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EXHIBIT 10.23
BONUS AGREEMENT
This BONUS AGREEMENT (this "Agreement") is made and entered into
effective as of June 30, 1998 (the "Effective Date") by and between Portable
Software Corporation, a Washington corporation ("Portable"), and Xxxxxxx Xxxxxx
and Xxxxxx Xxxx (each an "Employee").
R E C I T A L S
A. Employees will be employed by Portable under the terms and
conditions set forth in those certain Employment and Non-Competition Agreements
by and between Portable and each Employee dated of even date herewith (the
"Employment Agreements"), pursuant to which Employees will be subject to certain
non-competition provisions described in Section 4 therein.
B. In connection with their employment by Portable, Employees will each
sign Portable's Confidential Information Agreement (as defined in Section 6 of
the Employment Agreements) (the "Confidential Information Agreements").
C. In consideration of Employees' continued full compliance with their
respective obligations set forth in Section 4 of the Employment Agreements and
set forth in their respective Confidential Information Agreements, the Company
desires to pay to Employees a bonus and provide certain benefits upon the terms
and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing facts and the mutual
agreements of the parties contained herein, Portable and Employees hereby agree
as follows:
1. Employment. Simultaneously with the execution of this Agreement,
Employees are executing and delivering the Employment Agreements. Nothing in
this Agreement shall confer on Employees any right to continue in the employ of
Portable or any of its subsidiaries, or limit in any way the right of Portable
or any of its subsidiaries to terminate Employees' employment at any time, with
or without cause.
2. Bonus. Subject to both Employees' continued full compliance with
their respective obligations set forth in Section 4 of their respective
Employment Agreements and set forth in their respective Confidential Information
Agreements (the "Obligations"), Portable agrees to pay each Employee a sum
sufficient to provide such Employee with $83,333.33 plus $_____________ (which
amount shall be equal to the product of $83,333.33 by the minimum rate
established pursuant to Section 1274(d) of the Internal Revenue code of 1986, as
amended, for a medium term loan as of July 31, 1998) on an after-tax basis on
the first, second and third anniversaries of the Effective Date (the "Bonus").
If either Employee fails to fully comply with the Obligations, Portable will
have no obligation to pay the Bonus to that Employee or the other Employee.
Notwithstanding anything to the contrary set forth herein, it is expressly
understood that in the event Portable fails to pay any installment of the Bonus
when due and such nonpayment is not cured by Portable within five (5) business
days following Portable's receipt of written notice from Employee, Employee
shall have the right to apply all or any part of such
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delinquent Bonus to satisfy any outstanding indebtedness or other financial
obligation of Employee to Portable. Employees shall not be permitted to sell,
assign or otherwise transfer their right to receive the Bonus or any interest
therein.
3. Miscellaneous.
3.1 Governing Law. The internal laws of the State of
Washington (irrespective of its choice of law principles) will govern the
validity of this Agreement, the construction of its terms, and the
interpretation and enforcement of the rights and duties of the parties hereto.
3.2 Assignment. This Agreement and all rights hereunder are
personal to Employee and may not be transferred or assigned by Employee at any
time. Portable may assign its rights, together with its obligations hereunder in
connection with any sale, transfer or other disposition of all or substantially
all the business and assets of Portable or any of their respective subsidiaries
or affiliates, whether by sale of stock, sale of assets, merger, consolidation
or otherwise; provided that any such assignee assumes Portable's obligations
hereunder. This Agreement shall be binding upon, and inure to the benefit of,
the persons or entities who are permitted, by the terms of this Agreement, to be
successors, assigns and personal representatives of the respective parties
hereto.
3.3 Severability. If any provision of this Agreement, or the
application thereof, will for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances will be interpreted so as reasonably to effect
the intent of the parties hereto. The parties further agree to replace such void
or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the extent possible, the economic, business and
other purposes of the void or unenforceable provision.
3.4 Counterparts. This Agreement may be executed in any number
of counterparts, each of which will be an original as regards any party whose
signature appears thereon and all of which together will constitute one and the
same instrument. This Agreement will become binding when one or more
counterparts hereof, individually or taken together, will bear the signatures of
both parties reflected hereon as signatories.
3.5 Other Remedies. Portable and Employee acknowledge that the
services to be provided by Employee are of a special, unique, unusual,
extraordinary and intellectual character, which gives them peculiar value, the
loss of which cannot be reasonably or adequately compensated in damages in an
action at law. Accordingly, Employee hereby consents and agrees that for any
material breach or violation by Employee of any of the provisions of this
Agreement, a restraining order and/or injunction may be issued against Employee,
in addition to any other rights and remedies Portable may have, at law or
equity, including without limitation the recovery of money damages. Except as
otherwise provided herein, any and all remedies herein expressly conferred upon
a party will be deemed cumulative with and not exclusive of any other remedy
conferred hereby or by law on such party, and the exercise of any one remedy
will not preclude the exercise of any other.
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3.6 Amendment and Waivers. Any term or provision of this
Agreement may be amended, and the observance of any term of this Agreement may
be waived (either generally or in a particular instance and either retroactively
or prospectively) only by a writing signed by the party to be bound thereby. The
waiver by a party of any breach hereof or default in the performance hereof will
not be deemed to constitute a waiver of any other default or any succeeding
breach or default.
3.7 Attorneys Fees. Should suit be brought to enforce or
interpret any part of this Agreement, the prevailing party will be entitled to
recover, as an element of the costs of suit and not as damages, reasonable
attorneys' fees to be fixed by the court (including without limitation, costs,
expenses and fees on any appeal). The prevailing party will be entitled to
recover its costs of suit, regardless of whether such suit proceeds to final
judgment.
3.8 Notices. Any notice or other communication required or
permitted to be given under this Agreement will be in writing. Notices will be
deemed given (i) when personally received, (ii) on the first business day after
having been sent by commercial overnight courier with written verification of
receipt, or (iii) on the third business day after having been sent by registered
or certified mail, return receipt requested, postage prepaid, to the following
addresses or at any new address, notice of which will have been given in
accordance with this Section 3.8:
(i) If to Portable:
Portable Software Corporation
0000-000xx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
with a copy to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
(ii) If to Employee:
7 Software, Inc.
00 Xxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
with a copy to:
Xxxx Xxxx Xxxx & Freidenrich
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
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or to such other address as a party may have furnished to the other parties in
writing pursuant to this Section 3.8.
3.8 Construction of Agreement. This Agreement has been
negotiated by the respective parties hereto and their attorneys and the language
hereof will not be construed for or against either party. A reference to a
Section or an exhibit will mean a Section in, or exhibit to, this Agreement
unless otherwise explicitly set forth. The titles and headings herein are for
reference purposes only and will not in any manner limit the construction of
this Agreement which will be considered as a whole.
3.9 Further Assurances. Each party agrees to cooperate fully
with the other party and to execute such further instruments, documents and
agreements and to give such further written assurances as may be reasonably
requested by the other party to evidence and reflect the transactions described
herein and contemplated hereby and to carry into effect the intents and purposes
of this Agreement.
3.10 Entire Agreement. This Agreement (and the exhibit hereto)
constitutes the entire and only agreement and understanding between the parties
relating to employment of Employee with Portable and this Agreement supersedes
and cancels any and all previous contracts, arrangements or understandings with
respect to the specific subject matter hereof; except that the Employment
Agreements and each Employee's Confidential Information Agreement shall remain
as an independent contract and shall remain in full force and effect according
to their terms.
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IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement as of the date first above written.
PORTABLE SOFTWARE CORPORATION EMPLOYEES
By:
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Xxxxxxxx Xxxxxx Xxxxxxx Xxxxxx
Chief Financial Officer
Xxxxxx Xxxx
[Signature Page to Bonus Agreement]