**Exhibit 10.12**

 

**AMENDED AND RESTATED**

**CHANGE OF CONTROL EMPLOYMENT AGREEMENT**

**AS OF SEPTEMBER 16, 2004**

 

AGREEMENT by and between MAPICS, Inc. (the “Company”) and RichardC. Cook (the “Executive”), dated as of the              day of March, 1998. 

 

The Board of Directors of the Company (the “Board”), has determined that it is in the best interests of the Company and its stockholders toassure that the Company will have the continued dedication of the Executive, notwithstanding the possibility, threat or occurrence of a Change of Control (as defined below) of the Company. The Board believes it is imperative to diminish theinevitable distraction of the Executive by virtue of the personal uncertainties and risks created by a pending or threatened Change of Control and to encourage the Executive’s full attention and dedication to the Company currently and in theevent of any threatened or pending Change of Control, and to provide the Executive with compensation and benefits arrangements upon a Change of Control which ensure that the compensation and benefits expectations of the Executive will be satisfiedand which are competitive with those of other corporations. Therefore, in order to accomplish these objectives, the Board has caused the Company to enter into this Agreement. 

 

NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS: 

 

1. Certain Definitions. 

 

(a) The “Effective Date” shall mean the first date during the Change of Control Period (as defined in Section l(b)) on which a Change of Control(as defined in Section 2) occurs. Anything in this Agreement to the contrary notwithstanding, if a Change of Control occurs during the Change of Control Period and if the Executive’s employment with the Company has been terminated either by theCompany without Cause or by the Executive for Good Reason (as such terms are defined in Section 5) within one year prior to the date on which the Change of Control occurs, and unless it is reasonably demonstrated by the Company that such terminationof employment (i) was not at the request of a third party who has taken steps reasonably calculated to effect the Change of Control and (ii) did not otherwise arise in connection with or anticipation of the Change of Control, then for all purposesof this Agreement the “Effective Date” shall mean the date immediately prior to the date of such termination of employment. 

 

(b) The “Change of Control Period” shall mean the period commencing on the date hereof and ending on the third anniversary of the date hereof;provided, however, that commencing on the date one year after the date hereof, and on each annual anniversary of such date (such date and each annual anniversary thereof shall be hereinafter referred to as the “Renewal Date”), unlesspreviously terminated, the Change of Control Period shall be automatically extended so as to terminate three years 

from such Renewal Date, unless at least 60 days prior to the Renewal Date the Company shall give notice to the Executivethat the Change of Control Period shall not be so extended. 

 

2.Change of Control. For the purposes of this Agreement, a “Change of Control” shall mean: 

 

(a) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, asamended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 25% or more of the combined voting power of the then outstanding voting securities of theCompany entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that for purposes of this subsection (a), the following acquisitions shall not constitute a Change ofControl: (i) any acquisition by a Person who is on the date of this Agreement the beneficial owner of 25% or more of the Outstanding Company Voting Securities, (ii) any acquisition directly from the Company, (iii) any acquisition by the Company,(iv) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company, or (v) any acquisition by any corporation pursuant to a transaction which complies with clauses(i), (ii) and (iii) of subsection (c) of this Section 2; or 

 

(b) Individuals who, as of the date of this Agreement, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a directorsubsequent to the date of this Agreement whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as thoughsuch individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal ofdirectors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or 

 

(c) Consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company (a“Business Combination”), in each case, unless, following such Business Combination, (i) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock andoutstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of, respectively, the then outstanding shares of common stock and the combined voting power of the thenoutstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation which as a result of suchtransaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in 

 

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substantially the same proportions as their ownership, immediately prior to such Business Combination of the OutstandingCompany Common Stock and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such corporationresulting from such Business Combination) beneficially owns, directly or indirectly, 25% or more of the combined voting power of the then outstanding voting securities of such corporation except to the extent that such ownership existed prior to theBusiness Combination, and (iii) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or ofthe action of the Board, providing for such Business Combination; or 

 

(d) Approval by the stockholders of the Company of a complete liquidation or dissolution of the Company. 

 

3. Employment Period. The Company hereby agrees to continue the Executive in its employ, and the Executive hereby agrees to remain in the employ ofthe Company subject to the terms and conditions of this Agreement, for the period commencing on the Effective Date and ending on the third anniversary of such date (the “Employment Period”). 

 

4. Terms of Employment. 

 

(a) Position and Duties. 

 

(i) During the Employment Period, (A) the Executive’s position(including status, offices, titles and reporting requirements), authority, duties and responsibilities shall be at least commensurate in all material respects with the most significant of those held, exercised and assigned at any time during the120-day period immediately preceding the Effective Date, and (B) the Executive’s services shall be performed at the location where the Executive was employed immediately preceding the Effective Date or any office or location less than 35 milesfrom such location. 

 

(ii) During the Employment Period, andexcluding any periods of vacation and sick leave to which the Executive is entitled, the Executive agrees to devote reasonable attention and time during normal business hours to the business and affairs of the Company and, to the extent necessary todischarge the responsibilities assigned to the Executive hereunder, to use the Executive’s reasonable best efforts to perform faithfully and efficiently such responsibilities. During the Employment Period it shall not be a violation of thisAgreement for the Executive to (A) serve on corporate, civic or charitable boards or committees, (B) engage in other business activities that do not represent a conflict of interest with the full execution of his duties to the Company, and (C)manage personal investments, so long as such activities do not significantly interfere with the performance of the Executive’s responsibilities as an employee of the Company in accordance with this Agreement. It is expressly understood andagreed that to the 

 

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extent that any such activities have been conducted by the Executive prior to the Effective Date, the continued conductof such activities (or the conduct of activities similar in nature and scope thereto) subsequent to the Effective Date shall not thereafter be deemed to interfere with the performance of the Executive’s responsibilities to the Company.

 

(b) Compensation. 

 

(i) Base Salary. During the Employment Period, the Executive shallreceive base salary at the rate of $350,000 per year (“Annual Base Salary”), less normal withholdings, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time.During the Employment Period, the Annual Base Salary shall be reviewed no more than 12 months after the last salary increase awarded to the Executive prior to the Effective Date and thereafter at least annually. Any increase in Annual Base Salaryshall not serve to limit or reduce any other obligation to the Executive under this Agreement. Annual Base Salary shall not be reduced after any such increase and the term Annual Base Salary as utilized in this Agreement shall refer to Annual BaseSalary as so increased. As used in this Agreement, the term “affiliated companies” shall include any company controlled by, controlling or under common control with the Company. 

 

(ii) Annual Bonus. In addition to Annual Base Salary, the Executive shall be awarded, for each fiscal year endingduring the Employment Period, an annual bonus (the “Annual Bonus”) in cash at least equal to the Executive’s highest annual bonus for the last three full fiscal years prior to the Effective Date (annualized in the event that theExecutive was not employed by the Company for the whole of such fiscal year). Each such Annual Bonus shall be paid no later than the end of the third month of the fiscal year next following the fiscal year for which the Annual Bonus is awarded,unless the Executive shall elect to defer the receipt of such Annual Bonus. 

 

(iii) Incentive, Savings and Retirement Plans. During the Employment Period, the Executive shall be entitled to participate in all incentive, savings and retirement plans, practices, policies andprograms applicable generally to other peer executives of the Company and its affiliated companies, but in no event shall such plans, practices, policies and programs provide the Executive with incentive opportunities (measured with respect to bothregular and special incentive opportunities, to the extent, if any, that such distinction is applicable), savings opportunities and retirement benefit opportunities, in each case, less favorable, in the aggregate, than the most favorable of thoseprovided by the Company and its affiliated companies for the Executive under such plans, practices, policies and programs as in effect at any time during the 120-day period immediately preceding the Effective Date or if more favorable to theExecutive, those provided generally at any time after the Effective Date to other peer executives of the Company and its affiliated companies. 

 

(iv) Welfare Benefit Plans. During the Employment Period, the Executive and/or the Executive’s family, as the case may be, shall be eligiblefor 

 

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participation in and shall receive all benefits under welfare benefit plans, practices, policies and programs provided bythe Company and its affiliated companies (including, without limitation, medical, prescription, dental, disability, employee life, group life, accidental death and travel accident insurance plans and programs) to the extent applicable generally toother peer executives of the Company and its affiliated companies, but in no event shall such plans, practices, policies and programs provide the Executive with benefits which are less favorable, in the aggregate, than the most favorable of suchplans, practices, policies and programs in effect for the Executive at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, those provided generally at any time after the Effective Dateto other peer executives of the Company and its affiliated companies. 

 

(v) Expenses. During the Employment Period, the Executive shall be entitled to receive prompt reimbursement for all reasonable expenses incurred by the Executive in accordance with the most favorable policies, practices andprocedures of the Company and its affiliated companies in effect for the Executive at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafterwith respect to other peer executives of the Company and its affiliated companies. 

 

(vi) Fringe Benefits. During the Employment Period, the Executive shall be entitled to fringe benefits in accordance with the most favorable plans, practices, programs and policies of the Company and itsaffiliated companies in effect for the Executive at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peerexecutives of the Company and its affiliated companies. 

 

5.Termination of Employment. 

 

(a) Death orDisability. The Executive’s employment shall terminate automatically upon the Executive’s death during the Employment Period. If the Company determines in good faith that the Disability of the Executive has occurred during theEmployment Period (pursuant to the definition of Disability set forth below), it may give to the Executive written notice in accordance with Section 12(b) of this Agreement of its intention to terminate the Executive’s employment. In suchevent, the Executive’s employment with the Company shall terminate effective on the 30th day after receipt of such notice by the Executive (the “Disability Effective Date”), provided that, within the 30 days after such receipt, theExecutive shall not have returned to full-time performance of the Executive’s duties. For purposes of this Agreement, “Disability” shall mean the absence of the Executive from the Executive’s duties with the Company on afull-time basis for 180 consecutive days as a result of incapacity due to mental or physical illness which is determined to be total and permanent by a physician selected by the Company or its insurers and acceptable to the Executive or theExecutive’s legal representative. 

 

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(b) Cause. The Company may terminate the Executive’s employment during the Employment Periodwith or without Cause. For purposes of this Agreement, “Cause” shall mean: 

 

(i) the willful and continued failure of the Executive to perform substantially the Executive’s duties with the Company or one of its affiliates (other than any such failure resulting from incapacity due tophysical or mental illness), after a written demand for substantial performance is delivered to the Executive by the Board or the Chief Executive Officer of the Company which specifically identifies the manner in which the Board or Chief ExecutiveOfficer believes that the Executive has not substantially performed the Executive’s duties, or 

 

(ii) the willful engaging by the Executive in illegal conduct or gross misconduct which is materially and demonstrably injurious to the Company.

 

For purposes of this provision, no act or failure to act, on the part of theExecutive, shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interests of the Company. Any act,or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or upon the instructions of the Chief Executive Officer or a senior officer of the Company or based upon the advice of counsel for the Company shall beconclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interests of the Company. The cessation of employment of the Executive shall not be deemed to be for Cause unless and until there shall have beendelivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the entire membership of the Board at a meeting of the Board called and held for such purpose (after reasonable notice isprovided to the Executive and the Executive is given an opportunity, together with counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive is guilty of the conduct described in subparagraph (i) or(ii) above, and specifying the particulars thereof in detail. 

 

(c) Good Reason. The Executive’s employment may be terminated by the Executive for Good Reason or for no reason. For purposes of this Agreement, “Good Reason” shall mean: 

 

(i) the assignment to the Executive of any duties inconsistent in anyrespect with the Executive’s position (including status, offices, titles and reporting requirements), authority, duties or responsibilities as contemplated by Section 4(a) of this Agreement, or any other action by the Company which results in adiminution in such position, authority, duties or responsibilities, excluding for this purpose an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company promptly after receipt of notice thereofgiven by the Executive; 

 

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(ii) any failure by the Company to comply with any of the provisions of Section 4(b) of this Agreement,other than an isolated, insubstantial and inadvertent failure not occurring in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by the Executive; 

 

(iii) the Company’s requiring the Executive to be based at any officeor location other than as provided in Section 4(a)(i)(B) hereof or the Company’s requiring the Executive to travel on Company business to a substantially greater extent than required immediately prior to the Effective Date; 

 

(iv) any purported termination by the Company of the Executive’semployment otherwise than as expressly permitted by this Agreement; or 

 

(v) any failure by the Company to comply with and satisfy Section 11(c) of this Agreement. 

 

For purposes of this Section 5(c), any good faith determination of “Good Reason” made by the Executive shall be conclusive. Anything in thisAgreement to the contrary notwithstanding, a termination by the Executive for any reason during the 30-day period immediately following the first anniversary of the Effective Date shall be deemed to be a termination for Good Reason for all purposesof this Agreement. 

 

(d) Notice of Termination. Anytermination by the Company for Cause, or by the Executive for Good Reason, shall be communicated by Notice of Termination to the other party hereto given in accordance with Section 12(b) of this Agreement. For purposes of this Agreement, a“Notice of Termination” means a written notice which (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed toprovide a basis for termination of the Executive’s employment under the provision so indicated and (iii) if the Date of Termination (as defined below) is other than the date of receipt of such notice, specifies the termination date (which dateshall be not more than 30 days after the giving of such notice). The failure by the Executive or the Company to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waiveany right of the Executive or the Company, respectively, hereunder or preclude the Executive or the Company, respectively, from asserting such fact or circumstance in enforcing the Executive’s or the Company’s rights hereunder. 

 

(e) Date of Termination. “Date of Termination” means (i)if the Executive’s employment is terminated by the Company for Cause, or by the Executive for Good Reason, the date of receipt of the Notice of Termination or any later date specified therein, as the case may be, (ii) if the Executive’semployment is terminated by the Company other than for Cause or Disability, the Date of Termination shall be the date on which the Company notifies the Executive of such termination or any later date specified in such notice, (iii) if theExecutive’s employment is terminated by reason of death or 

 

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Disability, the Date of Termination shall be the date of death of the Executive or the Disability Effective Date, as thecase may be. 

 

6. Obligations of the Company uponTermination. 

 

(a) Good Reason; Other Than for Cause,Death or Disability. If, during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause or Disability, or the Executive shall terminate employment for Good Reason, then in consideration ofExecutive’s services rendered prior to such termination and of Executive’s covenants contained in Section 10 hereof: 

 

(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:

 

A. the sum of (1) the Executive’s Annual Base Salarythrough the Date of Termination to the extent not theretofore paid, (2) the product of (x) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred, and (y) a fraction, the numerator of which is thenumber of days in the current fiscal year through the Date of Termination, and the denominator of which is 365, and (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon and subject to anyprior election by the Executive to receive such deferred amounts in installments) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) shall be hereinafterreferred to as the “Accrued Obligations”); and 

 

B.the amount equal to three times the sum of (1) the Executive’s Annual Base Salary and (2) $200,000 (such amount representing the approximate average of the annual bonus earned by Executive in Company’s fiscal years 2001 (if present), 2002,and 2003); 

 

(ii) for three years after the Executive’sDate of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive’s family at least equal to those whichwould have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv) of this Agreement if the Executive’s employment had not been terminated or, if more favorable to the Executive, as ineffect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes re-employed with another employer and is eligible toreceive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. Forpurposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the 

 

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Executive shall be considered to have remained employed until three years after the Date of Termination and to haveretired on the last day of such period; 

 

(iii) to the extentnot theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice orcontract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”). 

 

(iv) notwithstanding any provision of this Agreement to the contrary, the Executive shall forfeit his right to receive, or,to the extent such amounts have previously been paid to the Executive, shall repay in full to the Company within thirty (30) days of a final determination of the Executive’s liability therefor as set forth below, the amount described in Section6(a)(i)(B) of this Agreement if at any time during the period of two years after the Date of Termination he violates the Restrictive Covenants set forth in Section 10 hereof. 

 

(b) Death. If the Executive’s employment is terminated by reason of the Executive’s death during theEmployment Period, this Agreement shall terminate without further obligations to the Executive’s legal representatives under this Agreement, other than for payment of Accrued Obligations and the timely payment or provision of Other Benefits.Accrued Obligations shall be paid to the Executive’s estate or beneficiary, as applicable, in a lump sum in cash within 30 days of the Date of Termination. With respect to the provision of Other Benefits, the term Other Benefits as utilized inthis Section 6(b) shall include without limitation, and the Executive’s estate and/or beneficiaries shall be entitled to receive, benefits at least equal to the most favorable of the following: (1) of the benefits provided by the Company andaffiliated companies to the estates and beneficiaries of peer executives of the Company and such affiliated companies under such plans, programs, practices and policies relating to death benefits, if any, as in effect with respect to other peerexecutives and their beneficiaries at any time during the 120-day period immediately preceding the Effective Date, or (2) similar benefits in effect on the date of the Executive’s death with respect to other peer executives of the Company andits affiliated companies and their beneficiaries. 

 

(c)Disability. If the Executive’s employment is terminated by reason of the Executive’s Disability during the Employment Period, this Agreement shall terminate without further obligations to the Executive, other than for payment ofAccrued Obligations and the timely payment or provision of Other Benefits. Accrued Obligations shall be paid to the Executive in a lump sum in cash within 30 days of the Date of Termination. With respect to the provision of Other Benefits, the termOther Benefits as utilized in this Section 6(c) shall include, and the Executive shall be entitled after the Disability Effective Date to receive, disability and other benefits at least equal to the most favorable of the following: (1) disabilityand other benefits generally provided by the Company and its affiliated companies to disabled executives and/or their families in accordance with such plans, programs, practices and policies relating to disability, if any, 

 

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as in effect generally with respect to other peer executives and their families at any time during the 120-day periodimmediately preceding the Effective Date, or (2) disability and other benefits in effect at any time thereafter generally with respect to other peer executives of the Company and its affiliated companies and their families. 

 

(d) Cause; Other than for Good Reason. If the Executive’semployment shall be terminated for Cause during the Employment Period, this Agreement shall terminate without further obligations to the Executive other than the obligation to pay to the Executive (x) his Annual Base Salary through the Date ofTermination, (y) the amount of any compensation previously deferred by the Executive, and (z) Other Benefits, in each case to the extent theretofore unpaid. If the Executive voluntarily terminates employment during the Employment Period, excluding atermination for Good Reason, this Agreement shall terminate without further obligations to the Executive, other than for Accrued Obligations and the timely payment or provision of Other Benefits. In such case, all Accrued Obligations shall be paidto the Executive in a lump sum in cash within 30 days of the Date of Termination. 

 

7. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit the Executive’s continuing or future participation in any plan, program, policy or practice provided by the Company or any ofits affiliated companies and for which the Executive may qualify, nor, subject to Section 12(f), shall anything herein limit or otherwise affect such rights as the Executive may have under any contract or agreement with the Company or any of itsaffiliated companies. Amounts which are vested benefits or which the Executive is otherwise entitled to receive under any plan, policy, practice or program of or any contract or agreement with the Company or any of its affiliated companies at orsubsequent to the Date of Termination shall be payable in accordance with such plan, policy, practice or program or contract or agreement except as explicitly modified by this Agreement. 

 

8. Full Settlement. The Company’s obligation to make the payments provided for in this Agreement and otherwiseto perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Company may have against the Executive or others. In no event shall the Executive be obligated toseek other employment or take any other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement and, except as explicitly provided herein, such amounts shall not be reduced whether or not theExecutive obtains other employment. The Company agrees to pay as incurred, to the full extent permitted by law, all legal fees and expenses which the Executive may reasonably incur as a result of any contest (regardless of the outcome thereof) bythe Company, the Executive or others of the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof (including as a result of any contest by the Executive about the amount of anypayment pursuant to this Agreement), plus in each case interest on any delayed payment at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as amended (the “Code”). 

 

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9. Certain Additional Payments by the Company. 

 

(a) Anything in this Agreement to the contrary notwithstanding and except asset forth below, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement orotherwise, but determined without regard to any additional payments required under this Section 9) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by theExecutive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment(a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest andpenalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of thisSection 9(a), if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $100,000(taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to the Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the“Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amount. 

 

(b) Subject to the provisions of Section 9(c), all determinations required tobe made under this Section 9, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Coopers & Lybrand L.L.P. orsuch other certified public accounting firm as may be designated by the Executive (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt ofnotice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change ofControl, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of theAccounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9, shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination. Anydetermination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of 

 

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Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible thatGross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for thebenefit of the Executive. 

 

(c) The Executive shall notify theCompany in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days afterthe Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-dayperiod following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expirationof such period that it desires to contest such claim, the Executive shall: 

 

(i) give the Company any information reasonably requested by the Company relating to such claim, 

 

(ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, withoutlimitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, 

 

(iii) cooperate with the Company in good faith in order effectively to contest such claim, and 

 

(iv) permit the Company to participate in any proceedings relating to suchclaim; 

 

provided, however, that the Company shall bear and pay directly allcosts and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penaltieswith respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation of the foregoing provisions of this Section 9(c), the Company shall control all proceedings taken in connection with such contestand, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimedand sue for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any 

 

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administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shalldetermine; provided, however, that if the Company directs the Executive to pay such claim and sue for a refund, the Company shall advance the amount of such payment to the Executive, on an interest-free basis and shall indemnify and hold theExecutive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and furtherprovided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore,the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by theInternal Revenue Service or any other taxing authority. 

 

(d)If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 9(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying withthe requirements of Section 9(c)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Companypursuant to Section 9(c), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to theexpiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

 

10. Restrictions on Conduct of the Executive. TheExecutive and the Company understand and agree that the purpose of the provisions of this Section 10 is to protect legitimate business interests of the Company, as more fully described below, and is not intended to eliminate the Executive’spost-employment competition with the Company *per se*, nor is it intended to impair or infringe upon the Executive’s right to work, earn a living, or acquire and possess property from the fruits of his labor. The Executive herebyacknowledges that the post-employment restrictions set forth in this Section 10 are reasonable and that they do not, and will not, unduly impair his ability to earn a living after the termination of this Agreement. Therefore, subject to thelimitations of reasonableness imposed by law upon the restrictions set forth herein by the time and geographical area described below, the Executive shall be subject to the restrictions set forth in this Section 10. 

 

(a) Definitions. The following capitalized terms used in this Section10 shall have the meanings assigned to them below, which definitions shall apply to both the singular and the plural forms of such terms: 

 

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*“Competitive Services”* means providing enterprise resource planning softwareapplications for discrete and batch-process mid-size manufacturing enterprises (i.e., enterprises having annual revenue of $20 million to $500 million). 

 

*“Confidential Information”* means any confidential or proprietary information possessed by the Company or its affiliated entities orrelating to its or their business, including without limitation, any confidential customer lists, details of client or consultant contracts, current and anticipated customer requirements, pricing policies, price lists, market studies, businessplans, operational methods, marketing plans or strategies, product development techniques or plans, unannounced computer software programs, computer software program source code, data and documentation, data base technologies, computer programstructures and architectures, inventions and ideas, past, current and planned research and development, compilations, devices, methods, techniques, processes, financial information and data, business acquisition plans, new personnel acquisitionplans and any other information that would constitute a “trade secret(s)” under the common law or statutory law of the State of Georgia. 

 

*“Determination Date”* means the date of termination of the Executive’s employment with the Company for any reason whatsoever or anyearlier date (during the Employment Period) of an alleged breach of the Restrictive Covenants by the Executive. 

 

*“Person”* means any individual or any corporation, partnership, joint venture, association or other entity or enterprise. 

 

*“Principal or Representative”* means a principal, owner,partner, shareholder, joint venturer, investor, member, trustee, director, officer, manager, employee, agent, representative or consultant. 

 

*“Protected Customers”* means customers of the Company that purchased Competitive Services from the Company within one (1) year prior tothe Determination Date. 

 

*“Protected Employees”*means employees of the Company who were employed by the Company at any time within six (6) months prior to the Determination Date. 

 

*“Restricted Period”* means the period extending two (2) years from the termination of the Executive’s employment with the Companyfor any reason whatsoever. 

 

*“RestrictedTerritory”* means the following territory, in which the Executive engages in the provision of Competitive Services on behalf of the Company on the date of this Agreement: State of Georgia. 

 

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*“Restrictive Covenants”* means the restrictive covenants contained in Section 10 hereof.

 

(b) Restrictive Covenants. 

 

(i) Restriction on Disclosure and Use of Confidential Information.The Executive understands and agrees that the Confidential Information constitutes a valuable asset of the Company and its affiliated entities, and may not be converted to the Executive’s own use. Accordingly, the Executive hereby agrees thatthe Executive shall not, directly or indirectly, at any time during the Restricted Period reveal, divulge, or disclose to any Person not expressly authorized by the Company any Confidential Information, and the Executive shall not, directly orindirectly, at any time during the Restricted Period use or make use of any Confidential Information in connection with any business activity other than that of the Company. The parties acknowledge and agree that this Agreement is not intended to,and does not, alter either the Company’s rights or the Executive’s obligations under any state or federal statutory or common law regarding trade secrets and unfair trade practices. 

 

(ii) Nonsolicitation of Protected Employees. The Executiveunderstands and agrees that the relationship between the Company and each of its Protected Employees constitutes a valuable asset of the Company and may not be converted to the Executive’s own use. Accordingly, the Executive hereby agrees thatduring the Restricted Period the Executive shall not directly or indirectly on the Executive’s own behalf or as a Principal or Representative of any Person or otherwise solicit or induce any Protected Employee to terminate his or her employmentrelationship with the Company or to enter into employment with any other Person. 

 

(iii) Nonsolicitation of Protected Customers. The Executive understands and agrees that the relationship between the Company and each of its Protected Customers constitutes a valuable asset of the Company andmay not be converted to the Executive’s own use. Accordingly, the Executive hereby agrees that, during the Restricted Period, the Executive shall not, without the prior written consent of the Company, directly or indirectly, on theExecutive’s own behalf or as a Principal or Representative of any Person or otherwise, solicit a Protected Customer for the purpose of providing or selling Competitive Services; provided, however, that the prohibition of this covenant shallapply only to Protected Customers with whom the Executive had Material Contact on the Company’s behalf during the twelve (12) months immediately preceding the Date of Termination. For purposes of this Agreement, the Executive had “MaterialContact” with a Protected Customer if (a) he had business dealings with the Protected Customer on the Company’s behalf; (b) he was responsible for supervising or coordinating the dealings between the Company and the Protected Customer; or(c) he obtained Confidential Information about the customer as a result of his association with the Company. 

 

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(iv) Noncompetition with the Company. The Executive understands and agrees that, during theRestricted Period and within the Restricted Territory, he shall not, directly or indirectly, on his own or on behalf of any Person, be affiliated with as a Principal or Representative any Person engaged, in whole or in part, in the provision ofCompetitive Services in a capacity where Executive’s duties or responsibilities for such Person will include strategic planning, policymaking or management; provided, however, that the provisions of Section 10 shall not be deemed to prohibitthe ownership by the Executive of any securities of the Company or its affiliated entities or not more than five percent (5%) of any class of securities of any corporation having a class of securities registered pursuant to the Exchange Act.

 

(c) Exceptions from Disclosure Restrictions. Anythingherein to the contrary notwithstanding, the Executive shall not be restricted from disclosing or using Confidential Information that: (a) is or becomes generally available to the public other than as a result of an unauthorized disclosure by theExecutive or his agent; (b) becomes available to the Executive in a manner that is not in contravention of applicable law from a source (other than the Company or its affiliated entities or one of its or their officers, employees, agents orrepresentatives) that is not bound by a confidential relationship with the Company or its affiliated entities or by a confidentiality or other similar agreement; (c) was known to the Executive on a non-confidential basis and not in contravention ofapplicable law or a confidentiality or other similar agreement before its disclosure to the Executive by the Company or its affiliated entities or one of its or their officers, employees, agents or representatives; or (d) is required to be disclosedby law, court order or other legal process; provided, however, that in the event disclosure is required by law, the Executive shall provide the Company with prompt notice of such requirement so that the Company may seek an appropriate protectiveorder prior to any such required disclosure by the Executive. 

 

(d) Enforcement of Restrictive Covenants. 

 

(i)Rights and Remedies Upon Breach. In the event the Executive breaches, or threatens to commit a breach of, any of the provisions of the Restrictive Covenants, the Company shall have the following rights and remedies, which shall be independentof any others and severally enforceable, and shall be in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity: 

 

(A) the right and remedy to enjoin, preliminarily and permanently, the Executive from violating or threatening to violatethe Restrictive Covenants and to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction, it being agreed that any breach or threatened breach of the Restrictive Covenants would cause irreparable injury to theCompany and that money damages would not provide an adequate remedy to the Company; and 

 

(B) the right and remedy to require the Executive to account for and pay over to the Company all compensation, profits, monies, accruals, 

 

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increments or other benefits derived or received by the Executive as the result of any transactions constituting a breach of the Restrictive Covenants.

 

(ii) Severability of Covenants. The Executiveacknowledges and agrees that the Restrictive Covenants are reasonable and valid in time and scope and in all other respects. If any court determines that any of the Restrictive Covenants, or any part thereof, are invalid or unenforceable, theremainder of the Restrictive Covenants shall not thereby be affected and shall be given full effect, without regard to the invalid portions. 

 

(iii) Attorneys’ Fees. In any action relating to the enforcement of the Restrictive Covenants, the prevailing party in such action shall beentitled to be paid any and all costs and expenses incurred by him or it in enforcing or establishing his or its rights thereunder, including, without limitation, reasonable attorneys’ fees, whether suit be brought or not, and whether or notincurred in trial, bankruptcy or appellate proceedings. 

 

11.Successors. 

 

(a) This Agreement is personal to theExecutive and without the prior written consent of the Company shall not be assignable by the Executive otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by theExecutive’s legal representatives. 

 

(b) This Agreementshall inure to the benefit of and be binding upon the Company and its successors and assigns. 

 

(c) The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly andagree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean the Company as hereinbeforedefined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise. 

 

12. Miscellaneous. 

 

(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, without reference to principles of conflict oflaws. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement may not be amended or modified otherwise than-by a written agreement executed by the parties hereto or their respectivesuccessors and legal representatives. 

 

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(b) All notices and other communications hereunder shall be in writing and shall be given by handdelivery to the other party or by registered or certified mail, return receipt requested, postage prepaid, addressed as follows: 

 

If to the Executive: 

 

Richard C. Cook 

2291 Littlebrook Lane

Dunwoody, Georgia 30338 

 

If to the Company: 

 

MAPICS, Inc. 

5775-D Glenridge Drive

Atlanta, Georgia 30328 

Attention: Corporate Secretary 

 

or to such other address as eitherparty shall have furnished to the other in writing in accordance herewith. Notice and communications shall be effective when actually received by the addressee. 

 

(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision ofthis Agreement. 

 

(d) The Company may withhold from any amountspayable under this Agreement such federal, state, local or foreign taxes as shall be required to be withheld pursuant to any applicable law or regulation. 

 

(e) The Executive’s or the Company’s failure to insist upon strict compliance with any provision of this Agreement or the failure to assert anyright the Executive or the Company may have hereunder, including, without limitation, the right of the Executive to terminate employment for Good Reason pursuant to Section 5(c)(i)-(v) of this Agreement, shall not be deemed to be a waiver of suchprovision or right or any other provision or right of this Agreement. 

 

(f) The Executive and the Company acknowledge that, except as may otherwise be provided under any other written agreement between the Executive and the Company, the employment of the Executive by the Company is “at will” and,subject to Section 1(a) hereof, prior to the Effective Date, the Executive’s employment may be terminated by either the Executive or the Company at any time prior to the Effective Date, in which case the Executive shall have no further rightsunder this Agreement. However, absent termination of employment of the Executive, this Agreement may not be terminated by the Company during the Change of Control Period and before the Effective Date. From and after the Effective Date, thisAgreement shall supersede any other agreement between the parties with respect to the subject matter hereof, including without limitation any then-current employment agreement between the Company and the Executive. 

 

IN WITNESS WHEREOF, the Executive has hereunto set the Executive’s handand, pursuant to the authorization from its Board of Directors, the Company has caused this Agreement to be executed in its name on its behalf by its undersigned officer thereunto, duly authorized, all as of the day and year first above written.

 
        MAPICS, INC.  
By:
     
Title:

 

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