EXHIBIT 10.10
CHANGE IN CONTROL SEVERANCE AGREEMENT
THIS CHANGE IN CONTROL SEVERANCE AGREEMENT ("Agreement") is made and
entered into as of February 28, 1997, by and between H.T.E., INC., a Florida
corporation (the "Company"), and _______________ (the "Executive").
RECITALS:
WHEREAS, the Board of Directors of the Company (the "Board"), has
determined that it is in the best interests of the Company and its shareholders
to assure that the Company will have the continued dedication of the Executive,
notwithstanding the possibility, threat, or occurrence of a Change of Control
(as defined below) of the Company; and
WHEREAS, the Board believes it is imperative to diminish the inevitable
distraction of the Executive by virtue of the personal uncertainties and risks
created by a pending or threatened Change of Control, to encourage the
Executive's full attention and dedication to the Company currently and in the
event of any threatened or pending Change of Control, and to provide the
Executive with compensation arrangements upon a Change of Control which provide
the Executive with individual financial security and which are competitive with
those of other corporations and, in order to accomplish these objectives, the
Board has caused the Company to enter into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, IT IS HEREBY AGREED AS FOLLOWS:
I. CERTAIN DEFINITIONS
A. The "Effective Date" shall be the first date during the "Change of
Control Period" (as defined below) on which a Change of Control occurs. Anything
in this Agreement to the contrary notwithstanding, if the Executive's employment
with the Company is terminated prior to the date on which a Change of Control
occurs, and it is reasonably demonstrated that such termination: (1) was at the
request of a third party who has taken steps reasonably calculated to effect a
Change of Control, or (2) otherwise arose in connection with or anticipation of
a Change of Control, then for all purposes of this Agreement the "Effective
Date" shall mean the date immediately prior to the date of such termination.
B. The "Change of Control Period" is the period commencing on the date
hereof and ending on the earlier to occur of: (1) the third anniversary of such
date, and (2) the first day of the month
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next following the Executive's normal retirement date at age sixty-five (65)
("Normal Retirement Date"); PROVIDED, HOWEVER, that commencing on the date one
year after the date hereof, and on each annual anniversary of such date (such
date and each annual anniversary thereof is hereinafter referred to as the
"Renewal Date"), the Change of Control Period shall be automatically extended so
as to terminate on the earlier of: (a) three years from such Renewal Date, and
(b) the first day of the month coinciding with or next following the Executive's
Normal Retirement Date, unless at least sixty (60) days prior to the Renewal
Date the Company shall give written notice to the Executive that the Change of
Control Period shall not be so extended.
II. CHANGE OF CONTROL
A. For the purpose of this Agreement, a "Change of Control"
shall mean:
1. The acquisition (other than by or from the Company, or
other than by or from the Executive), at any time after the date
hereof, by any person, entity or "group", within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the
"Exchange Act"), of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of twenty-five (25%) or more
of either the then outstanding shares of common stock or the combined
voting power of the Company's then outstanding voting securities
entitled to vote generally in the election of directors; or
2. The four individuals who, as of the date hereof, constitute
the Board (as of the date hereof the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board, provided that
any person becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's shareholders, was
approved, or not objected to, by a vote of at least a majority of the
directors then comprising the Incumbent Board (other than an election
or nomination of an individual whose initial assumption of office is in
connection with an actual or threatened election contest relating to
the election of the directors of the Company, as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange Act)
shall be, for purposes of this Agreement, considered as though such
person were a member of the Incumbent Board; or
3. Approval by the stockholders of the Company of: (a) a
reorganization, merger or consolidation with respect to which persons
who were the shareholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter,
own more than 50% of the combined voting power entitled to vote
generally in the election of directors of the reorganized, merged or
consolidated company's then outstanding voting securities, (b)
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a liquidation or dissolution of the Company, or (c) the sale of all or
substantially all of the assets of the Company, unless the approved
reorganization, merger, consolidation, liquidation, dissolution or sale
is subsequently abandoned; provided however, that not withstanding the
foregoing to the contrary, any such event, action or matter approved by
the stockholders of the Company in which the Executive did not vote all
shares of common stock of the Company held or beneficially owned by the
Executive against such event, action or matter shall not constitute a
Change of Control for purposes of this Agreement.
III. EMPLOYMENT PERIOD
A. The Company hereby agrees to continue the Executive in its employ,
and the Executive hereby agrees to remain in the employ of the Company, for the
period commencing on the Effective Date and ending on the earlier to occur of:
(1) the first anniversary of such date, or (2) the first day of the month
coinciding with or next following the Executive's Normal Retirement Date (the
"Employment Period").
IV. TERMS OF EMPLOYMENT
A. POSITION AND DUTIES.
1. During the Employment Period: (a) the Executive's position
(including status, offices, titles and reporting requirements),
authority, duties and responsibilities shall be at least commensurate
in all material respects with the most significant of those held,
exercised and assigned at any time during the 180-day period
immediately preceding the Effective Date, and (b) the Executive's
services shall be performed at the location where the Executive was
employed immediately preceding the Effective Date or any office or
location less than thirty-five (35) miles from such location.
2. During the Employment Period, and excluding any periods of
vacation and sick leave to which the Executive is entitled, the
Executive agrees to devote reasonable attention and time during normal
business hours to the business and affairs of the Company and, to the
extent necessary to discharge the responsibilities assigned to the
Executive hereunder, to use the Executive's reasonable best efforts to
perform faithfully and efficiently such responsibilities. During the
Employment Period it shall not be a violation of this Agreement for the
Executive to: (a) serve on corporate, civic or charitable boards or
committees, (b) deliver lectures, fulfill speaking engagements or teach
at educational institutions, and (c) manage personal investments, so
long as such activities do not significantly interfere with the
performance of the Executive's responsibilities as an employee of the
Company in accordance with this Agreement. It is
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expressly understood and agreed that to the extent that any such
activities have been conducted by the Executive prior to the Effective
Date, the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent to the
Effective Date shall not thereafter be deemed to interfere with the
performance of the Executive's responsibilities to the Company.
B. COMPENSATION.
1. BASE SALARY. During the Employment Period, the Executive
shall receive a base salary ("Base Salary") at a monthly rate at least
equal to the highest monthly base salary paid or payable to the
Executive by the Company during the twelve-month period immediately
preceding the month in which the Effective Date occurs. During the
Employment Period, the Base Salary shall be reviewed at least annually
and shall be increased at any time and from time to time as shall be
substantially consistent with increases in base salary awarded in the
ordinary course of business to other key executives of the Company and
its subsidiaries. Any increase in Base Salary shall not serve to limit
or reduce any other obligation to the Executive under this Agreement.
Base Salary shall not be reduced after any such increase.
2. ANNUAL BONUS. In addition to Base Salary, the Executive
shall be awarded, for each fiscal year during the Employment Period, an
annual bonus (an "Annual Bonus") (either pursuant to any
then-established incentive compensation plan(s) of the Company or
otherwise) in cash at least equal to the highest bonus payable to the
Executive from the Company and its subsidiaries in respect of any of
the three fiscal years immediately preceding the fiscal year in which
the Effective Date occurs. Nothing in this Agreement shall require the
payment of an Annual Bonus prior to the Effective Date.
3. INCENTIVE, SAVINGS AND RETIREMENT PLANS. In addition to
Base Salary and Annual Bonus payable as hereinabove provided, the
Executive shall be entitled to participate during the Employment Period
in all incentive, savings and retirement plans, practices, policies and
programs applicable to other key executives of the Company and its
affiliates, in each case comparable to those in effect on the Effective
Date or as subsequently amended. Such plans, practices, policies and
programs, in the aggregate, shall provide the Executive with
compensation, benefits and reward opportunities at least as favorable
as the most favorable of such compensation, benefits and reward
opportunities provided by the Company for the Executive under such
plans, practices, policies and programs as in effect at any time during
the 180- day period immediately preceding the Effective Date or, if
more favorable to the Executive, as provided at any time
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thereafter with respect to other key executives.
4. WELFARE BENEFIT PLANS. During the Employment
Period, the Executive and/or the Executive's family, as the
case may be, shall be eligible for participation in and shall
receive all benefits under welfare benefit plans, practices, policies
and programs provided by the Company and its subsidiaries (including,
without limitation, medical, prescription, dental, disability, salary
continuance, employee life, group life, accidental death and travel
accident insurance plans and programs), at least as favorable as the
most favorable of such plans, practices, policies and programs in
effect at any time during the 180-day period immediately preceding the
Effective Date or, if more favorable to the Executive and/or the
Executive's family, as in effect at any time thereafter with respect to
other key executives.
5. EXPENSES. During the Employment Period, the Executive shall
be entitled to receive prompt reimbursement for all reasonable expenses
incurred by the Executive in accordance with the most favorable
policies, practices and procedures of the Company and its subsidiaries
in effect at any time during the 180-day period immediately preceding
the Effective Date or, if more favorable to the Executive, as in effect
at any time thereafter with respect to other key executives.
6. FRINGE BENEFITS. During the Employment Period, the
Executive shall be entitled to fringe benefits, including use of an
automobile and payment of related expenses, in accordance with the most
favorable plans, practices, programs and policies of the Company and
its subsidiaries in effect at any time during the 180-day period
immediately preceding the Effective Date or, if more favorable to the
Executive, as in effect at any time thereafter with respect to other
key executives.
7. OFFICE AND SUPPORT STAFF. During the Employment Period, the
Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments, and to secretarial and other
assistance, at least equal to the most favorable of the foregoing
provided to the Executive by the Company and its subsidiaries at any
time during the 180- day period immediately preceding the Effective
Date or, if more favorable to the Executive, as provided at any time
thereafter with respect to other key executives of the Company and its
subsidiaries.
8. VACATION. During the Employment Period, the Executive shall
be entitled to paid vacation in accordance with the most favorable
plans, policies, programs and practices of the Company and its
subsidiaries as in effect at any time during the 180-day period
immediately preceding the
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Effective Date or, if more favorable to the Executive, as in effect at
any time thereafter with respect to other key executives of the Company
and its subsidiaries.
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V. TERMINATION
A. DEATH OR DISABILITY. This Agreement shall terminate automatically
upon the Executive's death. If the Company determines in good faith that the
Disability of the Executive has occurred (pursuant to the definition of
"Disability" set forth below), it may give to the Executive written notice of
its intention to terminate the Executive's employment. In such event, the
Executive's employment with the Company shall terminate effective on the 30th
day after receipt of such notice by the Executive (the "Disability Effective
Date"), provided that, within the 30 days after such receipt, the Executive
shall not have returned to full-time performance of the Executive's duties. For
purposes of this Agreement, "Disability" means disability which, at least 26
weeks after its commencement, is determined to be total and permanent by a
physician selected by the Company or its insurers and acceptable to the
Executive or the Executive's legal representative (such agreement as to
acceptability not to be withheld unreasonably).
B. CAUSE. The Company may terminate the Executive's employment for
"Cause." For purposes of this Agreement, "Cause" means: (1) an act or acts of
personal dishonesty taken by the Executive and intended to result in substantial
personal enrichment of the Executive at the expense of the Company, (2) repeated
violations by the Executive of the Executive's obligations under this Agreement
which are demonstrably willful and deliberate on the Executive's part and which
are not remedied in a reasonable period of time after receipt of written notice
from the Company, or (3) the conviction of the Executive of a felony.
C. GOOD REASON. The Executive's employment may be terminated by the
Executive for "Good Reason". For purposes of this Agreement, "Good Reason"
means:
1. The assignment to the Executive of any duties inconsistent
in any respect with the Executive's position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by this Agreement, or any other action
by the Company which results in a diminution in such position,
authority, duties or responsibilities, excluding for this purpose an
isolated, insubstantial and inadvertent action not taken in bad faith
and which is remedied by the Company promptly after receipt of notice
thereof given by the Executive;
2. Any failure by the Company to comply with any of the
provisions of this Agreement, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by
the Company promptly after receipt of notice thereof given by the
Executive;
3. The Company's requiring the Executive to be based at any
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office or location other than that described in this Agreement, except
for travel reasonably required in the performance of the Executive's
responsibilities;
4. Any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by
this Agreement; or
For purposes of this provision, any good faith determination
of "Good Reason" made by the Executive shall be conclusive. Anything in
this Agreement to the contrary notwithstanding, a termination by the
Executive for any reason during the 30-day period immediately following
the first anniversary of the Effective Date shall be deemed to be a
termination for Good Reason for all purposes of this Agreement.
D. NOTICE OF TERMINATION. Any termination by the Company for Cause or
by the Executive for Good Reason shall be communicated by Notice of Termination
to the other party hereto given in accordance with the notice provision of this
Agreement. For purposes of this Agreement, a "Notice of Termination" means a
written notice which: (1) indicates the specific termination provision in this
Agreement relied upon, (2) sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated, and (3) if the Date of Termination
(as defined below) is other than the date of receipt of such notice, specifies
the termination date (which date shall be not more than fifteen (15) days after
the giving of such notice). The failure by the Executive to set forth in the
Notice of Termination any fact or circumstance which contributes to a showing of
Good Reason shall not waive any right of the Executive hereunder or preclude the
Executive from asserting such fact or circumstance in enforcing his rights
hereunder.
E. DATE OF TERMINATION. "Date of Termination" means the date of receipt
of the Notice of Termination or any later date specified therein, as the case
may be; PROVIDED, HOWEVER, that: (1) if the Executive's employment is terminated
by the Company other than for Cause or Disability, the Date of Termination shall
be the date on which the Company notifies the Executive of such termination, and
(2) if the Executive's employment is terminated by reason of death or
Disability, the Date of Termination shall be the date of death of the Executive
or the Disability Effective Date, as the case may be.
VI. OBLIGATIONS OF THE COMPANY UPON TERMINATION
A. DEATH. If the Executive's employment is terminated by reason of
the Executive's death, this Agreement shall terminate without further
obligations to the Executive's legal representatives under this Agreement, other
than those obligations accrued or earned and vested (if applicable) by the
Executive as of the Date of
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Termination, including, for this purpose: (1) the Executive's full Base
Salary through the Date of Termination at the rate in effect on the
Date of Termination or, if higher, at the highest rate in effect at any
time from the 180-day period preceding the Effective Date through the
Date of Termination (the "Highest Base Salary"), (2) the product of the
Annual Bonus paid to the Executive for the last full fiscal year and a
fraction, the numerator of which is the number of days in the current
fiscal year through the Date of Termination, and the denominator of
which is 365, and (3) any compensation previously deferred by the
Executive (together with any accrued interest thereon) and not yet paid
by the Company and any accrued vacation pay not yet paid by the Company
(such amounts specified in clauses (1), (2) and (3) are hereinafter
referred to as "Accrued Obligations"). All such Accrued Obligations
shall be paid to the Executive's estate or beneficiary, as applicable,
in a lump sum in cash within 30 days of the Date of Termination.
Anything in this Agreement to the contrary notwithstanding, the
Executive's family shall be entitled to receive benefits at least equal
to the most favorable benefits provided by the Company and any of its
subsidiaries to surviving families of executives of the Company and
such subsidiaries under such plans, programs, practices and policies
relating to family death benefits, if any, in accordance with the most
favorable plans, programs, practices and policies of the Company and
its subsidiaries in effect at any time during the 180- day period
immediately preceding the Effective Date or, if more favorable to the
Executive and/or the Executive's family, as in effect on the date of
the Executive's death with respect to other key executives of the
Company and its subsidiaries and their families.
B. DISABILITY. If the Executive's employment is terminated by reason of
the Executive's Disability, this Agreement shall terminate without further
obligations to the Executive, other than those obligations accrued or earned and
vested (if applicable) by the Executive as of the Date of Termination, including
for this purpose, all Accrued Obligations. All such Accrued Obligations shall be
paid to the Executive in a lump sum in cash within 30 days of the Date of
Termination. Anything in this Agreement to the contrary notwithstanding, the
Executive shall be entitled after the Disability Effective Date to receive
disability and other benefits at least equal to the most favorable of those
provided by the Company and its subsidiaries to disabled employees and/or their
families in accordance with such plans, programs, practices and policies
relating to disability, if any, in accordance with the most favorable plans,
programs, practices and policies of the Company and its subsidiaries in effect
at any time during the 180-day period immediately preceding the Effective Date
or, if more favorable to the Executive and/or the Executive's family, as in
effect at any time thereafter with respect to other key executives and their
families.
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C. CAUSE; OTHER THAN FOR GOOD REASON. If the Executive's
employment shall be terminated for Cause, this Agreement shall terminate without
further obligations to the Executive other than the obligation to pay to the
Executive the Highest Base Salary through the Date of Termination plus the
amount of any compensation previously deferred by the Executive (together with
accrued interest thereon). If the Executive terminates employment other than for
Good Reason, this Agreement shall terminate without further obligations to the
Executive, other than those obligations accrued or earned and vested (if
applicable) by the Executive through the Date of Termination, including for this
purpose, all Accrued Obligations. All such Accrued Obligations shall be paid to
the Executive in a lump sum in cash within 30 days of the Date of Termination.
D. GOOD REASON; OTHER THAN FOR CAUSE OR DISABILITY. If, during
the Employment Period, the Company shall terminate the Executive's employment
other than for Cause, Disability or death, or if the Executive shall terminate
his employment for Good Reason:
1. The Company shall pay to the Executive in a lump sum
in cash within 30 days after the Date of Termination the aggregate of
the following amounts:
(a) to the extent not theretofore paid, the
Executive's Highest Base Salary through the Date of
Termination; and
(b) the product of: (i) the Annual Bonus paid to the
Executive for the last full fiscal year (if any) ending during
the Employment Period or, if higher, the Annual Bonus paid to
the Executive for the last full fiscal year prior to the
Effective Date (as applicable, the "Recent Bonus") and (ii) a
fraction, the numerator of which is the number of days in the
current fiscal year through the Date of Termination and the
denominator of which is 365; and
(c) the product of: (i) two and one-half (2-1/2)
MULTIPLIED TIMES (ii) the sum of: (1) the Highest Base Salary
and (2) the Recent Bonus; and
(d) in the case of compensation previously deferred
by the Executive, all amounts previously deferred (together
with any accrued interest thereon) and not yet paid by the
Company, and any accrued vacation pay not yet paid by the
Company; and
(e) all other amounts accrued or earned by the
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Executive through the Date of Termination and amounts
otherwise owing under the then existing plans and policies at
the Company; and
2. For the remainder of the Employment Period, or such
longer period as any plan, program, practice or policy may
provide, the Company shall continue benefits to the Executive
and/or the Executive's family at least equal to those which would have
been provided to them in accordance with the plans, programs, practices
and policies described in this Agreement if the Executive's employment
had not been terminated, including health, dental, disability insurance
and life insurance, in accordance with the most favorable plans,
practices, programs or policies of the Company and its subsidiaries
during the 180-day period immediately preceding the Effective Date or,
if more favorable to the Executive, as in effect at any time thereafter
with respect to other key executives and their families and, for
purposes of eligibility for retiree benefits pursuant to such plans,
practices, programs and policies, the Executive shall be considered to
have remained employed until the end of the Employment Period and to
have retired on the last day of such period.
E. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent
or limit the Executive's continuing or future participation in any benefit,
bonus, incentive or other plans, programs, policies or practices provided by the
Company or any of its subsidiaries and for which the Executive may qualify, nor
shall anything herein limit or otherwise affect such rights as the Executive may
have under any stock option or other agreements with the Company or any of its
subsidiaries. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan, policy, practice or program of the
Company or any of its subsidiaries at or subsequent to the Date of Termination
shall be payable in accordance with such plan, policy, practice or program.
F. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement. The Company
agrees to pay, to the full extent permitted by law, all legal fees and expenses
which the Executive may reasonably incur as a result of any contest (regardless
of the outcome thereof) by the Company or others of the validity or
enforceability of, or liability under, any provision of this Agreement or any
guarantee of
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performance thereof (including as a result of any contest by the Executive about
the amount of any payment pursuant to Section 9 of this Agreement), plus in each
case interest at the applicable Federal rate provided for in Section 7872(f)(2)
of the Code.
G. CERTAIN REDUCTION OF PAYMENTS BY THE COMPANY.
1. Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any
payment or distribution by the Company to or for the benefit
of the Executive, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise (a
"Payment"), would be nondeductible by the Company for Federal income
tax purposes because of Section 280G of the Code, then the aggregate
present value of amounts payable or distributable to or for the benefit
of the Executive pursuant to this Agreement (such payments or
distributions pursuant to this Agreement are hereinafter referred to as
"Agreement Payments") shall be reduced to the Reduced Amount. The
"Reduced Amount" shall be an amount expressed in present value which
maximizes the aggregate present value of Agreement Payments without
causing any Payment to be nondeductible by the Company because of
Section 280G of the Code. Anything to the contrary notwithstanding, if
the Reduced Amount is zero and it is determined further that any
Payment which is not an Agreement Payment would nevertheless be
nondeductible by the Company for Federal income tax purposes because of
Section 280G of the Code, then the aggregate present value of Payments'
which are not Agreement Payments shall also be reduced (but not below
zero) to an amount expressed in present value which maximizes the
aggregate present value of Payments without causing any Payment to be
nondeductible by the Company because of Section 280G of the Code. For
purposes of this Section, present value shall be determined in
accordance with Section 280G(d)(4) of the Code.
2. All determinations required to be made under this Agreement
shall be made by the Company's chief financial officer, or, at the
Executive's option, a nationally or regionally recognized firm of
independent public accountants selected by the Executive and approved
by the Company, which approval shall not be unreasonably withheld or
delayed (the "Accounting Firm"), which shall provide detailed
supporting calculations both to the Company and the Executive within
thirty (30) business days of the Date of Termination or such earlier
time as is requested by the Company and an opinion to the Executive
that he has substantial authority not to report any excise tax on his
Federal income tax return with respect to any Payments. Any such
determination by the Accounting Firm shall be binding upon the Company
and the Executive. The
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Executive shall determine which and how much of the Payments shall be
eliminated or reduced consistent with the requirements of this Section
of the Agreement, provided that, if the Executive does not make such
determination within ten business days of the receipt of the
calculations made by the Accounting Firm, the Company shall elect which
and how much of the Payments shall be eliminated or reduced consistent
with the requirements of this Section and shall notify the Executive
promptly of such election. Within five business days thereafter, the
Company shall pay to or distribute to or for the benefit of the
Executive such amounts as are then due to the Executive under this
Agreement. All fees and expenses of the Accounting Firm incurred in
connection with the determinations contemplated by this Section shall
be borne by the Company.
3. As a result of the uncertainty in the application of
Section 280G of the Code at the time of the initial determination by
the Accounting Firm hereunder, it is possible that Payments will have
been made by the Company which should not have been made
("Overpayment") or that additional Payments which will not have been
made by the Company could have been made ("Underpayment"), in each
case, consistent with the calculations required to be made hereunder.
In the event that the Accounting Firm, based upon the assertion of a
deficiency by the Internal Revenue Service against the Executive which
the Accounting Firm believes has a high probability of success,
determines that an Overpayment has been made, any such Overpayment paid
or distributed by the Company to or for the benefit of the Executive
shall be treated for all purposes as a loan AB INITIO to the Executive
which the Executive shall repay to the Company together with interest
at the applicable federal rate provided for in Section 7872(f)(2) of
the Code; provided, however, that no such loan shall be deemed to have
been made and no amount shall be payable by the Employee to the Company
if and to the extent such deemed loan and payment would not either
reduce the amount on which the Executive is subject to tax under
Section 1 and Section 4999 of the Code or generate a refund of such
taxes. In the event that the Accounting Firm, based upon controlling
precedent or other substantial authority, determines that an
Underpayment has occurred, any such Underpayment shall be promptly paid
by the Company to or for the benefit of the Executive together with
interest at the applicable federal rate provided for in Section
7872(f)(2) of the Code.
H. CONFIDENTIAL INFORMATION. The Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its subsidiaries, and their
respective businesses, which shall have been obtained by the Executive during
the Executive's employment by the Company or any of its subsidiaries and which
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shall not be or become public knowledge (other than by acts by the Executive or
his representatives in violation of this Agreement). After termination of the
Executive's employment with the Company, the Executive shall not, without the
prior written consent of the Company, communicate or divulge any such
information, knowledge or data to anyone other than the Company and those
designated by it. In no event shall an asserted violation of the provisions of
this Section constitute a basis for deferring or withholding any amounts
otherwise payable to the Executive under this Agreement.
I. SUCCESSORS.
1. This Agreement is personal to the Executive and without the
prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be
enforceable by the Executive's legal representatives.
2. This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
3. The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to
assume expressly and agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to perform it
if no such succession had taken place. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and
agrees to perform this Agreement by operation of law, or otherwise.
J. MISCELLANEOUS.
1. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, without reference to
principles of conflict of laws. The captions of this Agreement are not
part of the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified otherwise than by a written
agreement executed by the parties hereto or their respective successors
and legal representatives.
2. All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt
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requested, postage prepaid, addressed as follows:
IF TO THE EXECUTIVE:
--------------------
IF TO THE COMPANY:
------------------
H.T.E., Inc.
Attn: Chief Financial Officer
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
3. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
4. The Company may withhold from any amounts payable
under this Agreement such Federal, state or local taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
5. The Executive's failure to insist upon strict compliance
with any provision hereof shall not be deemed to be a waiver of such
provision or any other provision thereof.
6. This Agreement contains the entire understanding of the
Company and the Executive with respect to the subject matter hereof.
7. The Executive and the Company acknowledge that, except as
set forth in any written employment agreement between the Executive and
the Company and effective from and after the date hereof, the
employment of the Executive by the Company is "at will," and, prior to
the Effective Date, may be terminated by either the Executive or the
Company at any time. Upon a termination of the Executive's employment
prior to the Effective Date, there shall be no further rights under
this Agreement.
IN WITNESS WHEREOF, the Executive has hereunto set his hand and,
pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
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--------------------------------
H.T.E., Inc.
By:
---------------------------------
Its Authorized Officer
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