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AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (the
"Agreement") is made effective as of the 7th day of April, 1998 (the "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 Xxxxxx X. Xxxx (the "Executive").
BACKGROUND INFORMATION
A. WHEREAS, on February 25, 1997, the Company and the Executive
entered into an Executive Employment Agreement (the "Employment Agreement");
B. WHEREAS, on January 14, 1998, the Company and the Executive
entered into an Amendment to the Employment Agreement (the "Amendment");
C. WHEREAS, in light of the Executive's acceptance of new,
additional duties and responsibilities, and certain other changes being made to
the Executive Management Team of PowerCerv Corporation (of which the Executive
is a member), the Company and the Executive desire to replace and supersede the
Employment Agreement and the Amendment, and simultaneously restate all terms
and conditions of the Executive's employment with the Company 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. RESTATED AGREEMENT; SENIOR VICE PRESIDENT OF SERVICES
AND PRODUCTS.
(a) The Company and Executive hereby agree to replace and
supersede the provisions of the Employment Agreement and the
Amendment with the terms and conditions set forth in this
Agreement. The parties further agree that all aspects of the
Executive's employment with the Company and PowerCerv
Corporation (which hereinafter may be referred to collectively
as the "Company") hereafter shall be governed in accordance
with the terms and subject to the conditions set forth in this
Agreement.
(b) The Company agrees to continue to employ the Executive to
serve in the capacity of Senior Vice President, Services and
Products in accordance with the provisions of this Agreement.
The Executive will be responsible for managing the Company's
Professional Services Organization and the Company's Research
and Development Organization, all in accordance with the
provisions of this Agreement and the Bylaws of the Company.
The Executive will report to the President and Chief Operating
Officer of the Company (the "President/COO"). The Executive
hereby accepts such employment upon the terms and conditions
hereinafter set forth.
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2. TERM. Unless earlier terminated as provided herein, the term
of this Agreement shall commence as of the Effective Date and terminate on
December 31, 2000. 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 successive one (1) year terms
unless, at least sixty (60) days prior to the expiration of the initial term or
any subsequent one-year 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 positions as described above in Section
1(b) on behalf of the Company and its parent organization in a
faithful, efficient, trustworthy and professional
manner, as reasonably required by the President/COO. The
Executive 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, 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 or subsidiary 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 Senior Vice
President, Services and Products 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. The Company will pay the Executive an annual
base salary (the "Base Salary") of $175,000. The Base Salary
will be paid on or about the 15th and 30th of each working
month. 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 of the Company.
The Compensation Committee shall not have the authority to
reduce the Base Salary from the level set forth in this
Agreement.
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(b) Target Annual Bonus. Consistent with the bonus program for
Executive Management of the Company (and pursuant to the bonus
pay-out provisions of the employment agreements of Messrs.
Fratello, Crippen, Xxxxxxx and Xxxxxx), 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 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 consistent with a method by which target revenues and
target operating income for the related year were computed.
Eligibility for payments of the Target Annual Bonus to
Executive shall be for each calendar year during the term of
the Agreement beginning with the calendar year commencing
January 1, 1998 and shall be computed as follows:
(i) $43,750 will be earned upon Company achieving target
revenues for each calendar year;
(ii) $43,750 will be earned upon Company achieving target
operating income for each calendar 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 calendar year.
If a target referenced in subclause (i) or (ii) above is not
met in a particular calendar year, Executive shall not receive
for such calendar year the part of the Target Annual Bonus
tied to such target. However, notwithstanding anything to the
contrary in this subsection 4(b), if in any calendar year the
Company exceeds the target revenues or target operating income
for such year, Executive shall be paid an additional bonus
computed as follows: for each 1% that actual revenues for the
calendar year exceed the target revenues for such calendar
year, and for each 1% that the actual operating income for
such calendar year exceeds the targeted operating income for
such year, Executive shall be paid an additional $630.00. For
example, if Company's target revenues for a calendar year were
$40,000,000 and actual revenues for such year computed as
provided herein were $50,000,000, then, as actual revenues
would have exceeded projected revenues by 25%, Executive would
be entitled to an additional Target Annual Bonus related to
target revenues in the amount of $15,750.00 (i.e., 25 x
$630.00). The presentation by the Executive Management and/or
Executive of Company's strategic business accomplishments for
a calendar year shall be promptly evaluated by the Board and
the potential related bonus shall be determined by the Board
in its reasonable discretion. 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 subsection 4(b) shall be paid to Executive promptly after
the amount is determined.
(c) Draw. The Company will pay the Executive an annual draw of
$20,000, which shall be an advance on, and recoverable
against, the amount to be paid under the Executive's
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Target Annual Bonus. The draw will be divided up equally and
paid out in twenty-four installments along with each pay
period during the term of the Agreement.
(d) Stock Options. Except as specifically addressed hereunder, the
parties agree that the provisions of this Agreement will not
effect the grants of any stock option previously made or to be
made to the Executive by the Company. The parties
acknowledge, however, that the provisions of Section 10 of
this Agreement will apply to the stock option grants
previously made or to be made to the Executive by the Company.
(e) Automobile Allowance. The Company will pay the Executive a
$400 monthly allowance for an automobile owned or leased by
the Executive for use in connection with the performance of
the Executive's duties under his Agreement.
5. WORKING FACILITIES. The Company shall provide the Executive
with office space, equipment, facilities, staffing and services which are
suitable to the position of Senior Vice President, Services and Products 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.
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.
(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.
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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 or repeated failure to perform
the duties as Senior Vice President, Services and Products of
the Company; (B) gross negligence or willful misconduct in the
performance of duties to the Company; (C) commission of any
act of fraud with respect to the Company; 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
Company's 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
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. For the purposes of the Company's
payment of severance under this Agreement, termination without
Cause (under Section 9(a)(iii)) and termination with Good
Reason (under Section 9(d)(i)) shall effectively be treated in
the same manner for severance payment and stock option vesting
purposes. Effectively, "Good Reason" (as defined below) is
equivalent to "constructive termination" under this Agreement.
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
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or breach; or (B) a material reduction in the Executive's
titles 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 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 or 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,
payable in twelve (12) equal monthly installments from his
Termination Date; (ii) provide health, disability, 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 any of those stock
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options issued to the Executive (either prior to or in
connection with this Agreement) which would have vested over
the next twelve (12) month period immediately following the
Termination Date shall become fully vested 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.
(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,
research and development projects and 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,
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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 the attached schedule (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 research and development projects and
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, plans, 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 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 from, 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 during the twenty-four month period
immediately preceding the Termination Date; or
(II) Engage in, consult with, or accept employment from
any business in current or prospective competition
with 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.
(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
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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 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.
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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.
(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
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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.
(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/ Xxxxxx X. Xxxx
---------------------------- ------------------------------
Xxxxxx X. Xxxx
----------------------------
POWERCERV CORPORATION
By: /s/ Xxx X. Xxxxxxx, III
----------------------------
Xxx X. Xxxxxxx, III
Vice Chairman and
Chief Technology Officer
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