EXHIBIT 10.9
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into as of the 11th day of
February, 1994, by and between BANCTEC, INC., A DELAWARE CORPORATION (THE
"EMPLOYER"), AND NORTON X. XXXXXX, XX. (THE "EMPLOYEE").
RECITALS:
WHEREAS, THE EMPLOYER RESEARCHES, DEVELOPS, MANUFACTURES, MARKETS, AND MAINTAINS
COMPUTERIZED FINANCIAL DOCUMENT PROCESSING SYSTEMS;
WHEREAS, THE EMPLOYER DESIRES TO ENGAGE THE EMPLOYEE AS AN EMPLOYEE TO PERFORM
SERVICES REQUIRED OF HIM BY THE TERMS HEREOF;
WHEREAS, THE EMPLOYEE DESIRES TO REMAIN IN THE EMPLOY OF THE EMPLOYER IN THE
CAPACITIES SET FORTH BY THE TERMS HEREOF;
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND AGREEMENTS HEREIN
CONTAINED, THE PARTIES DO HEREBY AGREE AS FOLLOWS:
ARTICLE ONE
EMPLOYMENT AND DUTIES
SECTION 1.1 GENERAL. THE EMPLOYER AGREES TO EMPLOY THE EMPLOYEE AND THE
EMPLOYEE AGREES TO DEVOTE HIS WORK TIME TO THE EMPLOYER AND TO DILIGENTLY AND
FAITHFULLY PERFORM TO THE BEST OF HIS ABILITIES SUCH DUTIES AND SERVICES AS MAY
BE ASSIGNED TO HIM FROM TIME TO TIME BY THE EMPLOYER. THE EMPLOYEE AGREES TO
ADHERE TO ALL POLICIES ESTABLISHED BY THE EMPLOYER AND TO AVOID ALL ACTS THAT
MIGHT INJURE THE REPUTATION OF THE EMPLOYER. THE EMPLOYEE AGREES TO PERFORM HIS
DUTIES IN ACCORDANCE WITH ANY RULES AND REGULATIONS PROMULGATED BY THE EMPLOYER.
IT IS EXPRESSLY AGREED THAT THE CONTINUED EMPLOYMENT OF THE EMPLOYEE BY THE
EMPLOYER FROM THE DATE OF THIS AGREEMENT IS PART OF THE EMPLOYEE'S CONSIDERATION
FOR THIS AGREEMENT.
ARTICLE TWO
TITLE, COMPENSATION, EXPENSES, AND VACATIONS
SECTION 2.1 APRIL 1, 1994, THROUGH MARCH 31, 1995. FOR THE PERIOD FROM MARCH
31, 1993, TO AND INCLUDING MARCH 31, 1995, THE PARTIES AGREE TO THE FOLLOWING:
Section 2.1.1 Duties. Employee shall perform such services as directed from
time to time by the Chairman of the Board of Directors of the Employer.
Section 2.1.2 Compensation. In consideration for the Employee devoting full-
time to the activities of the Employer, Employer agrees to pay Employee an
annual salary of $179,800. In addition, Employee shall be eligible for full
participation in any executive bonus plan in effect during the period, such
bonus to be paid in cash.
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Section 2.1.3 Automobile Allowance. Employee shall receive that amount
established by the Board of Directors as an automobile allowance for those
officers of the Employer on a level of Vice President or above.
Section 2.1.4 Stock Option. Employer agrees to cause the Employee to be
granted a stock option for 5,000 shares under the Employer's 1989 Stock Option
Plan. Employer further agrees that the grant shall have occurred on or before
April 1, 1995, and that the shares shall be fully vested in Employee as of the
date of grant by the Employer.
Section 2.1.5 Vacation. The Employee shall be entitled to a reasonable
vacation, consistent with the Employer's standard vacation policy.
Section 2.1.6 Other Benefits. The Employee shall be entitled to receive those
other benefits normally provided to employees of the Employer and consistent
with the position of the Employee.
Section 2.1.7 Other Expenses. The Employee shall be entitled to be reimbursed,
in accordance with the Employer's then current Travel Policy, for all reasonable
and necessary expenses incurred by Employee on behalf of the Employer, if the
Employee submits itemized receipts obtained by the Employee in connection with
such expenditures.
SECTION 2.2 APRIL 1, 1995, THROUGH MARCH 31, 1996. FOR THE PERIOD FROM APRIL
1, 1995, TO AND INCLUDING MARCH 31, 1996, THE PARTIES AGREE AS FOLLOWS:
Section 2.2.1 Duties. Employee shall perform such services as directed from
time to time by the Chairman of the Board of Directors of the Employer.
Employee shall devote at least two-thirds (2/3) of his time to the activities of
the Employer.
Section 2.2.2 Compensation. In consideration for the Employee devoting two-
thirds (2/3) time to the activities of the Employer, Employer agrees to pay
Employee an annual salary of $119,867. In addition, Employee shall be eligible
for two-thirds (2/3) participation in any executive bonus plan in effect during
the year, such bonus to be paid in cash.
Section 2.2.3 Automobile Allowance. Employee shall receive that amount
established by the Board of Directors as an automobile allowance for those
officers of the Employer on a level of Vice President or above.
Section 2.2.4 Stock Option. Employer agrees to cause the Employee to be
granted a stock option for 5,000 shares under the Employer's 1989 Stock Option
Plan. Employee shall notify the Board of Directors at least five (5) days prior
to the date the Employee would like the option to be issued. The shares granted
thereunder shall be fully vested in Employee as of the date of grant by the
Employer.
Section 2.2.5 Vacation. The Employee shall be entitled to accrue vacation
under Employer's standard vacation policy in an amount equal to two-thirds (2/3)
that accrued for employees of like longevity with Employer.
Section 2.2.6 Other Benefits. The Employee shall be entitled to receive those
other benefits normally provided to employees of the Employer and consistent
with the position of the Employee.
Section 2.2.7 Other Expenses. The Employee shall be entitled to be reimbursed,
in accordance with the Employer's then current Travel Policy, for all reasonable
and necessary expenses incurred by Employee on behalf of the Employer, if the
Employee submits itemized receipts obtained by the Employee in connection with
such expenditures.
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SECTION 2.3 APRIL 1, 1996, THROUGH MARCH 31, 1997. FOR THE PERIOD FROM APRIL
1, 1996, TO AND INCLUDING MARCH 31, 1997, THE PARTIES AGREE AS FOLLOWS:
Section 2.3.1 Duties. Employee shall perform such services as directed from
time to time by the Chairman of the Board of Directors of the Employer.
Employee shall devote at least one-third (1/3) of his time to the activities of
the Employer.
Section 2.3.2 Compensation. In consideration for the Employee devoting one-
third (1/3) time to the activities of the Employer, Employer agrees to pay
Employee an annual salary of $59,933. In addition, Employee shall be eligible
for one-third (1/3) participation in any executive bonus plan in effect during
the period, such bonus to be paid in cash.
Section 2.3.3 Automobile Allowance. Employee shall receive that amount
established by the Board of Directors as an automobile allowance for those
officers of the Employer on a level of Vice President or above.
Section 2.3.4 Stock Option. Employer agrees to cause the Employee to be
granted a stock option for 5,000 shares under the Employer's 1989 Stock Option
Plan. Employee shall notify the Board of Directors at least five (5) days prior
to the date the Employee would like the option to be issued. The shares granted
thereunder shall be fully vested in Employee as of the date of grant by the
Employer.
Section 2.3.5 Vacation. The Employee shall be entitled to accrue vacation
under the Employer's standard Vacation Policy in an amount equal to one-third
(1/3) that accrued for employees of like longevity with Employer.
Section 2.3.6 Other Benefits. The Employee shall be entitled to receive those
other benefits normally provided to employees of the Employer and consistent
with the position of the Employee.
Section 2.3.7 Other Expenses. The Employee shall be entitled to be reimbursed,
in accordance with the Employer's then current Travel Policy, for all reasonable
and necessary expenses incurred by Employee on behalf of the Employer, if the
Employee submits itemized receipts obtained by the Employee in connection with
such expenditures.
SECTION 2.4 DEATH OR DISABILITY. THIS AGREEMENT WILL TERMINATE UPON THE
DEATH OF THE EMPLOYEE OR AFTER THE EMPLOYEE HAS BECOME PERMANENTLY DISABLED.
FOR PURPOSES OF THIS AGREEMENT, THE EMPLOYEE IS "PERMANENTLY DISABLED" WHEN HE
IS UNABLE TO CONTINUE HIS NORMAL DUTIES OF EMPLOYMENT, BY REASON OF A MEDICALLY
DETERMINED PHYSICAL OR MENTAL IMPAIRMENT, FOR A CONTINUOUS PERIOD OF AT LEAST
NINETY (90) DAYS. IN DETERMINING WHETHER OR NOT THE EMPLOYEE IS PERMANENTLY
DISABLED, THE EMPLOYER MAY REASONABLY RELY UPON THE OPINION OF ANY DOCTOR OR
PRACTITIONER OF ANY RECOGNIZED FIELD OF MEDICINE OR PSYCHIATRIC PRACTICE
SELECTED BY THE EMPLOYER AND SUCH OTHER EVIDENCE AS THE EMPLOYER REASONABLY
DEEMS NECESSARY. ANY INSURANCE OR DISABILITY BENEFITS NORMALLY AFFORDED TO
EMPLOYEES OF THE EMPLOYER SHALL NOT BE AFFECTED BY THIS SECTION.
ARTICLE THREE
COVENANT NOT TO COMPETE
The Employee hereby agrees that during the term of this Agreement and for a
period of one (1) year after the termination hereof, other than a termination
according to Section 6.2, he will not, either through any kind of ownership
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(other than ownership of securities of a publicly held corporation of which the
Employee owns less than one percent (1%) of any class of outstanding
securities), or as a director, officer, principal, agent, employee, employer,
advisor, consultant, co-partner, or in any individual or representative capacity
whatever, either for his own benefit or for the benefit of any other person,
firm, or corporation, without the prior written consent of a duly authorized
officer of the Employer, compete with the Employer by engaging in any act,
including, but not limited to, any of the following:
(a) canvass, solicit, accept, or perform any type of work performed by the
Employer for any Customer of the Employer;
(b) develop, design, manufacture, or market any products or devices that
may be used for the same purposes as any product sold by the Employer
during the term of this Agreement;
(c) request or advise any firm to withdraw, curtail, or cancel its
business with the Employer;
(d) give or attempt to give any person, partnership, or corporation the
right to solicit or canvass any Customer for the performance of work
performed by the Employer; and
(e) induce or attempt to influence any employee of the Employer or any
employee of any Customer to terminate his employment with the view
toward competing with the Employer or any Customer.
As used herein, the term "Customer" includes any of the Employer's Customers at
any time during the term of this Agreement.
ARTICLE FOUR
CONFIDENTIAL INFORMATION
SECTION 4.1 NONDISCLOSURE. THE EMPLOYEE EXPRESSLY COVENANTS AND AGREES THAT
HE WILL NOT DURING HIS EMPLOYMENT FOR THE EMPLOYER HEREUNDER OR AT ANY TIME
AFTER THE TERMINATION HEREOF, IRRESPECTIVE OF THE TIME, MANNER, OR CAUSE OF
TERMINATION, REVEAL, DIVULGE, DISCLOSE, OR COMMUNICATE TO ANY PERSON, FIRM, OR
CORPORATION, OTHER THAN AUTHORIZED OFFICERS, DIRECTORS, AND EMPLOYEES OF THE
EMPLOYER, IN ANY MANNER WHATSOEVER, ANY CONFIDENTIAL INFORMATION OF THE EMPLOYER
THAT WOULD BE INCONSISTENT WITH THE POSITION HELD BY THE EMPLOYEE OR THE DUTIES
BEING PERFORMED BY THE EMPLOYEE AT THE DIRECTION OF THE EMPLOYER.
SECTION 4.2 DEFINITION OF "CONFIDENTIAL INFORMATION". AS USED HEREIN,
"CONFIDENTIAL INFORMATION" MEANS INFORMATION DISCLOSED TO OR KNOWN BY THE
EMPLOYEE AS A CONSEQUENCE OF OR THROUGH HIS EMPLOYMENT FOR THE EMPLOYER, NOT
GENERALLY KNOWN IN THE BUSINESS IN WHICH THE EMPLOYER IS OR MAY BECOME ENGAGED,
ABOUT THE EMPLOYER, ITS BUSINESS, PRODUCTS, AND PROCESSES.
SECTION 4.3 RETURN OF CONFIDENTIAL INFORMATION AND OTHER PROPERTY. UPON
TERMINATION OF THIS AGREEMENT, THE EMPLOYEE WILL SURRENDER TO THE EMPLOYER ALL
CONFIDENTIAL INFORMATION INCLUDING, WITHOUT LIMITATION, ALL LISTS, CHARTS,
SCHEDULES, REPORTS, FINANCIAL STATEMENTS, BOOKS, AND RECORDS, AND ALL COPIES
THEREOF, OF THE EMPLOYER AND ALL OTHER PROPERTY BELONGING TO THE EMPLOYER
WHATSOEVER.
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ARTICLE FIVE
ENFORCEMENT OF COVENANTS
The Employee agrees that a substantial violation on his part of any covenant
contained in Articles Three and Four of this Agreement will cause such damage to
the Employer as will be irreparable and for that reason, the Employee further
agrees that the Employer shall be entitled as a matter of right, to an
injunction out of any court of competent jurisdiction, restraining any further
violation of said covenants by the Employee, his employer, employees, partners,
or agents. Such right to injunction shall be cumulative and in addition to
whatever other remedies the Employer may have, including, specifically, recovery
of liquidated and additional damages. The Employee expressly acknowledges and
agrees that the respective covenants and agreements shall be construed in such a
manner as to be enforceable under applicable laws if a more limited scope of
time is determined by a court or competent jurisdiction to be required.
ARTICLE SIX
TERM OF AGREEMENT
SECTION 6.1 TERM. THE TERM OF THIS AGREEMENT WILL BE THROUGH MARCH 31, 1997,
UNLESS TERMINATED EARLIER AS PROVIDED BELOW, OR UNLESS TERMINATED BY THE
EMPLOYEE AT ANY TIME.
SECTION 6.2 IMMEDIATE TERMINATION. THE EMPLOYER MAY TERMINATE THIS AGREEMENT
WITHOUT NOTICE FOR CAUSE, AS HEREINAFTER DEFINED, OR IF THE EMPLOYEE IS IN
SUBSTANTIAL BREACH OF THE COVENANTS OF THIS AGREEMENT, INCLUDING, WITHOUT
LIMITATION, DISCLOSING CONFIDENTIAL INFORMATION, COMMITTING ACTS OF PERSONAL OR
BUSINESS MISCONDUCT.
In the event of termination for cause, the Employer shall be under no obligation
to the Employee except to reimburse him for such expenses as he may be entitled
to receive up to the time of termination.
In the event of termination of this Agreement according to this Section 6.2,
then (a) the covenants contained in Article Three hereof shall survive for a
period of two (2) years after the date this Agreement is terminated and (b) the
covenants contained in Article Four hereof shall survive indefinitely.
"Cause" means (a) any act by the Employee that is materially adverse to the best
interests of the Company and which, if the subject of a criminal proceeding,
could result in a criminal conviction for a felony or (b) the failure by the
Employee to substantially perform his duties hereunder, which duties are within
the control of the Employee (other than the failure resulting from the
Employee's incapacity due to physical or mental illness).
SECTION 6.3 RENEWABILITY. THIS AGREEMENT MAY BE RENEWED AT THE OPTION OF THE
BOARD OF DIRECTORS OF EMPLOYER WITH THE AGREEMENT OF THE EMPLOYEE IN ONE (1)
YEAR INCREMENTS AFTER THE EXPIRATION OF THE TERM OF THIS AGREEMENT.
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ARTICLE SEVEN
MISCELLANEOUS
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SECTION 7.1 NOTICES. ALL NOTICES PROVIDED FOR BY THIS AGREEMENT SHALL BE
MADE IN WRITING (A) EITHER BY ACTUAL DELIVERY OF THE NOTICE TO THE PARTY
THEREUNTO ENTITLED OR (B) BY THE MAILING OF THE NOTICE IN THE UNITED STATES
MAIL, ADDRESSED TO THE PARTY TO BE NOTIFIED AT THE ADDRESS LISTED BELOW (OR AT
SUCH OTHER ADDRESS AS MAY HAVE BEEN DESIGNATED BY WRITTEN NOTICE), CERTIFIED OR
REGISTERED MAIL, RETURN RECEIPT REQUESTED. THE NOTICE SHALL BE DEEMED TO BE
RECEIVED (A) IF BY PERSONAL DELIVERY, ON THE DATE OF ITS ACTUAL RECEIPT BY THE
PARTY ENTITLED THERETO OR (B) IF BY MAIL, ON THE DATE OF DEPOSIT IN THE UNITED
STATES MAIL.
To the Employer: BancTec, Inc.
0000 Xxxxxx Xxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attn: General Counsel
To the Employee: Norton X. Xxxxxx, Xx.
0000 Xxxxxxxxxx
Xxxxxx, Xxxxx 00000
SECTION 7.2 ENTIRE AGREEMENT. THIS AGREEMENT AND THE EMPLOYMENT AGREEMENT
DATED MAY 28, 1992, CONTAIN THE ENTIRE AGREEMENT OF THE PARTIES HERETO AND
SUPERSEDE ALL OTHER PRIOR AGREEMENTS AND UNDERSTANDINGS, ORAL OR WRITTEN, IF
ANY, BETWEEN THE PARTIES HERETO. NO MODIFICATION OR AMENDMENT OF ANY OF THE
TERMS, CONDITIONS, OR PROVISIONS HEREIN MAY BE MADE OTHERWISE THAN BY WRITTEN
AGREEMENT SIGNED BY THE PARTIES HERETO.
SECTION 7.3 GOVERNING LAW. THE LAWS OF THE STATE OF TEXAS SHALL GOVERN THE
VALIDITY, CONSTRUCTION, ENFORCEMENT, AND INTERPRETATION OF THIS AGREEMENT.
SECTION 7.4 PARTIES BOUND. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
HEREUNDER SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE EMPLOYER, THE
EMPLOYEE, AND THEIR RESPECTIVE HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS, AND
ASSIGNS; PROVIDED, HOWEVER, THAT THE EMPLOYEE MAY NOT ASSIGN ANY RIGHTS OR
OBLIGATIONS HEREUNDER WITHOUT THE EXPRESS WRITTEN CONSENT OF THE EMPLOYER. THIS
AGREEMENT SHALL ALSO BIND AND INURE TO THE BENEFIT OF ANY SUCCESSOR OF THE
EMPLOYER BY MERGER OR CONSOLIDATION, OR ANY ASSIGNEE OF ALL OR SUBSTANTIALLY ALL
OF THE EMPLOYER'S PROPERTIES.
SECTION 7.5 INVALID PROVISIONS. IF ANY PROVISION OF THIS AGREEMENT IS HELD
TO BE ILLEGAL, INVALID, OR UNENFORCEABLE UNDER PRESENT OR FUTURE LAWS EFFECTIVE
DURING THE TERM HEREOF, SUCH PROVISION SHALL BE FULLY SEVERABLE; THIS AGREEMENT
SHALL BE CONSTRUED AND ENFORCED AS IF SUCH ILLEGAL, INVALID, OR UNENFORCEABLE
PROVISION HAD NEVER COMPRISED A PART HEREOF; AND THE REMAINING PROVISIONS HEREOF
SHALL REMAIN IN FULL FORCE AND EFFECT AND SHALL NOT BE AFFECTED BY THE ILLEGAL,
INVALID, OR UNENFORCEABLE PROVISION OR BY ITS SEVERANCE HEREFROM. FURTHERMORE,
IN LIEU OF SUCH ILLEGAL, INVALID, OR UNENFORCEABLE PROVISION, THERE SHALL BE
ADDED AUTOMATICALLY AS A PART OF THIS AGREEMENT A PROVISION AS SIMILAR IN TERMS
TO SUCH ILLEGAL, INVALID, OR UNENFORCEABLE PROVISION AS MAY BE POSSIBLE AND BE
LEGAL, VALID, AND ENFORCEABLE.
SECTION 7.6 WAIVER OF BREACH. THE WAIVER BY ANY PARTY HERETO OF A BREACH OF
ANY PROVISION OF THIS AGREEMENT SHALL NOT OPERATE OR BE CONSTRUED AS A WAIVER OF
ANY SUBSEQUENT BREACH BY ANY PARTY.
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SECTION 7.7 SECTION HEADINGS. THE HEADINGS CONTAINED IN THIS AGREEMENT ARE
FOR REFERENCE PURPOSES ONLY AND DO NOT AFFECT IN ANY WAY THE MEANING OR
INTERPRETATION OF THE AGREEMENT.
SECTION 7.8 MULTIPLE COUNTERPARTS. THIS AGREEMENT HAS BEEN EXECUTED IN A
NUMBER OF IDENTICAL COUNTERPARTS, EACH OF WHICH FOR ALL PURPOSES IS TO BE DEEMED
AN ORIGINAL, AND ALL OF WHICH CONSTITUTE, COLLECTIVELY, ONE AGREEMENT; BUT
MAKING PROOF OF THIS AGREEMENT, IT SHALL NOT BE NECESSARY TO PRODUCE OR ACCOUNT
FOR MORE THAN ONE (1) SUCH COUNTERPART.
IN WITNESS WHEREOF, THIS AGREEMENT IS SIGNED AND EXECUTED THE DAY AND YEAR
FIRST ABOVE WRITTEN.
EMPLOYER:
BANCTEC, INC.
By: ________________________________
Xxxxxxx X. Xxxxx, Xx.
Chairman of the Board and Chief
Executive Officer
EMPLOYEE:
By: ________________________________
Norton X. Xxxxxx, Xx.
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