EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of September 1,
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2000 by Primal Solutions, Inc., a Delaware corporation (the "Employer"), and
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Xxxxxxx Xxxxxx, an individual resident in Calabasas, California (the
"Executive").
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RECITALS
The Employer desires to employ the Executive, and the Executive wishes
to accept such employment, upon the terms and conditions set forth in this
Agreement.
For the purposes of this Agreement, the terms defined in Section 8 of
this Agreement have the meanings specified or referred to in such Section 8.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. EMPLOYMENT TERMS AND DUTIES
1.1 EMPLOYMENT
The Employer hereby employs the Executive, and the Executive hereby
accepts employment by the Employer, upon the terms and conditions set forth in
this Agreement.
1.2 TERM
Subject to the provisions of Section 5, the term of the Executive's
employment under this Agreement will be twenty-eight months, beginning on the
Effective Date and ending on December 31, 2002.
1.3 DUTIES
The Executive will have such duties as are assigned or delegated to the
Executive by the Board of Directors, and will initially serve as Chief Executive
Officer and President of the Employer. The Executive will devote his entire
business time, attention, skill, and energy to the business of the Employer,
will use his best efforts to promote the success of the Employer's business, and
will cooperate fully with the Board of Directors in the advancement of the best
interests of the Employer. Nothing in this Section 1.3, however, will prevent
the Executive from engaging in additional activities in connection with personal
investments and community affairs that are not inconsistent with the Executive's
duties under this Agreement. If the Executive is elected as a director of the
Employer or as a director or officer of any of its affiliates, the Executive
will fulfill his duties as such director or officer without additional
compensation.
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2. COMPENSATION
2.1 BASIC COMPENSATION
(a) SALARY. The Executive will be paid an annual salary of $200,000,
subject to adjustment as provided below (the "Salary"), which will be payable in
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equal periodic installments according to the Employer's customary payroll
practices, but no less frequently than monthly. The Salary will be reviewed by
the Board of Directors not less frequently than annually, and may be adjusted
upward or downward in the sole discretion of the Board of Directors, but in no
event will the Salary be less than $200,000 per year.
(b) BENEFITS. The Executive will, during the Employment Period, be
permitted to participate in such stock option, restricted stock, pension, profit
sharing, bonus, life insurance, hospitalization, major medical, and other
employee benefit plans of the Employer that may be in effect from time to time,
to the extent the Executive is eligible under the terms of those plans
(collectively, the "Benefits"). The Benefits shall include life insurance on the
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Executive's life in an amount not less than the Executive's Salary.
2.2 INCENTIVE COMPENSATION.
As additional compensation (the "Incentive Compensation") for the
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services to be rendered by the Executive pursuant to this Agreement, the
Employer will pay the Executive with respect to each Fiscal Year during the
Employment Period, commencing on or after September 1, 2000, an amount equal to
fifty percent (50%) of the Employee's Salary if, and only if, Employer meets or
exceeds the performance goals established by the Board of Directors. Such
performance goals will be established by the Board of Directors within 60 days
from the beginning of each Fiscal Year and will be communicated to the Executive
in writing within 30 days of being so established.
3. FACILITIES AND EXPENSES
The Employer will furnish the Executive office space, equipment,
supplies, and such other facilities and personnel as the Employer deems
necessary or appropriate for the performance of the Executive's duties under
this Agreement. The Employer will pay the Executive's dues in such professional
societies and organizations as the Board of Directors deems appropriate, and
will pay on behalf of the Executive (or reimburse the Executive for) reasonable
expenses incurred by the Executive at the request of, or on behalf of, the
Employer in the performance of the Executive's duties pursuant to this
Agreement, and in accordance with the Employer's employment policies, including
reasonable expenses incurred by the Executive in attending conventions,
seminars, and other business meetings, in appropriate business entertainment
activities, and for promotional expenses. In addition, the Employer will (i)
reimburse the Executive for an apartment rental in the Irvine, California
vicinity, up to a maximum of $1,800 per month, (ii) reimburse the Executive for
the apartment rental referenced in (i) above for up to three (3) months in the
event any of the provisions of Section 5 take effect, and (iii) remit to the
Executive $400.00 per month for mileage, each during only such period of time
that the Executive maintains his current residence in Calabasas, California. The
Executive must file expense reports with respect to such expenses in accordance
with the Employer's policies.
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4. VACATIONS AND HOLIDAYS
The Executive will be entitled to four weeks' paid vacation each
calendar year in accordance with the vacation policies of the Employer in effect
for its executive officers from time to time. Vacation must be taken by the
Executive at such time or times as approved by the Board of Directors. The
Executive will also be entitled to the paid holidays set forth in the Employer's
policies. Two weeks of vacation days that are not used by the Executive during
any such calendar year may be used in the next calendar year.
5. TERMINATION
5.1 EVENTS OF TERMINATION
The Employment Period, the Executive's Basic Compensation and
Incentive Compensation, and any and all other rights of the Executive under this
Agreement or otherwise as an employee of the Employer will terminate (except as
otherwise provided in this Section 5):
(i) upon the death of the Executive;
(ii) upon the disability of the Executive (as defined in
Section 5.2) immediately upon notice from either party to the other;
(iii) for cause (as defined in Section 5.3), immediately upon
notice from the Employer to the Executive, or at such later time as
such notice may specify; or
(iv) for good reason (as defined in Section 5.4) upon not less
than thirty days' prior notice from the Executive to the Employer.
5.2 DEFINITION OF DISABILITY
For purposes of Section 5.1, the Executive will be deemed to have a
"disability" if, for physical or mental reasons, the Executive is unable to
perform the essential functions of the Executive's duties under this Agreement
for 120 consecutive days, or 180 days during any twelve-month period, as
determined in accordance with this Section 5.2.
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5.3 DEFINITION OF "FOR CAUSE"
For purposes of Section 5.1, the phrase "for cause" means: (a) the
Executive's breach of this Agreement; (b) the Executive's failure to adhere to
any written Employer policy if the Executive has been given a reasonable
opportunity to comply with such policy or cure his failure to comply (which
reasonable opportunity must be granted during the ten-day period preceding
termination of this Agreement); (c) the Executive's failure to perform (other
than by reason of Disability), or gross negligence or willful misconduct in the
performance of, his duties and responsibilities to the Employer, such duties and
responsibilities not to be unreasonably imposed; (d) the Executive's intentional
failure to comply with any instructions of the Board of Directors, such
instructions not to be unreasonably imposed; (e) the appropriation (or attempted
appropriation) of a material business opportunity of the Employer, including
attempting to secure or securing any personal profit in connection with any
transaction entered into on behalf of the Employer; (f) the misappropriation (or
attempted misappropriation) of any of the Employer's funds or property; or (g)
the conviction of, or the entering of a guilty plea or plea of no contest with
respect to, a felony, the equivalent thereof, or any other crime with respect to
which imprisonment is a possible punishment.
5.4 DEFINITION OF "FOR GOOD REASON"
For purposes of Section 5.1, the phrase "for good reason" means any of
the following: (a) The Employer's material breach of this Agreement; (b) the
assignment of the Executive without his consent to a position, responsibilities,
or duties of a materially lesser status or degree of responsibility than his
position, responsibilities, or duties at the Effective Date; or (c) the
requirement by the Employer that the Executive relocate Executive's personal
residence outside the metropolitan Orange County, California, area.
5.5 TERMINATION PAY
Effective upon the termination of this Agreement, the Employer will be
obligated to pay the Executive (or, in the event of his death, his designated
beneficiary as defined below) only such compensation as is provided in this
Section 5.5, and in lieu of all other amounts and in settlement and complete
release of all claims the Executive may have against the Employer. For purposes
of this Section 5.5, the Executive's designated beneficiary will be such
individual beneficiary or trust, located at such address, as the Executive may
designate by notice to the Employer from time to time or, if the Executive fails
to give notice to the Employer of such a beneficiary, the Executive's estate.
Notwithstanding the preceding sentence, the Employer will have no duty, in any
circumstances, to attempt to open an estate on behalf of the Executive, to
determine whether any beneficiary designated by the Executive is alive or to
ascertain the address of any such beneficiary, to determine the existence of any
trust, to determine whether any person or entity purporting to act as the
Executive's personal representative (or the trustee of a trust established by
the Executive) is duly authorized to act in that capacity, or to locate or
attempt to locate any beneficiary, personal representative, or trustee.
(a) TERMINATION BY THE EXECUTIVE FOR GOOD REASON. If the Executive
terminates this Agreement for good reason, the Employer will pay the Executive
(i) the Executive's Salary for the remainder, if any, of the calendar month in
which such termination is effective and for twelve consecutive calendar months
thereafter, and (ii) that portion of the Executive's Incentive Compensation, if
any, for the Fiscal Year during which the termination is effective, prorated
through the date of termination.
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(b) TERMINATION BY THE EMPLOYER FOR CAUSE. If the Employer terminates
this Agreement for cause, the Executive will be entitled to receive his Salary
only through the date such termination is effective, but will not be entitled to
any Incentive Compensation for the Fiscal Year during which such termination
occurs or any subsequent Fiscal Year.
(c) TERMINATION UPON DISABILITY. If this Agreement is terminated by
either party as a result of the Executive's disability, as determined under
Section 5.2, the Employer will pay the Executive his Salary through the
remainder of the calendar month during which such termination is effective and
for the lesser of (i) three consecutive months thereafter, or (ii) the period
until disability insurance benefits commence under the disability insurance
coverage furnished by the Employer to the Executive.
(d) TERMINATION UPON DEATH. If this Agreement is terminated because of
the Executive's death, the Executive will be entitled to receive his Salary
through the end of the calendar month in which his death occurs, and that part
of the Executive's Incentive Compensation, if any, for the Fiscal Year during
which his death occurs, prorated through the end of the calendar month during
which his death occurs.
(e) BENEFITS. If the Executive's employment hereunder is terminated for
Good Reason, the Executive will be entitled to continued medical insurance
coverage for the Executive and the Executive's dependants on the same terms,
including general premium increases, for the period from the date of termination
until the Executive obtains other employment, or for a period of one year from
the date of termination, whichever is less. In all other events, the Executive's
accrual of, or participation in plans providing for, the Benefits will cease at
the effective date of the termination of this Agreement, and the Executive will
be entitled to accrued Benefits pursuant to such plans only as provided in such
plans.
60 NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
6.1 ACKNOWLEDGMENTS BY THE EXECUTIVE
The Executive acknowledges that (a) during the Employment Period and as
a part of his employment, the Executive will be afforded access to Confidential
Information; (b) public disclosure of such Confidential Information could have
an adverse effect on the Employer and its business; (c) because the Executive
possesses substantial technical expertise and skill with respect to the
Employer's business, the Employer desires to obtain exclusive ownership of each
Employee Invention, and the Employer will be at a substantial competitive
disadvantage if it fails to acquire exclusive ownership of each Employee
Invention; and (d) the provisions of this Section 6 are reasonable and necessary
to prevent the improper use or disclosure of Confidential Information and to
provide the Employer with exclusive ownership of all Employee Inventions.
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6.2 AGREEMENTS OF THE EXECUTIVE
In consideration of the compensation and benefits to be paid or
provided to the Executive by the Employer under this Agreement, the Executive
covenants as follows:
(a) CONFIDENTIALITY.
(1) During and following the Employment Period, the Executive
will hold in confidence the Confidential Information and will not
disclose it to any person except with the specific prior written
consent of the Employer or except as otherwise expressly permitted by
the terms of this Agreement.
(2) Any trade secrets of the Employer will be entitled to all
of the protections and benefits under applicable state trade secret and
any other applicable law. If any information that the Employer deems to
be a trade secret is found by a court of competent jurisdiction not to
be a trade secret for purposes of this Agreement, such information
will, nevertheless, be considered Confidential Information for purposes
of this Agreement. The Executive hereby waives any requirement that the
Employer submit proof of the economic value of any trade secret or post
a bond or other security.
(3) None of the foregoing obligations and restrictions applies
to any part of the Confidential Information that the Executive
demonstrates was or became generally available to the public other than
as a result of a disclosure by the Executive.
(4) The Executive will not remove from the Employer's premises
(except to the extent such removal is for purposes of the performance
of the Executive's duties at home or while traveling, or except as
otherwise specifically authorized by the Employer) any document,
record, notebook, plan, model, component, device, or computer software
or code, whether embodied in a disk or in any other form (collectively,
the "Proprietary Items"). The Executive recognizes that, as between the
Employer and the Executive, all of the Proprietary Items, whether or
not developed by the Executive, are the exclusive property of the
Employer. Upon termination of this Agreement by either party, or upon
the request of the Employer during the Employment Period, the Executive
will return to the Employer all of the Proprietary Items in the
Executive's possession or subject to the Executive's control, and the
Executive shall not retain any copies, abstracts, sketches, or other
physical embodiment of any of the Proprietary Items.
(b) EMPLOYEE INVENTIONS. Each Employee Invention will belong
exclusively to the Employer. The Executive acknowledges that all of the
Executive's writing, works of authorship, and other Employee Inventions are
works made for hire and the property of the Employer, including any copyrights,
patents, semiconductor mask protection, or other intellectual property rights
pertaining thereto. If it is determined that any such works are not works made
for hire, the Executive hereby assigns to the Employer all of the Executive's
right, title, and interest, including all rights of copyright, patent,
semiconductor mask protection, and other intellectual property rights, to or in
such Employee Inventions. The Executive covenants that he will promptly:
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(1) disclose to the Employer in writing any Employee
Invention;
(2) assign to the Employer or to a party designated by the
Employer, at the Employer's request and without additional
compensation, all of the Executive's right to the Employee Invention
for the United States and all foreign jurisdictions;
(3) execute and deliver to the Employer such applications,
assignments, and other documents as the Employer may request in order
to apply for and obtain patents or other registrations with respect to
any Employee Invention in the United States and any foreign
jurisdictions;
(4) sign all other papers necessary to carry out the above
obligations; and
(5) give testimony and render any other assistance (but
without expense to the Executive) in support of the Employer's rights
to any Employee Invention.
This Agreement shall not apply to any invention which qualifies fully under the
provisions of Section 2870 of the California Labor Code, which includes
inventions developed entirely on Executive's own time without using the
Employer's equipment, supplies, facilities or trade secret information, except
for those ideas and inventions that either; (i) relate, at the time of
conception or reduction to practice of the invention, to the Employer's
business, or actual or demonstrably anticipated research or development of the
Employer, or (ii) result from any work performed by the Executive for the
Employer.
6.3 DISPUTES OR CONTROVERSIES
The Executive recognizes that should a dispute or controversy arising
from or relating to this Agreement be submitted for adjudication to any court,
arbitration panel, or other third party, the preservation of the secrecy of
Confidential Information may be jeopardized. All pleadings, documents,
testimony, and records relating to any such adjudication will be maintained in
secrecy and will be available for inspection by the Employer, the Executive, and
their respective attorneys and experts, who will agree, in advance and in
writing, to receive and maintain all such information in secrecy, except as may
be limited by them in writing.
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70 NON-COMPETITION AND NON-INTERFERENCE
7.1 ACKNOWLEDGMENTS BY THE EXECUTIVE
The Executive acknowledges that: (a) the services to be performed by
him under this Agreement are of a special, unique, unusual, extraordinary, and
intellectual character; (b) the Employer's business is national in scope and its
products are marketed throughout the United States; (c) the Employer competes
with other businesses that are or could be located in any part of the United
States; and (d) the provisions of this Section 7 are reasonable and necessary to
protect the Employer's business.
7.2 COVENANTS OF THE EXECUTIVE
In consideration of the acknowledgments by the Executive, and in
consideration of the compensation and benefits to be paid or provided to the
Executive by the Employer, the Executive covenants that he will not, directly or
indirectly:
(a) during the Employment Period, except in the course of his
employment hereunder, and during the Post-Employment Period, engage or
invest in, own, manage, operate, finance, control, or participate in
the ownership, management, operation, financing, or control of, be
employed by, associated with, or in any manner connected with, lend the
Executive's name or any similar name to, lend Executive's credit to or
render services or advice to, any business whose products or activities
compete in whole or in part with the products or activities of the
Employer anywhere within the United States; provided, however, that the
Executive may purchase or otherwise acquire up to (but not more than)
one percent of any class of securities of any enterprise (but without
otherwise participating in the activities of such enterprise) if such
securities are listed on any national or regional securities exchange
or have been registered under Section 12(g) of the Securities Exchange
Act of 1934;
(b) whether for the Executive's own account or for the account
of any other person, at any time during the Employment Period and the
Post-Employment Period, solicit business of the same or similar type
being carried on by the Employer, from any person known by the
Executive to be a customer of the Employer, whether or not the
Executive had personal contact with such person during and by reason of
the Executive's employment with the Employer;
(c) whether for the Executive's own account or the account of
any other person (i) at any time during the Employment Period and the
Post-Employment Period, solicit, employ, or otherwise engage as an
employee, independent contractor, or otherwise, any person who is or
was an employee of the Employer at any time during the Employment
Period or in any manner induce or attempt to induce any employee of the
Employer to terminate his employment with the Employer; or (ii) at any
time during the Employment Period and the Post-Employment Period,
interfere with the Employer's relationship with any person, including
any person who at any time during the Employment Period was an
employee, contractor, supplier, or customer of the Employer; or
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(d) at any time during or after the Employment Period,
disparage the Employer or any of its shareholders, directors, officers,
employees, or agents.
If the Executive breaches any of the terms and provisions of this
Section 7.2, the Employer may, in addition to any other remedies that the
Employer may have for any such breach, immediately terminate the payment of any
benefits then being paid to the Executive during the Post-Employment Period.
For purposes of this Section 7.2, the term "Post-Employment Period"
means the one-year period beginning on the date of termination of the
Executive's employment with the Employer.
If any covenant in this Section 7.2 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time, and geographic area, and such lesser
scope, time, or geographic area, or all of them, as a court of competent
jurisdiction may determine to be reasonable, not arbitrary, and not against
public policy, will be effective, binding, and enforceable against the
Executive.
The period of time applicable to any covenant in this Section 7.2 will
be extended by the duration of any violation by the Executive of such covenant.
The Executive will, while the covenant under this Section 7.2 is in
effect, give notice to the Employer, within ten days after accepting any other
employment, of the identity of the Executive's employer. The Employer may notify
such employer that the Executive is bound by this Agreement and, at the
Employer's election, furnish such employer with a copy of this Agreement or
relevant portions thereof.
The terms and provisions of this Section 7.2 shall not be applicable to
the Executive if the Executive terminates this Agreement for good reason.
80 DEFINITIONS
For the purposes of this Agreement, the following terms have the
meanings specified or referred to in this Section 8.
"AGREEMENT"--this Employment Agreement.
"BASIC COMPENSATION"--Salary and Benefits.
"BENEFITS"--as defined in Section 2.1(b).
"BOARD OF DIRECTORS"--the board of directors of the Employer.
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"CONFIDENTIAL INFORMATION"--any and all:
(a) trade secrets concerning the business and affairs of the
Employer, product specifications, data, know-how, formulae,
compositions, processes, designs, sketches, photographs, graphs,
drawings, samples, inventions and ideas, past, current, and planned
research and development, current and planned manufacturing or
distribution methods and processes, customer lists, current and
anticipated customer requirements, price lists, market studies,
business plans, computer software and programs (including object code
and source code), computer software and database technologies, systems,
structures, and architectures (and related formulae, compositions,
processes, improvements, devices, know-how, inventions, discoveries,
concepts, ideas, designs, methods and information, and any other
information, however documented, that is a trade secret within the
meaning of applicable state trade secret law; and
(b) information concerning the business and affairs of the
Employer (which includes historical financial statements, financial
projections and budgets, historical and projected sales, capital
spending budgets and plans, the names and backgrounds of key personnel,
personnel training and techniques and materials), however documented;
and
(c) notes, analysis, compilations, studies, summaries, and
other material prepared by or for the Employer containing or based, in
whole or in part, on any information included in the foregoing.
"DISABILITY"--as defined in Section 5.2.
"EFFECTIVE DATE"--the date stated in the first paragraph of the
Agreement.
"EMPLOYEE INVENTION"--any idea, invention, technique, modification,
process, or improvement (whether patentable or not), any industrial design
(whether registerable or not), any mask work, however fixed or encoded, that is
suitable to be fixed, embedded or programmed in a semiconductor product (whether
recordable or not), and any work of authorship (whether or not copyright
protection may be obtained for it) created, conceived, or developed by the
Executive, either solely or in conjunction with others, during the Employment
Period, or a period that includes a portion of the Employment Period, that
relates in any way to, or is useful in any manner in, the business then being
conducted or proposed to be conducted by the Employer, and any such item created
by the Executive, either solely or in conjunction with others, following
termination of the Executive's employment with the Employer, that is based upon
or uses Confidential Information.
"EMPLOYMENT PERIOD"--the term of the Executive's employment under this
Agreement.
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"FISCAL YEAR"--the Employer's fiscal year, as it exists on the
Effective Date or as changed from time to time.
"FOR CAUSE"--as defined in Section 5.3.
"FOR GOOD REASON"--as defined in Section 5.4.
"INCENTIVE COMPENSATION"--as defined in Section 2.2.
"NONCOMPETITION AGREEMENT"--as defined in Section 5.3.
"PERSON"--any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, or governmental body.
"POST-EMPLOYMENT PERIOD"--as defined in Section 7.2.
"PROPRIETARY ITEMS"--as defined in Section 6.2(a)(4).
"SALARY"--as defined in Section 2.1(a).
90 GENERAL PROVISIONS
9.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY
The Executive acknowledges that the injury that would be suffered by
the Employer as a result of a breach of the provisions of this Agreement
(including any provision of Sections 6 and 7) would be irreparable and that an
award of monetary damages to the Employer for such a breach would be an
inadequate remedy. Consequently, the Employer will have the right, in addition
to any other rights it may have, to obtain injunctive relief to restrain any
breach or threatened breach or otherwise to specifically enforce any provision
of this Agreement, and the Employer will not be obligated to post bond or other
security in seeking such relief. Without limiting the Employer's rights under
this Section 9 or any other remedies of the Employer, if the Executive breaches
any of the provisions of Section 6 or 7, the Employer will have the right to
cease making any payments otherwise due to the Executive under this Agreement.
9.2 COVENANTS OF SECTIONS 6 AND 7 ARE ESSENTIAL AND INDEPENDENT COVENANTS
The covenants by the Executive in Sections 6 and 7 are essential
elements of this Agreement, and without the Executive's agreement to comply with
such covenants, the Employer would not have entered into this Agreement or
employed the Executive. The Employer and the Executive have independently
consulted their respective counsel and have been advised in all respects
concerning the reasonableness and propriety of such covenants, with specific
regard to the nature of the business conducted by the Employer.
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The Executive's covenants in Sections 6 and 7 are independent covenants
and the existence of any claim by the Executive against the Employer under this
Agreement or otherwise will not excuse the Executive's breach of any covenant in
Section 6 or 7.
If the Executive's employment hereunder expires or is terminated, this
Agreement will continue in full force and effect as is necessary or appropriate
to enforce the covenants and agreements of the Executive in Sections 6 and 7.
9.3 REPRESENTATIONS AND WARRANTIES BY THE EXECUTIVE
The Executive represents and warrants to the Employer that the
execution and delivery by the Executive of this Agreement do not, and the
performance by the Executive of the Executive's obligations hereunder will not,
with or without the giving of notice or the passage of time, or both: (a)
violate any judgment, writ, injunction, or order of any court, arbitrator, or
governmental agency applicable to the Executive; or (b) conflict with, result in
the breach of any provisions of or the termination of, or constitute a default
under, any agreement to which the Executive is a party or by which the Executive
is or may be bound.
9.4 OBLIGATIONS CONTINGENT ON PERFORMANCE
The obligations of the Employer hereunder, including its obligation to
pay the compensation provided for herein, are contingent upon the Executive's
performance of the Executive's obligations hereunder.
9.5 WAIVER
The rights and remedies of the parties to this Agreement are cumulative
and not alternative. Neither the failure nor any delay by either party in
exercising any right, power, or privilege under this Agreement will operate as a
waiver of such right, power, or privilege, and no single or partial exercise of
any such right, power, or privilege will preclude any other or further exercise
of such right, power, or privilege or the exercise of any other right, power, or
privilege. To the maximum extent permitted by applicable law, (a) no claim or
right arising out of this Agreement can be discharged by one party, in whole or
in part, by a waiver or renunciation of the claim or right unless in writing
signed by the other party; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is given; and (c) no
notice to or demand on one party will be deemed to be a waiver of any obligation
of such party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this Agreement.
9.6 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED
This Agreement shall inure to the benefit of, and shall be binding
upon, the parties hereto and their respective successors, assigns, heirs, and
legal representatives, including any entity with which the Employer may merge or
consolidate or to which all or substantially all of its assets may be
transferred. The duties and covenants of the Executive under this Agreement,
being personal, may not be delegated.
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9.7 NOTICES
All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when (a)
delivered by hand (with written confirmation of receipt), (b) sent by facsimile
(with written confirmation of receipt), provided that a copy is mailed by
registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nation-ally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as a
party may designate by notice to the other parties):
If to Executive:
Xxxxxxx Xxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
If to the Employer:
Primal Solutions, Inc.
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: CFO
Facsimile No.: (000) 000-0000
9.8 ENTIRE AGREEMENT; AMENDMENTS
This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, between the parties hereto with respect to the
subject matter hereof. This Agreement may not be amended orally, but only by an
agreement in writing signed by the parties hereto.
9.9 ARBITRATION OF DISPUTES
Except with respect to any application for injunctive relief arising
out of Sections 6 or 7 hereof, any controversy or claim arising out of or
relating to this Agreement, or the breach hereof, shall be settled by
arbitration administered by the American Arbitration Association in accordance
with its commercial arbitration rules and judgment upon the award rendered by
the arbitrator may be entered in any court having jurisdiction thereof. The
arbitration proceedings shall be conducted before a sole, neutral arbitrator,
who shall be a member of the Bar of the State of California, actively engaged in
the practice of law for at least ten years. The
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arbitration proceedings shall be conducted in County of Orange, California.
Limited civil discovery shall be permitted for the production of documents and
taking of depositions. All discovery shall be governed by the Federal rules of
Civil Procedure. All issues regarding conformation with discovery requests shall
be decided by the arbitrator. Any provisional remedy that would be available
from a court of law shall be available from the arbitrator to the parties to
this Agreement pending arbitration. The award of the arbitrators need not be
accompanied by a reasoned opinion. Neither party nor the arbitrator may disclose
the existence, content, or results of any arbitration hereunder without the
prior written consent of both parties. The arbitrator shall award to the
prevailing party, if any, as determined by the arbitrator, all of its costs and
fees. "Costs and fees" means all reasonable pre-award expenses of an
arbitration, including the arbitrators' fees, administrative fees, travel
expenses, out-of-pocket expenses such as copying, telephone, court costs,
witness fees, and attorneys fees.
9.10 SECTION HEADINGS; CONSTRUCTION
The headings of Sections in this Agreement are provided for convenience
only and will not affect its construction or interpretation. All references to
"Section" or "Sections" refer to the corresponding Section or Sections of this
Agreement unless otherwise specified. All words used in this Agreement will be
construed to be of such gender or number as the circumstances require. Unless
otherwise expressly provided, the word "including" does not limit the preceding
words or terms.
9.11 SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this Agreement will
remain in full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
9.12 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement and all of which,
when taken together, will be deemed to constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date above first written above.
EXECUTIVE:
________________________________
Xxxxxxx Xxxxxx
EMPLOYER:
PRIMAL SOLUTIONS, INC.,
a Delaware corporation
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
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