Exhibit 99.1
EMPLOYMENT AGREEMENT
AGREEMENT made this 28th day of June, 1996 (the "Agreement") by and
between Datalogix International Inc., a New York corporation, with offices at
000 Xxxxxx Xxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000 (the "Company"), and Xxxxxxx X.
Xxxxx, an individual residing at 00 Xxxxxxxx Xxxx, Xxxxx Xxxxx, Xxx Xxxx 00000
(the "Executive").
W I T N E S S E T H:
WHEREAS, the parties desire to enter into this Agreement to set forth
the terms of Executive's employment by the Company.
NOW, THEREFORE, in consideration of the mutual premises and covenants
set forth herein and for other good and valuable consideration, the receipt,
adequacy and legal sufficiency of which are hereby acknowledged, the Company and
Executive mutually agree as follows:
1. EMPLOYMENT AND DUTIES.
(a) EMPLOYMENT. The Company agrees to employ Executive, and
Executive agrees to accept employment with the Company, on the terms and
conditions hereinafter set forth.
(b) SCOPE OF DUTIES. Executive's title shall be President and
Chief Operating Officer ("COO") of the Company. Executive shall render services
solely for the benefit, and on behalf, of the Company and its subsidiaries as
directed by the Chairman and Chief Executive Officer ("CEO"). The Board of
Directors of the Company (the "Board") shall have the power to determine the
general and specific duties to be performed by Executive (commensurate with the
position of President and COO) and the power, means and the manner by which
those duties shall be performed.
(c) EXCLUSIVE SERVICE. Executive shall perform his duties in a
diligent manner; shall not engage in activities which are or could reasonably be
foreseeable to be detrimental to the existing or future business of the Company;
and shall observe and conform to all laws, customs and standards of business
ethics and honest business practices. Executive shall be required, and does
hereby agree, to devote his full working time and attention to the duties
imposed upon him under this Agreement. In no event, however, shall Executive's
pursuit of publications, charitable endeavors, or personal investment
opportunities (that are not related to the Company's business) be deemed a
breach of this Agreement, provided that such pursuits does not interfere with
the services required to be rendered to the Company hereunder, is consistent
with the Company's policies regarding conflicts of interest, and does not in any
way violate or infringe any of Executive's covenants set forth herein. It is
understood that Executive has a consulting firm and he will transition his work
to other executives at that firm within three
months, but in any event, the transition will not interfere with his work at the
Company.
(d) PROFESSIONAL STANDARDS. Recognizing and acknowledging that
it is essential for the protection and enhancement of the name and business of
the Company and the good will pertaining thereto, Executive shall perform his
duties under this Agreement professionally and in accordance with the standards
established by the Company from time to time; and Executive shall not act, and
shall refrain from acting, in any manner that could reasonably be foreseen to
harm or tarnish the name, business or income of the Company or the good will
pertaining thereto.
2. COMPENSATION.
(a) BASE SALARY. For all services rendered by Executive during
the term of this Agreement, the Company shall pay Executive an annual base
salary (the "Base Salary") of $225,000 payable in accordance with the Company's
customary payment policies and periods and subject to customary withholdings and
deductions. The Base Salary may be increased (but not decreased) at the end of
each year of employment at the discretion of the Compensation Committee of the
Board.
(b) SINGING BONUS. On the date of this Agreement the Company is
paying to the Executive a one-time signing bonus of $25,000.
(c) BONUSES. In addition to the Base Salary described in
Section 3(a) above, Executive shall be eligible for a performance bonus
("Performance Bonus"). With respect to the Performance Bonus for the fiscal
year of the Company ended June 30, 1997 ("Fiscal '97") no later than August 15,
1996 the Company through the Chairman and CEO, but subject to approval of the
Compensation Committee of the Board, will establish with the Executive
performance criteria based upon the achievement of sales and performance goals
and objectives which will permit the Executive to earn up to an additional
$70,000. The Performance Bonus will be based on achievement of the performance
criteria and shall be paid to the Executive within fifteen (15) days after the
Company's independent accounting firm has concluded its audit and issued its
report. With respect to fiscal years after Fiscal '97, as additional
compensation for the performance of the services rendered by Executive, the
Company will pay a Performance Bonus based upon performance goals and objectives
which shall be agreed upon no later than August 15 of the subject fiscal year by
the Chairman and CEO and the Executive, but subject to approval of the
Compensation Committee, which will permit Executive to earn additional
compensation levels that shall be established at the time the parameters are
established. The target Performance Bonus shall not be less than $70,000.
(d) FRINGE BENEFITS. In addition to the Base Salary and bonuses
described in Sections 2(b) and 2(c) above and subject to the provisions of this
Section 2(d) and in the sole
-2-
and absolute discretion of the Company, the Company may from time to time
provide to, or withdraw from, Executive certain other fringe benefits (E.G.,
health insurance, if reasonably available, auto allowance in accordance with the
Company's policy, if any, as established from time to time). Nothing herein
shall require the Company to adopt, maintain or continue any such fringe
benefit. In no event shall the fringe benefits available to Executive be less
than those available to other executive officers of the Company. During the
Employment Period or for such time as otherwise provided in this Agreement,
Executive shall be entitled to participate in such pension, expense
reimbursement, auto allowance, benefit plans, fringe benefits, life insurance,
medical and dental plans, retirement plans and other programs as are offered
from time to time by the Company to its executive employees and are described in
the Company's benefit book, provided that as a minimum, Executive shall be
entitled to: (i) a car allowance of $650 per month, (ii) in lieu of including
the Executive under the Company's major medical and insurance programs, the
Company shall reimburse the Executive his cost for maintaining his existing
medical insurance (together with the coupled life insurance program and
disability program) at a reimbursement cost of approximately $650 per month.
(e) VACATION. Executive shall be entitled to an annual vacation
of fifteen (15) working days for each full calendar year of employment
hereunder, which may be taken all at once or from time to time; PROVIDED,
HOWEVER, that (i) Executive shall schedule such vacation time so as to mitigate
the adverse effects to the Company of Executive's absence; (ii) Executive shall
give the Company at least thirty (30) days notice of consecutive vacation days
in excess of five (5) to be taken by Executive at any one time; and (iii) any
unused vacation time of one calendar year is lost and shall not be available if
not taken by Executive in that calendar year.
(f) BUSINESS EXPENSES. The Company agrees to pay or to
reimburse the Executive for all reasonable, ordinary and necessary business or
entertainment expenses incurred in the performance of his services hereunder in
accordance with the policy of the Company as from time to time in effect. The
Executive, as a condition precedent to obtaining such payment or reimbursement,
shall provide to the Company any and all statements, bills or receipts
evidencing the travel or out-of-pocket expenses for which the Executive seeks
payment or reimbursement, and any other information or materials, as the Company
may from time to time reasonably require.
(g) STOCK OPTIONS. The Company will grant to Executive,
effective as of the date of this Agreement but subject to the Executive
commencing employment with the Company, options under its 1992 Incentive Stock
Plan (the "Plan") to purchase 200,000 shares of the common stock of the Company
at an exercise price equal to the closing sales price of the common stock at the
close of business on June 24, 1996. During Fiscal '97 the Board (or the
Compensation Committee thereof) shall consider awarding the Executive an
additional 40,000 options under the Plan. The
-3-
200,000 options to the extent granted to Executive in excess of the number
available under the Plan ("Excess Options") shall be subject to the shareholders
of the Company approving the amendment previously adopted by the Board
increasing the number of shares available for issuance under the Plan by 600,000
("Plan Amendment"). To the extent outstanding options become available under
the Plan between the date hereof and shareholder approval of the Plan Amendment,
because they are unexercised or surrendered, such options shall be used to
decrease the Excess Options. The options shall be Nonstatutory Stock Options
(as defined in the Plan) to the extent required by the Plan under the mandated
$100,000 limitation. The options will provide that they vest at the rate of
twenty-five percent (25%) per annum on the date of the anniversary of the
commencement of employment, have a term of six (6) years and otherwise utilize
the general format for options granted by the Company under its 1992 Employee
Incentive Stock Option Plan with the exception of the following:
(i) twenty percent (20%) of the options will conditionally
vest upon the Executive commencing employment with the Company PROVIDED,
HOWEVER, that in the event the employment of the Executive terminates under
Section 7(b) or /(d) on or before the first anniversary of the date of the
Agreement, then all such options will be deemed as having not vested and further
in the event the Executive shall have exercised the options then Executive
agrees:
(A) the shares will be issued subject to a restricted
grant which shall terminate on the first anniversary of the date of this
Agreement; and
(B) he shall not have a right to sell, pledge,
hypothecate or otherwise transfer the shares until after the first anniversary
of the date of this Agreement; and
(ii) the Company shall have a right through the first
anniversary of the date of this Agreement in the event the Executive terminates
his employment with the Company for any reason whatsoever to repurchase the
shares at the option exercise price; and
(iii) in the event of a Change of Control of the Company (as
defined in Section 8(e) of this Agreement), then and in such event
notwithstanding any other vesting provisions of the options, fifty percent (50%)
of the options will vest on the occurrence of a Change of Control prior to the
first anniversary of the date of this Agreement, seventy-five percent (75%) of
the options shall vest in the event of an occurrence of a Change of Control on
the first and prior to the second anniversary of the date of this Agreement, and
the options shall become entirely vested on the occurrence of a Change of
Control on or after the third anniversary of the date of this Agreement. In the
event of the occurrence of Change of Control, the Executive shall have a right
at his option within thirty (30) days following the occurrence of a Change of
Control, to require the Company to purchase from him the options (and if any of
the
-4-
options have been exercised the underlying shares) at a purchase price of
$100,000 plus the purchase price paid by him for any underlying shares.
(iv) in the event of a Change of Control of the Company (as
defined in Section 8(e) of this Agreement), then and in such event
notwithstanding any other vesting provisions of the options, fifty percent (50%)
of the options will vest on the occurrence of a Change of Control prior to the
first anniversary of the date of this Agreement, seventy-five percent (75%) of
the options shall vest in the event of an occurrence of a Change of Control on
the first and prior to the second anniversary of the date of this Agreement, and
the options shall become entirely vested on the occurrence of a Change of
Control on or after the third anniversary of the date of this Agreement. In the
event of the occurrence of Change of Control, the Executive shall have a right
at his option within thirty (30) days following the occurrence of a Change of
Control, to require the Company to purchase from him the options (and if any of
the options have been exercised the underlying shares) at a purchase price of
$100,000 plus the purchase price paid by him for any underlying shares.
(h) The Company shall indemnify Executive to the fullest extent
permitted by the New York Business Corporation Law from claims against him in
his capacity as an officer and employee of the Company and to the extent he is
serving as such a Director of the Company. Such indemnification shall include,
among other things, the advancement as incurred of costs and legal fees of
defending against any such claims. Additionally, for so long as the Company
maintains such insurance, it will maintain the Executive as a named covered
person under its directors and officers liability insurance, provided, however,
the provisions of this Section 2(h) shall not create an independent obligation
on the part of the Company to maintain such insurance.
3. NON-COMPETITION.
(a) In view of the knowledge of the trade secrets and other
proprietary information relating to the business of the Company and its
customers which Executive is expected to obtain during the Employment Period (as
defined in Section 7), and in consideration of the compensation to be received
hereunder, Executive agrees: (i) that during the Employment Period he will not
Participate In (as such term hereinafter defined) any other business or
organization if such business or organization now is or shall then be competing
with or be of a nature similar to the business of the Company in which it was
engaged at the last date of the Employment Period and for the preceding twelve
months; and (ii) for a period of one year after the Termination Date due to a
termination of this Agreement for any reason, he will not compete with or be
engaged in the same business as, or Participate In any other business or
organization which during such one-year period competes with or is engaged in
the same business as, the Company or its subsidiaries with respect to any
product sold or activity
-5-
engaged in up to the Termination Date in any geographical area in which at the
Termination Date such product is sold or activity engaged in, except that in
each case the provisions of this Section 4 will not be deemed breached merely
because Executive owns not more than 5% of the outstanding common stock of a
corporation, if, at the time of its acquisition by Executive, such stock is
listed on a national securities exchange, is reported on NASDAQ, or is regularly
traded in the over-the-counter market by a member of a national securities
exchange.
(b) The term "Participate In" shall mean: "directly or
indirectly, for his own benefit or for, or through any other person, firm, or
corporation, own, manage, operate, control, loan money to (provided, that an
investment in debt instruments issued pursuant to an effective registration
statement under the Securities Act of 1933, as amended shall not be deemed to be
a loan), or participate in the ownership, management, operation, or control of,
or be connected as a director, officer, employee, partner, consultant, agent,
independent contractor, or otherwise with, or acquiesce in the use of his name
in."
(c) During the Employment Period and for a period of one year
after the Termination Date, Executive will not directly or indirectly:
(i) solicit, interfere with, or endeavor to entice
away from the Company any of its customers,
licensees, or vendors, or
(ii) regardless of the reason for his ceasing to be
employed by the Company, employ as an employee or
retain as a consultant, or persuade or attempt to
persuade any person who is then or at any time the
preceding year was an employee of or exclusive
consultant to the Company to leave the Company or
to become employed as an employee or retained as a
consultant by anyone other than the Company.
(d) Executive agrees that the provisions of this Section 3 are
necessary and reasonable to protect the Company in the conduct of its business.
If any restriction contained in this Section 3 shall be deemed to be invalid,
illegal, or unenforceable by reason of the extent, duration, or geographical
scope thereof, or otherwise, then the court making such determination shall have
the right to reduce such extent, duration, geographical scope, or other
provisions hereof, and in its reduced form such restriction shall then be
enforceable in the manner contemplated hereby.
-6-
4. CONFIDENTIAL INFORMATION. All confidential information which
Executive may now possess, may obtain during or after the Employment Period, or
may create prior to the end of the Employment Period relating to the business of
the Company or of any of its respective customers, licensees or suppliers shall
not, without the prior written consent of the Company, be published, disclosed,
or made accessible by him to any other person, firm or corporation either during
or after the Employment Period or used by him except during the Employment
Period in the business and for the benefit of the Company. Executive shall
return to the Company all tangible evidence of such confidential information,
whether in written form, disk form, computer file or otherwise, and shall delete
or destroy all intangible evidence of such confidential information, in each
case, prior to or at the end of the Employment Period. For this purpose
confidential information shall refer to and include all of the particulars
hereinafter described in this paragraph: (i) systems which the Company now or
hereinafter owns, plans or develops, whether for its own use or for use by its
clients; (ii) information and document which clients of the Company may furnish
to the Company concerning their business affairs, property, methods of operation
or other data; (iii) the list of the Company's customers, as it may exist from
time to time; (iv) all specific proprietary software, algorithms, computer
processing systems, computer programs, course codes and techniques, formulas and
technologies, with which Executive becomes familiar as an employee of the
Company; and (v) all records, files, memoranda, reports, price lists, customer
lists, drawings, plans, sketches, documents, equipment, and the like relating to
the business of the Company which Executive shall use or prepare or with which
Executive may come into contact either directly or indirectly in writing, orally
or by drawings or observation of parts or equipment. For purposes of this
Agreement, "confidential information" shall not include any information: (a)
that is or becomes generally or publicly available other than through disclosure
by Executive; (b) that is approved for release by written authorization of the
Company; (c) that is received from a third party outside the Company following
the termination of employment of Executive if such disclosure was without breach
of any confidentiality obligation to the Company or (d) that may be required by
law, regulation or an order of any court, agency or governmental body to be
disclosed.
5. RIGHTS OF THE COMPANY.
(a) Any interest in copyrights, copyrightable works,
developments, designs and processes, patents, patent applications, inventions
and technological innovations (collectively, "Inventions") which Executive (i)
owns, conceives of or develops, alone or with others, (A) relating to the
business of the Company or its subsidiaries or any business in which the Company
(or its subsidiaries) contemplates being engaged or (B) which anticipate
research or development of the Company or its subsidiaries, or (ii) conceives of
or develops utilizing the time, material, facilities or information of the
Company or its subsidiaries, in either case during the Employment
-7-
Period and for six months thereafter, shall belong to the Company.
(b) As soon as Executive owns, conceives of or develops any
Invention, Executive shall immediately communicate such fact in writing to the
Board of the Company. Upon the request of the Company, Executive shall, without
further compensation but at the Company's expense (subject to clause (i) below)
execute all such assignments and other documents (including applications for
trademarks, copyrights and patents and assignments thereof) and take all such
other action as the Company may reasonably request, including obtaining spousal
consents or waivers, (ii) to vest in the Company all right, title and interest
of Executive in and to such Inventions, free and clear of all liens, mortgages,
security interests, pledges, charges and encumbrances (Executive to take such
action, at his expense, as is necessary to remove all such liens) and (iii) if
patentable or copyrightable, to obtain patents or copyrights (including
extensions and renewals) therefor in any and all jurisdictions in and outside
the United States in the name of the Company or in such other name(s) as the
Company shall determine.
6. INSURANCE. Executive agrees to submit to such medical
examinations as may be reasonably required by the Company to enable the Company
to obtain, at its option, key man life insurance on the life of Executive in
such amount and with such insurer as the Company may determine in its sole
discretion.
7. EMPLOYMENT PERIOD
The term of the Executive's employment hereunder (the "Employment
Period") shall commence on July 8, 1996 and shall continue until the occurrence
of any of the following events (the "Termination Date"):
(a) the death of Executive;
(b) the voluntary resignation of Executive;
(c) the termination by the Board of the Executive's employment
for Disability (as hereinafter defined);
(d) the termination by the Board of the Executive's employment
for Cause (as hereinafter defined); or
(e) the termination by the Board of the Executive's employment
Without Cause (as hereinafter defined).
-8-
8. DEFINITIONS RELATING TO TERMINATION
(a) DISABILITY
The term "Disability" shall mean any physical or mental
condition of Executive which, in the reasonable discretion of the Board, after
consultation with Executive's physician, materially impairs Executive's ability
to render the services to be performed by him hereunder for a period of 90
consecutive days or for at least 120 days in any consecutive 180 day period.
(b) CAUSE
The term "Cause" shall mean the good faith finding by the
Board of the Company upon resolution adopted by it of the existence of any one
of the following:
(i) Executive's failure or refusal to perform specific
written directives of the Board consistent with his duties and responsibilities
as set forth in Section 1 hereof, which lack of performance is not cured within
15 days after written notice thereof or 30 days if at the 15th day and
thereafter Executive is diligently attempting to cure.
(ii) Excessive use of alcohol or illegal drugs,
interfering with performance of Executive's obligations under this Agreement,
which interference is not cured within 15 days after written notice thereof or
30 days if at the 15th day and thereafter Executive is diligently attempting to
cure;
(iii) Conviction of a felony or of any crime involving
moral turpitude or fraud;
(iv) The commission by Executive of any willful or
intentional act which Executive reasonably should have contemplated would have
the effect of injuring the reputation, financial condition, business or business
relationships of the Company and/or Executive; or
(v) Any material breach of the provisions of Section
3,4,5 or 6 of this Agreement, if such breach is not cured within 30 days after
written notice thereof to the Executive by the Board.
(c) WITHOUT CAUSE
The term "Without Cause" shall mean a determination of the
Board to terminate Executive for any reason other than death, Disability or
Cause.
(d) GOOD REASON
The Term "Good Reason" shall mean (i) any removal of
Executive while he is employed hereunder from the position of President or COO,
except in connection with
-9-
termination or suspension of Executive's employment for death, Disability or
Cause, (ii) a material reduction or change in Executive's duties and
responsibilities inconsistent with the duties and responsibilities customarily
expected of the President and COO of a company of the type, size and
circumstances of the Company, (iii) if following a Change of Control the Company
requires the Executive to relocate his principal place of business to a location
more than fifty (50) miles from the Company's current headquarters in Valhalla,
New York, or (iv) in the absence of a Change of Control of the Company, if on or
before June 30, 1999 (x) the Company requires the Executive to relocate his
principal place of business to a location more than fifty (50) miles from the
Company's current headquarters in Valhalla, New York, (y) Executive shall have
provided the Company written notice of his intention not to relocate (then, in
such event, Good Reason being effective at the end of the six month period
commencing with the date on which the Executive would have been required to
relocate but for the notice) and (z) during such six month period Executive
shall continue to work and transition the move (which may include temporarily
working at the new location at the Company expense), or (v) the Plan Amendment
shall not have been approved within the time required by the Plan.
(e) CHANGE OF CONTROL
A "Change of Control" shall be deemed to have occurred if:
(i) any "person" (as defined in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company representing
fifty percent (50%) or more of the combined voting power of the Company's then
outstanding securities;
(ii) there shall cease to be a majority of the Board
comprised as follows: individuals who on the date of this Agreement constitute
the Board and any new director(s) whose election by the Board or nomination for
election by the Company's shareholders was approved by a vote of a majority of
the directors then still in office who either were directors or whose election
or nomination for election was previously so approved;
(iii) the shareholders of the Company approve a merger
or consolidation of the Company with any other corporation, other than a merger
or consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent at least fifty
percent (50%) of the combined voting power of the voting securities of the
Company or such surviving entity outstanding immediately after such merger or
consolidation, or the shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or
-10-
disposition by the Company of all or substantially all the Company's assets; or
(iv) the business of the Company for which Executive's
services are principally performed is disposed of by the Company pursuant to an
partial or complete liquidation of the Company, a sale of assets (including
stock of a subsidiary of the Company) or otherwise.
9. EFFECT OF TERMINATION ON COMPENSATION
(a) If Executive's employment is terminated for Disability, or
upon his death, Executive or his estate shall be paid his Base Salary,
Performance Bonus, and other benefits hereunder through the Termination Date.
If Executive's employment is terminated for Cause or if he resigns without good
reason, Executive shall be paid his Base Salary and other benefits through the
Termination Date. When under this Agreement a Performance Bonus is payable
through the Termination Date, such amount is calculated as the amount of the
Performance Bonus as if the Executive were employed through the entire year
multiplied by the quotient obtained by dividing the number of elapsed days
through the Termination Date by 365.
(b) If Executive's employment is terminated Without Cause or if
the Executive resigns for Good Reason, then in consideration of Executive's
agreement, under Sections 3, 4 and 5 hereof and in lieu of the payment of any
other severance pay or benefits, the Company shall continue to pay to Executive
(i) (A) if occurring on or before the first anniversary of the date of this
Agreement his Base Salary as of the Termination Date for twelve months after the
Termination Date (irrespective of the re-employment of the Executive), or (B) if
occurring on or after the first anniversary of the date of this Agreement his
Base Salary for six (6) months after the Termination Date (irrespective of the
re-employment of the Executive) and Salary Continuance (as hereinafter defined)
for up to three (3) months, and (ii) his Performance Bonus through the
Termination Date. Salary Continuance shall mean payment of the Base Salary to
the Executive for the period commencing six (6) months after the Termination
Date and ending on the earlier of nine (9) months after the Termination Date or
the day that the Executive shall have obtained other suitable employment for
which he shall search in good faith; suitable employment being employment
whereby the Executive is utilizing substantially the same type of skills at a
level of authority similar to that obtained by the Executive under this
Agreement.
(c) Irrespective of the basis for the termination of Executive's
employment, all benefits, if any, other than Base Salary and pro rata
Performance Bonus, if applicable, shall cease as of the Termination Date, other
than COBRA rights which shall continue to the extent provided thereunder.
10. ARBITRATION. Any controversy or claim arising out of or relating
to this Agreement, or any breach or termination
-11-
thereof, shall be settled by arbitration in the County of Suffolk in accordance
with the laws of the State of New York and rules then obtaining of the American
Arbitration Association or any successor thereto. Within ten days after a
request for arbitration by one party to the other, the Company and Executive
shall each select one arbitrator. Within ten days after the second of such
arbitrators has been selected, the two arbitrators thereby selected shall choose
a third arbitrator who shall be the Chairman of the panel. If the first two
arbitrators selected cannot agree upon a third arbitrator, the American
Arbitration Association shall name the third arbitrator. The arbitration shall
be held in Westchester County, New York. The arbitrators may grant injunctions
or other relief in such dispute or controversy. In the arbitration, the parties
shall be entitled to pre-hearing discovery. The decision of the arbitrators
shall be final, conclusive and binding on the parties to the arbitration. In
connection with such arbitration and the enforcement of any award rendered as a
result thereof, the parties hereto irrevocably consent to the personal
jurisdiction of the Courts of the State of New York in the county where the
Company maintains its principal place of business, and further consent that any
process or notice of motion or other application to the said Court or Judge
thereof may be served inside or outside the State of New York by registered mail
or personal service, provided a time period of at least twenty days for
appearance is allowed. The Company shall not be required to seek injunctive
relief from the arbitrators but may seek such injunctive relief in a court
proceeding. This Section 10 shall survive the termination (by expiration or
otherwise) of this Agreement.
11. MODIFICATION. This Agreement sets forth the entire understanding
of the parties with respect to the subject matter hereof, supersedes all
existing agreements between them concerning such subject matter, and may be
modified only by a written instrument duly executed by each party.
12. NOTICES. Any notice or communication to be given hereunder by
any party to the other shall be in writing and shall be deemed to have been
given when personally delivered or transmitted by facsimile, or three (3) days
after the date sent by registered or certified mail, postage prepaid, as
follows:
(a) if to the Company, addressed to it at:
Datalogix International Inc.
000 Xxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
(b) if to Executive, addressed to him at:
Xxxxxxx X. Xxxxx
00 Xxxxxxxx Xxxx
Xxxxx Xxxxx, Xxx Xxxx 00000
-12-
or to such other persons or addresses as may be designated in writing by the
party to receive such notice.
13. WAIVER. Any waiver by either party of a breach of any provision
of this Agreement shall not operate as or be construed to be a waiver of any
other breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term
of this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
14. ASSIGNMENT. Executive's rights and obligations under this
Agreement shall not be transferable by assignment or otherwise. The Company may
not assign its rights and obligations hereunder except in connection with a
corporate reorganization or merger.
15. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
be binding upon and inure to the benefit of Executive and his heirs and personal
representatives, and shall be binding upon and inure to the benefit of the
Company and its successors and assigns.
16. HEADINGS. The headings in this Agreement are solely for the
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
17. INJUNCTIVE RELIEF. Since a breach of the provisions of Sections
3 and 4 may not adequately be compensated by money damages, the Company shall be
entitled, in addition to any other right and remedy available to it, to an
injunction restraining such breach or a threatened breach, and in either case no
bond or other security shall be required in connection therewith, and Executive
hereby consents to the issuance of such injunction.
18. JURISDICTION. The validity and interpretation of this Agreement
shall be construed in accordance with and be governed by the laws of the State
of New York.
19. ATTORNEY'S FEES. If a legal action or other proceeding is
brought for enforcement of this Agreement because of an alleged dispute, breach,
default, or misrepresentation in connection with any of the provisions of this
Agreement, the successful or prevailing party shall be entitled to recover
reasonable attorney's fees and costs incurred, in addition to any other relief
to which they may be entitled.
20. SEVERABILITY. The provisions of this Agreement are severable and
should any provision hereof be void, voidable or unenforceable under any
applicable law, such void, voidable or unenforceable provision shall not affect
or invalidate any other provision of this Agreement, which shall continue to
govern the
-13-
relative rights and duties of the parties as though the void, voidable or
unenforceable provision were not a part hereof.
21. SURVIVAL. All warranties, representations, indemnities,
covenants and other agreements of the parties hereto shall survive the
execution, delivery and termination of this Agreement and shall, notwithstanding
the execution, delivery and termination of this Agreement, continue in full
force and effect.
22. ACKNOWLEDGEMENT. Executive specifically acknowledges that:
Executive has read and understands all of the terms of this Agreement; in
executing this Agreement, Executive does not rely on any inducements,
agreements, promises or representations of the Company or any agent of the
Company, other than the terms and conditions specifically set forth in this
Agreement; Executive has had an opportunity to consult with independent counsel
with respect to the execution of this Agreement; and that Executive has made
such investigation of the facts pertaining to this Agreement and of all the
matters pertaining hereto as he deems necessary.
IN WITNESS WHEREOF, the Company and Executive have executed this
Agreement on the day and year first above written.
DATALOGIX INTERNATIONAL INC.
By:
-----------------------------------
Xxxxxxx X. Xxxxxxxxxxx, Chairman
--------------------------------------
Xxxxxxx X. Xxxxx
-14-
