NATIONAL INFORMATION CONSORTIUM, INC.
KEY EMPLOYEE AGREEMENT
FOR
XXXXXX R.D. SOMERHALDER
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of the 1st day
of September, 2000, by and between Xxxxxx R.D. Somerhalder ("Executive") and
NATIONAL INFORMATION CONSORTIUM, INC., a Colorado corporation (the "Company").
This Agreement amends and restates all prior agreements between Executive and
the Company with respect to the subject matter hereof.
WHEREAS, the Company desires to employ Executive to provide personal
services to the Company and to the Company's subsidiaries, and wishes to provide
Executive with certain compensation and benefits in return for Executive's
services; and
WHEREAS, Executive wishes to be employed by the Company and provide
personal services to the Company and to the Company's subsidiaries in return for
certain compensation and benefits;
NOW, THEREFORE, the parties hereto agree as follows:
1. EMPLOYMENT BY THE COMPANY.
1.1 ACCEPTANCE. Subject to terms set forth herein, the Company or a
subsidiary of the Company, agrees to employ Executive in the position of
Executive Vice President--Operations/Administration and Executive hereby
accepts such employment effective as of the date first written above. During the
term of employment with the Company, Executive will devote his best efforts and
substantially all of his business time and attention (except for vacation
periods and reasonable periods of illness or other incapacity's permitted by the
Company's general employment policies) to the business of the Company.
1.2 DUTIES. Executive will serve in an executive capacity and shall
perform such duties as are customarily associated with his then current title,
consistent with the Bylaws of the Company and as required by the Company's Board
of Directors (the Board).
1.3 EMPLOYMENT POLICIES. The employment relationship between the parties
shall also be governed by the general employment policies and practices of the
Company, including those relating to protection of confidential information and
assignment of inventions, except that when the terms of this Agreement differ
from or are in conflict with the Company's general employment policies or
practices, this Agreement shall control.
2. COMPENSATION.
2.1 SALARY. Executive shall receive for services to be rendered hereunder
an annualized base salary of $140,000, payable in equal installments (prorated
for portions of a pay period) on the Company's regular pay days and the Company
will withhold from such compensation all applicable federal and state income,
social security and disability and other taxes as required by applicable laws.
2.2 STANDARD COMPANY BENEFITS. Executive shall be entitled to all rights
and benefits for which they are eligible under the terms and conditions of the
standard Company benefits and compensation practices which may be in effect from
time to time and provided by the Company to its employees generally.
3. PROPRIETARY INFORMATION OBLIGATIONS.
3.1 AGREEMENT. Executive agrees to execute and abide by the Proprietary
Information and Inventions Agreement attached hereto as Exhibit A.
4. TERMINATION OF EMPLOYMENT.
4.1 TERMINATION WITHOUT CAUSE.
(a) The Company shall have the right to terminate Executive's
employment with the Company at any time without cause.
(b) In the event Executive's employment is terminated without cause
before September 1, 2003, the Company shall pay Executive 12 months' base
compensation in a single lump sum distribution on the first regular Company
pay period after said termination.
(c) In the event Executive's employment is terminated without cause
on or after September 1, 2003, Executive will not be entitled to severance
pay, pay in lieu of notice or any other such compensation, except as
provided in the Company's Severance Benefit Plan, if any, in effect on the
termination date.
4.2 TERMINATION FOR CAUSE.
(a) The Company shall have the right to terminate Executive's
employment with the Company at any time for cause. Written notification of
termination and specific cause of termination shall be provided to the
Executive at the time of termination.
(b) "Cause" for termination shall mean an employee's conviction of a
felony or the willful and deliberate failure of an employee to perform his
customary duties, in a manner consistent with the manner reasonably
prescribed by the Board of Directors or President of Company (other than
any failure resulting from his incapacity due to physical
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or mental illness, disability or death) after not less than thirty (30)
days prior written notice from Company.
(c) In the event the Executive is notified in writing his employment
is to be terminated for cause and the cause is curable, the Executive shall
be given thirty days from date of notification to cure the specific
cause(s) set forth in the notification.
(d) In the event Executive's employment is terminated at any time for
cause, the executive shall not be entitled to severance pay, pay in lieu of
notice or any other such compensation; provided, however, Executive shall
be entitled and shall receive all compensation earned prior to and
including the date of termination.
4.3 VOLUNTARY OR MUTUAL TERMINATION.
(a) Executive may voluntarily terminate his employment in writing
with the Company at any time, after which no further compensation will be
paid to Executive.
(b) In the event Executive voluntarily terminates his employment,
Executive shall not be entitled to severance pay, pay in lieu of notice or
any other such compensation; provided, however, Executive shall be entitled
and shall receive all compensation earned prior to and including the date
of termination.
4.4 TERMINATION IN CONNECTION WITH A CHANGE OF CONTROL
(a) In the event of a "Change in Control" of the Company (as defined
herein), and in the event that either in contemplation of such Change of
Control or after such Change of Control, Executive's employment is
terminated without cause, in addition to any payments to which Executive
may be entitled pursuant to Section 4.1, subject to the provisions of
paragraph (c) below, Executive shall be entitled to a severance payment
equal to the product of the number of full years of employment of Executive
with the Company times the sum of (i) one month's salary, and (ii)
one/twelfth the annual bonus earned by Executive for the last complete
calendar year or year of employment, whichever is greater. In the event
Executive voluntarily terminates his employment with the Company within six
months of a Change of Control, subject to the provisions of paragraph (c)
below, Executive shall be entitled to a severance payment equal to the
product of the number of full years of employment of Executive with the
Company times the sum of (i) one month's salary, and (ii) one/twelfth times
the annual bonus earned by Executive for the last complete calendar year or
year of employment, whichever is greater. In addition, in either case,
notwithstanding the provisions of any stock option agreement, all stock
options held by the Executive shall vest upon such Change of Control.
(b) For purposes of this Section 4.4, a "Change in Control" of the
Company shall be deemed to have occurred if (i) any "person" (as such term
is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended), other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company, who
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is not a "beneficial owner" (as defined in Rule 13d-3 under said Act), of
5% or more of the Company's common stock as of the date of this agreement
becomes the beneficial owner, directly or indirectly, of capital stock of
the Company representing 40 percent or more of the total voting power
represented by the Company's then outstanding capital stock, or (ii) the
shareholders of the Company approve (x) a merger or consolidation of the
Company with any other company, other than a merger or consolidation in
which the shareholders of the Company would own 50% or more of the voting
stock of the surviving corporation, (y) the sale of all of substantially
all of the assets of the Company, or (z) the liquidation or dissolution of
the Company.
(c) Anything in this Agreement to the contrary notwithstanding, prior
to the payment of any compensation or benefits payable under paragraph (a)
of this Section 4.4 hereof, the certified public accountants of the Company
immediately prior to a Change of Control (the "Certified Public
Accountants") shall determine as promptly as practical and in any event
with 20 business days following the sale of the Company whether any payment
or distribution by the Company to or for the benefit of Executive (whether
paid or payable or distributed or distributable pursuant to the terms of
this Agreement, any other agreements or otherwise) (a "Payment") would more
likely than not be nondeductible by the Company for Federal income tax
purposes because of section 280G of the Internal Revenue Code of 1986, as
amended (the "Code") and if it is, then the aggregate present value of
amounts payable or distributable to or for the benefit of the Company
pursuant to this Agreement (such payments or distributions pursuant to this
Agreement are thereinafter referred to as "Contract Payments") shall be
reduced (but not below zero) to the Reduced Amount. For purposes of this
Section, the "Reduced Amount" shall be an amount expressed in present value
which maximizes the aggregate present value of Contract Payments without
causing any payment to be nondeductible by the Company because of said
Section 280G of the Code.
If under the Section the certified Public Accountants determine that
any payment would more likely than not be nondeductible by the Company
because of Section 280G of the Code, the Company shall promptly give
Executive notice to that effect and a copy of the detailed calculation
thereof and of the Reduced Amount, and the Executive may then elect, in his
sole discretion, which and how much of the Contract Payments or any other
payments shall be eliminated or reduced (as long as after such election the
aggregate present value of the Agreement Payments or any other payments
equals the Reduced Amount), and shall advise the Company in writing of his
election within 20 business days of his receipt of notice. If no such
election is made by Executive within such 20-day period, the Company may
elect which and how much of the Contract Payments or any other payments
shall be eliminated or reduced (as long as after such election the
Aggregate present value of the Contract Payments equals the Reduced Amount)
and shall notify Executive promptly of such election. For purposes of this
Section, present value shall be determined in accordance with Section
280G(d)(4) of the Code. All determinations made by the Certified Public
Accountants shall be binding upon the Company and Executive and the payment
to Executive shall be made within 20 days of sale of the Company. The
Company may suspend for a period of up to 30 days after the sale of the
Company the Payment and any other payments or benefits due to Executive
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until the Certified Public Accountants finish the determination and
Executive (or the Company, as the case may be) elects how to reduce the
Contract Payments or any other payments, if necessary. As promptly as
practicable following such determination and the elections hereunder, the
Company shall pay to our distribute to or for the benefit of Executive such
amounts as are then due to Executive under this Agreement.
5. NON-INTERFERENCE; NON-COMPETITION.
5.1 AGREEMENT. Executive agrees to execute and abide by the Noncompetition
Agreement attached hereto as Exhibit B.
6. GENERAL PROVISION.
6.1 NOTICES. Any notices provided hereunder must be in writing and shall
be deemed effective upon the earlier of personal delivery (including personal
delivery by facsimile) or the third day after mailing by first class mail, to
the Company at its primary office location and to Executive at the address
listed on the Company payroll.
6.2 SEVERABILITY. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions had never been contained herein.
6.3 WAIVER. If either party should waive any breach of any provisions of
this Agreement, they or it shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
Agreement.
6.4 COMPLETE AGREEMENT. This Agreement and its Exhibits, constitute the
entire agreement between Executive and the Company and it is the complete,
final, and exclusive embodiment of his agreement with regard to the material
terms of executive employment, compensation, and duration. It is entered into
without reliance on any promise or representation other than those expressly
contained herein, and it cannot be modified or amended except in a writing
signed by Executive and an officer of the Company.
6.5 COUNTERPARTS. This Agreement may be executed in separate counterparts,
any one of which need not contain signatures of more than one party, but all of
which taken together will constitute one and the same Agreement.
6.6 HEADINGS. The headings of the sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
6.7 SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and inure
to the benefit of and be enforceable by Executive and the Company, and his
respective successors,
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assigns, heirs, executors and administrators, except that Executive may not
assign any of his duties hereunder and they may not assign any of his rights
hereunder without the written consent of the Company, which shall not be
withheld unreasonably.
6.8 ATTORNEYS' FEES. If either party hereto brings any action to enforce
his or its rights hereunder, the prevailing party in any such action shall be
entitled to recover his or its reasonable attorneys' fees and costs incurred in
connection with such action.
6.9 CHOICE OF LAW. All questions concerning the construction, validity and
interpretation of this Agreement will be governed by the law of the State of
Kansas.
IN WITNESS WHEREOF, the parties have executed this Key Employee Agreement
on the day and year first above written.
NATIONAL INFORMATION CONSORTIUM, INC.:
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
--------------------------------
Name: XXXXXXX X. XXXXXXX, XX.
Title: EXECUTIVE VICE PRESIDENT
EXECUTIVE:
/s/ Xxxxxx R.D. Somerhalder
-----------------------------------
Name: XXXXXX R.D. SOMERHALDER
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EXHIBIT "A"
EMPLOYEE PROPRIETARY INFORMATION
AND INVENTIONS AGREEMENT
In consideration of my employment or continued employment by NATIONAL
INFORMATION CONSORTIUM, INC., a Colorado corporation, or any controlled
subsidiary of the Company (collectively, the "Company"), and in consideration of
the compensation now and hereafter paid to me, I, the undersigned, hereby agree
as follows:
1. NONDISCLOSURE.
1.1 RECOGNITION OF COMPANY'S RIGHTS; NONDISCLOSURE. At all times during my
employment and thereafter, I will hold in strictest confidence and will not
disclose, use, lecture upon or publish any of the Company's Proprietary
Information (defined below), except as such disclosure, use or publication may
be required in connection with my work for the Company, or unless an officer of
the Company expressly authorizes such in writing. I will obtain Company's
written approval before publishing or submitting for publication any material
(written, verbal, or otherwise) that relates to my work at Company and/or
incorporates any Proprietary Information. I hereby assign to the Company any
rights I may have or acquire in such Proprietary Information and recognize that
all Proprietary Information shall be the sole property of the Company and its
assigns.
1.2 PROPRIETARY INFORMATION. The term "Proprietary Information" shall mean
any and all confidential and/or proprietary knowledge, data or information of
the Company. By way of illustration but not limitation, "Proprietary
Information" includes (a) trade secrets, inventions, ideas, processes, formulas,
source and object codes, data, programs, other works of authorship, know-how,
improvements, discoveries, developments, designs and techniques (hereinafter
collectively referred to as "Inventions"); and (b) information regarding plans
for research, development, new products, marketing and selling, business plans,
budgets and unpublished financial statements, licenses, prices and costs,
suppliers and customers; and (c) information regarding the skills and
compensation of other employees of the Company. Notwithstanding the foregoing,
it is understood that, at all such times, I am free to use information which is
generally known in the trade or industry, which is not gained as result of a
breach of this Agreement, and my own, skill, knowledge, know-how and experience
to whatever extent and in whichever way I wish.
1.3 THIRD PARTY INFORMATION. I understand, in addition, that the Company
has received and in the future will receive from third parties confidential or
proprietary information ("Third Party Information") subject to a duty on the
Company's part to maintain the confidentiality of such information and to use it
only for certain limited purposes. During the term of my employment and
thereafter, I will hold Third Party Information in the strictest confidence and
will not disclose to anyone (other than Company personnel who need to know such
information in connection with his work for the Company) or use, except in
connection with my work for the
Company, Third Party Information unless expressly authorized by an officer of
the Company in writing.
1.4 NO IMPROPER USE OF INFORMATION OF PRIOR EMPLOYERS AND OTHERS. During
my employment by the Company I will not improperly use or disclose any
confidential information or trade secrets, if any, of any former employer or any
other person to whom I have an obligation of confidentiality, and I will not
bring onto the premises of the Company any unpublished documents or any property
belonging to any former employer or any other person to whom I have an
obligation of confidentiality unless consented to in writing by that former
employer or person. I will use in the performance of my duties only information
which is generally known and used by persons with training and experience
comparable to my own, which is common knowledge in the industry or otherwise
legally in the public domain, or which is otherwise provided or developed by the
Company.
2. ASSIGNMENT OF INVENTIONS.
2.1 PROPRIETARY RIGHTS. The term "Proprietary Rights" shall mean all trade
secret, patent, copyright, and other intellectual property rights throughout the
world.
2.2 PRIOR INVENTIONS. Inventions, if any, patented or unpatented, which I
made prior to the commencement of my employment with the Company are excluded
from the scope of this Agreement. To preclude any possible uncertainty, I have
set forth on Exhibit A (Previous Inventions) attached hereto a complete list of
all Inventions that I have, alone or jointly with others, conceived, developed
or reduced to practice or caused to be conceived, developed or reduced to
practice prior to the commencement of my employment with the Company, that I
consider to be my property or the property of third parties and that I wish to
have excluded from the scope of this Agreement (collectively referred to as
"Prior Inventions"). If disclosure of any such Prior Invention would cause me to
violate any prior confidentiality agreement, I understand that I am not to list
such Prior Inventions in Exhibit A but am only to disclose a cursory name for
each such invention, a listing of the party(ies) to whom it belongs and the fact
that full disclosure as to such inventions has not been made for that reason. A
space is provided on Exhibit A for such purpose. If no such disclosure is
attached, I represent that there are no Prior Inventions. If, in the course of
my employment with the Company, I incorporate a Prior Invention into a Company
product, process or machine, the Company is hereby granted and shall have a
nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with
rights to sublicense through multiple tiers of sublicensees) to make, have made,
modify, use and sell such Prior Invention. Notwithstanding the foregoing, I
agree that I will not incorporate, or permit to be incorporated, Prior
Inventions in any Company Inventions without the Company's prior written
consent.
2.3 ASSIGNMENT OF INVENTIONS. Subject to Sections 2.4, and 2.6, I hereby
assign and agree to assign in the future (when any such Inventions or
Proprietary Rights are first reduced to practice or first fixed in a tangible
medium, as applicable) to the Company all my right, title and interest in and to
any and all Inventions (and all Proprietary Rights with respect thereto) whether
or not patentable or registrable under copyright or similar statutes, made or
conceived or reduced to practice or learned by me, either alone or jointly with
others, during the period of my
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employment with the Company. Inventions assigned to the Company, or to a third
party as directed by the Company pursuant to this Section 2, are hereinafter
referred to as "Company Inventions."
2.4 NONASSIGNABLE INVENTIONS. This Agreement will not be deemed to require
assignment of and "Company Inventions" shall not be decerned to include any
invention which was developed entirely on my own time without using the
Company's equipment, supplies, facilities, or trade secrets and neither related
to the Company's actual or anticipated business, research or development, nor
resulted from work performed by me for the Company.
2.5 OBLIGATION TO KEEP COMPANY INFORMED. During the period of my
employment and for six (6) months after termination of my employment with the
Company, I will promptly disclose to the Company fully and in writing all
Inventions authored, conceived or reduced to practice by me, either alone or
jointly with others. In addition, I will promptly disclose to the Company all
patent applications filed by me or on my behalf within a year after termination
of employment. At the time of each such disclosure, I will advise the Company in
writing of any Inventions that I believe fully qualify for protection "as non-
Company Inventions" and I will at that time provide to the Company in writing
all evidence necessary to substantiate that belief. The Company will keep in
confidence and will not use for any purpose or disclose to third parties without
my consent any confidential information disclosed in writing to the Company
pursuant to this Agreement relating to Inventions that "are not Company
Inventions." I will preserve the confidentiality of any Invention which "is a
Company Invention."
2.6 GOVERNMENT OR THIRD PARTY. I also agree to assign all my right, title
and interest in and to any particular Company Invention to a third party,
including without limitation the United States, as directed by the Company.
2.7 WORKS FOR HIRE. I acknowledge that all original works of authorship
which are made by me (solely or jointly with others) within the scope of my
employment and which are protectable by copyright are "works made for hire,"
pursuant to United States Copyright Act (17 U.S.C., Section 101).
2.8 ENFORCEMENT OF PROPRIETARY RIGHTS. I will assist the Company in every
proper way to obtain, and from time to time enforce, United States and foreign
Proprietary Rights relating to Company Inventions in any and all countries. To
that end I will execute, verify and deliver such documents and perform such
other acts (including appearances as a witness) as the Company may reasonably
request for use in applying for, obtaining, perfecting, evidencing, sustaining
and enforcing such Proprietary Rights and the assignment thereof. In addition, I
will execute, verify and deliver assignments of such "Company Inventions" to the
Company or its designee. My obligation to assist the Company with respect to
Proprietary Rights relating to such Company Inventions in any and all countries
shall continue beyond the termination of my employment, but the Company shall
compensate me at a reasonable rate after my termination for the time actually
spent by me at the Company's request on such assistance.
In the event the Company is unable for any reason, after reasonable effort,
to secure my signature on any document needed in connection with the actions
specified in the preceding
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paragraph, I hereby irrevocably designate and appoint
the Company and its duly authorized officers and agents as my agent and attorney
in fact, which appointment is coupled with an interest, to act for and in my
behalf to execute, verify and file any such documents and to do all other
lawfully permitted acts to further the purposes of the preceding paragraph with
the same legal force and effect as if executed by me. I hereby waive and
quitclaim to the Company any and all claims, of any nature whatsoever, which I
now or may hereafter have for infringement of any Proprietary Rights or Company
Inventions assigned hereunder to the Company.
3. RECORDS.
I agree to keep and maintain adequate and current records (in the form of
notes, sketches, drawings and in any other form that may be required by the
Company) of all Proprietary Information developed by me and all Inventions made
by me during the period of my employment at the Company, which records shall be
available to and remain the sole property of the Company at all times.
4. NO CONFLICTING OBLIGATION.
I represent that my performance of all the terms of this Agreement and as
an employee of the Company does not and will not breach any agreement to keep in
confidence information acquired by me in confidence or in trust prior to my
employment by the Company. I have not entered into, and I agree I will not enter
into, any agreement either written or oral in conflict herewith.
5. RETURN OF COMPANY DOCUMENTS.
When I leave the employ of the Company, I will deliver to the Company any
and all original drawings, notes, memoranda, specifications, devices, formulas,
and documents, and any other material containing or disclosing any Company
Inventions, Third Party Information or Proprietary Information of the Company. I
further agree that any property situated on the Company's premises and owned by
the Company, including disks and other storage media, filing cabinets or other
work areas, is subject to inspection by Company personnel at any time with or
without notice. Prior to leaving, I will cooperate with the Company in
completing and signing the Company's termination statement.
6. LEGAL AND EQUITABLE REMEDIES.
Because my services are personal and unique and because I may have access
to and become acquainted with the Proprietary Information of the Company, the
Company shall have the right to enforce this Agreement and any of its provisions
by injunction, specific performance or other equitable relief, without bond and
without prejudice to any other rights and remedies that the Company may have for
a breach of this Agreement.
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7. NOTICES.
Any notices required or permitted hereunder shall be given to the
appropriate party at the address specified below or at such other address as the
party shall specify in writing. Such notice shall be deemed given upon personal
delivery to the appropriate address or if sent by certified or registered mail,
three (3) days after the date of mailing.
8. NOTIFICATION OF NEW EMPLOYER.
In the event that I leave the employ of the Company, I hereby consent to
the notification of my new employer of my rights and obligations under this
Agreement.
9. GENERAL PROVISIONS.
9.1 GOVERNING LAW; CONSENT TO PERSONAL JURISDICTION. This Agreement will
be governed by and construed according to the laws of the State of Kansas, as
such laws are applied to agreements entered into and to be performed principally
within Kansas. I hereby expressly consent to the personal jurisdiction of the
state and federal courts located in Xxxxxxx County, Kansas, for any lawsuit
filed there against me by Company arising from or related to this Agreement.
9.2 SEVERABILITY. In case any one or more of the provisions contained in
this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect the other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein so long as the central purpose and intent of the
Agreement can still be achieved. If moreover, any one or more of the provisions
contained in this Agreement shall for any reason be held to be excessively broad
as to duration, geographical scope, activity or subject, it shall be construed
by limiting and reducing it, so as to be enforceable to the extent compatible
with the applicable law as it shall then appear.
9.3 SUCCESSORS AND ASSIGNS. This Agreement will be binding upon my heirs,
executors, administrators and other legal representatives and will be for the
benefit of the Company, its successors, and its assigns.
9.4 SURVIVAL. The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by the Company
to any successor in interest or other assignee.
9.5 EMPLOYMENT. I agree and understand that nothing in this Agreement
shall confer any right with respect to continuation of employment by the
Company, nor shall it interfere in any way with my right or the Company's right
to terminate my employment at any time, with or without cause.
9.6 WAIVER. No waiver by the Company of any breach of this Agreement shall
be a waiver of any preceding or succeeding breach. No waiver by the Company of
any right under this
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Agreement shall be construed as a waiver of any other right. The Company shall
not be required to give notice to enforce strict adherence to all terms of this
Agreement.
9.7 ENTIRE AGREEMENT. The obligations pursuant to Sections 1 and 2 of this
Agreement shall apply to any time during which I was previously employed, or am
in the future employed, by the Company as a consultant if no other agreement
governs nondisclosure and assignment of inventions during such period. This
Agreement is the final, complete and exclusive agreement of the parties with
respect to the subject matter hereof and supersedes and merges all prior
discussions between us. No modification of or amendment to this Agreement, nor
any waiver of any rights under this Agreement, will be effective unless in
writing and signed by the party to be charged. Any subsequent change or changes
in my duties, salary or compensation will not affect the validity or scope of
this Agreement.
This Agreement shall be effective as of the first day of my employment with
the Company, namely: January 1, 1995.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE
COMPLETELY FILLED OUT EXHIBIT A TO THIS AGREEMENT.
Dated: October 24, 2000
/s/ Xxxxxx R.D. Somerhalder
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(Signature)
XXXXXX R.D. SOMERHALDER
(Printed Name)
ACCEPTED AND AGREED TO:
NATIONAL INFORMATION CONSORTIUM, INC.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
-------------------------------
Title: Exec. VP
----------------------------------
(Address)
Dated: October 24, 2000
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EXHIBIT A
PREVIOUS INVENTIONS
TO: National Information Consortium, Inc.
FROM: XXXXXX R.D. SOMERHALDER
DATE: January 1, 1995
SUBJECT: Previous Inventions
1. Except as listed in Section 2 below, the following is a complete list of
all inventions or improvements relevant to the subject matter of my employment
by National Information Consortium, Inc. or any of its controlled subsidiaries
(collectively, the "Company"), that have been made or conceived or first reduced
to practice by one alone or jointly with others prior to my engagement by the
Company:
- No inventions or improvements.
- See below:
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- Additional sheets attached.
2. Due to a prior confidentiality agreement, I cannot complete the disclosure
under Section 1 above with respect to inventions or improvements generally
listed below, the proprietary rights and duty of confidentiality with respect to
which I owe to the following party(ies):
INVENTION OR IMPROVEMENT PARTY(IES) RELATIONSHIP
1. ___________________________ __________ ___________________
2. ___________________________ __________ ___________________
3. ___________________________ __________ ___________________
- Additional sheets attached.
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EXHIBIT "B"
NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT (the "Agreement") is being executed and
delivered as of September 1, 2000, by Xxxxxx R.D. Somerhalder (the "Executive")
in favor of, and for the benefit of: NATIONAL INFORMATION CONSORTIUM, INC., a
Colorado corporation ("NIC," and together with NIC's subsidiaries, (the
"Company"). Certain capitalized terms used in this Agreement are defined in
Section 11.
RECITALS
A. As an employee of the Company, the Executive has obtained extensive
and valuable knowledge and confidential information concerning the business of
the Company.
B. The Company and the Executive are executing a Key Employee Agreement
(the "Employment Agreement") contemporaneously with the execution and delivery
of this Agreement. Pursuant to the Employment Agreement, the Executive is
becoming a key employee of the Company and will accordingly obtain extensive and
valuable knowledge and confidential information concerning the business of the
Company.
C. The Company and the Executive acknowledge that this Agreement is
intended to protect the legitimate business interests of the Company and of the
Executive.
D. The Company has conducted and is conducting its business on a national
basis.
AGREEMENT
For good and valuable consideration, the receipt of which is hereby
acknowledged, the Company and the Executive agree as follows:
1. RESTRICTION ON COMPETITION. The Executive agrees that, during the
Noncompetition Period, the Executive shall not, and shall not permit any of
his Affiliates to:
(a) engage directly in Competition in any Restricted Territory; or
(b) directly be or become an officer, director, stockholder, owner,
co-owner, Affiliate, partner, promoter, employee, agent,
representative, designer, consultant, advisor, manager, licensor,
sublicensor, licensee or sublicensee of, for or to, or otherwise be or
become associated with or acquire or hold (of record, beneficially or
otherwise) any direct or indirect interest in, any Person that engages
directly or indirectly in Competition in any Restricted Territory:
Provided, however, that the Executive may, without violating this
Section 1, own, as a passive investment, shares of capital stock of a
publicly held corporation that engages in Competition if (i) such
shares are actively traded on an established
national securities market in the United States, (ii) the number of
shares of such corporation's capital stock that are owned beneficially
(directly or indirectly) by the Executive and the number of shares of
such corporation's capital stock that are owned beneficially (directly
or indirectly) by the Executive's Affiliates collectively represent
less than five percent of the total number of shares of such
corporation's capital stock outstanding, and (iii) neither the
Executive nor any Affiliate of the Executive is otherwise associated
directly or indirectly with such corporation or with any Affiliate of
such corporation.
2. REPRESENTATIONS AND WARRANTIES. The Executive represents and warrants, to
and for the benefit of the Company, that: (a) they have full power and
capacity to execute and deliver, and to perform all of his obligations
under, this Agreement; and (b) neither the execution and delivery of this
Agreement nor the performance of this Agreement will result directly or
indirectly in a violation or breach of(i) any agreement or obligation by
which the Executive or any of his Affiliates is or may be bound, or (ii)
any law, rule or regulation. The Executive's representations and warranties
shall survive the expiration of the Noncompetition Period for an unlimited
period of time.
3. SPECIFIC PERFORMANCE. The Executive agrees that, in the event of any breach
or threatened breach by the Executive of any covenant or obligation
contained in this Agreement, each of the Company shall be entitled (in
addition to any other remedy that may be available to it, including
monetary damages) to seek and obtain (a) a decree or order of specific
performance to enforce the observance and performance of such covenant or
obligation, and (b) an injunction restraining such breach or threatened
breach.
4. NONEXCLUSIVITY. The rights and remedies of the parties hereto under this
Agreement are not exclusive of or limited by any other rights or remedies
which they may have, whether at law, in equity, by contract or otherwise,
all of which shall be cumulative (and not alternative). Without limiting
the generality of the foregoing, the rights and remedies of the parties
hereto under this Agreement, and the obligations and liabilities of the
Executive under this Agreement, are in addition to his respective rights,
remedies, obligations and liabilities under the law of unfair competition,
under laws relating to misappropriation of trade secrets, under other laws
and common law requirements and under all applicable rules and regulations.
Nothing in this Agreement shall limit any of the obligations, or the rights
or remedies of the parties hereto, under the Employment Agreement; and
nothing in the Employment Agreement shall limit any of the obligations, or
any of the rights or remedies of the parties hereto, under this Agreement.
No breach on the part of the Company or any other party of any covenant or
obligation contained in the Employment Agreement or any other agreement
shall limit or otherwise affect any right or remedy of the parties hereto
under this Agreement.
5. SEVERABILITY. If any provision of this Agreement or any part of any such
provision is held under any circumstances to be invalid or unenforceable in
any jurisdiction, then (a) such provision or part thereof shall, with
respect to such circumstances and in such jurisdiction, be deemed amended
to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (b) the invalidity or unenforceability of such
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provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (c)
the invalidity or unenforceability of such provision or part thereof shall
not affect the validity or enforceability of the remainder of such
provision or the validity or enforceability of any other provision of this
Agreement. Each provision of this Agreement is separable from every other
provision of this Agreement, and each part of each provision of this
Agreement is separable from every other part of such provision so long as
to do so does not destroy the central intent and purpose of the agreement.
6. GOVERNING LAW; VENUE.
(a) This Agreement shall be construed in accordance with, and governed in
all respects by, the laws of the State of Kansas (without giving
effect to principles of conflicts of laws).
(b) Any legal action or other legal proceeding relating to this Agreement
or the enforcement of any provision of this Agreement may be brought
or otherwise commenced in any state or federal court located in
Xxxxxxx County Kansas. The Executive:
(i) expressly and irrevocably consents and submits to the
jurisdiction of each state and federal court located in Xxxxxxx
County of Kansas (and each appellate court located in the State
of Kansas), in connection with any such legal proceeding;
(ii) agrees that service of any process, summons, notice or document
by U.S. mail addressed to them at the address set forth on the
signature page of this Agreement shall constitute effective
service of such process, summons, notice or document for purposes
of any such legal proceeding;
(iii) agrees that each state and federal court located in Xxxxxxx
County Kansas, shall be deemed to be a convenient forum; and
(iv) agrees not to assert (by way of motion, as a defense or
otherwise), in any such legal proceeding commenced in any state
or federal court located in Xxxxxxx County Kansas, any claim that
the Executive is not subject personally to the jurisdiction of
such court, that such legal proceeding has been brought in an
inconvenient forum, that the venue of such proceeding is improper
or that this Agreement or the subject matter of this Agreement
may not be enforced in or by such court.
7. WAIVER. No failure on the part of the Company or any other party to
exercise any power, right, privilege or remedy under this Agreement, and no
delay on the part of the Company or any other party in exercising any
power, right, privilege or remedy under this Agreement, shall operate as a
waiver of such power, right, privilege or remedy; and no
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single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy.
8. CAPTIONS. The captions contained in this Agreement are for convenience of
reference only, shall not be deemed to be a part of this Agreement and
shall not be referred to in connection with the construction or
interpretation of this Agreement.
9. CONSTRUCTION. Whenever required by the context, the singular number shall
include the plural, and vice versa; the masculine gender shall include the
feminine and neuter genders; and the neuter gender shall include the
masculine and feminine genders. Any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be
applied in the construction or interpretation of this Agreement. Neither
the drafting history nor the negotiating history of this Agreement shall be
used or referred to in connection with the construction or interpretation
of this Agreement. As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, and shall be deemed to be followed by the words "without
limitation." Except as otherwise indicated in this Agreement, all
references in this Agreement to "Sections" are intended to refer to
Sections of this Agreement.
10. AMENDMENT. This Agreement may not be amended, modified, altered or
supplemented other than by means of a written instrument duly executed and
delivered on behalf of the Executive and the Company (or any successor to
the Company).
11. DEFINED TERMS. For purposes of this Agreement:
(a) "Affiliate" means, with respect to the Executive, any other Person
that, directly or indirectly, through one or more intermediaries, is
controlled by the Executive.
(b) "Competing Product" means any: (i) application or software program
that provides an electronic gateway to government services or
procurement information; (ii) product, device or system that is
substantially the same as, incorporates, is a material component or
part of, or is based upon or competes with anything referred to in
clause (i) above or any product, device or system that has been
designed, developed, promoted, sold, resold, installed, supported,
maintained, licensed or sublicensed by or on behalf of Persons who at
any time on or prior to the date of this Agreement were competitors of
the Company (or of any predecessor of the Company) at any time on or
prior to this date of this Agreement until the date of termination of
employment.
(c) "Competing Service" means any: (i) public/private partnership that
provides an electronic gateway to government services or procurement
information; (ii) service that is substantially the same as,
incorporates, is a material component or part of, or is based upon or
competes with a service that has been provided, performed or offered
by or on behalf the Company (or of any predecessor of the Company) at
any time on or prior to the date of this Agreement or until the date
of
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termination of employment; (iii) service that facilitates, supports or
otherwise relates to the any Competing Product.
(d) A Person shall be deemed to be engaged in "Competition" if: (i) such
Person is engaged directly or indirectly in the design, development,
manufacture, assembly, promotion, sale, supply, distribution, resale,
installation, support, maintenance, repair, refurbishment, licensing,
sublicensing, financing, leasing or subleasing of any Competing
Product; or (ii) such Person is engaged directly or indirectly in
providing, performing or offering any Competing Service.
(e) "Confidential Information" means any non-public information (whether
or not in written form and whether or not expressly designated as
confidential) relating directly or indirectly to the Company or
relating directly or indirectly to the business, operations, financial
affairs, performance, assets, technology, processes, products,
contracts, customers, licensees, sublicensees, suppliers, personnel,
consultants or plans of the Company (including any such information
consisting of or otherwise relating to trade secrets, know-how,
technology, inventions, prototypes, designs, drawings, sketches,
processes, license or sublicense arrangements, formulae, proposals,
research and development activities, customer lists or preferences,
pricing lists, referral sources, marketing or sales techniques or
plans, operations manuals, service manuals, financial information,
projections, lists of consultants, lists of suppliers or lists of
distributors); provided, however, that "Confidential Information"
shall not be deemed to include information of the Company that was
already publicly known and in the public domain prior to the time of
its disclosure by the Executive.
(f) "Noncompetition Period" shall mean the period commencing on the date
of this Agreement and ending on the second anniversary of the date of
the termination of the Executive's employment with the Company.
(g) "Person" means, other than Electric Press, Inc., a Virginia
corporation, any: (i) individual or (ii) corporation, general
partnership, limited partnership, limited liability partnership,
trust, company (including any limited liability company or joint stock
company) or other organization or entity.
(h) "Restricted Territory" means each county or similar political
subdivision of each State of the United States of America (including
each of the counties in the State of California), and each State,
territory or possession of the United States of America.
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IN WITNESS WHEREOF, the Executive has duly executed and delivered this
Noncompetition Agreement as of the date first above written.
Signature /s/ Xxxxxx R.D. Somerhalder
-----------------------------
Name: XXXXXX R.D. SOMERHALDER
Telephone No.: (000) 000-0000
Facsimile: (000) 000-0000
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