Exhibit 10.3
NONCOMPETE AND TERMINATION AGREEMENT
This Noncompete and Termination Agreement (the "Agreement") is dated
and entered into as of January 1, 2002, between XXXX X. XXXXXXX COMPANY (the
"Company") and Xxxxxxx X. Xxxx ("Employee").
In consideration of the mutual promises and agreements contained
herein, as well as the promises and agreements contained in the January __, 2002
letter agreement between the parties (to which this Agreement is attached as an
exhibit), the parties, intending to be legally bound, hereby agree as follows:
Section 1 . Restrictive Covenants.
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1.1 Acknowledgment of Access to Confidential Matters.
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Employee and the Company recognize and acknowledge that as a result of
his employment with the Company:
(a) Employee has had access to, and will continue to have access to,
technology utilized by the Company and its subsidiaries (collectively,
the "Company") in connection with their operations, which technology is
unique to the Company, including production operating systems, order
entry systems, quality control practices, decision support, database
marketing and other technology developed by the Company for its various
products and systems.
(b) Employee will have access to and knowledge of all financial statements
and related data for the Company, including pricing, sales and training
manuals, and other confidential materials utilized by the Company;
complete and detailed knowledge of all the products of the Company and
their capacities and specifications; and knowledge of all of the
systems and procedures of the Company with regard to selling, pricing,
and financing its products and services.
(c) Employee will have specific knowledge regarding the Company's
customers, including their specific needs and current and anticipated
requirements for the Company's products and services.
1.2 Potential Injury to Company.
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Employee recognizes, acknowledges and agrees that the Company's
Confidential Information and Trade Secrets (as defined below), including those
specified in Section 1.1, constitute valuable, special and unique assets of the
Company and that the improper use or disclosure thereof would cause substantial
loss of competitive advantage and other injury to the Company. Employee further
agrees that the training and experience gained while employed by the Company
and the knowledge acquired during his employment with the Company regarding the
aforesaid information would enable him to injure and cause substantial harm to
the Company if he should compete with the Company in its business before the
expiration of a reasonable time after termination of his employment with the
Company.
1.3 Noncompetition.
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For the reasons recited in Sections 1.1 and 1.2 above,
Employee covenants and agrees that, during the term of his employment with the
Company and for a period of three (3) years after the termination of such
employment, Employee will not, within the continental United States, serve as an
officer, executive, managerial employee, partner, or consultant of any entity
engaged in the Restricted Businesses (as defined below). The agreements of
Employee contained herein shall not prevent him from purchasing or owning an
investment of not more than 1% of the outstanding capital stock of a publicly
held company engaged in the Restricted Businesses, so long as his only
relationship with such company is as a passive investor and he has no
responsibility for the management of the company. For purposes of this
Agreement, the term "Restricted Businesses" shall mean the printing, marketing
and selling of financial and business documents, including checks, financial
documents and forms, magnetic ink character recognition ("MICR") documents, and
similar printed business documents; the development, marketing, and selling of
database marketing software, loan and deposit origination and compliance
software, marketing customer information file ("MCIF") software, host processing
software, and mortgage software applications; and the development, marketing,
and selling of information management products and services, including optical
xxxx reading equipment, scannable forms, survey solutions, and field maintenance
services.
The covenants on the part of Employee contained in Sections 1.3 through
1.8 of this Agreement shall be construed as agreements independent of each other
and of any other provisions of this Agreement, and the existence of any claim or
cause of action Employee may have against the Company, whether predicated on
this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Company of said covenants.
1.4 Nonsolicitation of Customers.
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Employee covenants and agrees that he will not, during the term of his
employment with the Company and for a period of two (2) years thereafter,
either directly or indirectly, on Employee's own behalf or in the service of or
on behalf of others, solicit, directly or indirectly, any business related to
the Restricted Businesses from any of the Company's customers, including
actively sought prospective customers, with whom Employee had material contact
during the last twelve (12) months of Employee's employment by the Company or
about whom Employee obtained Confidential Information or Trade Secrets during
the course of his employment with the Company. "Material contact" as that term
is used herein exists if interaction took place between Employee
and such person or entity in an effort to further the business of the Company.
1.5 Nonsolicitation of Employees.
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Employee covenants and agrees that he will not, during the term of his
employment with the Company and for a period of two (2) years thereafter,
directly or indirectly solicit, entice, encourage or persuade any employee of
the Company to leave the services of the Company for any reason.
1.6 Nondisclosure of Trade Secrets.
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Employee covenants and agrees that he will not, without the prior
written consent of the Company, during Employee's employment with the Company
and for so long thereafter as the information or data remain Trade Secrets, use
or disclose, or permit any unauthorized person to use, disclose, or gain access
to any Trade Secrets of the Company. For purposes of this Agreement, the term
"Trade Secret" means information including, but not limited to, any technical
or nontechnical data, formula, pattern, compilation, program, device, method,
technique, drawing, process, financial data, financial plan, product plan,
list of actual or potential customers or suppliers or other information similar
to any of the foregoing, which (i) derives economic value, actual or potential,
from not being generally known to, and not being readily ascertainable by
proper means by, other persons who can derive economic value
from its disclosure or use and (ii) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.
1.7 Nondisclosure of Confidential Information.
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Employee covenants and agrees that he will not, without the prior
written consent of the Company, during Employee's employment with the Company
and for a period of two years thereafter, use or disclose, or permit any
unauthorized person to use, disclose or gain access to, any Confidential
Information to which the Employee obtained access by virtue of Employee's
employment with the Company. For purposes of this Agreement, the term
"Confidential Information" means the whole or any portion or phrase of any data
or information, other than Trade Secrets, that is material to the Company and
not generally known by the public. To the fullest extent consistent with the
foregoing and otherwise lawful, Confidential Information shall include, without
limitation, (i) the Company's sales records, profit and performance reports,
pricing manuals, sales manuals, training manuals, selling and pricing
procedures, and financing methods; (ii) the identities of the Company's
customers, their special demands, and their current and anticipated requirements
for the Company's products; (iii) the capabilities and specifications of the
Company's products, product development, product formulas, functionality or
application of products, and the sources of supply for raw materials used in
production, packaging and shipping; (iv) the Company's business plans and
financial statements and projections; and (v) the special products, programs
and services the Company may offer or provide from time to time to its
customers.
The parties acknowledge and agree that the restrictions stated
in Sections 1.6 and 1.7 are in addition to and not in lieu of protections
afforded to trade secrets and confidential information under applicable state
law. Nothing in this Agreement is intended to or shall be interpreted as
diminishing or otherwise limiting the Company's right under applicable state law
to protect its trade secrets and confidential information.
1.8 Materials.
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Employee agrees that all files, memoranda, notes, records, price
lists, customer lists, drawings, manuals or other documents, whether made or
compiled by Employee or furnished to Employee from any source by virtue of
Employee's employment with the Company, are the sole property of the Company.
Upon the request of the Company and, in any event, within five business days of
the termination of Employee's employment with the Company, Employee shall
deliver to the Company all such documents and materials.
1.9 Company's Ownership of Work Product.
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(a) Work Produc
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Employee acknowledges and agrees that the Company shall own all of
his/her Work Product. For purposes of this Agreement, "Work Product" shall
mean 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 that relates to the business and interests of
the Company that Employee conceives, develops or delivers to the Company at
any time during the term of his employment. Work Product shall also include
all intellectual property rights in any programming, documentation,
technology or other work product that is contained in any of the products or
systems, including development and support systems, of the Company as of the
date of this Agreement or at any time prior to the date of this Agreement while
Employee was engaged as an independent contractor or as an employee of the
Company. All Work Product shall be considered work made for hire (as that term
is defined in the United States Copyright Act, 17 U.S.C., Section 101) by
Employee and owned by the Company. All work produced during Employee's
employment with the Company shall be the Company's property unless otherwise
agreed to in writing in advance by the Company.
(b) Assignment of Work Product.
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If any of the Work Product may not, by operation of law, be
considered workmade for hire by Employee for the Company or if ownership of
all right; title and interest of the intellectual property rights herein
shall not otherwise vest exclusively in the Company, Employee agrees to
assign, without further consideration, the ownership of all U.S. and
international copyrights, patentable inventions and other intellectual
property rights therein to the Company. The Company shall have the right to
obtain and hold in its own name copyrights, registrations, and any other
protection available in the foregoing. Employee agrees to perform, upon the
reasonable request of the Company, during or within one (1) year after his
employment, such further acts as may be necessary or desirable to transfer,
perfect, and defend the Company's ownership of the Work Product. Employee
agrees upon request to execute any documents of assignment and conveyance;
obtain and aid in the enforcement of copyrights and patents with respect to the
Work Product in any country; provide testimony in connection with any
proceeding affecting the right, title or interest of the Company in any Work
Product; and perform any other acts deemed necessary or desirable to carry
out the purposes of this Agreement. The Company agrees to reimburse all
reasonable out-of-pocket expenses incurred in connection with the foregoing.
1.10 Effect of Termination Without Cause on Sections 1.3, 1.4, and 1.5.
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In the event of any involuntary termination of employment of the
Employee by the Company, other than termination for Good Cause (as defined in
Section 3.2(c)) or in the event of any termination of employment by Employee
for a reason described in Section 3.1(b), then the provisions of Sections 1.3,
1.4, and 1.5 of this Agreement shall be null and void and inapplicable to
Employee.
Section 2 . Termination and Changes of Employment.
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This Agreement shall not affect the right of the Company to change
employee's job title, responsibilities, duties, reporting responsibilities, or
authority. Subject to the preceding sentence, the Company shall not be entitled
to terminate Employee's employment at any time prior to October 31, 2003, save
only for Good Cause (as defined in Section 3.2(c)); provided such change does
not result in a reduction of Employee's compensation or benefits (other than
benefit reductions that apply to similarly situated executives). Employee shall
have the right to terminate his employment with the Company at any time by
giving written notice thereof to the Chairman of the Governance Committee of the
Board of Directors of the Company (or any successor committee) (the "Committee")
at 0000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000, whereupon his employment shall
terminate on the 90th day after the Committee's receipt of such written notice.
The covenants and agreements contained in this Agreement shall survive any
termination of Employee's employment with the Company as provided for herein.
Section 3 . Effect of Certain Terminations and Changes of Employment.
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3.1 Termination or Change of Employment After Change in Control.
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(a) In the event that, within one year after a "Change in Control" of the
Company (as defined in Section 3.3) shall have occurred but before
February 16, 2006, Employee resigns as an employee of the Company for
any reason whatsoever, or the Company terminates his employment without
Good Cause, then the Company or its successor shall pay to Employee, in
a lump sum at the time of such resignation or termination, his
"Severance Pay" (as defined in Section 3.4). Employee shall not be
entitled to any severance pay if he resigns or the Company terminates
his employment without Good Cause after February 16, 2006.
(b) In addition, after a Change in Control of the Company, if Employee
remains with the Company, then any subsequent reduction in Employee's
base compensation or an adverse change in his duties and
responsibilities, or any change in his work which involves a
relocation of his principal place of employment by more than 100 miles
or which requires a change in his place of residence by more than 50
miles shall entitle Employee to Severance Pay unless either (i)
Employee consents in writing to such reduction or change, (ii) the
Company can demonstrate by clear and convincing evidence that such
reduction or change was based primarily on Employee's failure to
reasonably perform his duties and responsibilities under the
circumstances and, further, that such reduction or change was made
only after the Company had provided Employee with written notice of
such failure and a reasonable period of time to correct such failure,
or (iii) such reduction or change comes more than two years after such
Change in Control or after February 16, 2006.
3.2 Termination of Employment By or an Account of Actions By the Company.
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(a) In the event of any involuntary termination of employment of the
Employee by the Company on or before February 16, 2006, other than
termination for Good Cause, in the absence of a Change in Control
within one year prior to such termination (to which Section 3.1(a)
hereof applies), or Employee terminates his employment as a result of
any reduction in compensation or adverse change of duties or
responsibilities referred to in Section 3.1(b), and upon written notice
by Employee to the Company, Employee shall continue to receive, as
severance pay, the greater of (i) two times his then-current base
salary, or (ii) his then current base salary through December 31, 2005.
(b) In addition, Employee shall be entitled to receive a pro rata portion
of any bonus which otherwise would have been earned for the calendar
year in which his employment is terminated, measured from January 1
through the date of termination. Such amount shall be paid promptly
upon the calculation of bonuses after year end.
(c) For the purposes of this Agreement, Good Cause shall consist of (i)
Employee's embezzlement of funds, Employee's commission of fraud
against the Employer, or Employee's gross negligence or willful
misconduct in the performance of Employee's duties, (ii) Employee's
failure to devote substantially all of his full working time to the
fulfillment of his duties with the Company, (iii) Employee's conviction
of, guilty plea to, or confession of a felony or any act of fraud or
any other act of moral turpitude, or (iv) Employee's engaging in
conduct or activities materially damaging to the property, business or
reputation of the Company; provided, however, that no conduct, action
or decision made or taken by Employee in good faith consistent with the
business judgment rule shall provide a basis for termination for Good
Cause.
3.3 Change in Control of the Company.
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A Change in Control shall be deemed to occur (a) upon the sale by the
Company of all or substantially all of its assets, the consolidation of the
Company with another person, or the merger of the Company with any person as a
result of which merger the Company is not the surviving entity, (b) if
Beneficial Ownership of 30% or more of the Common Stock of the Company is held
by any person or entity, or (c) in the event that a "Triggering Event" (as
defined therein) shall have occurred under the Company's Share Purchase Rights
Plan currently in effect or any successor plan. "Beneficial Ownership" shall
have the meaning provided in Rule 13d-3 under the Securities Exchange Act of
1934.
3.4 Severance Pay.
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(a) For the purpose of Section 3.1 of this Agreement, the Employee's
Severance Pay shall equal the lesser of three times Employee's
highest annual taxable compensation (for federal income tax purposes)
as reported by the Company to the Internal Revenue Service on its form
W-2 (or any successor to xxxx form) for any calendar year of Employee's
employment with the Company, including any calendar year prior to the
date hereof, plus the aggregate of his elective deferrals or
contributions to any cafeteria plan, 401(k) plan, other qualified plan
or nonqualified deferred compensation plan that are not taxable (for
federal income tax purposes) when made (or his annualized compensation,
deferrals and contributions in the event such calculation is for a
partial year) or
(b) the amount determined pursuant to Section 3.5.
3.5 Parachute Limitation.
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(a) If the Company determines that, as a result of a Change in Control,
any cash compensation, benefits, acceleration of vesting of stock
options or restricted stock, or other payments in the nature of
compensation (within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended ("Code")) to (or for the benefit of)
Employee provided under the terms of this Agreement or otherwise
(collectively, such cash compensation, benefits, acceleration and
other payments are referred herein as the "Payments") would constitute
parachute payments (within the meaning of Section 280G of the Code)
that would cause Employee to incur an excise tax under Section 4999 of
the Code or the Company to lose a tax deduction under Section 280G of
the Code for any Payments, such Payments shall be reduced to the
extent the Company deems necessary so that the Employee is not subject
to an excise tax under Section 4999 of the Code and the Company does
not lose a tax deduction under Section 280G of the Code for any
Payments.
(b) The Company shall reduce Payments in the following order: (1) by
reducing the number of stock options that become vested upon a Change
in Control (in reverse order of price, with the highest priced options
first becoming unvested), (2) by reducing the number of shares of
restricted stock that become vested upon a Change in Control, and (3)
by reducing cash compensation (including Severance Pay). The
limitations on vesting of stock options and/or restricted stock in
order to reduce Payments as set forth in this Section 3.5(b) shall in
no way limit or impact the normal vesting schedule for such stock
options and restricted stock, as set forth in the Nonqualified Stock
Options and Restricted Stock Agreement relating thereto.
(c) The Company (at the Company's expense) shall use a public accounting
firm reasonably acceptable to Employee to make calculations necessary
for determining any such reduction of Payments and to certify to
Employee that the remaining Payments will not cause Employee to incur
an excise tax under Section 4999 of the Code and to prepare Employee's
federal income tax return for the year of the Change in Control.
Section 4 . Term of Agreement.
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This Agreement shall commence on the date first set forth above and
shall continue until February 16, 2006. Notwithstanding any provision in this
Agreement to the contrary, the provisions of Sections 1.1 through 1.10 of this
Agreement shall survive any termination or expiration of this Agreement as
necessary to preserve the rights and obligations of the parties under those
Sections.
Section 5 . Miscellaneous.
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5.1 Binding Effect.
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(a) This Agreement shall inure to the benefit of and shall be binding upon
Employee, his executor, administrator and heirs but may not be assigned
by him. This Agreement shall be binding upon the Company and its
successors and assigns.
(b) (i) Prior to a Change in Control, of the Company this Agreement
may not be transferred or assigned by the Company,
either by voluntary action or by operation of law.
(ii) After a Change in Control of the Company, this Agreement may be
transferred or assigned by the Company and shall be binding on the
transferee or assignee; provided, however, that Employee shall be given
written notice thereof at least twenty (20) days prior to the proposed
transfer or assignment.
5.2 Applicable Law.
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This Agreement has been entered into in and shall be
governed by and construed under the laws of the State of Georgia (not including
the choice of laws rules thereof). The parties agree to submit all disputes
arising from or relating to this Agreement to the exclusive jurisdiction of the
United States District Court for the Northern District of Georgia or the State
or Superior Courts of DeKalb County, Georgia, as applicable. The parties hereby
consent to the exclusive jurisdiction and venue of such courts for the
litigation of all disputes and waive any claims of improper venue, lack of
personal jurisdiction, or lack of subject matter jurisdiction as to any such
disputes.
5.3 Invalid Provisions.
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If fulfillment of any provision of this Agreement, at
the time such fulfillment shall be due, shall transcend the limit of validity
prescribed by law, then the obligation to be fulfilled shall be reduced to the
limit of such validity; and if any clause or provision contained in this
Agreement operates or would operate to invalidate this Agreement, in whole or in
part, then such clause or provision only shall be held ineffective, as though
not herein contained, and the remainder of this Agreement shall remain operative
and in full force and effect.
5.4 Headings.
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The section and paragraph headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
5.5 Entire Agreement.
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This Agreement is intended by the parties hereto to be the
final expression of their agreement with respect to the subject matter hereof
and is the complete and exclusive statement thereof notwithstanding any prior
representation or statements to the contrary. This Agreement shall supersede and
cancel the October 6, 1998 Noncompete and Termination Agreement between the
parties.
5.6 Waiver.
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The waiver by any party to this Agreement of a breach of any of the
provisions of this Agreement shall not operate or be construed as a waiver of
any subsequent or simultaneous breach of the same or different provisions.
5.7 Modification.
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No provision of this Agreement may be amended, changed,
altered, modified or waived except in writing signed by Mr. Tuff and an
authorized representative of the Company, which writing shall specifically
reference this Agreement and the provision which the parties intend to waive or
modify.
5.8 Understanding.
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The parties covenant and agree that they have read and fully
understand the contents and the effect of this Agreement. Employee and the
Company warrant and agree that they have had a reasonable opportunity and been
advised in writing to seek the advice of an attorney as to such content and
effect. The parties accept each and all of the terms, provisions, and conditions
of this Agreement, and do so voluntarily and with full knowledge and
understanding of the contents, nature, and effect of this Agreement.
5.9 Counterparts.
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This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
XXXX X. XXXXXXX COMPANY
[CORPORATE SEAL] BY:
G. Xxxxxx Xxxxxxxx
Chair, Governance Committee
of the Board of Directors
Attest:
EMPLOYEE
Xxxxxxx X. Xxxx
Witness:
