AWARD OF
ATTORNEYS' FEES TO THE PREVAILING PARTY.
13.4
SEVERABILITY.
IN THE EVENT ANY PROVISION OF THIS AGREEMENT IS
FOUND TO BE UNENFORCEABLE BY AN ARBITRATOR OR COURT OF COMPETENT JURISDICTION,
SUCH PROVISION SHALL BE DEEMED MODIFIED TO THE EXTENT NECESSARY TO ALLOW
ENFORCEABILITY OF THE PROVISION AS SO LIMITED, IT BEING INTENDED THAT THE
PARTIES SHALL RECEIVE THE BENEFIT CONTEMPLATED HEREIN TO THE FULLEST EXTENT
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PERMITTED BY LAW.
IF A DEEMED MODIFICATION IS NOT SATISFACTORY IN THE JUDGMENT
OF SUCH ARBITRATOR OR COURT, THE UNENFORCEABLE PROVISION SHALL BE DEEMED
DELETED, AND THE VALIDITY AND ENFORCEABILITY OF THE REMAINING PROVISIONS SHALL
NOT BE AFFECTED THEREBY.
13.5
INTERPRETATION; CONSTRUCTION.
THE HEADINGS SET FORTH IN THIS
AGREEMENT ARE FOR CONVENIENCE ONLY AND SHALL NOT BE USED IN INTERPRETING THIS
AGREEMENT.
EXECUTIVE ACKNOWLEDGES THAT EXECUTIVE HAS HAD AN OPPORTUNITY TO
REVIEW AND REVISE THE AGREEMENT AND HAVE IT REVIEWED BY LEGAL COUNSEL, IF
DESIRED, AND, THEREFORE, THE NORMAL RULE OF CONSTRUCTION TO THE EFFECT THAT ANY
AMBIGUITIES ARE TO BE RESOLVED AGAINST THE DRAFTING PARTY SHALL NOT BE EMPLOYED
IN THE INTERPRETATION OF THIS AGREEMENT.
13.6
GOVERNING LAW.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE UNITED STATES AND THE STATE OF CALIFORNIA.
EACH
PARTY CONSENTS TO THE JURISDICTION AND VENUE OF THE STATE OR FEDERAL COURTS IN
SAN DIEGO, CALIFORNIA, IF APPLICABLE, IN ANY ACTION, SUIT, OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT.
13.7
NOTICES.
ANY NOTICE REQUIRED OR PERMITTED BY THIS AGREEMENT SHALL
BE IN WRITING AND SHALL BE DELIVERED AS FOLLOWS WITH NOTICE DEEMED GIVEN AS
INDICATED:
(A) BY PERSONAL DELIVERY WHEN DELIVERED PERSONALLY; (B) BY OVERNIGHT
COURIER UPON WRITTEN VERIFICATION OF RECEIPT; (C) BY TELECOPY OR FACSIMILE
TRANSMISSION UPON ACKNOWLEDGMENT OF RECEIPT OF ELECTRONIC TRANSMISSION; OR (D)
BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, UPON VERIFICATION OF
RECEIPT.
NOTICE SHALL BE SENT TO THE ADDRESSES SET FORTH BELOW, OR SUCH OTHER
ADDRESS AS EITHER PARTY MAY SPECIFY IN WRITING.
13.8
SURVIVAL.
SECTIONS 8 ("NO CONFLICT OF INTEREST"), 10
("CONFIDENTIALITY AND PROPRIETARY RIGHTS"), 11 ("NONSOLICITATION"),
12 ("INJUNCTIVE RELIEF"), 13 ("GENERAL PROVISIONS") AND 14 ("ENTIRE AGREEMENT")
OF THIS AGREEMENT SHALL SURVIVE EXECUTIVE'S EMPLOYMENT BY COMPANY.
14.
ENTIRE AGREEMENT.
THIS AGREEMENT, INCLUDING THE INVENTION AND
NON-DISCLOSURE AND ARBITRATION AGREEMENT INCORPORATED HEREIN BY REFERENCE
CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES RELATING TO THIS SUBJECT
MATTER AND SUPERSEDES ALL PRIOR OR SIMULTANEOUS REPRESENTATIONS, DISCUSSIONS,
NEGOTIATIONS, AND AGREEMENTS, WHETHER WRITTEN OR ORAL. NO ORAL WAIVER, AMENDMENT
OR MODIFICATION WILL BE EFFECTIVE UNDER ANY CIRCUMSTANCES WHATSOEVER.
THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY
UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES
HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.
MARY LOU O'KEEFE
Dated:
3611 Valley Centre Drive
San Diego, CA
92130
Peregrine Systems, Inc.
Dated:
By:
Gary G. Greenfield
Chief Executive Officer
3611 Valley Centre Drive
San Diego, CA
92130
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