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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") dated February 1, 2001, is
between SynQuest, Inc. ("SynQuest") and Xxxx Xxxxxxxxxx ("Executive").
The parties agree as follows:
1. Employment. SynQuest hereby employs Executive and Executive
hereby accepts employment, subject to the terms and conditions of this
Agreement. Executive will serve as General Counsel of SynQuest and will have the
duties, rights and responsibilities customarily associated with that position,
as well as any other reasonable duties relating to the operation of the business
of SynQuest and SynQuest's subsidiaries that the Board of Directors of SynQuest
(the "Board") may from time to time assign to Executive. Executive will devote
his full business time, skills and best efforts to rendering services on behalf
of SynQuest and will exercise such care as is customarily required by employees
undertaking similar duties for companies similar to SynQuest.
Executive's employment under this Agreement will commence on February
1, 2001, and may be terminated at any time by either party, at will, subject to
the obligations of the Company under Section 6.6.
2. Compensation; Expenses; Additional Employment Benefits
2.1 Salary. During the term of Executive's employment under this
Agreement, SynQuest will pay Executive an annual base salary equal to $140,000
(the "Base Salary"), which will be payable to Executive in accordance with
SynQuest's payroll procedures in effect with respect to other officers of
SynQuest, less all applicable withholding taxes. The Base Salary will be
reviewed annually by the Board and, based on the Board's review, the Base Salary
may be increased (at the sole discretion of the Board).
2.2 Bonus. During the term of Executive's employment under this
Agreement, Executive will be entitled to receive (if earned) an annual bonus
("Bonus"). The maximum Bonus for the twelve month period ending June 30, 2002
will be $36,000 with 50% payable based on the attainment of individual
objectives and 50% payable based on the attainment of SynQuest operating
objectives. The maximum Bonus for the period beginning on February 1, 2001 and
ending June 30, 2001 will be $15,000 (a pro-rated portion of $36,000) with 50%
payable based on the attainment of individual objectives and 50% payable based
on the attainment of SynQuest operating objectives. The terms and conditions
under which the Bonus will be earned (including corporate and individual goals
and objectives upon which payment of the Bonus may be based) will be established
annually in accordance with SynQuest's bonus plan for key executive personnel.
2.3 Minimum Bonus. The Company will pay to Executive a "Minimum
Bonus" of Twelve Thousand Dollars ($12,000), less all applicable withholdings,
which will be paid monthly for 12 months. The Minimum Bonus will be a part of
any Bonus earned as
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contemplated under Section 2.2 above.
2.4 Executive Stock Option Plan. Executive will be eligible for
consideration for grants of stock options in accordance with the terms and
conditions of SynQuest's Stock Option Plan (or successor stock option plan
adopted by SynQuest during the term of this Agreement). The decision as to
whether to grant options under the plan to Executive (and, if so, how many) will
be solely within the discretion of the Board, and such grants, if any, will be
subject to any terms and conditions imposed thereon by the Board. An initial
recommendation to the Board for a grant of options to purchase 50,000 shares of
SynQuest common stock will be made at the first meeting of Compensation
Committee of the Board following February 1, 2001.
2.5 Reimbursement of Business Expenses. SynQuest will reimburse
Executive for all reasonable business-related expenses incurred by Executive in
the performance of his duties under this Agreement, provided that Executive
presents vouchers for such expenses or other evidence thereof to SynQuest in
accordance with SynQuest's general reimbursement policy in effect for SynQuest's
executives.
2.6 Participation in Benefit Plans. Executive will be eligible to
participate in SynQuest's existing benefit plans and any other compensation,
welfare, insurance and other benefit plans as SynQuest may maintain from time to
time for the benefit of SynQuest's key executive personnel, on the terms and
subject to the conditions set forth in those plans.
2.7 Vacation. Executive will receive three weeks paid vacation
each year during the term of Executive's employment.
2.8 Additional Benefits and Prerequisites. Executive will have
additional benefits and prerequisites authorized from time to time for Executive
in accordance with SynQuest's policies then in effect with respect to other
SynQuest executives.
3. Termination of Employment. Executive's employment under this
Agreement may be terminated upon the occurrence of any of the following events:
3.1 Death. Executive's death (a "Death Termination Event").
3.2 Disability. If the Board determines in good faith, based on
medical evidence considered by the Board to be reliable and after giving
Executive an opportunity to present evidence on his own behalf, that as a result
of a medically determinable physical or mental impairment Executive has become
substantially unable to perform his duties under this Agreement at the principal
executive offices of SynQuest for any period of six (6) consecutive months, or
nine (9) months in any twelve (12) month period, then Executive will be deemed
to be disabled for the purposes of this Agreement and the Board may terminate
Executive's employment under this Agreement (a "Disability Termination Event").
All determinations by the Board pursuant to this Section 3.2 will be final and
binding upon Executive.
3.3 Termination for Cause. The Board may terminate Executive's
employment under
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this Agreement for cause upon: (i) the determination by the Board that Executive
has failed to perform his duties under this Agreement (other than as a result of
Executive's incapacity due to physical or mental illness or injury), and such
failure is a result of an intentional and/or extended neglect of Executive's
duties under this Agreement, provided, however, that Executive may not be
terminated under this subsection to the extent Executive's failure arises out of
Executive's reasonable good faith belief of his professional or ethical
obligations as an attorney; (ii) conviction of Executive for a felony or any
crime involving theft, fraud or moral turpitude; (iii) commission by Executive
of any act involving dishonesty or fraud against SynQuest or SynQuest's
subsidiaries; (iv) failure by Executive to comply with a reasonable written
order of the Board, provided, however, that Executive may not be terminated
under this subsection to the extent Executive's failure arises out of
Executive's reasonable good faith belief of his professional or ethical
obligations as an attorney; (v) a misrepresentation made willfully, recklessly
or in bad faith by Executive to SynQuest's stockholders or the Board, which
causes injury to SynQuest or SynQuest's subsidiaries or SynQuest's stockholders;
or (vi) a material breach by Executive of his obligations under Sections 9
through 13 (a "Good Cause Termination Event").
3.4 Termination Without Cause.
(a) The Board may terminate Executive's employment under this
Agreement without cause at any time by delivering to Executive a Notice of
Termination (as defined in Section 4 below).
(b) Executive may terminate his employment by delivering to
the Board a Notice of Termination, and such termination will be considered to be
without cause if (1) there occurs a material change in the position held by
Executive or in the duties of Executive, without Executive's consent, such that
Executive's position or duties are not comparable to Executive's position and
duties prior to such material change, (2) Executive's annual base salary is
reduced below the then-current Base Salary, or (3) Executive's principal place
of employment is relocated to a location other than the metropolitan Atlanta,
Georgia area (Both termination events described in Subsections (a) and (b) are
referred to individually in this Agreement as a "No Cause Termination Event").
3.5 Voluntary Termination. Executive may voluntarily terminate his
employment under this Agreement at any time by delivering to the Board a Notice
of Termination as specified in Section 5(e) below (a "Voluntary Termination
Event"); provided, however, that (1) if at the time of such voluntary
termination by Executive, Executive could be terminated as a result of a Good
Cause Termination Event, Executive will be deemed to have been terminated as a
result of a Good Cause Termination Event instead of a Voluntary Termination
Event, (2) if Executive resigns under the circumstances described under Section
3.4, the termination will be deemed to have been resulted from a No Cause
Termination Event.
4. Notice of Termination. Any termination by the Board pursuant
to Sections 3.2,
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3.3 or 3.4(a) of this Agreement will be communicated to Executive by a Notice of
Termination. Any termination by Executive pursuant to Sections 3.4(b) or 3.5 of
this Agreement will be communicated by Notice of Termination to the Board. For
purposes of this Agreement, a "Notice of Termination" means a notice that
indicates the specific termination provision in this Agreement relied upon for
such termination, and if delivered pursuant to Sections 3.2, 3.3 or 3.4(a) of
this Agreement, sets forth the basis for termination of Executive's employment
under the provisions indicated.
5. Date of Termination. "Date of Termination" means:
(a) If Executive's employment is terminated as a result of a
Death Termination Event, the date of Executive's death;
(b) If Executive's employment is terminated as a result of a
Disability Termination Event, thirty (30) days after Notice of Termination is
given;
(c) If Executive's employment is terminated by the Board as a
result of a Good Cause Termination Event the date the Notice of Termination is
given (or such later date as may be specified by the Board in the Notice of
Termination),
(d) If Executive's employment is terminated as a result of a
No Cause Termination Event, the date the Notice of Termination is given,
provided that Executive will have a minimum of fifteen (15) business days after
the date the Notice of Termination is given during which to exercise any stock
options he holds (this provision will supercede any provision regarding period
of exercise which is less than fifteen (15) days in any stock option agreement,
including those entered into after the date of this Agreement); and
(e) If Executive's employment is terminated as a result of a
Voluntary Termination Event, sixty (60) days after Notice of Termination is
given (or such shorter period of time as the Board may specify in the Board's
sole discretion after receiving Executive's Notice of Termination, provided that
Executive will have a minimum of fifteen (15) business days after the date the
Notice of Termination is given during which to exercise any stock options he
holds (this provision will supercede any provision regarding period of exercise
which is less than fifteen (15) days in any stock option agreement, including
those entered into after the date of this Agreement.
6. Compensation upon Termination or During Disability.
6.1 No Further Obligation. Upon any termination of employment,
SynQuest and SynQuest's subsidiaries will have no further obligation to
Executive except to pay Executive (or Executive's estate in the case of
Executive's death) the compensation and other benefits provided in this Section
6. Amounts payable pursuant to this Section 6 are in lieu of any severance pay
that would otherwise be payable to Executive upon termination of Executive's
employment with
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SynQuest under SynQuest's severance pay policies.
6.2 Death. If Executive's employment is terminated as a result of
a Death Termination Event, SynQuest will pay to Executive's estate any Base
Salary and Bonus earned but unpaid and any other amounts due to Executive from
SynQuest (whether pursuant to benefit plans or otherwise) through the date of
Executive's death.
6.3 Disability. If Executive's employment is terminated as a
result of a Disability Termination Event, Executive will continue to receive
payment of any Base Salary and Bonus earned but unpaid and any other amounts due
to Executive from SynQuest (whether pursuant to benefit plans or otherwise)
through the Date of Termination. After payment of amounts set forth in this
Section 6.3, Executive's compensation will be paid in accordance with SynQuest's
long-term disability plans, if any, that may then be in effect with respect to
Executive.
6.4 Good Cause. If Executive's employment is terminated as a
result of a Good Cause Termination Event, Executive will receive payment of any
Base Salary earned but unpaid and any other amounts due to Executive from
SynQuest (whether pursuant to benefit plans or otherwise) through the Date of
Termination.
6.5 Voluntary Termination. If Executive's employment is terminated
as a result of a Voluntary Termination Event, Executive will receive payment of
any Base Salary and Bonus earned but unpaid and any other amounts due to
Executive from SynQuest (whether pursuant to benefit plans or otherwise) through
the Date of Termination.
6.6 No Cause Termination. If Executive's employment is terminated
as a result of a No Cause Termination Event, then SynQuest will pay Executive
within fifteen (15) days after the Date of Termination, (i) any Base Salary and
Bonus earned but unpaid and any other amounts due to Executive from SynQuest
(whether pursuant to benefit plans or otherwise) through the Date of
Termination, and (ii) fifty percent (50%) of Executive's then-current Base
Salary, but in no event less than $70,000.00, payable as a lump sum.
7. Employment Rights. Nothing in this Agreement confers on
Executive any right to continue in the employ of SynQuest or SynQuest's
subsidiaries, or to interfere in any way with the right of the Board to
terminate Executive's employment at any time.
8. Scope of Duties.
8.1 Employment by SynQuest as Sole Occupation. Executive agrees to
devote Executive's full business time, attention, skill, and effort exclusively
to the performance of the duties that SynQuest may assign Executive from time to
time. Executive may not engage in any business activities or render any services
of a business, commercial, or professional nature for compensation for the
benefit of anyone other than SynQuest, unless SynQuest consents in writing, it
being agreed that SynQuest will not withhold its consent to any activity which
is not
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competitive with SynQuest's business and does not interfere with the performance
by Executive of Executive's duties and obligations to SynQuest under this
Agreement. It is the policy of SynQuest never to allow its personnel to work for
any competitive enterprise during their employment, including after hours, on
weekends, or during vacation time, even if only organizational assistance or
limited consultation is involved. This Agreement does not prohibit the
investment of a reasonable part of Executive's assets in the stock of a company
whose stock is traded on a national stock exchange.
8.2 Noninterference With Third-Party Rights. SynQuest is employing
Executive with the understanding that (i) Executive is free to enter into
employment with SynQuest and (ii) only SynQuest is entitled to the benefit of
Executive's work. SynQuest has no interest in using any other person's patents,
copyrights, trade secrets, or trademarks in an unlawful manner. Executive should
be careful not to misapply proprietary rights that SynQuest has no right to use.
9. Ownership of Executive Developments.
9.1 Ownership of Work Product.
(a) SynQuest will own all Work Product (as defined below
in Section 9.1(e)). All Work Product will be considered work made for hire by
Executive and owned by SynQuest.
(b) If any of the Work Product may not, by operation of
law, be considered work made for hire by Executive for SynQuest, or if ownership
of all right, title, and interest of the intellectual property rights therein
may not otherwise vest exclusively in SynQuest, Executive agrees to assign, and
upon creation thereof automatically assigns, without further consideration, the
ownership of all Trade Secrets (as defined below in Section 10.2), U.S. and
international copyrights, patentable inventions, and other intellectual property
rights therein to SynQuest, its successors and assigns.
(c) SynQuest, its successors and assigns, will have the
right to obtain and hold in its or their own name copyright registrations,
trademark registrations, patents and any other protection available in the
foregoing.
(d) Executive agrees to perform, upon the reasonable
request of SynQuest, during or after Executive's employment, such further acts
as may be necessary or desirable to transfer, perfect, and defend SynQuest's
ownership of the Work Product. When requested, Executive will:
(1) Execute, acknowledge, and deliver any
requested affidavits and documents of
assignment and conveyance with respect to
any Work Product;
(2) Assist in the preparation, prosecution,
procurement, maintenance
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and enforcement of copyrights and, if
applicable, patents with respect to the Work
Product in any countries;
(3) Provide testimony in connection with any
proceeding affecting the right, title, or
interest of SynQuest in any Work Product;
and
(4) Perform any other acts deemed necessary or
desirable to carry out the purposes of this
Agreement.
SynQuest will reimburse all reasonable out-of-pocket expenses
incurred by Executive at SynQuest's request in connection with the foregoing,
including (unless Executive is otherwise being compensated at the time) a
reasonable per diem or hourly fee for services rendered following termination of
Executive's employment.
(e) For purposes hereof, "Work Product" means all
intellectual property rights, including all Trade Secrets, U.S. and
international copyrights, patentable inventions, discoveries and improvements,
and other intellectual property rights, in any programming, documentation,
technology, or other Work Product that relates to the business and interests of
SynQuest and that Executive conceives, develops, or delivers to SynQuest at any
time during the term of Executive's employment. "Work Product" does not include
Executive's "Residual Knowledge." "Residual Knowledge" means prior or existing
knowledge or skills obtained by Employee during the course of his employment, to
the extent retained in Employee's human memory (and not in any other form, such
as written form or electronic form, such as magnetic storage media). Residual
Knowledge will not include any Trade Secrets or other proprietary information of
SynQuest (or its subsidiaries or affiliates). Executive hereby irrevocably
relinquishes for the benefit of SynQuest and its assigns, and hereby agrees to
waive and never to assert, any moral rights in the Work Product recognized by
applicable law.
9.2 Clearance Procedure for Proprietary Rights Not Claimed by
SynQuest. If Executive ever wishes to create or develop, on Executive's own time
and with Executive's own resources, anything that may be considered Work Product
but as to which Executive believes Executive should be entitled to the personal
benefit, Executive is required to follow the clearance procedure set forth in
this Section 9.2 in order to ensure that SynQuest has no claim to the
proprietary rights that may arise.
Before Executive begins any development work on Executive's own time,
Executive must give SynQuest advance written notice of Executive's plans and
supply a description of the development under consideration. SynQuest will hold
in confidence and not disclose any proprietary and confidential information
contained in the description submitted by Executive. SynQuest will determine, in
good faith, within thirty (30) days after Executive has fully disclosed
Executive's plans to SynQuest, whether the development is claimed by SynQuest as
Work Product. If SynQuest determines that it does not claim such development,
Executive will be notified in writing and may retain ownership of the
development to the extent of what has been
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disclosed to SynQuest. Executive should submit for further clearance any
significant improvement, modification, or adaptation so that it can be
determined whether the improvement, modification, or adaptation relates to the
business or interests of SynQuest.
Clearance under this procedure does not relieve Executive of the need
to obtain the written consent of SynQuest pursuant to Section 8.1 before
engaging in business activities or rendering business, commercial, or
professional services for the benefit of anyone other than SynQuest (subject to
the provisions of Section 8.1). SynQuest thus reserves the right to exercise
greater control over development work that Executive might consider doing for
profit after hours, as opposed to mere hobby work pursued in Executive's spare
time.
10. Confidentiality.
10.1 Consequences of Entrustment With Sensitive Information.
Executive's position with SynQuest requires considerable responsibility and
trust. Relying on Executive's ethical responsibility and undivided loyalty,
SynQuest expects to entrust Executive with highly sensitive confidential,
restricted, and proprietary information involving Trade Secrets (as defined in
Section 10.2) and Confidential Information (as defined in Section 10.4).
Executive is legally and ethically responsible for protecting and preserving
SynQuest's proprietary rights for use only for SynQuest's benefit, and these
responsibilities may impose unavoidable limitations on Executive's ability to
pursue some kinds of business opportunities that might interest Executive during
or after Executive's employment.
10.2 Trade Secrets Defined. For purposes of this Agreement, "Trade
Secrets" means information, without regard to form, including, but not limited
to, (i) technical or nontechnical data, formulas, patterns, compilations,
programs, devices, methods, techniques, drawings, processes, financial data,
financial plans, product plans relating to or reflected in SynQuest's computer
software products, or (ii) a list of actual or potential customers or suppliers
of SynQuest that: (A) derive economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means by,
other persons who can obtain economic value from their disclosure or use; and
(B) are the subject of efforts that are reasonable under the circumstances to
maintain their secrecy. The term "Trade Secret" will not include any information
which constitutes Confidential Information (as defined below in Section 10.4).
Trade Secrets do not include information that Executive can show by
competent proof (i) was known to Executive prior to disclosure by SynQuest; (ii)
was generally known to the public at the time SynQuest disclosed the information
to Executive; (iii) became generally known to the public after disclosure to
Executive by the SynQuest through no act or omission of Executive; or (iv) was
disclosed to Executive by a third party having a bona fide right both to possess
the information and to disclose the information to Executive.
10.3 Restrictions on Use and Disclosure of Trade Secrets. Executive
must hold in confidence at all times after the date of this Agreement all Trade
Secrets of SynQuest and must
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not disclose, publish or make use at any time after the date of this Agreement
of Trade Secrets without the prior consent of SynQuest.
10.4 Confidential Information Defined. For purposes of this
Agreement, "Confidential Information" means any data or information, other than
Trade Secrets, which (i) is valuable to SynQuest, (ii) is not generally known or
available to competitors of SynQuest, and (iii) is treated as confidential by
SynQuest.
10.5 Use or Disclosure of Confidential Information. Executive
agrees that during the term of Executive's employment by SynQuest, and for a
period of two (2) years following termination of Executive's employment,
Executive will hold in confidence all Confidential Information and will not
disclose, publish or make use of Confidential Information without the prior
written consent of SynQuest.
10.6 Screening of Public Releases of Information. In addition, and
without any intention of limiting Executive's other obligations under this
Agreement in any way, Executive should not, during Executive's employment,
reveal any non-public information concerning the technology pertaining to the
proprietary products and manufacturing processes of SynQuest (particularly
technology under current development or improvement), unless Executive has
obtained approval from SynQuest in advance. In that connection, Executive should
submit to SynQuest for review any proposed scientific and technical articles and
the text of any public speeches relating to work done for SynQuest before they
are released or delivered. SynQuest has the right to disapprove and prohibit, or
delete any parts of, such articles or speeches that might disclose SynQuest's
Trade Secrets or other Confidential Information or otherwise be contrary to
SynQuest's business interests.
10.7 SynQuest's Rights Under Applicable Trade Secret Law. Nothing
in this Agreement is intended to, nor will it, diminish the SynQuest's rights
regarding the protection of SynQuest's trade secrets pursuant to applicable
Georgia law.
11. Return of Materials. Upon the request of SynQuest and, in any
event, upon the termination of Executive's employment, Executive must return to
SynQuest and leave at SynQuest's disposal all memoranda, notes, records,
drawings, manuals, computer programs, documentation, diskettes, computer tapes,
and other documents or media pertaining to the business of SynQuest or
Executive's specific duties for SynQuest, including all copies of such
materials. Executive must also return to SynQuest and leave at SynQuest's
disposal all materials involving any Trade Secrets of SynQuest. This Section 11
is intended to apply to all materials made or compiled by Executive, as well as
to all materials furnished to Executive by anyone else in connection with
Executive's employment.
12. Non-interference with Personnel Relations. During Executive's
employment with SynQuest and for a period of one (1) year afterwards, Executive
will not knowingly solicit, entice or persuade any other Executives of SynQuest
to leave the services of SynQuest for any
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reason.
13. Non-competition Agreement.
13.1 Definitions. For the purposes of this Section 13, the
following definitions will apply:
(a) "SynQuest Activities" means all activities of the
type conducted, authorized, offered, or provided by Executive within one (1)
year prior to termination of Executive's employment as they relate to the
business and interests of SynQuest. For purposes of reference, such activities
at the date of this Agreement include the business of producing, marketing,
promoting and distributing computer software programs that have as their primary
content manufacturing or supply chain management material. The term "SynQuest
Activities" includes (without limitation) the production, marketing and
distribution of computer software programs which compete directly with any of
the computer software programs distributed by SynQuest on the date of
termination of Executive's employment.
(b) "Noncompete Period" means the period beginning on the
date of this Agreement and ending six (6) months after the Termination Date.
(c) "Nonsolicitation Period" means the period beginning
on the date of this Agreement and ending one (1) year after the Termination
Date.
(d) "Territory" means any country throughout the world
where SynQuest is engaged in SynQuest Activities as of the Termination Date,
including, without limitation, the United States of America, its territories and
possessions.
13.2 Trade Name. Executive agrees that during the Noncompete
Period, Executive must not, directly or by assisting others, own, manage,
operate, join, control or participate in the ownership, management, operation or
control of any business conducted under any corporate or trade name of SynQuest
or name similar thereto without the prior written consent of SynQuest.
13.3 Noncompetition.
(a) Coverage. The parties acknowledge that Executive will
conduct SynQuest business activities throughout the Territory. Executive
acknowledges that to protect adequately the interests of SynQuest in the
business of SynQuest, it is essential that any noncompete covenant with respect
thereto cover all SynQuest Activities and the entire Territory.
(b) Covenant. Executive hereby agrees that Executive must
not, during the Noncompete Period, in any manner (other than as an Executive of
or as a consultant to SynQuest), directly or by assisting others, conduct
SynQuest Activities in the Territory for a competitor of SynQuest, without the
prior express written consent of the Board of Directors of
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SynQuest. It is specifically understood and agreed that accepting employment
with, or acting as a consultant to, any company that directly competes with
SynQuest during the Noncompete Period would constitute a breach of this
covenant, except that Executive may represent any company (even a competitor of
SynQuest) as outside counsel notwithstanding this covenant. Notwithstanding this
Section 13.3(b), Executive will be permitted to (i) acquire up to five percent
(5%) of any competitor of SynQuest whose common stock is publicly traded on a
national securities exchange or in the over-the-counter market; or (ii) own
shares of stock of SynQuest.
13.4 Nonsolicitation. Executive hereby agree that Executive must
not, during the Nonsolicitation Period, in any manner (other than as an
Executive of or a consultant to SynQuest), directly or by assisting others:
(a) solicit or attempt to solicit, any business from any
of SynQuest's customers, including actively sought prospective customers, with
whom Executive had material contact during Executive's employment under for
purposes of providing products or services that are competitive with those
provided by SynQuest; or
(b) solicit or attempt to solicit for employment, on
Executive's behalf or on behalf of any other person, firm or corporation, any
other Executive of SynQuest or its affiliates with whom Executive had material
contact during Executive's employment under this Agreement.
13.5 Severability. If a judicial determination is made that any of
the provisions of this Section 13 constitute an unreasonable or otherwise
unenforceable restriction against Executive, the provisions of this Section 13
may be rendered void only to the extent that such judicial determination finds
such provisions to be unreasonable or otherwise unenforceable. In this regard,
Executive and SynQuest hereby agree that any judicial authority construing this
Agreement may be empowered to sever any portion of the Territory, any prohibited
business activity, or any time period from the coverage of this Section 13, and
to apply the provisions of this Section 13 to the remaining portion of the
Territory, the remaining business activities, and the remaining time period not
so severed by such judicial authority. Moreover, notwithstanding the fact that
any provision of this Section 13 is determined not to be specifically
enforceable, SynQuest will nevertheless be entitled to recover monetary damages
as a result of Executive's breach of such provision. The time period during
which the prohibitions set forth in this Section 13 will apply may be tolled and
suspended for a period equal to the aggregate quantity of time during which
Executive violates such prohibitions in any respect.
14. Miscellaneous.
14.1 Survival of Terms; Injunction. The covenants in Sections 9
through 13 of this Agreement will survive the execution and delivery of this
Agreement and the termination of Executive's employment, regardless of who
causes the termination and under what circumstances
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the termination occurred. The covenants contained in Sections 9 through 13 are
reasonably necessary to protect the legitimate business interests of SynQuest
and will not create undue hardship for Executive in the event of termination of
Executive's employment. Executive acknowledges that damages for the violation of
any such covenants will not give full and sufficient relief to SynQuest. In the
event of any violation of any such covenants, SynQuest will be entitled to
injunctive relief against the continued violation thereof, in addition to any
other rights which SynQuest may have by reason of such violation.
14.2 Related Parties; Non-assignability. This Agreement will be
binding upon and inure to the benefit of and will be enforceable by, Executive
and SynQuest, their respective heirs, executors, administrators, successors and
assigns. In the event of any assignment of this Agreement by SynQuest, by
operation of law or otherwise, SynQuest will remain primarily liable for
SynQuest's obligations under this Agreement. This Agreement is not assignable by
Executive, by operation of law or otherwise.
14.3 Choice of Law. This Agreement will be governed by and enforced
under the laws of Georgia.
14.4 Notices. Every notice or other communication required or
permitted to be given under this Agreement must be in writing and must be
delivered by messenger, transmitted by facsimile, sent by next-day air courier
or mailed by United States registered or certified mail, return receipt
requested, postage prepaid, addressed to Executive at the last address on
SynQuest's records, and if to SynQuest, at SynQuest, Inc., 0000 Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxx, XX or to such other address as any party may have
furnished to the other in writing in accordance with this Section.
14.5 Modifications; Termination; Waiver. This Agreement may not be
changed, terminated, modified or waived orally. Any change, termination or
modification must be signed by Executive and SynQuest. Any waiver must be signed
by the parties thereto and must be denominated as a waiver. No waiver by either
party of any provision of this Agreement will constitute a waiver of such
provision in any other instance or a waiver of any other provision.
14.6 Severability. The covenants in this Agreement will be
construed as covenants independent of one another and as obligations distinct
from any other contract between Executive and SynQuest. Any claim that Executive
may have against SynQuest will not constitute a defense to enforcement of this
Agreement by SynQuest.
14.7 Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the subject matter contained in
this Agreement and supersedes any and all prior agreements and understandings
with respect to the employment of Executive by SynQuest. To the extent any terms
contained in this Agreement are in conflict with or are inconsistent with the
terms of any other agreement to which Executive or Executive and SynQuest are
parties, the
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terms of this Agreement will govern.
14.8 Headings. The section headings in this Agreement are for
reference only and do not affect in any way the meaning or interpretation of
this Agreement.
14.9 Construction of Agreement. No provision of this Agreement or
any related document may be construed against or interpreted to the disadvantage
of any party hereto by any court or other government or judicial authority by
reason of such party having or being deemed to have structured or drafted such
provision.
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The parties have caused this Agreement to be duly executed as of
February 1, 2001.
SynQuest:
SYNQUEST, INC.
By: /s/ XXXX XXXXXXX
----------------------------------
Name: Xxxx Xxxxxxx
Title: EVP Fin & Adm
Executive:
/s/ XXXX XXXXXXXXXX
--------------------------------------
Xxxx Xxxxxxxxxx
