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EXHIBIT (c)(12)
Non-competition Agreement
(AGREEMENT)
1. Recitations and Date. This Agreement is entered into as of the 1st day of
September, 1999 by and between Effective Management Systems, Inc. (EMS) and
Xxxxx X. Xxxxxx, a member of its Board of Directors (Director) effective
upon the termination of his position as a director of EMS for any reason
(Separation) following completion of a transaction contemplated with IFS
Industrial and Financial Systems, Inc. (IFS).
2. Compensation. In consideration for Director's agreement as set forth
herein, he shall be paid a lump sum fee of $7,000 within 10 days of
Termination.
3. Confidentiality Commitment. Director acknowledges the ongoing obligation
he has to EMS to maintain the confidentiality of proprietary and sensitive
business information.
4. No Prior Agreements. The parties acknowledge that this is the sole
agreement between them with respect to this subject matter and, to the
extent any such prior agreements exist, whether verbal or written, they are
hereby revoked.
5. Non-Solicitation of Employees. For a period equal to the longer of one
year from the Separation date, regardless of cause or initiating party,
Director shall not, directly or indirectly, induce or attempt to induce any
employee of EMS, including its presently existing Affiliates (at least 50%
of the voting stock owned by EMS), to leave the employ of EMS.
6. Non-competition Period. Following Separation, and for a period of six
months thereafter, Director shall not directly or indirectly, serve as a
member of the Board of Directors of any business which is planning,
considering, or does develop, market, or service ERP software anywhere in
the United States in the mid-market segment (businesses with up to $100
million in annual revenue).
7. Legal Interpretation. If any provision of this Agreement is found to be in
conflict with provisions of any applicable law, the parties desire that
such conflict not invalidate the entire Agreement and that it be construed
to invalidate only the conflicting provisions and, where possible, to
reduce the duration or scope of a conflicting provision to the maximum
permitted by law. This Agreement shall be governed by the laws of the
State of Wisconsin without giving effect to any choice of law or conflict
of law rules or provisions.
8. Other Terms. Both parties agree that any public announcement of any
Separation, shall require their mutual consent as to the content, subject
only to SEC or equivalent requirements. The parties also agree not to, at
any time, make any comments concerning the other to media, prospective or
actual employers, employees, customers, or prospects which could be
reasonably construed as being in any way derogatory or negative of the
other.
9. Costs of Enforcement. In an enforcement action relating to this Agreement,
the prevailing party, whether claimant or respondent, following a final
non-appealable decision, shall be immediately reimbursed by the other party
for all its reasonable out-of-pocket costs incurred during such action
including attorneys' fees.
10. Successors. This Agreement shall inure to the benefit of and be binding
upon the successors and assigns, heirs, executors, and administrators of
the parties except that Director may not assign or delegate his duties
hereunder.
11. Termination. This Agreement may be terminated only upon mutual written
agreement of the parties.
Signed at Milwaukee, WI upon the date set forth above.
Effective Management Systems, Inc. Director: Xxxxx X. Xxxxxx
By: /s/ Xxxxxxx X. Xxxxxx, President By: /s/ Xxxxx X. Xxxxxx
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Title an individual
Witness: /s/ X X Xxxxxxxx Witness: /s/ Xxxxxx X. Xxxxxxx
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