AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made
and entered into as of the ________ day of November, 1999 by and between
CONCURRENT COMPUTER CORPORATION, a Delaware corporation with its corporate
headquarters in Georgia ("Company"), and XXXXX X. XXXXXXXXXX ("Employee").
WHEREAS, the Company and Employee have entered into an Employment Agreement
dated as of November 17, 1998 (the "Original Agreement"); and
WHEREAS, the Company and Employee desire to amend and restate the Original
Agreement and thereby to replace and supercede it with this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT. The Company hereby employs Employee, and Employee
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hereby accepts employment, upon the terms of and subject to this Agreement.
2. TERM. The term ("Term") of this Agreement shall commence and this
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Agreement shall become effective as of the date hereof, and shall continue until
otherwise terminated by either party at any time in accordance with the terms
hereof.
3. DUTIES. During his employment hereunder from the date hereof
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through December 31, 1999, Employee shall serve as the President and Chief
Operating Officer of the Company. In such capacity, Employee shall have
responsibility for the day-to-day operations of the Company, subject to the
authority and control of the Chief Executive Officer of the Company. The
Company shall take such actions as necessary to appoint Employee as a member of
the Board of Directors of the Company effective on the date hereof or as soon
thereafter as practicable. Commencing January 1, 2000, Employee shall serve as
the President and Chief Executive Officer of the Company. In such capacity,
Employee shall have general and active charge of the business and affairs of the
Company, and responsibility for the day-to-day operations of the Company,
subject to the authority and control of the Board of Directors of the Company.
Throughout the term of employment hereunder, the Employee shall devote his full
time and undivided attention during normal business hours to the business and
affairs of the Company, as appropriate to his duties and responsibilities
hereunder, except for reasonable vacations and illness or other disability, but
nothing in this Agreement shall preclude the Employee from devoting reasonable
periods required for serving as a director or member of any advisory committee
of not more than two (at any time) "for profit" organizations involving no
conflict of interest with the interests of the Company (subject to approval by
the Board of Directors, which approval shall not be unreasonably withheld), or
from engaging in charitable and community activities, or from managing his
personal investments, provided such activities do not materially interfere with
the performance of his duties and responsibilities under this Agreement.
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4. COMPENSATION.
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a. Salary: Employee shall be paid an initial salary of $280,000
per year, payable in equal installments not less than monthly. Commencing
January 1, 2000, Employee shall be paid a salary of $318,000 per year payable in
equal installments not less than monthly. The Employee's salary shall be
reviewed at least annually.
b. Stock Option/Bonus: In addition to salary, Employee shall be
entitled to participate in the Company's Stock Option Plan (the "Stock Option
Plan") and Employee was granted an option (herein "Option # 1") to purchase
1,000,000 shares of common stock of the Company (such number to be subject to
adjustment as provided in section 5, paragraph 3, of the Stock Option Plan),
such grant occurring on November 17, 1998. The per share exercise price of the
option was the fair market value of the Company's common stock as of the date of
grant ($2.75), and the option vests in three equal annual installments over the
three-year period that commenced November 17, 1998. The Employee was also
granted a long-term option (herein "Option # 2") to purchase up to 250,000
shares of common stock of the Company, such grant occurring on November 17,
1998, at an exercise price equal to the fair market value of a share of common
stock as of the date of grant ($2.75), and the option shall vest in its entirety
on November 17, 2001, and the Employee has also been granted an option (herein
"Option # 3") to purchase up to 50,000 shares of common stock of the Company,
such grant occurring on August 17, 1999, at an exercise price equal to the fair
market value of a share of common stock as of the date of grant ($8.00), and the
option shall vest in three equal annual installments over the three year period
that commenced on August 17, 1999. Further, Employee has been and will be
provided with an annual bonus opportunity with an initial target bonus for
Employee of $150,000, representing 60% of Employee's prior annual salary under
the Original Agreement (hereafter the "Executive Bonus Plan"), the actual amount
to be paid depending upon the degree of achievement of various objectives.
Commencing January 1, 2000, Employee shall be provided with an annual bonus
opportunity of 65% of Employee's annual salary as set forth in Paragraph 4.a
above, the actual amount to be paid depending upon the degree of achievement of
various objectives. The objectives for each year and other terms and conditions
of the bonus opportunity shall be established by the Board of Directors or a
committee thereof and shall be reasonably consistent with the business plan of
the Company for such year, or portion thereof, established in advance. The
target bonus opportunity may be increased to no more than an additional 100% for
superior performance as defined and determined under the Executive Bonus Plan.
c. Insurance: During his employment hereunder, Employee shall be
entitled to participate in such health, life, disability and other insurance
programs, if any, that the Company may offer to other key executive employees of
the Company from time to time.
d. Other Benefits: During his employment hereunder, Employee
shall be entitled to such other benefits, if any, that the Company may offer to
other key executive employees of the Company from time to time. Certain other
benefits are described on Schedule A hereto. In addition, the Company and
Employee have entered into an Indemnification Agreement in the form the Company
may enter into with other key executive employees of the Company from time to
time.
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e. Vacation: Employee shall be entitled to four weeks vacation
leave (in addition to holidays) in each calendar year during the Term, or such
additional amount as may be set forth in the vacation policy that the Company
shall establish from time to time.
f. Expense Reimbursement: Employee shall, upon submission of
appropriate supporting documentation, be entitled to reimbursement of reasonable
out-of-pocket expenses incurred in the performance of his duties hereunder in
accordance with policies established by the Company. Such expenses shall
include, without limitation, reasonable entertainment expenses, gasoline and
toll expenses and cellular phone use charges, if such charges are directly
related to the business of the Company.
5. GROUNDS FOR TERMINATION. The Company may terminate this Agreement
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for Cause. As used herein, "Cause" shall mean any of the following: (a) the
Employee (1) has been convicted of a felony, or (2) has been held liable to the
Company by a court of competent jurisdiction for a breach of fiduciary duty,
tort or other violation of law, which results in a material adverse affect on
the Company; or (b) the Employee (i) has willfully and grossly neglected his
duties as set forth under this Agreement, or (ii) has intentionally failed to
observe specific written directives or policies of the President and Chief
Executive Officer or the Board of Directors, which directives or policies were
consistent with his positions, duties and responsibilities hereunder and did not
violate applicable law, and which neglect or failure had, or will have, a
material adverse effect on the Company. Prior to any termination for Cause, the
Employee shall be given written notice (the "Cause Notification") by the Board
of Directors which notice shall set forth (1) the specific action(s) or
inaction(s) which constitute "Cause" under this Agreement, (2) that the Company
intends to terminate the Employee's employment for Cause under this Section 5
unless the Employee takes remedial action (as set forth below), and (3) the
remedial action(s) which the Company would accept. Within 15 days of his
receipt of such Cause Notification, the Employee shall have the right to have a
meeting with the Board of Directors to discuss such specific actions or
omissions. Within 30 days after receipt of such Cause Notification (or such
later date as the Board may determine in good faith and communicate to
Employee), but in no event less than a reasonable period after the receipt of
the Cause Notification by the Employee (the "Remedy Period"), the Employee shall
have the opportunity to remedy the situation. In the event that the Employee is
terminated following the Remedy Period, the Employee shall be furnished as of
his date of termination an additional written notice specifying (1) his date of
termination, (2) each and every reason for the Employee's termination for Cause
by the Company, and (3) each and every reason that the Company does not accept
the remedial action taken by the Employee. To the extent that the Employee
incurs legal expenses by seeking the advice and representation of legal counsel
to respond to a Cause Notification for an event listed in clause (b) above (but
not clause (a) above) or to respond to a subsequent termination of the Employee
for such Cause under this Agreement (including, but not limited to, any legal
action against the Company challenging such termination), the Employee shall be
entitled to reimbursement by the Company of all such legal expenses incurred by
the Employee up to a maximum aggregate amount of $100,000. In the event that
the Company terminates the employment of the Employee for Cause in accordance
with the provisions of this Paragraph 5, then the provisions of Paragraph 7 of
this Agreement shall apply.
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6. TERMINATION BY EMPLOYEE FOR GOOD REASON. Employee may terminate
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this Agreement and his employment with the Company (including its subsidiaries)
at any time with Good Reason. "Good Reason" shall exist if:
a. the Company demotes or otherwise elects or appoints the
Employee to lesser offices than set forth in Section 3, or fails to elect or
appoint him to such; provided, however, that it shall not constitute Good Reason
for Employee to terminate this Agreement or his employment if Employee is not
elected or re-elected to, or is removed from, the Board of Directors of the
Company by its shareholders pursuant to the Company's Articles of Incorporation
or Bylaws or otherwise as permitted by law.
b. the Company causes a material change in the nature or scope of
the authorities, powers, functions, duties or responsibilities attached to the
Employee's positions as described in Section 3;
c. the Company causes Employee to relocate more than 50 miles from
Atlanta, Georgia;
d. the Company decreases the Employee's compensation below the
levels provided for by the terms of Section 4 (taking into account increases
made from time to time in accordance with Section 4);
e. the Company materially reduces the Employee's benefits under
any employee benefit plan, program or arrangement of the Company (other than a
change that affects all employees similarly situated) from the level in effect
upon the Employee's commencement or participation;
f. the Company commits any other material breach of the provisions
of this Agreement (except those set forth in Paragraph 4.a) and employee
provides at least 15 days' prior written notice to at least two members of the
Company's Board of Directors of the existence of such breach and his intention
to terminate this Agreement (no such termination shall be effective if such
breach is cured during such period);
g. the Company fails to comply with the provisions of Paragraph
4.a. for an uninterrupted 10 day period; or
h. in the event the Company fails to dispose of its real-time
division by January 1, 2000 and the Company fails to complete a public offering
by June 15, 2000, raising at least $40,000,000, with respect to the
Video-on-Demand division, whereby, 1) the Video-on-Demand division is spun off
from the Company and becomes a publicly traded company, and 2) the Employee
shall become the CEO of the new video-on-demand public company.
In the event that the Employee terminates his employment in accordance with the
provisions of this Paragraph 6, then the provisions of Paragraph 8 of this
Agreement shall apply.
7. PAYMENT AND OTHER PROVISIONS FOR TERMINATION FOR CAUSE OR BY
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EMPLOYEE WITHOUT GOOD REASON. In the event Employee's employment with the
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Company (including its subsidiaries) is terminated by the Company for Cause as
provided in Paragraph 5 then, on or before Employee's last day of employment
with the Company, the provisions of this Paragraph 7 shall apply. These same
provisions shall apply if the Employee terminates his employment other than for
Good Reason in accordance with the provisions of Paragraph 6 hereof.
a. Compensation: The Company shall pay in a lump sum to employee
such amount of compensation due Employee for services rendered to the Company,
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as well as compensation for unused vacation time, as has accrued but remains
unpaid. Any and all other rights to compensation of any kind granted to
Employee under this Agreement shall terminate as of the date of termination,
except as may be otherwise required by statute.
b. Noncompetition/Nonsolicitation Period: The provisions of
Paragraphs 14 and 15 shall continue to apply with respect to Employee for a
period of one year following the date of termination.
8. PAYMENT AND OTHER PROVISIONS FOR TERMINATION FOR GOOD REASON OR BY
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THE COMPANY OTHER THAN FOR CAUSE. In the event Employee's employment with the
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Company (including its subsidiaries) is terminated by the Company for any reason
other than for Cause as provided in Paragraph 5 and other than as a consequence
of Employee's death or disability, then the following provisions apply. These
same provisions shall apply if Employee terminates his employment for Good
Reason in accordance with the provisions of Paragraph 6 hereof, however, if the
Employee exercises his right to terminate under section 6h above, the Employee
agrees to give the Company at least 90 days notice of his intent to terminate
his employment under such section 6h. The Employee may give such notice
beginning March 15, 2000.
a. Salary and Bonus Payments: On or before Employee's last day of
employment with the Company, the Company shall promptly pay in a lump sum to
Employee as compensation for services rendered to the Company a cash amount
equal to twice (three times such sum in the case of a termination occurring
during the period (a "Change of Control Period") beginning on the occurrence of
a Change in Control (as defined in Paragraph 8.f. below) and ending on the third
anniversary of such Change in Control) the sum of the amount of Employee's
annual base salary and the target bonus under the Executive Bonus Plan as in
effect immediately prior to his date of termination. At the election of the
Company, the cash amount referred to in this Paragraph 8.a. may be paid to
Employee in periodic installments in accordance with the normal salary payment
procedures of the Company, except that for a termination occurring during a
Change of Control Period, the cash amount referred to in this Paragraph 8.a.
shall be paid in a single lump sum on the date of termination.
b. Vesting of Options and Rights: Notwithstanding the vesting
period provided for in the Stock Option Plan and related stock option agreements
between the Company and Employee for stock options ("options") and stock
appreciation rights ("rights") granted Employee by the Company, one-third of
the options and stock appreciation rights provided to Employee under section 4b
of this Agreement, excluding Option #3 and the portion of Option #1 and Option
#2 which have already vested prior to termination, shall be exercisable upon
termination of employment. In addition, Employee shall have the right to
exercise such options and rights for the shorter of (i) one year (three years in
the case of a termination occurring during a Change of Control Period) following
his termination of employment or (ii) with respect to each option, the remainder
of the period of exercisability under the terms of the appropriate documents
that grant such options. However, notwithstanding the foregoing and the vesting
period provided for in the Stock Option Plan and any related stock option
agreements between the Company and Employee, all options and rights shall be
fully vested and exercisable upon termination of employment occurring during a
Change in Control Period, and the period of exercise shall be as described in
the preceding sentence.
c. Benefit Plan Coverage: The Company shall maintain in full
force and effect for Employee and his dependents for two years after the date of
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termination, all life, health, accident, and disability benefit plans and other
similar employee benefit plans, programs and arrangements in which Employee or
his dependents were entitled to participate immediately prior to the date of
termination, in such amounts as were in effect immediately prior to the date of
termination, provided that such continued participation is possible under the
general terms and provisions of such benefit plans, programs and arrangements.
In the event that participation in any benefit plan, program or arrangement
described above is barred, or any such benefit plan, program or arrangement is
discontinued or the benefits thereunder materially reduced, the Company shall
arrange to provide Employee and his dependents for two years after the date of
termination with benefits substantially similar to those that they were entitled
to receive under such benefit plans, programs and arrangements immediately prior
to the date of termination. If immediately prior to the date of termination the
Company provided Employee with any club memberships, Employee shall be entitled
to continue such memberships at his sole expense. Notwithstanding any time
period for continued benefits stated in this Paragraph 8.c., all benefits in
this Paragraph 8.c. will terminate on the date that Employee becomes an employee
of another employer and eligible to participate in the employee benefit plans of
such other employer. To the extent that Employee was required to contribute
amounts for the benefits described in this Paragraph 8.c. prior to his
termination, he shall continue to contribute such amounts for such time as these
benefits continue in effect after termination.
d. Savings and Other Plans: Except as otherwise more specifically
provided herein or under the terms of the respective plans relating to
termination of employment, Employee's active participation in any applicable
savings, retirement, profit sharing or supplemental employment retirement plans
or any deferred compensation or similar plan of the Company or any of its
subsidiaries shall continue only through the last day of his employment. All
other provisions, including any distribution and/or vested rights under such
plans, shall be governed by the terms of those respective plans.
e. Noncompetition/Nonsolicitation Period: The provisions of
Paragraph 14 and 15 shall continue, beyond the time periods set forth in such
paragraphs, to apply with respect to employee for the shorter of (x) twenty-four
(24) months following the date of termination or (y) until such time as the
Company has failed to comply with the provisions of subparagraph 8.a. for an
uninterrupted 10-day period and such failure is not cured within 15 days after
written notice of such failure is delivered to at least two non-employee
directors of the Company, provided, that in such circumstances, Employee shall
remain entitled to exercise his rights under this Agreement. However, in the
case of a termination occurring during a Change of Control Period, the
provisions of Paragraphs 14 and 15 shall be without force and effect and shall
not apply to Employee.
f. For purposes of this Agreement, the term "Change of Control"
shall mean:
i. The acquisition, other than from the Company, by any
individual, entity or group (within the meaning of Rule 13d-3 promulgated under
the Exchange Act or any successor provision)(any of the foregoing described in
this Paragraph 8.c.i. hereafter a "Person") of 33% or more of either (a) the
then outstanding shares of Capital Stock of the Company (the "Outstanding
Capital Stock") or (b) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the "Voting Securities"), provided, however, that any acquisition by
(x) the Company or any of it subsidiaries, or any employee benefit plan (or
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related trust) sponsored or maintained by the Company or any of its subsidiaries
or (y) any Person that is eligible, pursuant to Rule 13d-1(b) under the Exchange
Act, to file a statement on Schedule 13D with respect to its beneficial
ownership of Voting Securities, whether or not such Person shall have filed a
statement on Schedule 13G, unless such Person shall have filed a statement on
Schedule 13D with respect to beneficial ownership of 33% or more of the Voting
Securities or (z) any corporation with respect to which, following such
acquisition, more than 60% of, respectively, the then outstanding shares of
common stock of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Capital Stock and Voting Securities
immediately prior to such acquisition in substantially the same proportion as
their ownership, immediately prior to such acquisition, of the Outstanding
Capital Stock and Voting Securities, as the case may be, shall not constitute a
Change of Control; or
ii. Individuals who, as of November 17, 1998, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board, provided that any individual becoming a director
subsequent to November 17, 1998 whose election or nomination for election by the
Company's shareholders was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the election of the
Directors of the Company (as such terms are used in Rule 14a-11 of Regulation
14A, or any successor section, promulgated under the Exchange Act); or
iii. Approval by the shareholders of the Company of a
reorganization, merger or consolidation (a "Business Combination"), in each
case, with respect to which all or substantially all holders of the Outstanding
Capital Stock and Voting Securities immediately prior to such Business
Combination do not, following such Business Combination, beneficially own,
directly or indirectly, more than 60% of, respectively, the then outstanding
shares of common stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from the Business Combination; or
iv. (a) a complete liquidation or dissolution of the Company
or (b) a sale or other disposition of all or substantially all of the assets of
the Company other than to a corporation with respect to which, following such
sale or disposition, more than 60% of, respectively, the then outstanding shares
of common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors is then owned
beneficially, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Capital Stock and Voting Securities immediately prior to such sale
or disposition in substantially the same proportion as their ownership of the
Outstanding Capital Stock and Voting Securities, as the case may be, immediately
prior to such sale or disposition.
9. TERMINATION BY REASON OF DEATH. If Employee shall die while
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employed by the Company and during the effective term of this Agreement, all
Employee's rights under this Agreement shall terminate with the payment of such
amounts of annual base salary as have accrued but remain unpaid and prorated
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amount of targeted bonus under the Executive Bonus Plan through the month in
which his death occurs, plus six additional months of the fixed salary and
targeted bonus. All benefits under Paragraphs 8.b. and 8.d. shall be extended
to Employee's estate as described in such paragraphs. In addition, Employee's
eligible dependents shall receive continued benefit plan coverage under
Paragraph 8.c. for six months from the date of Employee's death.
10. TERMINATION BY DISABILITY. Employee's employment hereunder may be
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terminated by the Company for disability. In such event, all Employee's rights
under this Agreement shall terminate with the payment of such amounts of annual
base salary as have accrued but remain unpaid as of the thirtieth (30th) day
after such notice is given except that all benefits under Paragraphs 8.b., 8.c.
and 8.d. shall be extended to Employee as described in such paragraphs,
provided, however, that with respect to Paragraph 8.c., the period for continued
benefit plan coverage shall be limited to six months from the date of
termination. In addition, the noncompetition and nonsolicitation provisions of
Paragraphs 14 and 15 shall continue to apply for a period of six months from the
date of termination for disability. For purposes of this Agreement,
"disability" is defined to mean that, as a result of Employee's incapacity due
to physical or mental illness:
a. Employee shall have been absent from his duties as an officer
of the Company on a substantially full-time basis for six (6) consecutive
months; and
b. Within thirty (30) days after the Company notifies Employee in
writing that it intends to replace him, Employee shall not have returned to the
performance of his duties as an officer for the Company on a full-time basis.
Such notice may be given by the Company at any time after Employee has been
absent for a total of four consecutive months.
11. RETIREMENT. Employee shall be entitle to participate in the
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Company's Retirement Savings Plan and any other retirement plan hereafter made
available to senior executive officers of the Company in accordance with the
provisions thereof as in effect from time to time.
12. INDEMNIFICATION. If litigation shall be brought to enforce or
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interpret any provision contained herein, the non-prevailing party shall
indemnify the prevailing party for reasonable attorneys' fees (including those
for negotiations, trial and appeals) and disbursements incurred by the
prevailing party in such litigation, and hereby agrees to pay prejudgment
interest on any money judgment obtained by the prevailing party calculated at
the generally prevailing Nations Bank of Florida, N.A. (or any successor
thereto) base rate of interest charge to its commercial customers in effect
from time to time from the date that payments(s) to him should have been made
under this Agreement.
13. NONCOMPETITION.
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a. At all times during Employee's employment hereunder, and for
such additional periods as may otherwise be set forth in this Agreement in
reference to this Paragraph 13, Employee shall not, directly or indirectly,
engage in any business, enterprise or employment, whether as owner, operator,
shareholder, director, partner, creditor, consultant, agent or any capacity
whatsoever that manufactures products designed to compete directly with products
of the Company or markets such products anywhere in the world where the Company
(i) is engaged in business or (ii) has evidenced an intention of engaging in
business. Employee acknowledges that he has read the foregoing and agrees that
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the nature of the geographical restrictions are reasonable given the
international nature of the Company's business. In the event that these
geographical or temporal restrictions are judicially determined to be
unreasonable, the parties agree that the restrictions shall be judicially
reformed to the maximum restrictions which are reasonable.
b. Notwithstanding the provisions of the preceding Subparagraph,
the Employee may accept employment with a company that would be deemed to be a
competitor of the Company as described in the previous subparagraph
("Competitor"), so long as (i) the Competitor has had annual revenues of at
least $1 billion in each of the prior two fiscal years, (ii) the Competitor's
revenues for products and maintenance in direct competition with the Company do
not exceed 50% of its total revenues, and (iii) the Employee's responsibilities
are solely for divisions or subsidiaries of the Competitor that do not compete
with the Company.
14. NONSOLICITATION OF EMPLOYEES AND CUSTOMERS. At all times during
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the Employee's employment hereunder, and for such additional periods as may
otherwise be set forth in this Agreement, in reference to this Paragraph 14, the
Employee shall not, directly or indirectly, for himself or for any other person,
firm, corporation, partnership, association or other entity (a) attempt to
employ, employ or enter into any contractual arrangement with any employee or
former employee of the Company, its affiliates, subsidiaries or predecessors in
interest, unless such employee or former employee has not been employed by the
Company, its affiliates, subsidiaries or predecessors in interest, during the
six months prior to the Employee's attempt to employ him, or (b) call on or
solicit any of the actual or targeted prospective customers of the Company or
its affiliates, subsidiaries or predecessors in interest with respect to any
matters related to or competitive with the business of the Company.
15. CONFIDENTIALITY.
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a. Nondisclosure: The Employee acknowledges and agrees that the
Confidential Information (as defined below) is a valuable, special and unique
asset of the Company's business. Accordingly, except in connection with the
performance of his duties hereunder, the Employee shall not at any time during
or subsequent to the term of his employment hereunder disclose, directly or
indirectly, to any person, firm, corporation, partnership, association or other
entity any proprietary or confidential information relating to the Company or
any information concerning the Company's financial condition or prospects, the
Company's customers, the design, development, manufacture, marketing or sale of
the Company's products or the Company's methods of operating its business
(collectively, "Confidential Information"). Confidential Information shall not
include information which, at the time of disclosure, is known or available to
the general public by publications or otherwise through no act or failure to act
on the part of Employee.
b. Return of Confidential Information: Upon termination of
Employee's employment, for whatever reason and whether voluntary or involuntary,
or at any time at the request of the Company, Employee shall promptly return all
Confidential Information in the possession or under the control of Employee to
the Company and shall not retain any copies or other reproductions or extracts
thereof. Employee shall at any time at the request of the Company destroy or
have destroyed all memoranda, notes, reports, and documents, whether in "hard
copy" form or as stored on magnetic or other media, and all copies and other
reproductions and extracts thereof, prepared by Employee and shall provide the
Company with a certificate that the foregoing materials have in fact been
returned or destroyed.
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c. Books and Records: All books, records and accounts whether
prepared by Employee or otherwise coming into Employee's possession, shall be
the exclusive property of the Company and shall be returned immediately to the
Company upon termination of Employee's employment hereunder or upon the
Company's request at any time.
16. INJUNCTION/SPECIFIC PERFORMANCE/SETOFF. Employee acknowledges that
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a breach of any of the provisions of Paragraphs 13, 14, or 15 hereof would
result in immediate and irreparable injury to the Company which cannot be
adequately or reasonably compensated at law. Therefore, Employee agrees that
the Company shall be entitled, if any such breach shall occur or be threatened
or attempted, to a decree of specific performance and to a temporary and
permanent injunction, without the posting of a bond, enjoining and restraining
such breach by Employee or his agents, either directly or indirectly, and that
such right to injunction shall be cumulative to whatever other remedies for
actual damages to which the Company is entitled. Employee further agrees that
the Company may set off against or recoup from any amounts due under this
Agreement to the extent of any losses incurred by the Company as a result of any
breach by Employee of the provisions of Paragraphs 13, 14 or 15 hereof.
17. SEVERABILITY. Any provision in this Agreement that is prohibited
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or unenforceable in any jurisdiction shall, as to such jurisdiction, by
ineffective only to the extent of such prohibition or unenforceability without
invalidating or affecting the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
18. SUCCESSORS: This Agreement shall be binding upon Employee and
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inure to the benefit of the Company and any permitted successor of the Company.
Neither this Agreement nor any rights arising hereunder may be assigned or
pledged by Employee or anyone claiming through Employee; or by the Company,
except to any corporation which is the successor in interest to the Company by
reason of a merger, consolidation or sale of substantially all of the assets of
the Company. The foregoing sentence shall not be deemed to have any effect upon
the rights of Employee upon a Change of Control.
19. CONTROLLING LAW: This Agreement shall in all respects be governed
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by, and construed in accordance with, the laws of the State of Georgia.
20. NOTICES: Any notice required or permitted to be given hereunder
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shall be written and sent by registered or certified mail, telecommunicated or
hand delivered at the address set forth herein or to any other address of which
notice is given:
TO THE COMPANY: CONCURRENT COMPUTER CORPORATION
0000 XXXXX XXXXX XXXXXXX
XXXXXX, XXXXXXX 00000
TO THE EMPLOYEE: XXXXX X. XXXXXXXXXX
000 XXXXXXXXX XXXXX
XXXXXXXXXX, XXXXXXX 00000
21. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
-----------------
between the parties hereto on the subject matter hereof and may not be modified
without the written agreement of both parties hereto. As such, this Agreement
completely replaces and supercedes the Original Agreement.
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22. WAIVER. A waiver by any party of any of the terms and conditions
------
hereof shall not be construed as a general waiver by such party.
23. COUNTERPARTS. This Agreement may be executed in counterparts,
------------
each of which shall be deemed an original and both of which together shall
constitute a single agreement.
24. INTERPRETATION. In the event of a conflict between the provisions
--------------
of this Agreement and any other agreement or document defining rights and duties
of Employee or the Company upon Employee's termination, including the Original
Agreement, the rights and duties set forth in this Agreement shall control.
25. CERTAIN LIMITATIONS ON REMEDIES. Paragraph 7.b provides that
----------------------------------
certain payments and other benefits shall be received by Employee upon the
termination of Employee by the Company other than for Cause and states that
these same provisions shall apply if Employee terminates his employment in
accordance with the provisions of paragraph 6 hereof. It is the intention of
this Agreement that if the Company terminates Employee other than for Cause (and
other than as a consequence of Employee's death, disability or normal
retirement) or if Employee terminates his employment in accordance with the
provisions of paragraph 6 hereof, then the payments and other benefits set forth
in Paragraph 7.b shall constitute the sole and exclusive remedies of Employee.
This Paragraph 25 shall have no effect upon the provisions of Paragraph 8 of
this Agreement.
IN WITNESS WHEREOF, this Employment Agreement has been executed by the
parties as of the date first above written.
CONCURRENT COMPUTER CORPORATION EMPLOYEE
/S/ E. Xxxxxxxx Xxxxxx /S/ Xxxxx X. Xxxxxxxxxx
---------------------- -------------------------
E. Xxxxxxxx Xxxxxx Xxxxx X. Xxxxxxxxxx
Chairman, President and Chief Executive Officer
555839.4
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SCHEDULE A
OTHER BENEFITS
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1. Use of golf club membership maintained by the Company at a private
country club to be designated by Employee. The initiation fee for such
membership should not exceed $70,000 without the approval of the Board.
2. Commencing January 1,2000, first class tickets on airlines when
travelling on Company business.
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