EXE TECHNOLOGIES, INC.
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is made as of
the 18th day of October, 2000 by and between Xxxx Xxxxxx, a U.S. citizen
currently residing in Singapore (the "Employee"), and EXE Technologies, Inc., a
corporation organized and existing under the laws of the State of Delaware,
U.S.A. (the "Company") with its headquarters in Dallas, Texas, U.S.A.
WHEREAS, the Company is engaged in the business of providing
software for warehouse management, supply chain execution and order fulfillment
and related services for warehouse, distribution and logistics facilities
worldwide (the "Business");
WHEREAS, the Employee and Triton SystemHouse Pte. Ltd.
("Triton"), a subsidiary of Neptune Systems, Inc. ("Neptune"), entered into an
Employment Agreement dated as of December 7, 1996 (the "Agreement");
WHEREAS, the Employee and the Company entered into an
Amendment I to the Agreement dated March 5, 1997 ("Amendment I"), pursuant to
which the Employee was granted and was to be granted certain incentive stock
options in Neptune;
WHEREAS, the Employee and the Company entered into an
Addendum to the Agreement dated July 25, 1997 (the "Addendum"), pursuant to
which the Employee was granted and was to be granted certain additional
incentive stock options in Neptune;
WHEREAS, as of September, 1997, Neptune merged with and into
the Company with the Company being the surviving corporation (the "Merger");
WHEREAS, the Employee and the Company entered into a Restated
Amendment to the Agreement date September 12, 1997 (the "Restated Amendment"),
pursuant to which the parties terminated Amendment I and the Addendum and the
Employee was granted and was to be granted certain incentive stock options in
the Company. The Agreement, the Amendment, the Addendum and the Restated
Amendment, shall collectively be referred to herein as the "Prior Agreement";
and
WHEREAS, the parties hereto desire now to amend and restate
the Prior Agreement in its entirety in accordance with the terms and conditions
set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations contained herein, and intending to be legally bound, the parties,
subject to the terms and conditions set forth herein, agree as follows:
1. EMPLOYMENT AND TERM. The Company hereby employs the
Employee and the Employee hereby accepts employment with the Company for the
position detailed in Schedule A attached hereto (the "Position"), for a period
of one (1) year from the date of this Agreement (the "Initial Term"). At the
end of the Initial Term, this Agreement shall automatically renew for
successive additional periods of one (1) year, unless terminated by either
party upon no less than ninety (90) days prior written notice to the other
party prior to the expiration of the Initial Term or any such renewal period.
The period of time commencing on the first date of employment specified in
Schedule A (the "Start Date") through Initial Term and any renewal periods
hereunder, subject to the provisions of Section 8 hereof, are hereinafter
referred to as the "Term."
2. DUTIES. During the Term, the Employee shall serve the
Company faithfully and to the best of his ability and shall devote his/her full
time, attention, skill and efforts to the performance of the duties required by
or appropriate for the Position. The Employee shall assume such duties and
responsibilities as may be customarily incident to such a position, and such
additional and other duties as may be assigned to the Employee from time to
time by the President and CEO of the Company, including, without limitation,
the duties and responsibilities set forth in Schedule B attached hereto. The
Employee shall report to the person designated in Schedule A (the "Reporting
Manager").
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3. OTHER BUSINESS ACTIVITIES. During the Term, the Employee
shall not, without the prior written consent of the Company in its sole
discretion, directly or indirectly engage in any other business activities or
pursuits whatsoever, except activities in connection with charitable or civic
activities, personal investments and serving as an executor, trustee or in
other similar fiduciary capacity; provided that such activities do not
interfere with his/her performance of his/her responsibilities and obligations
pursuant to this Agreement.
4. COMPENSATION. The Company shall pay the Employee, and the
Employee hereby agrees to accept, as compensation for all services rendered
hereunder and for the Employee's intellectual property covenants and
assignments and covenant not to compete as provided for in Sections 6 and 7
hereof, the compensation set forth in this Section 4.
4.1 SALARY. The Company shall pay the Employee an
initial base salary at the annual rate detailed in Schedule A attached hereto
(the "Base Salary"). The Base Salary shall be inclusive of all applicable
income, social security and other taxes and charges that are required by law to
be withheld by the Company, are requested to be withheld by the Employee, and
shall be withheld and paid in accordance with the Company's normal payroll
practice for its similarly situated employees from time to time in effect. The
Base Salary may be increased from time to time by the Compensation Committee of
the Company in its discretion.
4.2 INCENTIVE COMPENSATION PROGRAM. The Employee shall
be entitled to participate in the Incentive Compensation Plan for 2000 that has
been established by the Company (the "Incentive Program") based upon the
achievement of written corporate objectives determined under the Incentive
Program. Under the Incentive Program the Employee's target will be forty
percent (40%) of the Employee's Base Salary. The Employee's actual payments
under the Incentive Program will vary depending on Company performance and will
be payable in cash quarterly in accordance with the Company's normal practices.
4.3 EQUITY PARTICIPATION.
(a) The Employee acknowledges that the Company
granted the Employee Incentive Stock Options (the "Options") to purchase shares
of the Class B Common Stock, par value $.01 per share, of the Company ("Class B
Common Stock") as listed in the chart below. The exercise price of the Options
is also listed in the chart below. The Options shall vest in accordance with
the respective schedules set forth on SCHEDULE A, except that all such options
shall immediately vest upon a Change of Control (as defined in Section 8.5(a)
below).
Date Number of Shares Granted Exercise Price Per Share
---- ------------------------ ------------------------
March 1, 1997 75,000 $ .75
September 17, 1997 50,000 $2.00
September 17, 1997 9,896 $2.00
February 1, 1998 10,000 $2.00
October 1, 1999 50,000 $3.00
January 12, 2000 50,000 $3.00
August 3, 2000 50,000 $8.00
-------
TOTAL 294,896
(b) The Options shall be subject to and in
accordance with the provisions of the Amended and Restated 1997 Stock Option
Plan of the Company (the "Plan"), substantially in the form attached hereto as
part of SCHEDULE C.
4.4 FRINGE BENEFITS. The Employee shall be entitled to
participate in any health or dental programs or other non-salary consideration
(disability, vacation, sick leave) as are Company standard for the office
location where the Employee is based. Such programs are described in Schedule E
attached hereto.
4.5 REIMBURSEMENT OF EXPENSES. The Employee shall be
reimbursed for all normal items of travel and entertainment and miscellaneous
expenses reasonably incurred by him/her on behalf of the Company, provided that
such expenses are documented and submitted to the Company all in accordance
with the
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reimbursement policies of the Company as in effect from time to time.
5. CONFIDENTIALITY. The Employee recognizes and
acknowledges that the Proprietary Information (as hereinafter defined) is a
valuable, special and unique asset of the Company. As a result, both during the
Term and for a period of five (5) years thereafter, the Employee shall not,
without the prior written consent of the Company, for any reason either
directly or indirectly divulge to any third-party or use for his/her own
benefit, or for any purpose other than the exclusive benefit of the Company,
any confidential, proprietary, business and technical information or trade
secrets of the Company or of any subsidiary or affiliate of the Company (the
"Proprietary Information") revealed, obtained or developed in the course of
his/her employment with the Company. Proprietary Information shall include, but
shall not be limited to: the intangible personal property described in Section
6(b) hereof; any information relating to methods of production, manufacture and
research; hardware and software configurations, computer codes or instructions
(including source and object code listings, program logic algorithms,
subroutines, modules or other subparts of computer programs and related
documentation, including program notation), computer inputs and outputs
(regardless of the media on which stored or located) and computer processing
systems, techniques, designs, architecture, and interfaces; the identities of,
the Company's relationship with, the terms of contracts and agreements with,
the needs and requirements of, and the Company's course of dealing with, the
Company's actual and prospective customers, contractors and suppliers; and any
other materials prepared by the Employee in the course of his/her employment by
the Company, or prepared by any other employee or contractor of the Company for
the Company or its customers, (including concepts, layouts, flow charts,
specifications, know-how, user or service manuals, plans, sketches, blueprints,
costs, business studies, business procedures, finances, marketing data,
methods, plans, personnel information, customer and vendor credit information
and any other materials that have not been made available to the general
public). Nothing contained herein shall restrict the Employee's ability to make
such disclosures during the course of his/her employment as may be necessary or
appropriate to the effective and efficient discharge of the duties required by
or appropriate for the Position or as such disclosures may be required by law.
Furthermore, nothing contained herein shall restrict the Employee from
divulging or using for his/her own benefit or for any other purpose any
Proprietary Information that is readily available to the general public so long
as such information did not become available to the general public as a direct
or indirect result of the Employee's breach of this Section 5. Failure by the
Company to xxxx any of the Proprietary Information as confidential or
proprietary shall not affect its status as Proprietary Information under the
terms of this Agreement.
6. PROPERTY.
(a) All right, title and interest in and to
Proprietary Information shall be and remain the sole and exclusive property of
the Company. During the Term, the Employee shall not remove from the Company's
offices or premises any documents, records, notebooks, files, correspondence,
reports, memoranda or similar materials of or containing Proprietary
Information, or other materials or property of any kind belonging to the
Company unless necessary or appropriate in accordance with the duties and
responsibilities required by or appropriate for the Position and, in the event
that such materials or property are removed, all of the foregoing shall be
returned to their proper files or places of safekeeping as promptly as possible
after the removal shall serve its specific purpose. The Employee shall not
make, retain, remove and/or distribute any copies of any of the foregoing for
any reason whatsoever, except as may be necessary in the discharge of the
assigned duties, and shall not divulge to any third person the nature of and/or
contents of any of the foregoing or of any other oral or written information to
which he/she may have access or with which for any reason he/she may become
familiar, except as disclosure shall be necessary in the performance of the
duties; and upon the termination of his/her employment with the Company, he/she
shall return to the Company all originals and copies of the foregoing then in
the possession, whether prepared by the Employee or by others.
(b) (i) The Employee acknowledges that all right,
title and interest in and to any and all writings, documents, inventions,
discoveries, computer programs or instructions (whether in source code, object
code, or any other form), algorithms, formulae, plans, memoranda, tests,
research, designs, innovations, systems, analyses, specifications, models,
data, diagrams, flow charts, and/or techniques (whether reduced to written or
electronic form or otherwise) that the Employee creates, makes, conceives,
discovers or develops, either solely or jointly with any other person, at any
time during the Term, whether during working hours or at the Company's facility
or at any other time or location, and whether upon the request or suggestion of
the Company or otherwise, and that
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relate to or are useful in any way in connection with the Business now or
hereafter carried on by the Company (collectively, "Intellectual Work Product")
shall be the sole and exclusive property of the Company. The Employee shall
promptly disclose to the Company all Intellectual Work Product, and the
Employee shall have no claim for additional compensation for the Intellectual
Work Product.
(ii) The Employee acknowledges that all the
Intellectual Work Product that is copyrightable shall be considered a work made
for hire under United States Copyright Law. To the extent that any
copyrightable Intellectual Work Product may not be considered a work made for
hire under the applicable provisions of the United States Copyright Law, or to
the extent that, notwithstanding the foregoing provisions, the Employee may
retain an interest in any Intellectual Work Product that is not copyrightable,
the Employee hereby irrevocably assigns and transfers to the Company any and
all right, title, or interest that the Employee may have in the Intellectual
Work Product under copyright, patent, trade secret, trademark and other
intellectual property laws, in perpetuity or for the longest period otherwise
permitted by law, without the necessity of further consideration. The Company
shall be entitled to obtain and hold in its own name all copyrights, patents,
trade secrets, and trademarks with respect thereto.
(iii) The Employee shall reveal promptly all
information relating to the Intellectual Work Product to an appropriate officer
of the Company, cooperate with the Company and execute such documents as may be
necessary or appropriate (A) in the event that the Company desires to seek
copyright, patent, trademark or other analogous protection thereafter relating
to the Intellectual Work Product, and when such protection is obtained, renew
and restore the same, or (B) to defend any opposition proceedings in respect of
obtaining and maintaining such copyright, patent, trademark or other analogous
protection.
(iv) In the event that the Company is unable
after reasonable effort to secure the Employee's signature on any of the
documents referenced in Section 7(b)(iii) hereof, whether because of the
Employee's physical or mental incapacity or for any other reason whatsoever,
the Employee hereby irrevocably designates and appoints the Company and its
duly authorized officers and agents as the Employee's agent and
attorney-in-fact, to act for and in his/her behalf and stead to execute and
file any such documents and to do all other lawfully permitted acts to further
the prosecution and issuance of any such copyright, patent, trademark or other
analogous protection with the same legal force and effect as if executed by the
Employee.
(v) The Employee represents that the
innovations, designs, systems, analyses, ideas for marketing programs, and all
copyrights, patents, trademarks and trade names, or similar intangible personal
property identified on Schedule D hereof comprises all of the innovations,
designs, systems, analyses, ideas for marketing programs, and all copyrights,
patents, trademarks and trade names, or similar intangible personal property
that the Employee has made or conceived of prior to the date hereof, and same
are excluded from the operation of the other provisions of this Section 6(b).
7. COVENANT NOT TO COMPETE.
(a) The Employee shall not, anywhere in the
world, during the Term and for a period of one (1) year thereafter (the
"Restricted Period"), do any of the following directly or indirectly without
the prior written consent of the Company in its sole discretion:
(i) engage or participate, directly or
indirectly, in any business activity competitive with the Business or the
business of any of the Company's subsidiaries or affiliates as conducted during
the Term;
(ii) become interested (as owner,
proprietor, promoter, stockholder, lender, partner, co-venturer, director,
officer, employee, agent, consultant or otherwise) in any person, firm,
corporation, association or other entity engaged in any business that is
competitive with the Business or of the business of any subsidiary or affiliate
of the Company as conducted during the Term, or become interested in (as owner,
stockholder, lender, partner, co-venturer, director, officer, employee, agent,
consultant or otherwise) any portion of the business of any person, firm,
corporation, association or other entity where such portion of such business is
competitive with the Business of the Company or the business of any subsidiary
or affiliate of the Company as conducted during the
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Term (notwithstanding the foregoing, the Employee may hold not more than one
percent (1%) of the outstanding securities of any class of any publicly-traded
securities of a company that is engaged in activities referenced in Section
8(a) hereof);
(iii) solicit or call on for a purpose
ompetitive with the Business, either directly or indirectly, any (A) customer
with whom the Company shall have dealt at any time during the one (1) year
period immediately preceding the termination of the Employee's employment
hereunder, or (B) supplier or distributor with whom the Company shall have
dealt at any time during the one (1) year period immediately preceding the
termination of the Employee's employment hereunder;
(iv) influence or attempt to influence
any supplier, distributor, customer or potential customer of the Company to
terminate or modify any written or oral agreement or course of dealing with the
Company; or
(v) influence or attempt to influence
any person either (A) to terminate or modify the employment, consulting,
agency, distributorship or other arrangement with the Company, or (B) to employ
or retain, or arrange to have any other person or entity employ or retain, any
person who has been employed or retained by the Company as an employee,
consultant, agent or distributor of the Company at any time during the twelve
(12) month period immediately preceding the termination of the Employee's
employment hereunder.
(b) The Employee hereby acknowledges that the
limitations as to time, character or nature and geographic scope placed on
his/her subsequent employment by this Section 7 are reasonable and fair and
will not prevent or materially impair his/her ability to earn a livelihood.
8. EARLY TERMINATION. The Employee's employment
hereunder may be terminated during the Term upon the occurrence of any one of
the events described in this Section 8. Upon termination, the Employee shall be
entitled only to such compensation and benefits as described in this Section 8.
8.1 TERMINATION FOR DISABILITY.
(a) In the event of the disability of
the Employee such that the Employee is unable to perform the duties and
responsibilities hereunder to the full extent required by this Agreement by
reasons of illness, injury or incapacity for a period of more than sixty (60)
consecutive days or more than forty-five (45) days, in the aggregate, during
any ninety (90) day period ("Disability"), the Employee's employment hereunder
may be terminated by the Company.
(b) In the event of a termination of the
Employee's employment hereunder pursuant to Section 8.1(a), the Employee will
be entitled to receive: (i) all accrued and unpaid (as of the date of such
termination) Base Salary and other forms of compensation and benefits payable
or provided in accordance with the terms of any then existing compensation or
benefit plan or arrangement, including payment prescribed under and disability
or life insurance plan or arrangement in which he/she is a participant or to
which he/she is a party as an employee of the Company; and (ii) continuation of
the Housing and Automobile allowances in effect as of the effective date of
Disability for a period of twelve (12) months following the effective date of
Disability, payable under the Company's standard payroll practices then in
effect; provided that the Employee has complied with all of his/her obligations
under this Agreement and continues to comply with all of his/her surviving
obligations hereunder listed in Section 10. Except as specifically set forth in
this Section 8.1(b), the Company shall have no liability or obligation to the
Employee for compensation or benefits hereunder by reason of such termination.
8.2 TERMINATION BY DEATH. In the event that the
Employee dies during the Term, the Employee's employment hereunder shall be
terminated thereby and the Company shall pay to the Employee's executors, legal
representatives or administrators an amount equal to: (i) the accrued and
unpaid portion of the Base Salary and other compensation for the month in which
he dies; and (ii) continuation of the Housing and Automobile allowances in
effect as of the date of death for a period of twelve (12) months following the
date of death, payable under the Company's standard payroll practices then in
effect. Except as specifically set forth in this Section 8.2, the Company shall
have no liability or obligation hereunder to the Employee's executors, legal
representatives, administrators, heirs or assigns or any other person claiming
under or through him/her by reason of the Employee's death, except that the
Employee's executors, legal
5
representatives or administrators will be entitled to receive the payment
prescribed under any death or disability benefits plan in which he/she is a
participant as an employee of the Company, and to exercise any rights afforded
under any compensation or benefit plan then in effect.
8.3 TERMINATION FOR CAUSE.
(a) The Company may terminate the Employee's
employment hereunder at any time for "cause" upon written notice to the
Employee. For purposes of this Agreement, "cause" shall mean:
(i) conduct of the Employee involving
any type of disloyalty to the Company or willful misconduct or gross negligence
with respect to the Employee's duties for the Company, including without
limitation fraud, embezzlement, theft or proven dishonesty in the course of the
employment, or any attempt by the Employee to secure any personal profit
related to the Business and the business opportunities of the Company without
the informed approval of the Board of Directors;
(ii) conviction of a felony or other
criminal act punishable by more than one (1) year in prison related to the
Company or its business;
(iii) commission by the Employee of an
intentional tort related to the Company or its business or an act involving
moral turpitude or constituting fraud; or
(iv) habitual alcohol or substance abuse
or addiction.
(b) In the event of a termination of the
Employee's employment hereunder pursuant to Section 8.3(a), the Employee shall
be entitled to receive all accrued but unpaid (as of the effective date of such
termination) Base Salary, benefits and bonuses. All Base Salary, benefits and
bonuses shall cease at the time of such termination, subject to the terms of
any benefit or compensation plan then in force and applicable to the Employee.
The Option, including any vested or unvested portion thereof, shall be canceled
at the time of such termination, and the Employee shall not be entitled to
exercise any such options. Except as specifically set forth in this Section
8.3, the Company shall have no liability or obligation hereunder by reason of
such termination.
8.4 TERMINATION WITHOUT CAUSE.
(a) The Company may terminate the Employee's
employment hereunder at any time, for any reason, without cause, effective upon
the date designated by the Company upon thirty (30) days written notice to the
Employee.
(b) In the event of a termination of the
Employee's employment hereunder pursuant to Section 8.4(a), the Employee shall
be entitled to receive all unpaid Base Salary through the remainder of the Term
and all accrued, but unpaid (at the date of termination) benefits and bonuses,
plus Employee will be eligible to receive a liquidated termination fee
equivalent to: (i) twelve (12) month's Base Salary and Housing and Automobile
allowances (at the date of termination) payable in twelve (12) equal monthly
installments in accordance with the Company's severance payment plan then in
effect, if any, at the time the Company terminates Employee's employment
pursuant to Section 8.4(a). Employee acknowledges that, as a condition to
participation in such severance plan, Employee must complete in good faith such
executive employee exit forms then in use by the Company at the time Employee's
employment is terminated and to acknowledge in writing on such forms then in
use by the Company, Employee's obligations to the Company including, but not
limited to, Employee's obligations with respect to confidentiality and Company
property set forth in Sections 5 and 6 hereof and Employee's obligations with
respect to the Covenant not to Compete set forth in Section 7 hereof. Except as
set forth above, all Base Salary, benefits and bonuses shall cease at the time
of such termination without Cause, subject to the terms of any benefit or
compensation plan then in force and applicable to the Employee. Except as
specifically set forth in this Section 8.4, the Company shall have no liability
or obligation hereunder by reason of such termination without Cause.
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8.5 OPTIONS; REPURCHASE OF SHARES.
(a) Notwithstanding anything to the contrary
contained in this Agreement, all of the Employee's then remaining unvested
options shall automatically become vested upon the termination of this
Agreement pursuant to Sections 8.1(a), 8.2 or 8.4(a) or immediately prior to
the occurrence of a Change in Control of the Company.
(b) For the purposes of this Agreement, a
"Change of Control" shall mean: (i) the sale, transfer, assignment or other
disposition (including by merger or consolidation) by stockholders of the
Company, in one transaction or a series of related transactions, of a majority
of the voting power represented by the then outstanding capital stock of the
Company to one or more stockholders or other third parties, other than any such
sales, transfers, assignments or other dispositions by such stockholders to
their respective heirs or affiliates; or (ii) a sale, transfer, assignment or
other disposition (including by merger or consolidation), of all of the
outstanding stock of the Company, or of all or substantially all of the assets
of the Company or a liquidation or dissolution of the Company.
(c) Except as otherwise provided herein, upon
the termination of the Employee's employment pursuant to this Section 8 for any
reason, all further vesting on all stock options and/or restricted stock in the
Company held by the Employee shall immediately cease as of such date and
thereafter any vested stock options shall be exercisable and any restricted
stock or other equity securities held by the Employee shall be subject to
repurchase by the Company in accordance with their respective terms and the
terms of any related agreements between the Company and the Employee.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
EMPLOYEE.
(a) The Employee represents and warrants to the
Company that:
(i) There are no restrictions,
agreements or understandings whatsoever to which the Employee is a party which
would prevent or make unlawful the Employee's execution of this Agreement or
the Employee's employment hereunder, or which is or would be inconsistent or in
conflict with this Agreement or the Employee's employment hereunder, or would
prevent, limit or impair in any way the performance by the Employee of the
obligations hereunder; and (ii) The Employee has disclosed to the Company all
restraints, confidentiality commitments or other employment restrictions that
he/she has with any other employer, person or entity.
(b) Upon and after his/her termination or
cessation of employment with the Company and until such time as no obligations
of the Employee to the Company hereunder exist, the Employee (i) shall provide
a complete copy of this Agreement to any prospective employer or other person,
entity or association in the Business, with whom or which the Employee proposes
to be employed, affiliated, engaged, associated or to establish any business or
remunerative relationship prior to the commencement thereof and (ii) shall
notify the Company of the name and address of any such person, entity or
association prior to his/her employment, affiliation, engagement, association
or the establishment of any business or remunerative relationship.
10. SURVIVAL OF PROVISIONS. The provisions of this
Agreement set forth in Sections 5 through 21 hereof shall survive the
termination of the Employee's employment hereunder.
11. SUCCESSORS AND ASSIGNS. This Agreement shall inure
to the benefit of and be binding upon the Company and the Employee and their
respective successors, executors, administrators, heirs and/or permitted
assigns; provided that neither the Employee nor the Company may make any
assignments of this Agreement or any interest herein, by operation of law or
otherwise, without the prior written consent of the other parties hereto,
except that, without such consent, the Company may assign this Agreement to any
successor to all or substantially all of its assets and business by means of
liquidation, dissolution, merger, consolidation, transfer of assets, or
otherwise, provided that such successor assumes in writing all of the
obligations of the Company under
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this/her Agreement.
12. NOTICE. Any notice hereunder by either party shall
be given by personal delivery or by sending such notice by certified mail,
return-receipt requested, or by overnight delivery with a reputable courier
service, or telecopied, addressed or telecopied, as the case may be, to the
other party at its address set forth below or at such other address designated
by notice in the manner provided in this section. Such notice shall be deemed
to have been received upon the date of actual delivery if personally delivered
or, in the case of mailing, two (2) days after deposit with the U.S. mail, or
if by overnight delivery, the date of delivery or, in the case of facsimile
transmission, when confirmed by the facsimile machine report.
If to the Employee:
Xxxx Xxxxxx
Xx. 0 Xxx Xxxx Xxxx
#00-00 Xxxxx
Xxxxxxxxx 000000
If to the Company:
EXE Technologies, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxx, XX, X.X.X. 00000
Attention: CFO
with a copy to:
EXE Technologies, Inc.
000 Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx, XX, X.X.X. 00000
Attention: General Counsel
13. ENTIRE AGREEMENT; AMENDMENTS. This Agreement
contains the entire agreement and understanding of the parties hereto relating
to the subject matter hereof, and merges and supersedes all prior and
contemporaneous discussions, agreements and understandings of every nature
between the parties hereto relating to the employment of the Employee with the
Company. This Agreement may not be changed or modified, except by an agreement
in writing signed by each of the parties hereto.
14. WAIVER. The waiver of the breach of any term or
provision of this Agreement shall not operate as or be construed to be a waiver
of any other or subsequent breach of this Agreement.
15. GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with the laws of the State of Texas, U.S.A., without
regard to the principles of conflicts of laws of any jurisdiction.
16. INVALIDITY. If any provision of this Agreement shall
be determined to be void, invalid, unenforceable or illegal for any reason,
then the validity and enforceability of all of the remaining provisions hereof
shall not be affected thereby. If any particular provision of this Agreement
shall be adjudicated to be invalid or unenforceable, then such provision shall
be deemed amended to delete therefrom the portion thus adjudicated to be
invalid or unenforceable, such amendment to apply only to the operation of such
provision in the particular jurisdiction in which such adjudication is made;
provided that, if any provision contained in this Agreement shall be
adjudicated to be invalid or unenforceable because such provision is held to be
excessively broad as to duration, geographic scope, activity or subject, then
such provision shall be deemed amended by limiting and reducing it so as to be
valid and enforceable to the maximum extent compatible with the applicable laws
of such jurisdiction, such amendment only to apply with respect to the
operation of such provision in the applicable jurisdiction in which the
adjudication is made.
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17. SECTION HEADINGS. The section headings in this
Agreement are for convenience only; they form no part of this Agreement and
shall not affect its interpretation.
18. NUMBER OF DAYS. In computing the number of days for
purposes of this Agreement, all days shall be counted, including Saturdays,
Sundays and legal holidays; provided that, if the final day of any time period
falls on a Saturday, Sunday or day which is a legal holiday in Texas, then such
final day shall be deemed to be the next day which is not a Saturday, Sunday or
legal holiday.
19. SPECIFIC ENFORCEMENT; EXTENSION OF PERIOD.
(a) The Employee acknowledges that the
restrictions contained in Sections 5, 6, and 7 hereof are reasonable and
necessary to protect the legitimate interests of the Company and its affiliates
and that the Company would not have entered into this Agreement in the absence
of such restrictions. The Employee also acknowledges that any breach by him/her
of Sections 5, 6, or 7 hereof will cause continuing and irreparable injury to
the Company for which monetary damages would not be an adequate remedy. The
Employee shall not, in any action or proceeding to enforce any of the
provisions of this Agreement, assert the claim or defense that an adequate
remedy at law exists. In the event of such breach by the Employee, the Company
shall have the right to enforce the provisions of Sections 5, 6, and 7 of this
Agreement by seeking injunctive or other relief in any court, and this
Agreement shall not in any way limit remedies of law or in equity otherwise
available to the Company.
(b) The periods of time set forth in Sections 5,
6 and 7 hereof shall not include, and shall be deemed extended by, any time
required for litigation to enforce the relevant covenant periods, provided that
the Company is successful on the merits in any such litigation. The "time
required for litigation" is herein defined to mean the period of time
commencing on the earlier of the Employee's first breach of such covenants or
the service of process upon the Employee ending on the expiration of all
appeals related to such litigation.
20. CONSENT TO SUIT. In the case of any dispute under or
in connection with this Agreement, the Employee may only bring suit against the
Company in the Courts of the State of Texas, U.S.A. in and for the County of
Dallas, Texas, U.S.A. or in the Federal District Court for such geographic
location. The Employee hereby consents to the jurisdiction and venue of the
courts of the State of Texas, U.S.A. in and for the County of Dallas, Texas,
U.S.A. or the Federal District Court for such geographic location, provided
that such Federal Court has subject matter jurisdiction over such dispute, and
the Employee hereby waives any claim he may have at any time as to FORUM NON
CONVENIENS with respect to such venue. The Company shall have the right to
institute any legal action arising out of or relating to this Agreement in any
appropriate court and in any jurisdiction. Any judgment entered against either
of the parties in any proceeding hereunder may be entered and enforced by any
court of competent jurisdiction. If an action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to recover, in addition to any other relief, reasonable attorneys'
fees, costs and disbursements.
21. COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, and all of
which together shall be deemed to be one and the same instrument.
9
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the day and year first written above.
EXE TECHNOLOGIES, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-------------------------
Title: SVP - Administration
------------------------
/s/ Xxxx Xxxxxx
------------------------------
EMPLOYEE
10
SCHEDULE A
EMPLOYMENT AND COMPENSATION
POSITION: Senior Vice President, International
Operations
REPORTING MANAGER: President and CEO
START DATE: December 7, 1996
EFFECTIVE DATE: July 1, 2000
BASE SALARY: $185,000 annually
ICP: Eligible for 40% of Base
Compensation based upon successful
Company performance under the
Company's Incentive Program
RESPONSIBILITIES: Job Description attached as Schedule B
INITIAL STOCK OPTION GRANT:
An incentive stock option to purchase 75,000 shares of Class B Common Stock of
the Company was granted to the Employee on March 1, 1997. The exercise price is
$.75 per share. The option is 100% vested.
SECOND STOCK OPTION GRANT:
An incentive stock option to purchase 50,000 shares of Class B Common Stock of
the Company was granted to the Employee on September 17, 1997. The exercise
price is $2.00 per share. The option is 100% vested.
THIRD STOCK OPTION GRANT:
An incentive stock option to purchase 9,896 shares of Class B Common Stock of
the Company was granted to the Employee on September 17, 1997. The exercise
price is $2.00 per share. The option is 100% vested.
FOURTH STOCK OPTION GRANT:
An incentive stock option to purchase 10,000 shares of Class B Common Stock of
the Company was granted to the Employee on February 1, 1998. The exercise price
is $2.00 per share. The vesting is as follows:
(a) 5,000 shares are vested;
(b) 2,500 shares on the third anniversary of the date of grant; and
(c) 2,500 shares on the fourth anniversary of the date of grant.
FIFTH STOCK OPTION GRANT:
An incentive stock option to purchase 50,000 shares of Class B Common Stock of
the Company was granted to the Employee on October 1, 1999. The exercise price
is $3.00 per share. The vesting is as follows:
(a) 12,500 shares are vested;
(b) 12,500 shares on the first anniversary of the date of grant;
(c) 12,500 shares on the second anniversary of the date of grant; and
(d) 12,500 shares on the third anniversary of the date of grant.
A-1
SIXTH STOCK OPTION GRANT:
An incentive stock option to purchase 50,000 shares of Class B Common Stock of
the Company was granted to the Employee on January 12, 2000. The exercise price
is $3.00 per share. The vesting is as follows:
(a) 12,500 shares on the first anniversary following January 12, 2000;
(b) 12,500 shares on the second anniversary following January 12, 2000;
(c) 12,500 shares on the third anniversary following January 12, 2000; and
(d) 12,500 shares on the fourth anniversary following January 12, 2000.
SEVENTH STOCK OPTION GRANT:
An incentive stock option to purchase 50,000 shares of Class B Common Stock of
the Company was granted to the Employee on August 3, 2000. The exercise price is
$8.00 per share. The vesting is as follows:
(a) 12,500 shares on the first anniversary following August 3, 2000;
(b) 12,500 shares on the second anniversary following August 3, 2000;
(c) 12,500 shares on the third anniversary following August 3, 2000; and
(d) 12,500 shares on the fourth anniversary following August 3, 2000.
A-2
SCHEDULE B
RESPONSIBILITIES
JOB DESCRIPTION
As Senior Vice President - International Operations, the Employee will have the
following job responsibilities:
- Financial Performance of the Asia/Pac Region (i.e., local P&L and royalty
revenue stream to the parent company);
- Development of a Strategic and Tactical Business Plan for the Asia/Pac.
Region;
- Development and management of EXE employees in the Asia/Pac. Region;
- Development and management of EXE's customers, vendors and partners in the
Asia/Pac. Region;
- Management of the corporate subsidiaries and affiliates located in the
Asia/Pac. Region.
- Executive responsibility for the EMEA Region.
- Together with the Managing Director - EMEA, management of the corporate
subsidiaries and affiliates located in the EMEA Region.
B-1
SCHEDULE C
EXE TECHNOLOGIES, INC.
1997 INCENTIVE AND NON-QUALIFIED STOCK OPTION PLAN
[PREVIOUSLY PROVIDED]
C-1
SCHEDULE D
PRIOR INVENTIONS
1. None.
D-1
SCHEDULE E
NON SALARY CONSIDERATION
(SINGAPORE DOMICILE)
1. 10 paid holidays:
2. Vacation: 20 days per year
3. Medical Plan - Employer paid - GP consultations at max. S$40 per visit.
Specialist consultations at max. S$100
per visit.
Total annual medical claim S$1200.
4. Dental Plan - Employer paid up to S$250 per annum.
5. Term Life Insurance - equal to 24 x Monthly Base Salary. Current
coverage is S$408,000. Will be increased to S$629,016 upon successful
completion of medical test & acceptance by insurance company.
Personal Accident - equal to 24 x Monthly Base Salary, ie. S$629,016.
Long-term Disability - provides income protection in the event of a
long-term disability, equal to 60% of basic monthly earnings.
6. Central Provident Fund - Employer and Employee will contribute to
Employee's account according to prevailing Singapore Government
guidelines.
7. Tuition Assistance - provides educational reimbursement benefits to
eligible.
8. Housing & Utilities--The Company shall reimburse the Employee for
housing and utility expenses up to S$126,000 annually.
9. Automobile Allowance/Lease--The Company shall reimburse the Employee
for automobile expenses up to S$27,012 annually.
E-1
