EXHIBIT 10
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT entered into as of this 23 day of June 1994,
between InTime Systems International, Inc. (the "Company"), and Xxxxxxx X.
Xxxxx (the "Executive").
WHEREAS, the Company desires to employ Executive and to ensure the
continued availability to the Company of the Executive's services, and the
Executive is willing to accept such employment and render such services, all
upon and subject to the terms and conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
set forth in this Agreement, and intending to be legally bound, the Company and
the Executive agree as follows:
1. Term of Employment.
(a) Term. The Company hereby employs the Executive, and the Executive
hereby accepts employment with the Company, for a period commencing on the
effective date of the Company's initial public offering and ending three
years thereafter.
(b) Continuing Effect. Notwithstanding any termination of this
Agreement except for termination under Section 5(c), at the end of the Term
or otherwise, the provisions of Sections 6 and 7 shall remain in full force
and effect and the provisions of Section 7 shall be binding upon the legal
representatives, successors and assigns of the
Executive.
2. Duties.
(a) General Duties. The Executive shall serve as president and chief
executive officer of the Company, with duties and responsibilities that are
customary for such executives. The Executive will also perform services
for such subsidiaries as may be necessary. The Executive will use his best
efforts to perform his duties and discharge his responsibilities pursuant
to this Agreement competently, carefully and faithfully. In determining
whether or not the Executive has used his best efforts hereunder, the
Executive's and the Company's delegation of authority and all surrounding
circumstances shall be taken into account and the best efforts of the
Executive shall not be judged solely on the Company's earnings or other
results of the Executive's performance.
(b) Devotion of Time. Subject to the last sentence of this Section
2(b), the Executive shall devote all of his time, attention and energies
during normal business hours (exclusive of periods of sickness and
disability and of such normal holiday and vacation periods as have been
established by the Company) to the affairs of the Company. The Executive
shall not enter the employ of or serve as a consultant to, or in any way
perform any services with or without compensation to, any other persons,
business or organization without the
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prior consent of the board of directors of the Company; provided, that the
Executive shall be permitted to devote a limited amount of his time,
without compensation, to professional, charitable or similar organizations.
3. Compensation and Expenses.
(a) Salary. For the services of the Executive to be rendered under
this Agreement, the Company shall pay the Executive an annual salary of
$188,000 subject to increase for cost of living increases based upon the
Consumer Price Index calculated upon the commencement of each year of the
agreement using the prior month as the measuring month published by the
Bureau of Labor Statistics (or similar successor index). Such increase
shall operate as follows:
Commencing with the one year anniversary of this Agreement and the
beginning of each year thereafter during the term of this Agreement, the
Executive's annual salary shall be adjusted in accordance with the Consumer
Price Index, all Urban Consumers issued by the Bureau of Labor Statistics
of the U.S. Department of Labor using the years 1982-84 as a base of 100
(the "Index"). At the commencement of the second year, and of each year
thereafter, the Executive's salary shall be multiplied each year by a
fraction, the numerator of which shall be the published Index number for
the month preceeding the commencement of the new year, i.e. May, and the
denominator of which shall be the
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published Index number for the month of May 1994 which is 147.5. The
resulting increase to the Executive's annual salary, if any, shall be added
to the prior year's annual salary and become a part thereof for the
succeeding year. In the event that the Index herein referred to ceases to
be published during the term of this Agreement, or if a substantial change
is made in the method of establishing such Index, then the determination of
the adjustment in the Executive's compensation shall be made with the use
of such conversion factor, formula or table as may be published by the
Bureau of Labor Statistics, or if none is available, the parties shall
accept comparable statistics on the cost of living in the United States as
shall then be computed and published by an agency of the United States, or
if not by a respected financial periodical selected by the Executive.
(b) Expenses. In addition to any compensation received pursuant to
Section 3(a) and (c), the Company will reimburse or advance funds to the
Executive for all reasonable travel, entertainment and miscellaneous
expenses incurred in connection with the performance of his duties under
this Agreement, provided that the Executive properly accounts for such
expenses to the Company in accordance with the Company's practices. Such
reimbursement or advances will be made in accordance with policies and
procedures of the Company in effect from time to time relating to
reimbursement of or advances to executive officers.
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(c) Management Bonus. During the term of this Agreement, as further
consideration for the services to be rendered pursuant to this Agreement,
the Company shall grant to Executive a management bonus based on the
Company's annual net income. In 1994, the Executive will receive a bonus
equal to 3.5% of net income if the Company's net income is a minimum of 80%
of the Company's 1994 projected net income of $863,000. If actual net
income in 1994 is less than 80% of projected net income, Executive will
receive a bonus equal to 2.5% of the actual net income. During 1995 and
1996, Executive will receive a bonus equal to 2.5% of net income. Such
bonus shall be payable within 10 days after the earlier of (i) the
Company's receipt of an opinion for its audited financial statements for
the prior fiscal year; or (ii) the date the Company files its Form 10-KSB
(or Form 10-K) with the Securities and Exchange Commission for the prior
fiscal year.
4. Benefits.
(a) Vacation. For each 12-month period during the Term, the
Executive will be entitled to six weeks of vacation without loss of
compensation or other benefits to which he is entitled under this
Agreement, to be taken at such times as the Executive may select and the
affairs of the Company may permit. Any unused vacation will be paid for by
the Company in addition to regular salary at the annual rate in effect
during 12 month period.
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(b) Employee Benefit Programs. The Executive is entitled to
participate in any pension, 401(k), insurance or other employee benefit
plan that is maintained by the Company for its executive officers,
including programs of life and medical insurance and reimbursement of
membership fees in civic, social and professional organizations.
(c) Insurance. The Company shall provide to Executive a $500,000 key
man life insurance policy issued by Xxxxxxx National Life Insurance
Company. The Company shall pay the premiums on the policy and cause The
Consulting Team, Inc. to assign the benefits of the policy to those
person(s) or entity(ies) Executive directs as beneficiary(ies). Also, the
Company shall provide to Executive and pay premiums on the Company's
medical insurance policy covering Executive and Executive's dependents.
(d) Car Allowance. The Executive is entitled to the sum of $1,000
per month for a car allowance.
5. Termination.
(a) Termination for Cause. The Company may terminate the Executive's
employment pursuant to the terms of this Agreement at any time for cause by
giving written notice of termination. Such termination will become
effective upon the giving of such notice. Upon any such termination for
cause, the Executive shall have no right to compensation, bonus or
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reimbursement under Section 3, or to participate in any employee benefit
programs under Section 4, except as provided by law, for any period
subsequent to the effective date of termination. For purposes of this
Section 5(a), "cause" shall mean: (i) the Executive is convicted of a
felony which is related to the Executive's employment or the business of
the Company; (ii) the Executive, in carrying out his duties hereunder, has
been found in a civil action to have committed gross negligence or
intentional misconduct resulting in either case in material harm to the
Company; or (iii) the Executive materially breaches any provision of
Section 6 or Section 7.
(b) Death or Disability. Except as otherwise provided in this
Agreement, it shall terminate upon the death, or disability of the
Executive. For purposes of this Section 5(b), "disability" shall mean that
for a period of four consecutive months in any 12-month period the
Executive is incapable of substantially fulfilling the duties set forth in
Section 2 because of physical, mental or emotional incapacity resulting
from injury, sickness or disease. In the event of Executive's disability,
the Executive will be paid compensation, benefits and bonus which may
accrue for a total of 18 months, or for the remainder of this Agreement,
whichever time is greater, for the time off for sickness, illness, or
disability. In the event of death of the Executive, the Executive's
spouse, if living, will receive the Executive's compensation and benefits
for the remainder
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of this Agreement.
(c) Special Termination. In the event that (i) the Executive, with
or without change in title or formal corporate action, shall no longer
exercise all of the duties and responsibilities and shall no longer possess
substantially all the authority set forth in Section 2; or (ii) the Company
materially breaches this Agreement or the performance of its duties and
obligations hereunder; or (iii) any entity or person not now an executive
officer of the Company becomes either individually or as part of a group
the beneficial owner of 40% or more of the Company's common stock, in any
such event the Executive, by written notice to the Company, may elect to
deem the Executive's employment hereunder to have been terminated by the
Company without cause, in which event the Executive shall be entitled to
the compensation, reimbursement and benefits payable pursuant to Sections 3
and 4 herein for the remaining term of this Agreement and all Executive's
remaining unvested options shall vest immediately upon such termination. In
such event, the Executive, by written notice to the Company, may elect to
refuse all further obligations of the Company under Sections 3 and 4 and to
release the Company with respect thereto, in which event the Company shall
release the Executive from the provisions of Section 6.
6. Non-competition Agreement.
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(a) Competition with the Company. Until termination of his
employment and for a period of 12 months commencing on the date of
termination, the Executive, directly or indirectly, in association with or
as a stockholder, director, officer, consultant, employee, partner, joint
venturer, member or otherwise of or through any person, firm, corporation,
partnership, association or other entity, will not compete with the Company
or any of its affiliates in the offer, sale or marketing of products or
services that are competitive with the products or services offered by the
Company, within any metropolitan area in the United States or elsewhere in
which the Company is then engaged in the offer and sale of competitive
products or services; provided, however, the foregoing shall not prevent
Executive from accepting employment with an enterprise engaged in two or
more lines of business, one of which is the same or similar to the
Company's business (the "Prohibited Business") if Executive's employment is
totally unrelated to the Prohibited Business; provided, further, the
foregoing shall not prohibit Executive from owning up to 5% of the
securities of any publicly-traded enterprise provided Executive is not an
employee, director, officer, consultant to such enterprise or otherwise
reimbursed for services rendered to such enterprise.
(b) Solicitation of Customers. During the periods in which the
provisions of Section 6(a) shall be in effect, the Executive, directly or
indirectly, will not seek Prohibited
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Business from any Customer (as defined below) on behalf of any enterprise
or business other than the Company, refer Prohibited Business from any
Customer to any enterprise or business other than the Company or receive
commissions based on sales or otherwise relating to the Prohibited Business
from any Customer, or any enterprise or business other than the Company.
For purposes of this Section 6(b), the term "Customer" means any person,
firm, corporation, partnership, association or other entity to which the
Company or any of its affiliates sold or provided goods or services during
the 24-month period prior to the time at which any determination is
required to be made as to whether any such person, firm, corporation,
partnership, association or other entity is a Customer.
(c) No Payment. The Executive acknowledges and agrees that no
separate or additional payment will be required to be made to him in
consideration of his undertakings in this Section 6.
7. Nondisclosure of Confidential Information. The Executive acknowledges
that during his employment he will learn and will have access to confidential
information regarding the Company and its affiliates, including without
limitation (i) confidential or secret plans, programs, documents, agreements or
other material relating to the business, services or activities of the Company
and its affiliates and (ii) trade secrets, market reports, customer
investigations, customer lists and other similar
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information that is proprietary information of the Company or its affiliates
(collectively referred to as "Confidential Information"). The Executive
acknowledges that such Confidential Information as is acquired and used by the
Company or its affiliates is a special, valuable and unique asset. All records,
files, materials and Confidential Information obtained by the Executive in the
course of his employment with the Company are confidential and proprietary and
shall remain the exclusive property of the Company or its affiliates, as the
case may be. The Executive will not, except in connection with and as required
by his performance of his duties under this Agreement, for any reason use for
his own benefit or the benefit of any person or entity with which he may be
associated or disclose any such Confidential Information to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever
without the prior written consent of the board of directors of the Company,
unless such Confidential Information previously shall have become public
knowledge through no action by or omission of the Executive.
8. Equitable Relief.
(a) The Company and the Executive recognize that the services to be
rendered under this Agreement by the Executive are special, unique and of
extraordinary character, and that in the event of the breach by the
Executive of the terms and conditions of this Agreement or if the
Executive, without the prior consent of the board of directors of the
Company, shall
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leave his employment for any reason and take any action in violation of
Section 6 or Section 7, the Company will be entitled to institute and
prosecute proceedings in any court of competent jurisdiction referred to in
Section 8(b) below, to enjoin the Executive from breaching the provisions
of Section 6 or Section 7. In such action, the Company will not be required
to plead or prove irreparable harm or lack of an adequate remedy at law.
Nothing contained in this Section 8 shall be construed to prevent the
Company from seeking such other remedy in arbitration in case of any breach
of this Agreement by the Executive, as the Company may elect.
(b) Any proceeding or action must be commenced in Palm Beach County,
Florida where the Company maintains its principal offices. The Executive
and the Company irrevocably and unconditionally submit to the exclusive
jurisdiction of such courts and agree to take any and all future action
necessary to submit to the jurisdiction of such courts. The Executive and
the Company irrevocably waive any objection that they now have or hereafter
irrevocably waive any objection that they now have or hereafter may have to
the laying of venue of any suit, action or proceeding brought in any such
court and further irrevocably waive any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient
forum. Final judgment against the Executive or the Company in any such
suit shall be conclusive and may be enforced in other jurisdictions by suit
on the judgment, a certified or true copy of which shall
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be conclusive evidence of the fact and the amount of any liability of the
Executive or the Company therein described, or by appropriate proceedings
under any applicable treaty or otherwise.
9. Assignability. The rights and obligations of the Company under this
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Company, provided that such successor or assign shall acquire all
or substantially all of the securities or assets and business of the Company.
The Executive's obligations hereunder may not be assigned or alienated and any
attempt to do so by the Executive will be void.
10. Severability.
(a) The Executive expressly agrees that the character, duration and
geographical scope of the provisions set forth in this Agreement are
reasonable in light of the circumstances as they exist on the date hereof.
Should a decision, however, be made at a later date by a court of competent
jurisdiction that the character, duration or geographical scope of such
provisions is unreasonable, then it is the intention and the agreement of
the Executive and the Company that this Agreement shall be construed by the
court in such a manner as to impose only those restrictions on the
Executive's conduct that are reasonable in the light of the circumstances
and as are necessary to assure to the Company the benefits of this
Agreement. If, in any judicial
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proceeding, a court shall refuse to enforce all of the separate covenants
deemed included herein because taken together they are more extensive than
necessary to assure to the Company the intended benefits of this Agreement,
it is expressly understood and agreed by the parties hereto that the
provisions of this Agreement that, if eliminated, would permit the
remaining separate provisions to be enforced in such proceeding shall be
deemed eliminated, for the purposes of such proceeding, from this
Agreement.
(b) If any provision of this Agreement otherwise is deemed to be
invalid or unenforceable or is prohibited by the laws of the state or
jurisdiction where it is to be performed, this Agreement shall be
considered divisible as to such provision and such provision shall be
inoperative in such state or jurisdiction and shall not be part of the
consideration moving from either of the parties to the other. The
remaining provisions of this Agreement shall be valid and binding and of
like effect as though such provision were not included.
11. Notices and Addresses. All notices, offers, acceptance and any other
acts under this Agreement (except payment) shall be in writing, and shall be
sufficiently given if delivered to the addressees in person, by Federal Express
or similar receipted delivery, by facsimile delivery or, if mailed, postage
prepaid, by certified mail, return receipt requested, as follows:
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To the Company: InTime Systems International, Inc.
0000 Xxxx Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
With a Copy to: Xxxxxxx X. Xxxxxx, Esq.
Cohen, Chernay, Norris, Morici,
Xxxxxxxxxx & Xxxxxx
000 X.X. Xxxxxxx Xxx, 0xx Xxxxx
Xxxxx Xxxx Xxxxx, XX 00000
To the Executive: Xx. Xxxxxxx X. Xxxxx
InTime Systems International, Inc.
0000 Xxxx Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
or to such other address as either of them, by notice to the other may designate
from time to time. The transmission confirmation receipt from the sender's
facsimile machine shall be conclusive evidence of successful facsimile delivery.
Time shall be counted to, or from, as the case may be, the delivery in person or
by mailing.
12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature.
13. Arbitration. Any controversy, dispute or claim arising out of or
relating to this Agreement, or its interpretation, application, implementation,
breach or enforcement which the parties are unable to resolve by mutual
agreement, shall be
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settled by submission by either party of the controversy, claim or dispute to
binding arbitration in West Palm Beach, Florida (unless the parties agree in
writing to a different location), before a single arbitrator in accordance with
the rules of the American Arbitration Association then in effect. In any such
arbitration proceeding the parties agree to provide all discovery deemed
necessary by the arbitrator. The decision and award made by the arbitrator shall
be final, binding and conclusive on all parties hereto for all purposes, and
judgment may be entered thereon in any court having jurisdiction thereof.
14. Attorney's Fees. In the event that there is any controversy or claim
arising out of or relating to this Agreement, or to the interpretation, breach
or enforcement thereof, and any action or proceeding is commenced to enforce the
provisions of this Agreement, the prevailing party shall be entitled to a
reasonable attorney's fee, costs and expenses.
15. Governing Law. This Agreement and any dispute, disagreement, or issue
of construction or interpretation arising hereunder whether relating to its
execution, its validity, the obligations provided therein or performance shall
be governed or interpreted according to the internal laws of the State of
Delaware without regard to choice of law considerations.
16. Entire Agreement. This Agreement constitutes the entire Agreement
between the parties and supersedes all prior oral and written agreements between
the parties hereto with respect to
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the subject matter hereof. Neither this Agreement nor any provision hereof may
be changed, waived, discharged or terminated orally, except by a statement in
writing signed by the party or parties against which enforcement or the change,
waiver discharge or termination is sought.
17. Additional Documents. The parties hereto shall execute such
additional instruments as may be reasonably required by their counsel in order
to carry out the purpose and intent of this Agreement and to fulfill the
obligations of the parties hereunder.
18. Section and Paragraph Headings. The section and paragraph headings in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
19. Prior Agreement. The prior Employment Agreement between the Company
and the Executive dated June 23, 1994 is null and void.
IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement as of the date and year first above written.
INTIME SYSTEMS INTERNATIONAL, INC.
_________________________
_________________________ By:____________________________
Xxxx X. Xxxxxxx, Executive
Vice President
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_________________________
_________________________ By:____________________________
Xxxxxxx X. Xxxxx
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