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EXHIBIT 10.11
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is made effective as
of the 7th day of April, 1998 ("Effective Date"), by and between PowerCerv
Technologies Corporation, a Florida corporation located at 000 Xxxxx Xxxxxx
Xxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000 (the "Company") and Xxx Xxxxxx, an
individual currently residing at 00000 Xxxxxxxxx Xx., Xxxx, XX 00000 (the
"Executive").
BACKGROUND INFORMATION
A. WHEREAS, the Company is engaged in designing, developing, promoting,
licensing and supporting client/server application products and development
tools, and providing related technical consulting and education services; and
B. WHEREAS, the Company desires to employ Executive as its Vice President
of Corporate Services, and Executive desires to be employed by the Company in
this capacity and devote his full time and efforts to the business and affairs
of the Company as described herein, all pursuant to the terms and subject to the
conditions set forth in this Agreement.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements set forth herein, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. VICE PRESIDENT OF CORPORATE SERVICES. The Company hereby agrees to hire
Executive to serve in the capacity of Vice President, Corporate Services of the
Company in accordance with the provisions of this Agreement. The Executive will
be responsible for managing the Company's MIS systems and such other duties and
responsibilities as may be assigned to him by the President/COO (as defined
herein), and as otherwise set forth herein. The Executive will report to Xxxxxxx
Xxxxxxx, the President and Chief Operating Officer of the Company
("President/COO"). The Executive hereby accepts such employment upon the terms
and conditions hereinafter set forth.
2. TERM. Unless earlier terminated as provided herein, the term of this
Agreement shall commence on the Effective Date and terminate on April 30, 1999.
The Executive agrees that his actual first day of employment with the Company,
on a full-time basis in Tampa, Florida, shall be on or before May 1, 1998.
Notwithstanding the foregoing, if this Agreement is not terminated as provided
herein on or before the expiration of its initial term, this Agreement will be
automatically renewed for the twenty (20) month period from April 30, 1999 to
December 31, 2000, and for successive one (1) year terms thereafter unless, at
least sixty (60) days prior to the expiration of the initial term or any
subsequent renewal term, either party has given written notice to the other of
its intention not to renew this Agreement beyond the end of such term.
3. DUTIES.
(a) The Executive shall perform all functions and duties consistent with
his position as described above in Section 1 on behalf of the Company,
its parent corporation and its affiliates in a faithful, efficient,
trustworthy and professional manner, as reasonably required by the
President/COO or as otherwise requested by the Chief Executive Officer
or Board of Directors of PowerCerv Corporation ("Board of Directors").
The Executive
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agrees to comply with all policies and regulations of the Company and
the terms and conditions of this Agreement, to devote his best efforts
to the interests of the Company, and will not, without the prior
written consent of the President/COO, engage in any other job or
activity detrimental to the Company's interests or in contravention to
the terms and conditions of this Agreement. The Executive shall be
principally based at the Company's corporate offices in Tampa, Florida
and shall travel as required in connection with the performance of his
duties hereunder. During the term of this Agreement (following his
actual first day of employment), the Executive shall devote
substantially all of his working time and efforts to the business and
affairs of the Company. The Executive shall, upon request of the
Company, perform services for any parent, subsidiary or affiliate of
the Company without compensation except as provided herein.
(b) In addition, the Executive represents that he has not brought to the
Company, and will not bring or use in the performance of his duties at
the Company, any property, trade secrets or confidential information
(whether or not in writing) of a former employer or third party
without that employer's or third party's written consent. The
Executive hereby certifies that he is not a party to any other
agreement (or subject to any fiduciary obligation) which will
interfere with the Executive's full compliance with this Agreement.
The Executive has not entered into any agreement or understanding
either written or oral in conflict with the provisions of this
Agreement. The Executive acknowledges and agrees that the Company is
hiring him based upon its understanding that the Executive will be
fully capable, without restriction, of performing under this Agreement
in his capacity as Vice President, Corporate Services for the Company,
and that the Company is relying upon the representations set forth
herein in connection with its providing this Agreement to the
Executive.
4. COMPENSATION. As his entire compensation for all services rendered to
the Company during the term of this Agreement, the Executive shall receive the
compensation provided for in this Section, subject to withholding and other
applicable employment taxes:
(a) Base Salary. Effective upon the Executive's actual first day of
employment with the Company, the Company will pay the Executive an
annual base salary (the "Base Salary") of $125,000. The Base Salary
will be paid on or about the 15th and 30th of each working month at a
rate of $10,416.67 per month all pursuant to the provisions of this
Agreement. The Base Salary shall be subject to review on an annual
basis by the Compensation Committee of the Board of Directors, as
recommended by the President/COO. The Compensation Committee shall not
have the authority to reduce the Base Salary from the level set forth
in this Agreement.
(b) Target Annual Bonus. The Executive will be eligible to potentially
earn an annual bonus of $125,000 (the "Target Annual Bonus") per the
provisions of this Section 4(b) for each of the Company's three (3)
fiscal years during the term of this Agreement. The Executive's Target
Annual Bonus will be pro-rated during any partial fiscal year during
the term hereof based upon the percentage of the Company's fiscal year
which the Executive actually worked for the Company. For each fiscal
thereafter during the term of this Agreement, no such pro-rating of
Executive's Target Annual Bonus will occur. The Target Annual Bonus
will be paid in one lump sum for each of such fiscal years, subject to
the Company and/or Executive, as applicable, achieving certain
criteria as hereinafter set forth. References below to target revenues
and target operating income relate to Company's "Management Plan
Projections" approved by the Board of Directors no less frequently
than annually in advance of the period or which the targets are being
determined. Actual revenues and actual operating income shall be
computed on a basis
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consistent with a method by which target revenues and target operating
income for the related year were computed. Eligibility for payments of
this component of the Target Annual Bonus to Executive shall be for
each of the Company's fiscal years during the term of the Agreement
beginning with the fiscal year commencing January 1, 1998 and shall be
computed as follows:
(i) $43,750 will be earned upon Company achieving target
revenues for each fiscal year;
(ii) $43,750 will be earned upon Company achieving target
operating income for each fiscal year; and
(iii) $37,500 will be earned upon approval of the Board of
Directors after its review of the Executive Management
and/or Executive's presentation of strategic business
accomplishments of the Company for each fiscal year.
If a target referenced in subclause (i) or (ii) above is not met in a
particular fiscal year, Executive shall not receive for such fiscal
year the part of the Target Annual Bonus tied to such target. With
respect to subclause (iii) above, the presentation by the Executive
Management and/or Executive of Company's strategic business
accomplishments for a fiscal year shall be promptly evaluated by the
Board of Directors and the potential related bonus shall be determined
by the Board of Directors in its reasonable discretion. The Executive
shall be eligible to earn all or a portion of such potential bonus as
so determined by the Board of Directors. All amounts payable pursuant
to this Section 4(b) shall be paid to the Executive promptly after the
amount is determined. Additionally, the Executive acknowledges and
agrees that no advances or draws will be paid under this Agreement.
The Executive's Target Annual Bonus shall be subject to review on an
annual basis by the Compensation Committee of the Board of Directors,
as recommended by the President/COO.
(c) Stock Options. As of the Effective Date of this Agreement, the Company
agrees to grant the Executive those stock options set forth below in
subsections 4(c)(i) and 4(c)(ii). The Executive acknowledges and
agrees that during the initial two terms of this Agreement (and
through December 31, 2000), the Executive will not receive nor be
entitled to receive any additional stock options from the Company. In
addition, the Executive acknowledges that all stock options being
granted to him below are not part of or granted pursuant to the
Company's 1995 Stock Option Plan, as amended, and accordingly
constitute "non-qualified stock options" for purposes of the Internal
Revenue Code of 1986, as amended (the "Code"). If the Company and the
Executive determine that no exemption from the registration
requirements from the Securities Act of 1933 is available with respect
to the shares to be issued upon exercise of the options, the Company
will file a registration statement with respect to such shares. The
stock options to be granted to the Executive on the Effective Date are
as follows:
i) A non-transferable option to purchase 195,000 shares of the
Company's common stock pursuant to a "PowerCerv Corporation Stock
Option Agreement". The exercise price for this option will be the
"fair market value" on the date of grant, which shall be the
average of the high and low sales prices of the Company's common
stock as reported by the NASDAQ on the Effective Date of this
Agreement. If trading in the stock or a price quotation does not
occur on the date as of which fair market value is being
determined, the last date on which the
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stock was traded or a price was quoted shall determine the fair
market value. This option will vest according to the schedule set
forth on Exhibit A attached hereto and incorporated herein by
this reference.
The stock option described in subsection 4(c)(i) will expire on
the earlier of (x) ten (10) years from the date of grant, or (y)
the first anniversary of the date of the Recipient's death or
disability, or (z) one hundred and fifty (150) days following the
Executive's separation of employment from the Company.
ii) A second non-transferable option to purchase 20,000 shares of the
Company's common stock pursuant to a "PowerCerv Corporation Stock
Option Agreement". The exercise price for this option will be the
"fair market value" on the date of grant, which shall be the
average of the high and low sales prices of the Company's common
stock as reported by the NASDAQ on the Effective Date of this
Agreement. If trading in the stock or a price quotation does not
occur on the date as of which fair market value is being
determined, the last date on which the stock was traded or a
price was quoted shall determine the fair market value. This
option will vest according to the schedule set forth on Exhibit B
attached hereto and incorporated herein by this reference.
The stock option described in subsection 4(c)(ii) will expire on
the earlier of (x) ten (10) years from the date of grant, or (y)
the first anniversary of the date of the Recipient's death or
disability, or (z) one hundred and fifty (150) days following the
Executive's separation of employment from the Company. The
Compensation Committee of the Board of Directors may, at its sole
discretion, review the Executive's performance in light of the
Company's operating plan to determine whether or not to
accelerate the vesting of any portion of the stock price-based
stock options.
(d) Relocation. In addition to the compensation described above, the
Company will pay the Executive a one-time "Relocation Allowance" of
$30,000, on a pre-tax basis. The Executive agrees to use the
Relocation Allowance exclusively for his relocation expenses, and will
request such payment in writing from the President/COO. If the
Executive separates his employment with the Company without Cause (as
"Cause" is defined in Section 9(a) of the Agreement) during the
initial term of this Agreement (before April 30, 1999), the Executive
agrees to promptly return the entire amount of the Relocation
Allowance to the Company. In addition to the Relocation Allowance
described above, the Company agrees to reimburse the Executive up to
$1,500 per month for no more than six (6) months from the Effective
Date for his and his family's temporary travel and living expenses in
Tampa. In connection with obtaining such reimbursement, the Executive
agrees to submit expense receipts for these travel/living costs.
5. WORKING FACILITIES. The Company shall provide the Executive with office
space, equipment, facilities, staffing and services which are suitable to the
position of Vice President, Corporate Services and adequate for the performance
of the Executive's duties hereunder.
6. EXPENSES. The Company shall reimburse the Executive for all reasonable
travel and other business expenses incurred by him in furtherance of the
Company's business in accordance with the Company's written policies and
procedures.
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7. VACATION AND HOLIDAYS. The Executive shall be entitled to such vacation
with pay and holidays with pay during each fiscal year of the Company as shall
be approved by the Company. The amount of vacation and holidays provided to the
Executive shall be consistent with the amount given other comparable executive
employees of the Company.
8. HEALTH, WELFARE AND INSURANCE PLANS. Subject to eligibility
requirements, the Executive will be entitled to participate in any plans,
insurance policies or contracts maintained by the Company relating to
retirement, health, disability and other related benefits. The Executive's
rights with respect to any such benefits shall be subject to the provisions of
the relevant plans, policies or contracts providing such benefits. Nothing
contained herein shall be deemed to impose any obligation on the Company to
adopt or maintain any such plan, policy or contract. As of the date of this
Agreement, the Company does not provide different types or levels of health,
welfare and insurance plan or benefit coverage to its executive employees, and
further, there is no present intention by the Company to change this benefit
policy. However, if the Company were to change its policy relative to executive
benefits, those health, welfare and insurance plan and benefit coverage made
available to the Executive will be consistent with the amount given other
comparable executive employees of the Company.
9. TERMINATION. This Agreement, and the Executive's employment hereunder,
shall terminate in accordance with the provisions of this Section of the
Agreement.
(a) By Company. The Company may terminate this Agreement (i) with Cause at
any time upon thirty (30) days prior written notice to the Executive,
(ii) upon the Company's merger, consolidation, acquisition,
liquidation, sale or other disposition of all or substantially all of
its business and/or assets to a third party; or (iii) without Cause
upon ninety (90) days prior written notice to the Executive, and the
Executive shall work for the Company during such notice period unless
otherwise directed by the Company.
As used in this Agreement, the term "Cause" shall mean (A) willful and
repeated failure to comply with the lawful directions of the
President/COO, Chief Executive Officer or Board of Directors or
repeated failure to perform the duties as Vice President, Corporate
Services of the Company; (B) gross negligence or willful misconduct in
the performance of duties to the Company and/or its subsidiaries; (C)
commission of any act of fraud with respect to the Company and/or its
subsidiaries; or (D) conviction of a felony or a crime involving moral
turpitude causing material harm to the standing and reputation of the
Company and/or its subsidiaries, in each case as determined in good
faith by the Board of Directors.
(b) Death. This Agreement shall terminate immediately upon the Executive's
death.
(c) Disability. If the Executive incurs a Disability (as defined below)
which continues for a period of at least ninety (90) consecutive days,
this Agreement shall terminate on the last day of such period. Unless
the Executive shall perform his duties hereunder for a continuous
period of at least thirty (30) consecutive days following a period of
Disability before the Executive again incurs a Disability, he shall
not be entitled to start a new ninety (90) consecutive day period
under the provisions of this subsection, but instead may only continue
under the remaining portion of the original ninety (90) consecutive
day period.
As used in this Agreement, the term "Disability" shall mean the
Executive's physical or mental inability, by reason of illness or
accident, to perform the normal duties of his
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employment by the Company, subject to any obligation the Company may
have under applicable law to provide reasonable accommodation. If
there is any disagreement between the Company and the Executive as to
the Executive's Disability or as to the date any such Disability began
or ended, the same shall be determined by a physician mutually
acceptable to the Company and the Executive. The determination of such
physician shall be conclusive evidence of any such Disability and of
the date any such Disability began or ended. The Executive shall be
available for such an examination at any reasonable time upon prior
reasonable notice thereof from the Company. If the Executive fails or
refuses to cooperate in such examination, the determination of the
Executive's Disability and the date any such Disability began or ended
shall be made by the Company in its sole discretion.
(d) Termination by Executive. The Executive may terminate this Agreement
(i) for Good Reason at any time upon thirty (30) days prior written
notice to the Company, or (ii) at any time upon ninety (90) days prior
written notice to the Company; provided, however, the Executive shall
continue to work for the Company during such notice period unless
otherwise directed by the Company.
As used in this Agreement, "Good Reason" shall mean (A) any material
breach of this Agreement by the Company which has not been cured
within thirty (30) days of the Company's receipt of written notice of
such breach from the Executive, or as soon thereafter as practicable
so long as the Company is diligently seeking to cure such failure or
breach; or (B) a material reduction in the Executive's title(s) or
responsibilities unless replaced with a new title or new
responsibilities of comparable stature or value to the Company within
thirty (30) days.
10. PAYMENTS BY COMPANY UPON TERMINATION.
(a) Within ten (10) business days following the effective date of the
termination of the Executive's employment (the "Termination Date") if
based upon the expiration and non-renewal of this Agreement by either
party; or the Company's termination of the Executive with Cause as
described under Section 9(a)(i); or the Executive's death as described
under Section 9(b); or the Executive's Disability as described under
Section 9(c); or the Executive's notice of termination to the Company
without Good Reason as described under Section 9(d)(ii), then the
Company shall pay the Executive (or his estate in the case of death
per Section 9(b)) his Base Salary prorated through the Termination
Date plus any life insurance, disability or other benefits to which
the Executive is entitled in accordance with the terms and conditions
of the Company's health, welfare and insurance plans.
(b) If the Company is merged, consolidated, acquired, sold, liquidated, or
any other disposition of all or substantially all of its business
and/or assets to a third party as described under Section 9(a)(ii)
above and in which the Executive is not then offered an equal or
better position, salary and compensation package (as adjusted to
reflect cost of living increases), relocation package and other
benefits with said third party; or if the Company has given notice of
termination to the Executive as described under Section 9(a)(iii); or
if the Executive has given notice of termination to the Company under
Section 9(d)(i), then in any one of these circumstances, and further
provided that the Executive is not in breach of Sections 11, 12 and 13
of this Agreement or does not subsequently breach any of said
sections, then Company shall: (i) pay the Executive an amount equal to
twelve (12) months of the Executive's then current year Base Salary,
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payable in twelve (12) equal monthly installments from his Termination
Date; (ii) provide health, life and such other insurance benefits to
the Executive and dependents that he would have received during said
twelve (12) month period following the Termination Date had such
termination not occurred (or if such insurance plans are no longer
available [in the case of the Company's acquisition], reimbursement by
the Company to the Executive of his reasonable costs for the same or
similar insurance); and (iii) vest the Executive's stock options in
accordance with Section 10(c) below. The obligation of the Company to
pay such severance and vest stock options is contingent upon the
Executive's compliance with Sections 11, 12 and 13 of this Agreement
(as indicated above) and the Executive's execution of a severance and
general release agreement reasonably satisfactory in form and
substance to the Company.
(c) For purposes of vesting the unvested portions of the Executive's
outstanding stock options, if the Company is merged, consolidated,
acquired, sold, liquidated or any other disposition of all or
substantially all of its business and/or assets to a third party as
described under Section 9(a)(ii), and provided there is no "pooling"
concern, then one hundred percent (100%) of all outstanding stock
options then held by the Executive shall vest upon the effective date
of such event. If either (i) the Company has given notice of
termination to the Executive as described under Section 9(a)(iii) of
the Agreement, or (ii) the Executive has given notice of termination
to the Company under Section 9(d)(i) of the Agreement, and provided
there is no "pooling" concern, then those stock options which would
have vested over the next twelve (12) month period immediately
following the Termination Date shall vest upon the Termination Date,
and no further vesting of any nature shall occur with respect to any
other stock options then held by the Executive. To the extent there
would be a "pooling" concern, the Company and the Executive agree to
work together in good faith to carry out the intent of this provision
and preserve the Company's ability to do a "pooling" transaction. If
the accelerated vesting of the options hereunder would (x) subject the
Executive to a tax pursuant to Section 4999 of the Code (or any
successor provision that may be in effect), or (y) result in a
disallowance of a deduction to the Company for all or any part of the
compensation attributable to the option by reason of Section 280G of
the Code (or any successor provision that may be in effect), the
Company shall reduce, eliminate or postpone the acceleration of the
vesting of the option to the extent necessary to reduce the "present
value" (as this term is defined in Section 280G(d)(4) of the Code, or
any successor provision that may be in effect) of the compensation
attributable to the accelerated vesting to one dollar less than an
amount equal to three times the Executive's "base amount" (as this
term is defined in Sections 280G(b)(3) and 280G(d) of the Code, or any
successor provisions that may be in effect).
(d) Except as provided in subsection (a), (b) and (c) above, the Executive
(or his estate, if applicable) shall not be entitled to receive
severance pay or any other compensation upon any termination of his
employment.
11. EMPLOYMENT POLICIES. The Executive shall abide by all policies and
procedures of the Company in effect from time to time.
12. CONFIDENTIALITY AND INVENTIONS CLAUSES.
(a) The Executive agrees not to disclose the terms and conditions of this
Agreement to any other employee of the Company or any other party
except the Executive may disclose such information to his immediate
family, financial advisors or attorneys.
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(b) The Executive agrees to hold in confidence and not use or disclose
without the Company's prior written consent (i) any information
(technical or otherwise) that he obtains or creates during the term of
this Agreement which pertains to any aspect of the Company's business
or (ii) any information received in confidence by the Company from a
third party, until such information becomes generally known by the
public. The Executive shall not make any unauthorized copies of such
information and will return to the Company, upon termination of his
employment or upon the Company's request, all tangible forms of such
information, including, without limitation, sales plans, marketing
plans, compensation plans, business strategies, product strategies,
internet or intranet strategies, business or product development
strategies, financial information, partner and customer relationships,
and other information about former, current, or prospective
partners/customers, employee lists and other information about former,
current, or prospective employees, software programs (source or object
codes), know-how, new product offerings, plans, projections,
confidential business information, copyrights, trade secrets, and any
other proprietary material.
(c) The Executive hereby assigns to the Company all of his rights in all
intellectual property (including, but not limited to, trade secrets,
know-how, inventions, copyrights, designs, computer programs and
software techniques) that the Executive conceives or develops, in
whole or in part, during his employment with the Company. This
assignment does not cover any intellectual property which: (i) is
conceived and developed entirely on the Executive's own time; (ii) is
conceived and developed without any Company equipment, supplies,
facilities, or trade secrets; and (iii) does not relate to Company's
current or future business or to the Company's actual or demonstrably
anticipated research or development efforts. The Executive understand
that this assignment does not cover any inventions completed prior to
his employment with the Company, which inventions are specifically
identified on a schedule which the Executive has presented to the
Company and has been attached to this Agreement on or before the
Effective Date hereof (which contains no confidential information).
During and after the Executive's employment with the Company, the
Executive agrees to do whatever is requested by the Company, at the
Company's expense, to sign documents or otherwise assist in obtaining,
confirming, and enforcing the Company's rights in the assigned
property throughout the world.
13. NON-COMPETE.
(a) During the term of this Agreement, as extended, the Executive may
learn of confidential matters essential to the business and
competitive position of the Company, including, without limitation,
its sales and marketing plans and strategies, business or product
development strategies, financial information, partner and customer
relationships, and other information about former, current, or
prospective partners/customers, employee lists and other information
about former, current, or prospective employees, software programs
(source or object codes), research and development plans, know-how,
projections, copyrights, trade secrets, or any other proprietary
material and confidential business information that would unfairly
disadvantage the Company were the Executive to use or disclose such
information in business activities competitive with the Company. The
Executive also may develop contacts and relationships with (i) former,
current, or prospective customers of the Company or (ii) former,
current, or prospective business partners, or licensors of the Company
which, if those contacts or relationships were used by the Executive
in competition with the Company, would unfairly disadvantage the
Company. To protect the Company's trade secrets, confidential business
information, and current and prospective business relationships, the
Executive shall not, during the term of this Agreement and for a
period of twelve (12) months immediately following the Termination
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Date for whatever reason, whether voluntary or involuntary (with or
without cause), directly or indirectly, either as an individual on the
Executive's own account or as a partner, employee, agent, contractor,
officer, director, stockholder, or otherwise:
(I) Solicit from, accept employment/business from, consult with, or
transact business with any former, current, or prospective
customer or vendor of the Company with which the Executive had
substantial personal contacts on behalf of the Company
(excluding, however, those companies with whom the Executive
actually had a direct relationship with prior to his becoming an
employee of the Company to the extent of such prior relationships
as of the Effective Date hereof) during the twenty-four
(24)-month period immediately preceding the Termination Date; or
(II) Hire, solicit for hire, refer, or retain the services of any
employee of the Company or its subsidiary for any matter
whatsoever during the period of time which said employee is
employed by the Company or its parent, subsidiaries or affiliates
and for six (6) months thereafter; or
(III) Engage in, consult with, or accept employment from any business
in current or prospective competition with the Company
(excluding, however, those companies with whom the Executive
actually had a direct relationship with prior to his becoming an
employee of the Company) where such engagement, consultation, or
employment is likely to require the Executive to use or disclose
trade secrets or confidential business information of the
Company. For purposes of the "pre-existing relationship"
exclusion described in subsections (a) and (c) of this Section
13(a), the parties agree that the burden of proof to establish
the existence of this relationship will be on the Executive.
(b) The Executive acknowledges that, in the course of his employment with
the Company, the Executive may (i) obtain information and knowledge of
confidential matters essential to the business and competitive
position of the Company and (ii) have contacts with customers,
partners or vendors of the Company, which information and knowledge
and contacts are being so provided to the Executive in reliance upon
his execution of this Agreement. The Executive hereby acknowledges the
sufficiency of consideration for this Agreement, and the Executive
further acknowledges that the confidentiality and customer/vendor
protection covenants in this Agreement are reasonable and necessary to
protect the valid business interests of the Company, including the
Company's valuable trade secrets, other confidential business
information, and relationships with its former, current, and
prospective customers, business partners, licensors, and vendors.
(c) If any of the provisions of Sections 11, 12 or 13 are found to be
unreasonable in duration, geographical scope, or line of business, the
provision shall not be rendered unenforceable by this finding, but
rather the duration, geographical scope, or line of business of such
provision shall be deemed automatically reduced or modified with
retroactive effect to the extent necessary to render the provision
enforceable, and such provision shall be enforced as modified.
(d) The parties to this Agreement acknowledge and agree that damages in
the event of a breach of any of the provisions of Sections 11, 12 or
13 by the Executive would be difficult to ascertain, and therefore the
Company, in addition to and not in limitation of any other rights,
remedies or damages available to it in law or in equity, shall have
the
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right to injunctive or other equitable relief in any court of
competent jurisdiction, enjoining such breach.
14. INDEMNIFICATION. The Executive shall be, and hereby is, indemnified by
the Company, to the fullest extent permitted by applicable law, for all costs,
claims, expenses (including reasonable attorney's fees and other litigation
costs), damages and losses incurred by Executive by reason of being employed, or
serving in any capacity, as an employee or officer of the Company or any
affiliate thereof.
15. SUCCESSORS; BINDING AGREEMENT.
(a) The Company will require any successor (whether by merger,
consolidation, purchase, acquisition or otherwise) to all or
substantially all of the business and/or assets of the Company, to
expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. As used in this
Section 15(a), "Company" shall mean the Company as hereinbefore
defined and any successor to its business and/or assets as aforesaid
which executes and delivers the agreement provided for in this Section
or which otherwise becomes bound by all the terms and provisions of
this Agreement by operation of law.
(b) This Agreement and all rights of the Executive hereunder shall inure
to the benefit of and be enforceable by the Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
16. MISCELLANEOUS.
(a) Notice. Any notice required or permitted to be given hereunder shall
be in writing and shall be deemed to have been given three (3)
calendar days following the day in which it is personally delivered or
deposited in the United States certified mail, return receipt
requested and postage prepaid. Any such notice so mailed to the
Executive shall be addressed to the Executive's last known residence
address. Any such notice so mailed to the Company shall be addressed
to its principal office in Tampa, Florida.
(b) Modification. No provisions of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed
to in writing signed by the Founders or their designee and the
Executive.
(c) Waiver of Breach or Violation Not Deemed Continuing. The waiver by
either party of a breach or violation of any provision of this
Agreement shall not operate as, or be construed to be, a waiver of any
subsequent breach hereof.
(d) Assignment. The Executive shall not assign all or any portion of his
rights, obligations, or duties under this Agreement to any third party
without the prior written approval of the Company. Any assignment in
violation of this provision shall be void and of no force or effect.
(e) Necessary Action. Each party shall perform any further acts and
execute and deliver any documents which may be reasonably necessary to
carry out the provisions of this Agreement.
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(f) Attorneys Fees. In the event of a dispute arising under or in
connection with this Agreement, the prevailing party shall be entitled
to collect from the other party all reasonable legal fees and
expenses.
(g) Venue. The Executive hereby consents to personal jurisdiction and
venue, for any action brought by the Company arising out of a breach
or threatened breach of this Agreement, exclusively in the United
States District Court for the Middle District of Florida, Tampa
Division, or in the Circuit Court in and for Hillsborough County,
Florida. The Executive hereby agrees that any action brought by him,
alone or in combination with others, against the Company, whether
arising out of the Agreement or otherwise, shall be brought
exclusively in the United States District Court for the Middle
District of Florida, Tampa, Division, or in the Circuit Court in and
for Hillsborough County, Florida. The Executive hereby agrees that any
controversy which may arise under this Agreement would involve
complicated and difficult factual and legal issues. Therefore, if a
court of law determines for any reason that the arbitration clause of
Section 16(h) of this Agreement is unenforceable, then any action
brought by the Company against the Executive or brought by Executive,
alone or in combination with others, against the Company, whether
arising out of this Agreement or otherwise, shall be determined by a
judge sitting without a jury.
(h) Arbitration. All controversies, claims, disputes, and matters in
question arising out of, or related to, this Agreement or the breach
of this Agreement, or the relations between the signatories to this
Agreement, shall be decided by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association.
The parties agree that the arbitration shall take place exclusively in
Tampa, Florida, and shall be governed by the substantive law of the
state of Florida. Any award rendered by the arbitrator shall be final,
and final judgment may be entered upon the parties in accordance with
applicable law in any court having jurisdiction thereof, including a
federal district court, pursuant to the Federal Arbitration Act. The
arbitrator may grant the Company injunctive relief, including
mandatory injunctive relief, to protect the rights of the Company, but
the arbitrator shall not be limited to such relief. This arbitration
provision shall not preclude the Company from seeking temporary or
preliminary injunctive relief in a court of law to protect its rights,
nor shall the filing of such an action constitute any waiver by the
Company of its right to arbitrate. In connection with the arbitration
of any dispute between the signatories to this Agreement, each
signatory may utilize all methods of discovery authorized by the
Federal and Florida Rules of Civil Procedure.
[remainder of page intentionally left blank]
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(i) Entire Agreement. This Agreement, including any attached schedules,
contains the entire agreement of the parties relating to the subject
matter hereof and supersedes all prior understandings and agreements
related to Executive's employment with the Company.
IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement as of the date first above written.
WITNESSED BY: EXECUTIVE:
/s/ Xxx Xxxxxx
---------------------------- ----------------------------------------------
Xxx Xxxxxx
----------------------------
POWERCERV TECHNOLOGIES CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Xxxx X. Xxxxxxxx, Chief Executive Officer
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EXHIBIT A
SHARES WITH RESPECT TO WHICH
DATE THE STOCK OPTION IS EXERCISABLE
---- -------------------------------
Executive's employment commencement date 25,000
May 31, 1998 28,864
June 30, 1998 32,728
July 31, 1998 36,592
August 31, 1998 40,456
September 30, 1998 44,320
October 31, 1998 48,184
November 30, 1998 52,048
December 31, 1998 55,912
January 31, 1999 59,776
February 28, 1999 63,640
March 31, 1999 67,504
April 30, 1999 71,368
May 31, 1999 75,232
June 30, 1999 79,096
July 31, 1999 82,960
August 31, 1999 86,824
September 30, 1999 90,688
October 31, 1999 94,552
November 30, 1999 98,416
December 31, 1999 102,280
January 31, 2000 106,144
February 29, 2000 110,008
March 31, 2000 113,872
April 30, 2000 117,736
May 31, 2000 121,600
June 30, 2000 125,464
July 31, 2000 129,328
August 31, 2000 133,192
September 30, 2000 137,056
October 31, 2000 140,920
November 30, 2000 144,784
December 31, 2000 148,648
January 31, 2001 152,512
February 28, 2001 156,376
March 31, 2001 160,240
April 30, 2001 164,104
May 31, 2001 167,968
June 30, 2001 171,832
July 31, 2001 175,696
August 31, 2001 179,560
September 30, 2001 183,424
October 31, 2001 187,288
November 30, 2001 191,152
December 31, 2001 195,000
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EXHIBIT B
SHARES WITH RESPECT TO WHICH
EVENT THE STOCK OPTION IS EXERCISABLE
----- -------------------------------
This option shall become vested on December 31, 2001; provided,
however, that this option may become vested prior to December 31,
2001 based upon the performance of the Company's common stock as
traded on the NASDAQ as follows:
- $9.00/share or higher close price
For 20 consecutive trading days 10,000
- $14.00/share or higher close price
For 20 consecutive trading days 10,000
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