Xxxxx Xxxxxx
0000 Xxxxx Xxxx Xx
Xxxxxxxx, XX 00000
December 18, 1997
Xxxx Xxxxxx
President & CEO
Effective Management Systems, Inc.
00000 Xxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Dear Xxxx,
This letter constitutes an Employment and Separation Agreement
("Agreement") between myself, Xxxxx Xxxxxx ("Employee"), and Effective
Management Systems, Inc. ("EMS"). It is effective as of January 1, 1998 (the
Effective Date). This Agreement recognizes my contributions, dedication, and
dependability to EMS, including:
Over sixteen years of management, leadership, technical, administrative,
consulting and/or other expertise which is and has been beneficial to EMS; and
consistent high performance in the areas of revenue and margin generation,
attracting and developing top employees to EMS, and consistent high customer
satisfaction.
Both parties to this Agreement recognize that it is in the best interests of EMS
that the Employee continues to be employed by EMS, and EMS desires to employ
Employee and Employee desires to be employed by EMS.
In consideration of the mutual covenants contained herein, the parties agree to
the following:
1. Employment. EMS hereby employs Employee and Employee hereby accepts continued
employment with EMS. The Term of this Agreement shall run from the Effective
Date until the Separation Date. The Separation Date shall be this Agreement's
termination date. This Agreement will terminate December 31, 2006 after a period
of eight (8) years from the date of this Agreement unless earlier terminated or
extended pursuant to the terms and conditions of this Agreement. Except as
specifically set forth below for certain specified early separation
circumstances, all benefits and compensation will cease as of the Separation
Date.
2. Duties. During the Term, Employee shall be a Vice-President, or any other
position which, overall, is of reasonably equal or higher responsibility.
Employee shall devote his skills, labor and attention to the performance of his
duties under this Agreement. Employee shall perform such duties as are requested
and assigned to him by the President, or other duly authorized employee of EMS.
3. Salary Compensation. Employee shall be paid an initial salary in the amount
of Ninety Thousand Dollars ($90,000.00) per year commencing with the Effective
Date, payable at the regular pay periods of EMS subject to required and elected
deductions. Employee's annual salary for each subsequent year shall be
established by the Compensation Committee of EMS, but shall be no less than the
prior years' salary plus an annual increase from the prior year equivalent to
the Bureau of Labor Statistics' CPI cost of living change for the prior year,
except in a year where there is a salary freeze or salary reduction applicable
to EMS employees of his position level, in which case his then current base
salary shall be proportionally impacted as per such others.
4. Bonus Compensation. In addition to the salary set forth in Paragraph 3,
Employee shall be eligible for an annual bonus, based on Employee's performance,
at the discretion of the EMS' Compensation Committee.
5. Vacation Benefit. Employee shall be entitled to vacation and personal days
each year pursuant to the terms of EMS' Employee Handbook applicable to all
other employees of his position level and length of employment. In any event,
Employee shall be entitled to no less than three weeks of paid vacation per
calendar year.
6. Other Benefits. Employee shall be entitled to receive all other benefits as
made available from time to time to employees of his position level at EMS such
as sick pay, holiday pay, heath insurance, disability insurance, dental
insurance, life insurance, and company matching 401k.
7. Automobile Expense Benefit. Employee shall have use of an automobile owned by
EMS at EMS' expense, which automobile shall be equipped with a cellular
telephone for use by Employee.
8. Business Expense Reimbursement. As and to the extent made available to other
employees of his position level, Employee shall be reimbursed for all reasonable
and necessary business expenses incurred by Employee in the performance of
Employee's duties for EMS such as sales expense, travel expense, business home
phone, and entertainment expenses. Similarly, Employee shall be permitted to
utilize an EMS credit card to incur such expenses in the performance of
Employees duties for EMS.
9. Private Office. As and to the extent made available to other employees of his
position level, Employee shall have full and complete use of a private office at
the EMS facility located in the greater Milwaukee area.
10. Limitation on Business Travel. XXX agrees that the Employee's business
travel overnight away from the office shall be limited to no more than 25% of
all business working days in any given calendar year.
11. Option to Renew. Employee and EMS shall have the option to extend this
Agreement for addition periods of five (5) years. This contract will
automatically extend its Term for additional five (5) year periods unless either
Employee or EMS gives written notice of non-renewal to the other at least one
hundred fifty (150) days in advance of the full Term expiration date of this
Agreement.
12. Termination of the Agreement
A. EMS may terminate Employee's employment upon thirty (30) calendar
days written notice during the term of this Agreement, subject to the provisions
of paragraph 13 herein.
B. In the event that Employee is terminated subsequent to a Change in
Control, Employee shall be entitled to receive all of the payments and enjoy all
the benefits specified in paragraph 13 herein.
C. In the event that Employee should determine, in good faith and after
reasonable effort in performing such duties as are requested and assigned to
him, that his status or responsibilities with EMS has or have diminished
subsequent to a Change in Control, and shall for that reason, resign from his
employment with EMS within one year after such Change in Control, Employee shall
be entitled to receive all the payments and enjoy all the benefits specified in
paragraph 13 herein. A "Change in Control" shall mean the acquisition by any
corporation or group of associated persons acting in concert, excluding
affiliates, if any, of EMS as of the date hereof, of an aggregate of more than
25% of the outstanding shares of voting stock of EMS coupled with or followed by
the election as directors of EMS of persons who were not directors at the time
of such acquisition of such persons shall become a majority of Board of
Directors of EMS.
X. Xxxxxxxx may terminate his employment upon ninety (90) calendar days
written notice during the term of this Agreement without recourse by EMS against
Employee.
13. Additional Consideration. Any termination pursuant to Paragraph 12A, 12B, or
12C shall obligate EMS to pay Employee for the following:
A. Employee will receive an amount equal to seventy five percent (75%)
of his highest annual base salary since the start of this Agreement to be paid
or payable by EMS to Employee through a lump sum payment of twenty five percent
(25%) of that amount payable within 30 days after termination of this Agreement,
and the balance of said amount shall be paid in bimonthly payments over a one
(1) year period. Payments will stop if Employee has obtained an acceptable
equivalent position in the Milwaukee area.
B. EMS will also provide, at no cost to Employee, equivalent insurance
benefits and use of company automobile for a period of one year starting at the
termination date. Provisions by EMS to pay Employee for these insurance and
automobile benefits will stop if Employee has obtained an acceptable equivalent
position in the Milwaukee area.
14. Notices. Any notices desired or required under the terms of this Agreement
shall be in writing and shall be deemed served when deposited with postage
prepaid, certified mail, in the United States mail address to the respective
parties hereto at the addresses designated by each party. Either party may
notify the other party that such party's address has changed for notice purposes
and in such case shall be sent by the other to such new address.
15. Assignment. This Agreement may not be assigned buy either party.
16. Governing Law. This Agreement shall be interpreted in the courts and under
the laws of the State of Wisconsin. If any portion of this Agreement is held to
be invalid under applicable law, only that portion of such law has application
and the remaining portions shall remain in full force and effect.
17. Complete and Binding Agreement. The parties understand and agree that this
Agreement is final and complete with respect to the matters set forth herein,
and may not be amended except in writing referencing this Agreement. This
Agreement binds the parties hereto, and their respective heirs, successors and
representatives.
18. Cost / Attorney's Fees. If EMS is proven to have violated this Agreement in
any manner, upon such findings by a court of competent jurisdiction, it shall
pay Employee the reasonable attorney's fees and costs incurred to pursue action
defending such breach.
19. In Exchange. In exchange for the consideration set forth herein and subject
to the faithful performance of the terms herein by EMS, Employee specifically
agrees to the following:
A. Return of EMS Property. Employee agrees to return any EMS property
in his possession by the Separation Date except as set forth above.
B. Confidentiality. Employee is under a Confidentiality agreement with
EMS and agrees to abide by the terms of that agreement.
C. No Denigration. Employee agrees that he will not at any time in the
future make any statements to former, current, or prospective customers or
employees of EMS or the media or to anyone in the industry or community in
general which could be construed by a reasonable person as being in any way
derogatory or negative about EMS.
D. Confidentiality of Agreement. Employee agrees that this Agreement
and its terms are strictly confidential and shall not be divulged to any person
other than to his legal counsel and accountant, but subject to this
confidentiality provision, solely for purposes of advice.
20. Voluntary Act and Revocation. Employee acknowledges that he has been given a
copy of this Agreement with a period of twenty-one days to review and consider
it before signing it, and an opportunity to consult with an attorney, that he
has carefully read the entire document and understands its provisions and has
signed it as his free act and deed. Employee may revoke this Agreement within
seven days of signing by written notice delivered to Xxxx Xxxxxx, President of
EMS, at its Milwaukee office.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of December 31, 1997.
Xxxxx Xxxxxx, Employee Effective Management Systems, Inc.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx Xxxxxx
Xxxxx Xxxxxx Xxxx Xxxxxx, President & CEO
