EXHIBIT 10.9
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of
January 1, 1997 by and between H.T.E., INC., a Florida corporation (the
"Company"), and _______________ (hereinafter called the "Executive").
R E C I T A L
The Executive and the Company have agreed that the Executive shall be
employed by the Company pursuant to the terms and conditions hereinafter set
forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties agree as follows:
1. EMPLOYMENT.
1.1 EMPLOYMENT AND TERM. The Company hereby agrees to
employ the Executive and the Executive hereby agrees to serve the
Company on the terms and conditions set forth herein.
1.2 DUTIES OF EXECUTIVE. During the term of this Agreement,
the Executive shall serve as Vice President and Chief Marketing Officer of the
Company, shall diligently perform all services as may be assigned to him by the
Board or the Chief Executive Officer of the Company and shall exercise such
power and authority as may from time to time be delegated to him by the Board or
the Chief Executive Officer of the Company. The Executive shall devote his full
time and attention to the business and affairs of the Company, render such
services to the best of his ability, and use his best efforts to promote the
interests of the Company.
2. TERM.
2.1 INITIAL TERM. The initial term of this Agreement, and the
employment of the Executive hereunder, shall commence on January 1, 1997 (the
"Commencement Date") and shall expire on December 31, 1997, unless sooner
terminated in accordance with the terms and conditions hereof (the "Initial
Term").
2.2 RENEWAL TERMS. At the end of the Initial Term, this
Agreement shall automatically renew for successive one year terms,
subject to earlier termination of this Agreement as provided
herein.
2.3 EXPIRATION DATE. The date on which the term of this
Agreement shall expire (including the date on which any renewal term shall
expire), is sometimes referred to in this
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Agreement as the Expiration Date.
3. COMPENSATION.
3.1 BASE SALARY. The Executive shall receive an initial base
salary at the annual rate of One Hundred Fifty Thousand Dollars ($150,000.00)
(the "Base Salary"), with such Base Salary payable in installments consistent
with the Company's normal payroll schedule, subject to applicable withholding
and other taxes. The Base Salary also shall be reviewed, at least annually, for
merit increases and may, by action and in the discretion of the Board, be
increased at any time or from time to time.
3.2 COMMISSIONS. During the term of this Agreement, the
Executive shall be eligible to receive the following commissions
(the "Commissions"):
North America License Fees ($0 - 12.5MM) .0075 Commission Rate
($12.5MM++) .01 Commission Rate
The Executive will be entitled to a twelve (12) month draw against his
commissions at the rate of seventy-five percent (75%) of the targeted
commissions at $12.5MM, to be paid on a monthly basis. Actual commissions earned
will be netted quarterly, against any draw received, with shortfalls rolling
over to succeeding quarters.
3.3 BONUSES. During the term of this Agreement, the Executive
shall be eligible to receive bonuses ("Incentive Compensation") pursuant to the
H.T.E., Inc. Executive Bonus Plan, as may be amended from time to time (the
"Incentive Compensation Plan") which shall in the aggregate be up to fifty
percent (50%) of the Executive's Base Salary based upon satisfaction of the
individual and Company performance goals set in accordance with the Incentive
Compensation Plan. Each period for which Incentive Compensation is payable under
the Incentive Compensation Plan is sometimes hereinafter referred to as a Bonus
Period.
4. EXPENSE REIMBURSEMENT AND OTHER BENEFITS.
4.1 REIMBURSEMENT OF EXPENSES. During the term of the
Executive's employment hereunder, upon the submission of proper substantiation
by the Executive, and subject to such rules and guidelines as the Company may
from time to time adopt, the Company shall reimburse the Executive for all
reasonable expenses actually paid or incurred by the Executive in the course of
and pursuant to the business of the Company. The Executive shall account to the
Company in writing for all expenses for which reimbursement is sought and shall
supply to the Company copies of all relevant invoices, receipts or other
evidence reasonably requested by the Company.
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4.2 BENEFIT PROGRAMS. During the term of this
Agreement, the Company, at its expense, shall provide to the Executive and his
dependent family members medical, dental, hospitalization, accidental death and
dismemberment, disability and life insurance coverage. In addition, the Company
shall allow the Executive to participate in all other plans as are presently and
hereinafter offered by the Company to its executives, including savings,
retirement and deferred compensation plans.
4.3 WORKING FACILITIES. The Company shall furnish the
Executive with an office and such other facilities and services
suitable to his position and adequate for the performance of his
duties hereunder.
4.4 AUTOMOBILE ALLOWANCE. The Company shall provide the
Executive with the use of an automobile, or an automobile allowance
between Four Hundred Fifty Dollars ($450) and Six Hundred Fifty
Dollars ($650) per month.
4.5 STOCK OPTIONS. Within thirty (30) days of the date of this
Agreement, the Executive shall be granted options (the "Stock Options") to
purchase one thousand (1000) shares of common stock (the "Common Stock") of
H.T.E., Inc. at a price of Five Hundred Dollars ($500) per share, and subject to
a vesting schedule of twenty percent (20%) per year, under (and therefore
subject to all terms and conditions of) the HTE, Inc. 1997 Executive Incentive
Compensation Plan as amended, and any successor plan thereto (the "Executive
Incentive Compensation Plan") and all rules of regulation of the Securities and
Exchange Commission applicable to stock option plans then in effect. The
Executive shall be eligible for the grant of additional Stock Options from time
to time under the Executive Incentive Compensation Plan upon the Company
achieving total revenue milestones of $50,000,000, $75,000,000 and $100,000,000.
The number of such additional Stock Options, and terms and conditions of the
Stock Options shall be determined by the Committee appointed pursuant to the
Executive Incentive Compensation Plan, or by the Board of Directors of the
Company, in its discretion and pursuant to the Executive Incentive Compensation
Plan.
4.6 OTHER BENEFITS. The Executive shall accrue vacation time
at the rate of four (4) weeks per calendar year during the term of this
Agreement, to be taken at such times as the Executive and the Company shall
mutually determine and provided that no vacation time shall interfere with the
duties required to be rendered by the Executive hereunder. Any vacation time not
taken by Executive during any calendar year may be carried forward into any
succeeding calendar year in accordance with HTE policy. The Executive shall
receive such additional benefits, if any, as the Board of the Company shall from
time to time determine.
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5. TERMINATION.
5.1 TERMINATION/RESIGNATION. The Executive and the
Company shall each have the right at any time, upon sixty (60) days written
notice to the other party, to terminate the Executive's employment hereunder.
Upon any termination pursuant to this Section 5, the Company shall: (a) pay to
the Executive any unpaid Base Salary through the effective date of termination
specified in such notice, (b) pay to the Executive his earned and accrued but
unpaid Commissions, if any, through the effective date of termination specified
in such notice, and (c) pay to the Executive his accrued and declared but unpaid
Incentive Compensation, if any, for any Bonus Period ending on or before the
termination of Executive's employment with the Company. The Company shall have
no further liability hereunder other than for: (i) reimbursement for reasonable
business expenses incurred prior to the date of termination, subject, however,
to the provisions of Section 4.1, and (ii) payment of compensation for unused
vacation days that have accumulated during the calendar year in which such
termination occurs, except as provided elsewhere in this doucment, such as
Section 5.3.
5.2 DEATH. In the event of the death of the Executive during
the term of his employment hereunder, the Company shall (a) pay to the estate of
the deceased Executive any unpaid Base Salary through the Executive's date of
death, (b) pay to the estate of the deceased Executive his earned and accrued
but unpaid Commissions, if any, through the Executive's date of death, and (c)
pay to the estate of the deceased Executive his accrued and declared but unpaid
Incentive Compensation, if any, for any Bonus Period ending on or before the
Executive's date of death. The Company shall have no further liability hereunder
other than for: (i) reimbursement for reasonable business expenses incurred
prior to the date of the Executive's death, subject, however to the provisions
of Section 4.1, and (ii) payment of compensation for unused vacation days that
have accumulated during the calendar year in which such termination occurs.
5.3 SEVERANCE. In the event the Company terminates the
Executive's employment hereunder without cause, as hereinafter defined, the
Company shall continue to pay the Executive's Base Salary and provide health,
dental and life insurance benefits he was receiving under Section 4.2 hereof for
a period of months following such termination, based upon the schedule set forth
below, in the manner and at such time as the Base Salary and the foregoing
benefits otherwise would have been payable or provided to the Executive:
MONTHS OF BASE SALARY AND
MONTHS OF EMPLOYMENT BENEFITS CONTINUATION
-------------------- -------------------------
Less than 3 months 2
At least 3 months but less than 6 months 4
6 months or more 6
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The term "cause" shall mean (a) fraud, embezzlement, misappropriation of funds
or breach of trust in connection with his services hereunder, (b) conviction of
any crime which involves dishonesty or a breach of trust, (c) gross negligence
in connection with the performance of the Executive's duties hereunder, or (d)
an action or omission of the Executive which constitutes a intentional, willful
and material breach of this Agreement which is not cured within thirty (30) days
after receipt by the Executive of written notice of same.
6. RESTRICTIVE COVENANTS.
6.1 NON-COMPETITION. At all times while the Executive is
employed by the Company and for a one (1) year period after the termination of
the Executive's employment with the Company for any reason, the Executive shall
not, directly or indirectly, engage in or have any interest in any sole
proprietorship, partnership, corporation or business or any other person or
entity (whether as an employee, officer, director, partner, agent, security
holder, creditor, consultant or otherwise) that directly or indirectly (or
through any affiliated entity) engages in competition with the Company in the
United States, Canada or any foreign market where the Company markets and sells
software applications or its services (for this purpose, any business that
engages in the development and/or marketing of software applications in the
public sector marketplace shall be deemed to be in competition with the
Company); provided that such provision shall not apply to the Executive's
ownership of Common Stock of the Company or the acquisition by the Executive,
solely as an investment, of securities of any issuer that is registered under
Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, and
that are listed or admitted for trading on any United States national securities
exchange or that are quoted on the National Association of Securities Dealers
Automated Quotations System, or any similar system or automated dissemination of
quotations of securities prices in common use, so long as the Executive does not
control, acquire a controlling interest in or become a member of a group which
exercises direct or indirect control or, more than five percent (5%) of any
class of capital stock of such corporation.
6.2 NONDISCLOSURE. The Executive shall not at any time
divulge, communicate, use to the detriment of the Company or for the benefit of
any other person or persons, or misuse in any way, any Confidential Information
(as hereinafter defined) pertaining to the business of the Company. Any
Confidential Information or data now or hereafter acquired by the Executive with
respect to the business of the Company (which shall include, but not be limited
to, information concerning the Company's financial condition, prospects,
technology, customers, suppliers, sources of leads and methods of doing
business) shall be deemed a valuable, special and
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unique asset of the Company that is received by the Executive in confidence and
as a fiduciary, and Executive shall remain a fiduciary to the Company with
respect to all of such information. For purposes of this Agreement,
"Confidential Information" means information disclosed to the Executive or known
by the Executive as a consequence of or through his employment by the Company
(including information conceived, originated, discovered or developed by the
Executive) prior to or after the date hereof, and not generally known, about the
Company or its business. Notwithstanding the foregoing, nothing herein shall be
deemed to restrict the Executive from disclosing Confidential Information to the
extent required by law.
6.3 NONSOLICITATION OF EMPLOYEES AND CLIENTS. At all
times while the Executive is employed by the Company and for a one
(1) year period after the termination of the Executive's employment
with the Company for any reason, for the Executive shall not,
directly or indirectly, for himself or for any other person, firm,
corporation, partnership, association or other entity: (a) employ
or attempt to employ or enter into any contractual arrangement with
any employee or former employee of the Company, unless such
employee or former employee has not been employed by the Company
for a period in excess of six months, and/or (b) call on or solicit
any of the actual or targeted prospective clients of the Company on
behalf of any person or entity in connection with any business
competitive with the business of the Company, nor shall the
Executive make known the names and addresses of such clients or any
information relating in any manner to the Company's trade or
business relationships with such customers, other than in
connection with the performance of Executive's duties under this
Agreement.
6.4 OWNERSHIP OF DEVELOPMENTS. All copyrights, patents, trade
secrets, or other intellectual property rights associated with any ideas,
concepts, techniques, inventions, processes, or works of authorship developed or
created by Executive during the course of performing work for the Company or its
clients (collectively, the "Work Product") shall belong exclusively to the
Company and shall, to the extent possible, be considered a work made by the
Executive for hire for the Company within the meaning of Title 17 of the United
States Code. To the extent the Work Product may not be considered work made by
the Executive for hire for the Company, the Executive agrees to assign, and
automatically assign at the time of creation of the Work Product, without any
requirement of further consideration, any right, title, or interest the
Executive may have in such Work Product. Upon the request of the Company, the
Executive shall take such further actions, including execution and delivery of
instruments of conveyance, as may be appropriate to give full and proper effect
to such assignment.
6.5 BOOKS AND RECORDS. All books, records, and
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accounts relating in any manner to the customers or clients of the Company,
whether prepared by the Executive or otherwise coming into the Executive's
possession, shall be the exclusive property of the Company and shall be returned
immediately to the Company on termination of the Executive's employment
hereunder or on the Company's request at any time.
6.6 DEFINITION OF COMPANY. Solely for purposes of this Section
6, the term "Company" also shall include any existing or future subsidiaries of
the Company that are operating during the time periods described herein and any
other entities that directly or indirectly, through one or more intermediaries,
control, are controlled by or are under common control with the Company during
the periods described herein.
6.7 ACKNOWLEDGEMENT BY EXECUTIVE. The Executive acknowledges
and confirms that the length of the term of the provisions of this Section 6 and
the geographical restrictions contained in Section 6.1 are fair and reasonable
and not the result of overreaching, duress or coercion of any kind. The
Executive further acknowledges and confirms that his full, uninhibited and
faithful observance of each of the covenants contained in this Section 6 will
not cause him any undue hardship, financial or otherwise, and that enforcement
of each of the covenants contained herein will not impair his ability to obtain
employment commensurate with his abilities and on terms fully acceptable to him
or otherwise to obtain income required for the comfortable support of him and
his family and the satisfaction of the needs of his creditors. The Executive
acknowledges and confirms that his special knowledge of the business of the
Company is such as would cause the Company serious injury or loss if he were to
use such ability and knowledge to the benefit of a competitor or were to compete
with the Company in violation of the terms of this Section 6.
6.8 REFORMATION BY COURT. In the event that a court of
competent jurisdiction shall determine that any provision of this Section 6 is
invalid or more restrictive than permitted under the governing law of such
jurisdiction, then only as to enforcement of this Section 6 within the
jurisdiction of such court, such provision shall be interpreted and enforced as
if it provided for the maximum restriction permitted under such governing law.
6.9 EXTENSION OF TIME. If the Executive shall be in violation
of any provision of this Section 6, then each time limitation set forth in this
Section 6 shall be extended for a period of time equal to the period of time
during which such violation or violations occur. If the Company seeks injunctive
relief from such violation in any court, then the covenants set forth in this
Section 6 shall be extended for a period of time equal to the pendency of such
proceeding including all appeals by the Executive.
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6.10 SURVIVAL. The provisions of this Section 6 shall
survive the termination of this Agreement, as applicable.
7. INJUNCTION. It is recognized and hereby acknowledged by
the parties hereto that a breach by the Executive of any of the covenants
contained in Section 6 of this Agreement will cause irreparable harm and damage
to the Company, the monetary amount of which may be virtually impossible to
ascertain. As a result, the Executive recognizes and hereby acknowledges that
the Company shall be entitled to an injunction from any court of competent
jurisdiction enjoining and restraining any violation of any or all of the
covenants contained in Section 6 of this Agreement by the Executive or any of
his affiliates, associates, partners or agents, either directly or indirectly,
and that such right to injunction shall be cumulative and in addition to
whatever other remedies the Company may possess.
8. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Orange County, Florida, in accordance with the Rules of the American Arbitration
Association then in effect (except to the extent that the procedures outlined
below differ from such rules). Within thirty (30) days after written notice by
either party has been given that a dispute exists and that arbitration is
required, each party must select an arbitrator and those two arbitrators shall
promptly, but in no event later than thirty (30) days after their selection,
select a third arbitrator. The parties agree to act as expeditiously as possible
to select arbitrators and conclude the dispute. The selected arbitrators must
render their decision in writing. The cost and expenses of the arbitration and
of enforcement of any award in any court shall be borne equally by both parties.
If advances are required, each party will advance one-half of the estimated fees
and expenses of the arbitrators. Judgment may be entered on the arbitrators'
award in any court having jurisdiction. Although arbitration is contemplated to
resolve disputes hereunder, either party may proceed to court to obtain an
injunction to protect its rights hereunder, the parties agreeing that either
could suffer irreparable harm by reason of any breach of this Agreement. Pursuit
of an injunction shall not impair arbitration on all remaining issues.
9. ASSIGNMENT. Neither party shall have the right to assign
or delegate its rights or obligations hereunder, or any portion
thereof, to any other person.
10. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
11. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject
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matter hereof and, upon its effectiveness, shall supersede all prior agreements,
understandings and arrangements, both oral and written, between the Executive
and the Company (or any of its affiliates) with respect to such subject matter.
This Agreement may not be modified in any way unless by a written instrument
signed by both the Company and the Executive.
12. NOTICES. All notices required or permitted to be given
hereunder shall be in writing and shall be personally delivered by courier, sent
by registered or certified mail, return receipt requested or sent by confirmed
facsimile transmission addressed as set forth herein. Notices personally
delivered, sent by facsimile or sent by overnight courier shall be deemed given
on the date of delivery and notices mailed in accordance with the foregoing
shall be deemed given upon the earlier of receipt by the addressee, as evidenced
by the return receipt thereof, or three (3) days after deposit in the U.S. Mail.
Notice shall be sent (a) if to the Company, addressed to 000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx, 00000, Attention: President, and (b) if to
the Executive, to his address as reflected on the payroll records of the
Company, or to such other address as either party hereto may from time to time
give notice of to the other.
13. BENEFITS; BINDING EFFECT. This Agreement shall be for the benefit
of and binding upon the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and, where applicable,
assigns, including, without limitation, any successor to the Company, whether by
merger, consolidation, sale of stock, sale of assets or otherwise.
14. SEVERABILITY. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall not
affect the enforceability of the remaining portions of this Agreement or any
part thereof, all of which are inserted conditionally on their being valid in
law, and, in the event that any one or more of the words, phrases, sentences,
clauses or sections contained in this Agreement shall be declared invalid, this
Agreement shall be construed as if such invalid word or words, phrase or
phrases, sentence or sentences, clause or clauses, or section or sections had
not been inserted. If such invalidity is caused by length of time or size of
area, or both, the otherwise invalid provision will be considered to be reduced
to a period or area which would cure such invalidity.
15. WAIVERS. The waiver by either party hereto of a breach
or violation of any term or provision of this Agreement shall not
operate nor be construed as a waiver of any subsequent breach or
violation.
16. DAMAGES. Nothing contained herein shall be construed to prevent the
Company or the Executive from seeking and recovering from the other damages
sustained by either or both of them as a
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result of its or his breach of any term or provision of this Agreement. In the
event that either party hereto brings suit for the collection of any damages
resulting from, or the injunction of any action constituting, a breach of any of
the terms or provisions of this Agreement, then the party found to be at fault
shall pay all reasonable court costs and attorneys' fees of the other.
17. SECTION HEADINGS. The section headings contained in this
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
18. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
other than the Company, the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and assigns, any rights or
remedies under or by reason of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
COMPANY:
H.T.E., INC.
By:
-----------------------------------
Xxxxxx X. Xxxxxxx, President
EXECUTIVE:
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