EXHIBIT 10.8
AGREEMENT
This Employment and Professional Service Engagement Agreement
("Agreement") is made and entered into as of January 16, 1997, by
and between H.T.E., INC., a Florida corporation (the "Company"),
and X. X. XXXXXX, JR. (hereinafter called "Xxxxxx").
R E C I T A L
The Company and Xxxxxx have agreed that the Xxxxxx shall be both
employed and professionally engaged 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 AND PROFESSIONAL SERVICE ENGAGEMENT.
1.1 EMPLOYMENT AND ENGAGEMENT AND TERM. The Company hereby
agrees to employ Xxxxxx and to professionally engage Xxxxxx to provide services
as an employee and to provide professional services as an independent contractor
(attorney at law) and Xxxxxx hereby agrees to serve the Company on the terms and
conditions set forth herein.
1.2 DUTIES AND RESPONSIBILITIES OF XXXXXX. During the term of
this Agreement, Xxxxxx shall have the title of Executive Vice President, Chief
Financial Officer and General Counsel of the Company. He shall diligently
perform all services, either as an employee or an independent contractor
(attorney at law) for the Company, as may be assigned to him by the Board of
Directors 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. Xxxxxx shall be available to the
Company on a full time basis and shall devote such time and render such services
as the Company may need from time to time to promote the best interests of the
Company. However, to the extent not needed or required by the Company, Xxxxxx
shall be authorized to provide professional services as an attorney at law from
time to time to other clients of his law firm.
2. TERM.
2.1 INITIAL TERM. The initial term of this Agreement, and the
employment and engagement of the Xxxxxx hereunder, shall commence on January 16,
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").
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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 Agreement as the Expiration Date.
3. COMPENSATION.
3.1 BASE SALARY. Xxxxxx shall receive from the Company an
initial base salary at the annual rate of Seventy-five Thousand Dollars
($75,000) (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 shall be reviewed, at least
annually, for merit increases and may, by action and in the discretion of the
Board or the Chief Executive Officer of the Company, be increased at any time or
from time to time. The Base Salary shall entitle the Company to receive from
Xxxxxx sixteen (16) hours of work or service per week.
3.2 HOURLY PROFESSIONAL RATE FOR ADDITIONAL WORK. For
all time expended by Xxxxxx each week in providing services to the
Company hereunder in excess of sixteen (16) hours per week, Xxxxxx
shall receive a monthly payment from the Company based on a hourly
rate equal to eighty-five percent (85%) of his then effective and
standard hourly professional billing rate for his law practice.
Eighty-five percent (85%) of Xxxxxx'x current hourly professional
billing rate is One Hundred Forty Dollars and Twenty-five Cents
($140.25). Xxxxxx shall be responsible for the full and timely
payment of all income and employment taxes applicable thereto.
3.3 BONUSES. During the term of this Agreement, Xxxxxx
shall NOT participate in the Company's Executive Bonus Plan.
4. EXPENSE REIMBURSEMENT AND OTHER BENEFITS.
4.1 REIMBURSEMENT OF EXPENSES. Upon the submission of proper
substantiation by Xxxxxx, and subject to such rules and guidelines as the
Company may from time to time adopt, the Company shall reimburse Xxxxxx for all
reasonable expenses actually paid or incurred by Xxxxxx in the course of and
pursuant to the business of the Company. Xxxxxx 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 COMPENSATION/BENEFIT PROGRAMS. During the term of
this Agreement, the Company, at its expense, shall provide to Xxxxxx and his
dependent family members medical, dental, hospitalization, accidental death and
dismemberment, disability and life insurance coverage. In addition, the Company
shall allow Xxxxxx 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 Xxxxxx with
such facilities and services suitable to his position and adequate for the
performance of his duties hereunder, including the expense of all telephone and
other communication services utilized by Xxxxxx. It is anticipated that Xxxxxx
will maintain and work out of two separate offices, one at the Company's
headquarters to be located in Seminole County, Florida, and the other office at
Xxxxxx'x law firm in Daytona Beach, Florida. All expenses applicable to
maintenance and operation of Xxxxxx'x Daytona office, including his secretarial
support at such office, shall be paid by him out of the hourly rate payment made
by the Company to Xxxxxx pursuant to Section 3.2 above.
4.4 STOCK OPTIONS. Within thirty (30) days of the date of this
Agreement, Xxxxxx shall be granted a ten (10) year nonstatutory stock option
(the "Stock Option") to purchase twenty-five hundred (2500) shares of common
stock (the "Common Stock") of H.T.E., Inc. at a price of Five Hundred Dollars
($500.00) per share, with immediate vesting for five hundred (500) of such
shares and two thousand (2000) of such shares subject to a vesting schedule of
twenty-five percent (25%) per year, under (and therefore subject to all
applicable terms and conditions of) the Company's 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, and in
accordance with all terms and provisions of that certain Stock Option Agreement
to be entered into by the Company and Xxxxxx in regard to the Stock Option, a
copy of which is attached hereto.
4.5 OTHER BENEFITS. Xxxxxx shall be entitled to four (4) weeks
of vacation time each year during the term of this Agreement, to be taken at
such times as Xxxxxx and the Company shall mutually determine and provided that
no vacation time shall interfere with the duties required to be rendered by
Xxxxxx hereunder. Any vacation time not taken by Xxxxxx during any calendar year
may be carried forward into any succeeding calendar year in accordance with HTE
policy. Xxxxxx 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. Xxxxxx and the Company
shall each have the right at any time, upon sixty (60) days written notice to
the other party, to terminate Xxxxxx'x employment and/or professional engagement
hereunder. Upon any termination pursuant to this Section 5, the Company shall
pay to Xxxxxx any unpaid Base Salary and additional services at the then
effective hourly rate through the effective date of termination specified in
such notice. The Company shall have no further liability hereunder other than
for: (a) reimbursement for reasonable business expenses incurred prior to the
date of termination, subject, however, to the provisions of Section 4.1, and (b)
payment of compensation for unused vacation days that have accumulated during
the calendar year in which such termination occurs.
5.2 DEATH. In the event of the death of Xxxxxx during the term
of his employment and/or professional engagement hereunder, the Company shall
pay to the estate of Xxxxxx any unpaid Base Salary and additional services at
the then effective hourly rate through Xxxxxx'x date of death. The Company shall
have no further liability hereunder other than for: (a) reimbursement for
reasonable business expenses incurred prior to the date of Xxxxxx'x death,
subject, however to the provisions of Section 4.1, and (b) payment of
compensation for unused vacation days that have accumulated during the calendar
year in which such termination occurs.
6. RESTRICTIVE COVENANTS.
6.1 NON-COMPETITION. At all times while Xxxxxx is employed
and/or engaged by the Company and for a one (1) year period after the
termination of Xxxxxx'x employment and/or engagement with the Company for any
reason, Xxxxxx 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 Xxxxxx'x ownership of
Common Stock of the Company or the acquisition by Xxxxxx, 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
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any similar system or automated dissemination of quotations of securities prices
in common use, so long as Xxxxxx 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. Xxxxxx 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 Xxxxxx 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 unique asset of the Company that is received by Xxxxxx in
confidence and as a fiduciary, and Xxxxxx 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 Xxxxxx or known by
Xxxxxx as a consequence of or through his employment by the Company (including
information conceived, originated, discovered or developed by Xxxxxx) 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 Xxxxxx from disclosing Confidential Information to the extent required
by law.
6.3 NONSOLICITATION OF EMPLOYEES AND CLIENTS. At all
times while Xxxxxx is employed and/or engaged by the Company and
for a one (1) year period after the termination of the Xxxxxx'x
employment and/or engagement with the Company for any reason,
Xxxxxx 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 (6) 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 Xxxxxx 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
Xxxxxx'x 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 Xxxxxx
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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 Xxxxxx 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 Xxxxxx for hire for
the Company, Xxxxxx 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 Xxxxxx may have in such Work Product. Upon the
request of the Company, Xxxxxx 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 accounts
relating in any manner to the customers or clients of the Company, whether
prepared by Xxxxxx or otherwise coming into Xxxxxx'x possession, shall be the
exclusive property of the Company and shall be returned immediately to the
Company on termination of Xxxxxx'x employment and/or engagement 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 XXXXXX. Xxxxxx 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. Xxxxxx 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 and/or a
professional engagement 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. Xxxxxx 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
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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 Xxxxxx 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 Xxxxxx.
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 Xxxxxx 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,
Xxxxxx 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 Xxxxxx 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
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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 matter hereof and, upon
its effectiveness, shall supersede all prior agreements, understandings and
arrangements, both oral and written, between Xxxxxx 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 Xxxxxx.
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: Preident, and (b) if to
Xxxxxx, addressed to X. X. Xxxxxx, Jr., P.A., Attorney at Law, 000-X Xxxxx
Xxxxxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000, 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,
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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 Xxxxxx from seeking and recovering from the other damages sustained
by either or both of them as a 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.
H.T.E., INC.
By:
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Xxxxxx X. Xxxxxxx, President X. X. Xxxxxx, Jr.
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