term and for a period of two (2) years thereafter (the
"Restricted Period"), do any of the following directly or indirectly without
the prior written consent of the Company in its sole discretion:
(i) engage or participate in business of
developing and/or selling supply chain execution software, other than with
the Company;
(ii) become interested (as owner,
proprietor, promoter, stockholder, lender, partner, co-venturer, director,
officer, employee, agent, consultant or otherwise) in any person, firm,
corporation, association or other entity engaged in any business that is
competitive with the Business or of the business of any subsidiary or
affiliate of the Company as conducted during the Term, or become interested
in (as owner, stockholder, lender, partner, co-venturer, director, officer,
employee, agent, consultant or otherwise) any portion of the business of any
person, firm, corporation, association or other entity where such portion of
such business is competitive with the Business of the Company or the business
of any subsidiary or affiliate of the Company as conducted during the Term
(notwithstanding the foregoing, the Employee may hold not more than one
percent (1%) of the outstanding securities of any class of any
publicly-traded securities of a company that is engaged in business activity
competitive with the Business or the business of any of the Company's
subsidiaries or affiliates as conducted during the Term);
(iii) solicit or call on for a purpose
competitive with the Business, either directly or indirectly, any (A)
customer with whom the Company shall have dealt at any time during the two
(2) year period immediately preceding the termination of the Employee's
employment hereunder, or (B) supplier or distributor with whom the Company
shall have dealt at any time during the two (2) year period immediately
preceding the termination of the Employee's employment hereunder;
(iv) influence or attempt to influence any
supplier, distributor, customer or potential customer of the Company to
terminate or modify any written or oral agreement or course of dealing with
the Company; or
(v) influence or attempt to influence any
person (other than the Employee's Administrative Assistant) either (A) to
terminate or modify the employment, consulting, agency, distributorship or
other arrangement with the Company, or (B) to employ or retain, or arrange to
have any other person or entity employ or retain, any person who has been
employed or retained by the Company as an employee, consultant, agent or
distributor of the Company at any time during the twelve (12) month period
immediately preceding the termination of the Employee's employment hereunder.
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(b) The Company acknowledges that,
notwithstanding anything to the contrary contained in Section 7(a), after the
termination or expiration of this Agreement for any reason, the Employee may
engage in performing legal services as outside counsel (but not in-house
counsel) on behalf of companies developing and/or selling supply chain
execution software. The Employee acknowledges that, notwithstanding anything
to the contrary in the first sentence of this Section 7(b), the Employee will
be bound by the applicable rules of legal ethics regarding conflicts of
interest in performing any such legal services as outside counsel.
(c) The Employee hereby acknowledges that the
limitations as to time, character or nature and geographic scope placed on
the Employee's subsequent employment by this Section 7 are reasonable and
fair and will not prevent or materially impair the Employee's ability to earn
a livelihood.
8. TERMINATION OF EMPLOYMENT. The Employee's employment
hereunder may be terminated upon the occurrence of any one of the events
described in this Section 8 or pursuant to a non-renewal of the Agreement
under Section 1(b) hereof. Upon termination of the Employee's employment,
the Employee shall be entitled only to such compensation and benefits as
described in this Section 8.
8.1 TERMINATION FOR DISABILITY.
(a) In the event of the disability of the
Employee such that the Employee is unable to perform the duties and
responsibilities hereunder to the full extent required by this Agreement by
reasons of illness, injury or incapacity for a period of more than sixty (60)
consecutive days or more than forty-five (45) days, in the aggregate, during
any ninety (90) day period ("Disability"), the Employee's employment
hereunder may be terminated by the Company.
(b) In the event of a termination of the
Employee's employment hereunder pursuant to Section 8.1(a), the Employee will
be entitled to receive: all accrued and unpaid (as of the date of such
termination) Base Salary, benefits, bonuses and other compensation payable or
provided in accordance with the terms of any then existing compensation or
benefit plan or arrangement, including payment prescribed under and
disability of life insurance plan or arrangement in which he is a participant
or to which he is a party as an employee of the Company; and Severance (as
hereinafter defined); provided that the Employee has complied with all of his
material obligations under this Agreement and continues to comply with all of
his surviving material obligations hereunder listed in Section 11. The
amounts to be paid to the Employee hereunder shall be paid in accordance with
the Company's normal payroll and incentive compensation distribution cycle
then in effect. Except as specifically set forth in
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this Section 8, the Company shall have no liability or obligation to the
Employee for compensation or benefits hereunder by reason of such termination.
8.2 TERMINATION BY DEATH. In the event that the
Employee dies during the Term, the Employee's employment hereunder shall be
terminated thereby and the Company shall pay to the Employee's executors,
legal representatives or administrators an amount equal to: the accrued and
unpaid portion of the Base Salary, benefits, bonuses and other compensation
for the month in which he dies. The amounts to be paid to the Employee
hereunder shall be paid in accordance with the Company's normal payroll and
incentive compensation distribution cycle then in effect. Except as
specifically set forth in this Section 8, the Company shall have no liability
or obligation hereunder to the Employee's executors, legal representatives,
administrators, heirs or assigns or any other person claiming under or
through him by reason of the Employee's death, except that the Employee's
executors, legal representatives or administrators will be entitled to
receive the payment prescribed under any death or disability benefits plan in
which he is a participant as an employee of the Company, and to exercise any
rights afforded under any compensation or benefit plan then in effect.
8.3 TERMINATION FOR CAUSE.
(a) The Company may elect to terminate
the Employee's employment hereunder at any time for "cause" upon written
notice to the Employee. For purposes of this Agreement, "cause" shall mean:
(i) repeated material breach by
the Employee of any of his material obligations under this Agreement
following written notice to the Employee specifying the nature of the prior
material breach and the Employee's failure to cure such prior material
breach;
(ii) repeated failure by the
Employee to perform satisfactorily the duties required by or appropriate for
the Position, as determined by the President of the Company or the Board in
his or its reasonable discretion, following written notice to the Employee
specifying the nature of the prior failure to perform and the Employee's
failure to cure such prior failure to perform;
(iii) conduct of the Employee
involving any type of disloyalty to the Company or willful misconduct with
respect to the Company, including without limitation fraud, embezzlement,
theft or proven dishonesty in the course of the employment, or any attempt by
the Employee to secure any personal profit related to the Business and the
business opportunities of the Company without the informed prior approval of
the Board of Directors;
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(iv) conviction of a felony
related to the Company or its business;
(v) commission by the Employee of
an intentional tort (i.e., assault, battery, false imprisonment, intentional
infliction of emotional distress, trespass to real or personal property or
conversion) related to the Company or its business or an act involving moral
turpitude or constituting fraud; or
(vi) habitual alcohol or substance
abuse or addiction.
(b) In the event of a termination of the
Employee's employment hereunder pursuant to Section 8.3(a), the Employee
shall be entitled to receive: all accrued but unpaid (as of the effective
date of such termination) Base Salary, benefits and bonuses; and Severance.
The amounts to be paid to Employee hereunder shall be paid in accordance with
the Company's normal payroll and incentive compensation distribution cycle
then in effect. All Base Salary, Severance, benefits, bonuses and other
compensation shall cease at the time of such termination, subject to the
terms of any benefit or compensation plan then in force and applicable to the
Employee. In the event of a termination of the Employee's employment
hereunder pursuant to Sections 8.3(a)(iii), (iv), (v) or (vi), any options
to purchase the Company's common stock issued to Employee, including any
vested or unvested portion thereof, shall be canceled at the time of such
termination, and the Employee shall not be entitled to exercise any such
options. Except as specifically set forth in this Section 8, the Company
shall have no liability or obligation hereunder by reason of such termination.
8.4 TERMINATION BY THE COMPANY WITHOUT CAUSE.
(a) The Company may terminate the
Employee's employment hereunder at any time during the Term, for any reason,
without cause, effective upon the date designated by the Company upon ninety
(90) days' written notice to the Employee.
(b) In the event of a termination of the
Employee's employment hereunder pursuant to Section 8.4(a), the Employee
shall be entitled to receive: (i) all accrued but unpaid Base Salary,
benefits, bonuses and other compensation; and (ii) Severance (or the
remaining amount of Base Salary that would otherwise be payable through the
remainder of the Initial Term absent such termination, if greater). All Base
Salary, benefits and bonuses shall cease at the time of such termination,
subject to the terms of any benefit or compensation plan then in force and
applicable to the Employee. Except as specifically set forth in this Section
8, the Company shall have no liability or obligation hereunder by reason of
such termination.
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8.5 NON-RENEWAL BY EITHER PARTY.
In the event of a non-renewal of the Agreement by
either party pursuant to Section 1(b) hereof, the Employee shall be eligible
to receive an amount equal to: all accrued but unpaid Base Salary, benefits,
bonuses, and other compensation; and Severance. The amounts to be paid to
the Employee hereunder shall be paid in accordance with the Company's normal
payroll and incentive compensation distribution cycle then in effect. All
Base Salary, benefits and bonuses shall cease at the time of such
termination, subject to the terms of any benefit or compensation plan then in
force and applicable to the Employee. Except as specifically set forth in
this Section 8, the Company shall have no liability or obligation hereunder
by reason of such termination.
8.6 TERMINATION BY THE EMPLOYEE.
(a) The Employee may terminate the
Employee's employment hereunder at any time during the Term, for any reason,
effective upon the date designated by the Employee upon ninety (90) days'
written notice to the Company.
(b) In the event of a termination of the
Employee's employment hereunder pursuant to Section 8.6(a), the Employee
shall be entitled to receive: (i) all accrued but unpaid Base Salary,
benefits, bonuses and other compensation; and (ii) Severance. The amounts to
be paid to the Employee hereunder shall be paid in accordance with the
Company's normal payroll and incentive compensation distribution cycle then
in effect. All Base Salary, benefits and bonuses shall cease at the time of
such termination, subject to the terms of any benefit or compensation plan
then in force and applicable to the Employee. Except as specifically set
forth in this Section 8, the Company shall have no liability or obligation
hereunder by reason of such termination.
8.7 SEVERANCE. In the event of the termination
or expiration of this Agreement for any reason, the Company shall pay to the
Employee, in addition to any other compensation that may be under this
Agreement, severance equal to one (1) year's Base Salary ("Severance"). The
amounts to be paid to the Employee hereunder shall be payable in twelve (12)
equal monthly installments in accordance with the Company's severance plan
then in effect at the time of the Employee's termination. Employee
acknowledges that, as a condition to participation in such severance plan,
Employee must complete in good faith such employee exit forms then in use by
the Company at the time Employee's employment is terminated and acknowledge
in writing on such forms then in use by the Company, Employee's obligations
to the Company including, but not limited to, Employee's obligations with
respect to confidentiality and Company property set forth in Sections 5 and 6
hereof and Employee's obligations with respect to the Covenant not to Compete
set forth in Section 7 hereof.
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8.8 CHANGE OF CONTROL. In the event of a Change
of Control of the Company during the Term, the Employee may elect to treat
such Change of Control as constructive termination of this Agreement without
Cause by the Company. Such election may be made by the Employee by sending
written notice to the Reporting Manager within sixty (60) days after the
occurrence of the Change in Control. Upon such election, in addition to the
Employee's rights pursuant to Section 4.3(c), the Employee shall be entitled
to all of the rights and benefits under this Agreement as if the Company had
terminated this Agreement without Cause pursuant to Section 8.4(a) as of the
date specified in such notice.
8.9 OPTIONS; REPURCHASE OF SHARES. Upon the
termination of the Employee's employment pursuant to Sections 8.3(a)(i) or
(ii), 8.5 or 8.6, all further vesting on all stock options and/or restricted
stock in the Company held by the Employee shall immediately cease as of such
date and thereafter any vested stock options shall be exercisable and any
restricted stock or other equity securities held by the Employee shall be
subject to repurchase by the Company in accordance with their respective
terms and the terms of any related agreements between the Company and the
Employee.
8.10 CONTINUING LEGAL REFERRALS. In the event
that this Agreement is terminated or expires for any reason and the Employee
elects to return to the private practice of law at any time during the one
(1) year period following such termination or expiration, then, at the option
of the Employee, the Company shall engage the Employee's firm to perform
legal services on behalf of the Company, the billable value of which legal
services is reasonably estimated to be at least Three Hundred Thousand
Dollars ($300,000) each year for at least two (2) years following the
commencement of such engagement; provided that such law firm is reasonably
capable of performing such legal services in a prompt and efficient manner;
and provided further that such firm continues to perform such legal services
to the Company's reasonable satisfaction. The Employee acknowledges that
such law firm will be subject to the rules of legal ethics regarding
conflicts of interest with respect to any such engagement.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
EMPLOYEE.
(a) The Employee represents and warrants to the
Company that:
(i) There are no restrictions, agreements
or understandings whatsoever to which the Employee is a party which would
prevent or make unlawful the Employee's execution of this Agreement or the
Employee's employment hereunder, or which is or would be inconsistent or in
conflict with this Agreement or the Employee's employment hereunder, or would
prevent, limit or impair in any way the performance by the Employee of the
obligations hereunder; and
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(ii) The Employee has disclosed to the
Company all restraints, confidentiality commitments or other employment
restrictions that the Employee has with any other employer, person or entity.
The Company acknowledges, however, that the Employee is subject to certain
restrictions regarding, among other things, conflicts of interest and
confidentiality, pursuant to the applicable rules of legal ethics arising
from the Employee's prior representations of clients in the private practice
of law.
(b) Upon and after the Employee's termination or
cessation of employment with the Company and until such time as no
obligations of the Employee to the Company hereunder exist, the Employee:
(i) shall provide a complete copy of the relevant portions of this Agreement
to any prospective employer or other person, entity or association in the
Business, with whom or which the Employee proposes to be employed,
affiliated, engaged, associated or to establish any business or remunerative
relationship prior to the commencement thereof; and (ii) shall notify the
Company of the name and address of any such employer, person, entity or
association prior to the Employee's employment, affiliation, engagement,
association or the establishment of any business or remunerative relationship.
10. LIABILITY. Promptly after the execution of this
Agreement, the Company will: (a) use its best efforts to amend the
Certificate of Incorporation of the Company and the Bylaws of the Company to
provide for the maximum indemnification and reimbursement of expenses of
directors and officers of the Company as are permitted by Delaware law; and
(b) obtain and maintain directors & officers liability insurance coverage in
reasonable policy limits from a reputable insurance carrier.
11. SURVIVAL OF PROVISIONS. The provisions of this
Agreement set forth in Sections 5 through 21 hereof shall survive the
termination of the Employee's employment hereunder in accordance with their
respective terms.
12. SUCCESSORS AND ASSIGNS. This Agreement shall inure
to the benefit of and be binding upon the Company and the Employee and their
respective successors, executors, administrators, heirs and/or permitted
assigns; provided that neither the Employee nor the Company may make any
assignments of this Agreement or any interest herein, by operation of law or
otherwise, without the prior written consent of the other party hereto,
except that, without such consent but subject to Section 4.3(d) and 8.8, the
Company may assign this Agreement to any successor to all or substantially
all of its assets and business by means of liquidation, dissolution, merger,
consolidation, transfer of assets, or otherwise, provided that such successor
assumes in writing all of the obligations of the Company under this Agreement.
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13. NOTICE. Any notice hereunder by either party shall
be given by personal delivery or by sending such notice by regular mail,
return-receipt requested, or by overnight delivery with a reputable courier
service, addressed to the other party at its address set forth below or at
such other address designated by notice in the manner provided in this
section. Such notice shall be deemed to have been received upon the date of
actual delivery if personally delivered or, in the case of mailing, two (2)
days after deposit with the U.S. mail, or if by overnight delivery, the date
of delivery.
If to the Employee:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Company:
EXE Technologies, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esquire
14. ENTIRE AGREEMENT; AMENDMENTS. This Agreement
contains the entire agreement and understanding of the parties hereto
relating to the subject matter hereof, and merges and supersedes all prior
and contemporaneous discussions, agreements and understandings of every
nature between the parties hereto relating to the employment of the Employee
with the Company, including without limitation that Summary of Terms dated
June 29, 1998 between the Employee and the Company. This Agreement may not
be changed or modified, except by an agreement in writing signed by each of
the parties hereto.
-15-
15. WAIVER. The waiver of the breach of any term or
provision of this Agreement shall not operate as or be construed to be a
waiver of any other or subsequent breach of this Agreement.
16. GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania,
without regard to the principles of conflicts of laws of any jurisdiction.
17. INVALIDITY. If any provision of this Agreement shall
be determined to be void, invalid, unenforceable or illegal for any reason,
then the validity and enforceability of all of the remaining provisions
hereof shall not be affected thereby. If any particular provision of this
Agreement shall be adjudicated to be invalid or unenforceable, then such
provision shall be deemed amended to delete therefrom the portion thus
adjudicated to be invalid or unenforceable, such amendment to apply only to
the operation of such provision in the particular jurisdiction in which such
adjudication is made; provided that, if any provision contained in this
Agreement shall be adjudicated to be invalid or unenforceable because such
provision is held to be excessively broad as to duration, geographic scope,
activity or subject, then such provision shall be deemed amended by limiting
and reducing it so as to be valid and enforceable to the maximum extent
compatible with the applicable laws of such jurisdiction, such amendment only
to apply with respect to the operation of such provision in the applicable
jurisdiction in which the adjudication is made.
18. SECTION HEADINGS. The section headings in this
Agreement are for convenience only; they form no part of this Agreement and
shall not affect its interpretation.
19. NUMBER OF DAYS. In computing the number of days for
purposes of this Agreement, all days shall be counted, including Saturdays,
Sundays and legal holidays; provided that, if the final day of any time
period falls on a Saturday, Sunday or day which is a legal holiday in
Pennsylvania, then such final day shall be deemed to be the next day which is
not a Saturday, Sunday or legal holiday.
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20. SPECIFIC ENFORCEMENT; EXTENSION OF PERIOD.
(a) The Employee acknowledges that the
restrictions contained in Sections 5, 6, and 7 hereof are reasonable and
necessary to protect the legitimate interests of the Company and its
affiliates and that the Company would not have entered into this Agreement in
the absence of such restrictions. The Employee also acknowledges that any
breach by the Employee of Sections 5, 6, or 7 hereof will cause continuing
and irreparable injury to the Company for which monetary damages would not be
an adequate remedy. The Employee shall not, in any action or proceeding to
enforce any of the provisions of this Agreement, assert the claim or defense
that an adequate remedy at law exists. In the event of such breach by the
Employee, the Company shall have the right to enforce the provisions of
Sections 5, 6, and 7 of this Agreement by seeking injunctive or other relief
in any court, and this Agreement shall not in any way limit remedies of law
or in equity otherwise available to the Company.
(b) The periods of time set forth in Sections 5,
6 and 7 hereof shall not include, and shall be deemed extended by, any time
required for litigation to enforce the relevant covenant periods, provided
that the Company is successful on the merits in any such litigation. The
"time required for litigation" is herein defined to mean the period of time
commencing on the earlier of the Employee's first breach of such covenants or
the service of process upon the Employee and ending on the expiration of all
appeals related to such litigation.
21. CONSENT TO SUIT. In the case of any dispute under or
in connection with this Agreement, the Employee may only bring suit against
the Company in the Courts of the Commonwealth of Pennsylvania in and for the
County of Philadelphia or in the Federal District Court for such geographic
location. The Employee hereby consents to the jurisdiction and venue of the
courts of the Commonwealth of Pennsylvania in and for the County of
Philadelphia or the Federal District Court for such geographic location,
provided that such Federal Court has subject matter jurisdiction over such
dispute, and the Employee hereby waives any claim the Employee may have at
any time as to FORUM NON CONVENIENS with respect to such venue. The Company
shall have the right to institute any legal action arising out of or relating
to this Agreement in any court of competent jurisdiction. Any judgment
entered against either of the parties in any proceeding hereunder may be
entered and enforced by any court of competent jurisdiction. If an action at
law or in equity is necessary to enforce or interpret the terms of this
Agreement, then the prevailing party shall be entitled to recover, in
addition to any other relief, reasonable attorneys' fees, costs and
disbursements.
22. COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, and all of
which together shall be deemed to be one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the day and year first written above.
EXE TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Title: President/CEO
-------------------------
EMPLOYEE:
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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SCHEDULE A
EMPLOYMENT AND COMPENSATION
POSITION: Senior Vice President & General Counsel
DUTIES: (1) Responsible for worldwide legal services for the
Company, including management and budgeting of
in-house legal staff;
(2) Responsible for management and budgeting of
worldwide outside legal services for the Company,
including selection of outside counsel and
negotiation of fee arrangements;
(3) Perform as Corporate Secretary of the Company (and
its subsidiaries where appropriate);
(4) Serve as a member, and perform as Secretary, of
the Executive Committee of the Company;
(5) Perform other executive management activities
(such as finance, mergers & acquisitions and human
resources) as may be determined jointly by the
Reporting Manager and the Employee from time to
time; and
(6) Enhance the visibility and reputation of the
Company in the venture and software communities at
the regional, national and international levels.
REPORTING MANAGER: Chief Executive Officer & Chief Financial Officer
ANNUAL BASE SALARY: One Hundred Seventy-five Thousand Dollars ($175,000.00)
SIGNING BONUS: Forty Thousand Dollars ($40,000.00)
START DATE: Friday, July 13, 1998
VACATION: 20 paid vacation days per calendar year.
INITIAL LEGAL STAFF: (1) One (1) full-time Associate General Counsel
(probably ▇▇▇▇ ▇▇▇▇▇▇);
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(2) Two (2) full-time Paralegals (▇▇▇▇ ▇▇▇▇ and a new
hire); and
(3) One (1) full-time Administrative Assistant with
legal experience (probably ▇▇▇▇▇ ▇▇▇▇▇).
-20-
SCHEDULE B
OPTION VESTING SCHEDULE
INITIAL OPTION:
(a) 20,000 shares on the date of this Agreement;
(b) 20,000 shares on the last day prior to the first anniversary of the Start
Date;
(c) 20,000 shares on the last day prior to the second anniversary of the
Start Date; and
(d) 20,000 shares on the last day prior to third anniversary of the Start
Date.
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SCHEDULE C
EXE TECHNOLOGIES, INC.
1997 INCENTIVE AND NON-QUALIFIED STOCK OPTION PLAN
[A COPY OF THE PLAN WITH EXHIBITS HAS ALREADY BEEN SUPPLIED TO THE EMPLOYEE
AND HAS THEREFORE NOT BEEN ATTACHED TO THIS AGREEMENT.]
-22-
SCHEDULE D
NON-SALARY CONSIDERATION
1. 7 paid holidays.
2. Vacation - 20 days.
3. Medical Plan - Employer/Employee paid.
4. Dental Plan - Employer/Employee paid.
5. Life Insurance/AD&D - equal to $50,000 - Employer paid.
6. Vision plan - Employer paid - provides 20% to 60% discount on all vision
services.
7. Flexible Benefit Plan - enables employees to set aside pre-tax dollars for
the reimbursement of certain qualified expenses.
8. Short-term Disability - Employer paid - provides potential salary
continuation to regular, full-time employees who are unavoidably absent
from work due to personal illness injury or pregnancy.
9. Long-term Disability - Employer paid - provides income protection in the
event of a long-term disability, equal to 60% of basic monthly earnings.
10. 401(k) Plan - permits deferral of pre-tax dollars up to 15% of salary.
Company matches 100% of first 5% contribution.
11. Employee Assistance Plan - provides counseling or referral benefits to
eligible employees and their families.
12. Tuition Assistance - provides educational reimbursement benefits to
eligible employees.
-23-
SCHEDULE E
PRIOR INVENTIONS
1. The collection of sample and form contracts, letters and checklists
developed or assembled by the Employee during the private practice of law.
2. The list of clients, referral sources and contacts developed or assembled
by the Employee during the private practice of law.
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