EXHIBIT 10.5
SENIOR EXECUTIVE AGREEMENT
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THIS AGREEMENT is made effective as of April 1, 2000, between
GLOBAL IMAGING SYSTEMS, INC., a Delaware corporation (the "Company"), and
XXXXXXX XXXXXXX ("Executive").
Recitals
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A. The Company and Executive desire to enter into an agreement
pursuant to which Executive will be employed as the Senior Vice President and
Chief Operating Officer of the Company on the terms and conditions set forth in
this Agreement.
B. Certain definitions are set forth in Section 4 of this
Agreement.
Agreement
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The parties hereto agree as follows:
1. Employment. The Company hereby engages Executive to serve
as the Senior Vice President and Chief Operating Officer of the Company, and
Executive agrees to serve the Company, during the Service Term (as defined in
Section 1(d) hereof) in the capacities, and subject to the terms and conditions,
set forth in this Agreement.
(a) Services. During the Service Term, Executive, as
Senior Vice President and Chief Operating Officer of the Company, shall have all
the duties and responsibilities customarily rendered by Chief Operating Officers
of companies of similar size and nature and as may be reasonably assigned from
time to time by the Board and the Company's Chief Executive Officer (the "CEO").
Executive will devote his best efforts and substantially all of his business
time and attention (except for vacation periods and periods of illness or other
incapacity) to the business of the Company and its Affiliates. Notwithstanding
the foregoing, and provided that such activities do not interfere with the
fulfillment of Executive's obligations hereunder, Executive may (A) serve as an
officer, director or trustee of any charitable or non-profit entity; (B) own up
to 5% of the outstanding voting securities of any company; or (C) serve as a
director of up to two other companies so long as such companies do not directly
compete with the Company. Unless the Company and Executive agree to the
contrary, Executive's place of employment shall be at the Company's principal
executive offices in Tampa, Florida; provided, however, that Executive will
travel to such other locations of the Company and its Affiliates as may be
reasonably necessary and/or as required by the Board in its sole discretion in
order to discharge his duties hereunder.
(b) Salary, Bonus and Benefits.
(i) Salary and Bonus. During the Service
Term, the Company will pay Executive a base salary (the
"Annual Base Salary") as the Board may
designate from time to time, at the rate of not less than
$180,000 per annum; provided, however, that the Annual Base
Salary shall be subject to review annually by the Board for
upward increases thereon. The Executive will be eligible to
receive an annual bonus in an amount of up to 50% of
Executive's Annual Base Salary for such year, as determined by
the Board based upon the Company's achievement of budgetary
and other objectives set by the Board in good faith and
consistent with past practice in consultation with the
Executive, which objectives shall be reasonable in light of
the Company's past year's performance and shall be
communicated to Executive by the Board prior to the start of
the Company's fiscal year. The annual bonus, if any, shall be
due and payable to Executive prior to June 30 of the following
fiscal year.
(ii) Benefits. During the Service Term,
Executive will be entitled to such other benefits approved by
the Board including those made available to the Company's
other senior executives, including participation in the
Company's healthcare plan. Executive shall be reimbursed for
customary travel, civic and luncheon club dues and other
expenses, subject to standard and reasonable documentation
requirements. In addition, Executive will receive a stipend of
$800 per month for lease of an automobile and other related
expenses during the Service Term. Executive shall also be
eligible to receive four weeks paid vacation per annum. Any
unused vacation time during each fiscal year shall be
"rolled-over" to the following fiscal year to the extent
permitted by the Company's policies for other senior
executives of the Company.
(c) Termination.
(i) Events of Termination. Executive's
employment with the Company shall cease upon:
(A) Executive's death.
(B) Executive's voluntary
retirement.
(C) Executive's disability, which
means his incapacity due to physical or mental
illness such that he is unable to perform the
essential functions of his previously assigned duties
for a period of six months in any twelve month period
and such incapacity has been determined to exist by
either (x) the Company's disability insurance carrier
or (y) by the Board in good faith based on competent
medical advice in the event that the Company does not
maintain disability insurance on the Executive.
(D) Termination by the Company by
the delivery to Executive of a written notice from
the Board or the CEO that Executive has been
terminated ("Notice of Termination") with or without
Cause. "Cause" shall mean:
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(1) Executive's (aa)
conviction of a felony or Executive's
commission of any other material act or
omission involving dishonesty or fraud with
respect to the Company or any of its
Affiliates or any of their customers,
vendors or suppliers or involving harassment
or discrimination with respect to the
employees of the Company or its Subsidiaries
or (bb) misappropriation of material funds
or assets of the Company for personal use;
(2) Executive's continued
substantial and repeated neglect of his
duties, after written notice thereof from
the Board, and such neglect has not been
cured within 30 days after Executive
receives notice thereof from the Board;
(3) Executive's gross
negligence or willful misconduct in the
performance of his duties hereunder that
results, or is reasonably expected to
result, in material damage to the Company;
or
(4) Executive's engaging in
conduct constituting a breach of Sections 2
or 3 hereof within 15 days of any notice of
default thereof from the Company.
In order for the termination to be effective:
Executive must be notified in writing (which writing
shall specify the cause in reasonable detail) of any
termination of his employment for Cause. Executive
will then have the right, within ten days of receipt
of such notice, to file a written request for review
by the Company. In such case, Executive will be given
the opportunity to be heard, personally or by
counsel, by the Board and a majority of the Directors
must thereafter confirm that such termination is
either for Cause. If the Directors do not provide
such confirmation, the termination shall be treated
as other than for Cause. Notwithstanding anything to
the contrary contained in this paragraph, Executive
shall have the right after termination has occurred
to appeal any determination by the Board to
arbitration in accordance with the provisions of
Section 3(g) hereof.
The delivery by the Company of
notice to Executive that it does not intend to renew
this Agreement as provided in Section 1(d) shall
constitute a termination by the Company without Cause
unless such notice fulfills the requirements of
Section 1(c)(i)(D)(1), (2), (3) or (4) above.
(E) Executive's voluntary
resignation by the delivery to the Board of at least
45 days written notice from Executive that Executive
has resigned with or without Good Reason. "Good
Reason" shall mean
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Executive's resignation from employment with the
Company within 45 days after the occurrence of any
one of the following:
(1) the failure of the
Company to pay an amount owing to Executive
hereunder after Executive has provided the
Company with written notice of such failure
and such payment has not thereafter been
made within 15 days of the delivery of such
written notice;
(2) any material reduction
or diminution in the Executive's title,
duties or responsibilities without his
consent after Executive has provided the
Company with written notice within 30 days
thereafter of such reduction and such
reduction has not thereafter been rescinded
within 15 days of the delivery of such
written notice;
(3) the Executive's
resignation within one year after the
Effective Date of a Change of Control (as
defined in Section 6 hereof); or
(4) the requested
relocation of Executive from the Tampa,
Florida metropolitan area without his
consent.
The delivery by the Executive of
notice to the Company that he does not intend to
renew this Agreement as provided in Section 1(d)
shall constitute a resignation by the Executive
without Good Reason unless such notice fulfills the
requirements of Section 1(c)(i)(E)(1) (2), (3) or (4)
above.
(ii) Rights on Termination.
(A) In the event that termination is
by the Company without Cause (including by operation
of the last paragraph of Section 1(c)(i)(D)), the
Company will continue to pay Executive a monthly
portion of the Annual Base Salary plus a monthly
portion of the Executive's bonus for the prior year
for a period equal to 24-months commencing on the
date of termination on regular salary payment dates.
In the event that termination is by Executive with
Good Reason, the Company will continue to pay
Executive the monthly portion of the Annual Base
Salary plus the monthly portion of the Executive's
bonus for the prior year for a period equal to twelve
months commencing on the date of termination on
regular salary payment dates. The payments to
Executive pursuant to the foregoing two sentences are
referred to as the "Severance Payments." In either
event, the Company will continue to provide Executive
with healthcare coverage for at least 24 months
following the date of termination.
(B) If the Company terminates
Executive's employment for Cause, if Executive
retires or if Executive resigns without Good Reason
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(including by operation of the last paragraph of
Section 1(c)(i)(E)), the Company's obligations to pay
any compensation or benefits under this Agreement
will cease effective as of the date of termination.
Executive's right to receive any other health or
other benefits will be determined under the
provisions of applicable plans, programs or other
coverages.
(C) If Executive's employment
terminates because of Executive's death or
disability, the Company will pay Executive or his
estate an amount, if any, equal to his bonus for the
current year prorated to reflect the number of days
Executive has worked during the year in which he dies
or becomes disabled (such amount to be paid after the
end of such year when bonuses are normally paid to
other senior executives of the Company).
Notwithstanding the foregoing, the Company's
obligation to Executive for severance pay or other rights under either
subparagraphs (A) or (B) above (the "Severance Pay") shall cease if Executive is
in violation of the provisions of Sections 2 or 3 hereof. Until such time as
Executive has received all of his Severance Payments, he will be entitled to
continue to receive any health, life, accident and disability insurance benefits
provided by the Company to Executive under this Agreement. If Executive dies or
is permanently disabled, then Executive or his estate shall be entitled to any
disability income or life insurance payments from any insurance policies paid
for by the Company or its Affiliates as specified in such policies.
(d) Term of Employment. Unless Executive's employment
under this Agreement is sooner terminated as a result of Executive's termination
in accordance with the provisions of Section 1(c) above, Executive's employment
under this Agreement shall commence on April 1, 2000 and shall terminate on the
third anniversary of the date hereof (the "Service Term"); provided, however,
that Executive's employment under this Agreement, and the Service Term, shall be
automatically renewed for three-year periods commencing on the each anniversary
of the date hereof and, thereafter, on each successive anniversary of such date
unless either the Company or Executive notifies the other party in writing
within sixty (60) days prior to any such anniversary that it or he desires to
terminate Executive's employment under this Agreement. All references herein to
"Service Term" shall include any renewals thereof after the third anniversary of
the date hereof.
2. Confidential Information and Goodwill; Inventions.
Executive acknowledges and agrees that:
(a) As a necessary function of Executive's employment
hereunder, Executive will have access to and utilize Confidential Information
which constitutes a valuable and essential asset of the Company's business.
(b) The Confidential Information, observations and
data obtained by him during the course of his performance under this Agreement
concerning the business and affairs of the Company are the property of the
Company, including information concerning the acquisition opportunities in or
reasonably related to the Business of which Executive becomes aware during the
Service Term. Therefore, Executive agrees that he will not disclose to any
unauthorized person or
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use for his own account any of the Confidential Information without the Board's
written consent. Executive agrees to deliver to the Company at the termination
of his employment, or at any other time the Company may request, all memoranda,
notes, plans, records, reports and other documents (including copies thereof)
relating to the Company, the Business or any other Confidential Information.
(c) All inventions, innovations, developments,
improvements, methods, designs, analyses, drawings, software, reports and all
similar or related information (whether or not patented or patentable) developed
by Executive during the Service Term which (i) directly or indirectly relate to
the Company or its Affiliates or the Business, or (ii) result from any work
performed by Executive while employed by the Company or its Affiliates shall
belong to the Company and its Affiliates. Executive shall promptly disclose all
such inventions to the Board and perform all actions reasonably requested by the
Board (whether during or after the Service Term) to establish and confirm such
ownership (including, without limitation, assignments, consents, powers of
attorney and other instruments).
3. Noncompetition and Nonsolicitation.
(a) Noncompetition. Executive acknowledges that in
the course of his employment with the Company he will become familiar with the
Company's and its Affiliates' trade secrets and with other confidential
information concerning the Company and that his services will be of special,
unique and extraordinary value to the Company and its Affiliates. Therefore,
Executive agrees that, during the Service Term and for a period equal to the
greater of (i) the term of all Severance Payments received by the Executive and
(ii) one (1) year after termination of Executive's employment with the Company
(collectively, the "Noncompete Period"), he shall not directly or indirectly
own, manage, control, participate in, consult with, render services for, or in
any manner engage in any business competing with the business of the Company and
its Subsidiaries or any businesses with which the Company or its Subsidiaries
have firm plans to engage in at the time of the termination of the Executive's
employment with the Company; provided, however, that nothing contained herein
shall prohibit Executive from (i) owning up to five percent (5%) of the
outstanding securities of a publicly-held company or (ii) engaging in a
consulting business so long as such consulting business is limited to providing
advice to copier/office equipment dealers in markets not serviced by the Company
at the time of Executive's termination.
(b) Nonsolicitation. During the Noncompete Period and
for a period of one (1) year thereafter, Executive shall not directly or
indirectly through another entity (i) induce or attempt to induce any senior
management employee of the Company or any Subsidiary or, to the actual knowledge
of the Executive, any other employee of the Company or any Subsidiary, to leave
the employ of the Company or such Subsidiary, or in any way interfere with the
relationship between the Company or any Subsidiary and any employee thereof or
(ii) induce or attempt to induce any customer, supplier, vendor, licensee or
other business relation of the Company or any Subsidiary to cease doing business
with the Company or such Subsidiary, or to modify its business relationship with
the Company in a manner materially adverse to the Company or any Subsidiary, or
in any way materially disparage the Company or its Subsidiaries to any such
customer, supplier, vendor, licensee or business relation of the Company or any
Subsidiary.
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(c) Enforcement. The Executive understands and agrees
the terms and conditions of Executive's employment hereunder are in
consideration for Executive's covenants contained in Section 2 and 3 of this
Agreement. If, at the time of enforcement of Section 2 or 3 of this Agreement, a
court holds that the restrictions stated herein are unreasonable under
circumstances then existing the parties hereto agree that the maximum duration,
scope or geographical area reasonable under such circumstances shall be
substituted for the stated period, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum
duration, scope and area permitted by law. Because Executive's services are
unique and because Executive has access to confidential information, the parties
hereto agree that money damages would be an inadequate remedy for any breach of
this Agreement. Therefore, in the event a breach or threatened breach of this
Agreement, the Company or its successors or assigns may, in addition to other
rights and remedies existing in their favor, apply to any court of competent
jurisdiction for specific performance and/or injunctive or other relief in order
to enforce, or prevent any violations of, the provisions hereof (without posting
a bond or other security).
GENERAL PROVISIONS
4. Definitions.
"Affiliate" of any Person means any other Person
which directly or indirectly controls, is controlled by or is under common
control with such Person.
"Board" means the Company's board of directors or the
board of directors or similar management body of any successor of the Company.
"Business" means any business of the Company or its
Subsidiaries now or hereafter engaged in, including without limitation the
business of distributing, selling and servicing office equipment in the United
States.
"Change of Control Period" shall mean the period
commencing on the Effective Date and ending on the first anniversary of the
Effective Date.
"Competitive Activity" means any business or activity
of Executive or any third party that is the same as the Business or competitive
with the Business.
"Confidential Information" means all confidential
information and trade secrets of the Company and its Affiliates including,
without limitation, the following: the identity, written lists, or descriptions
of any customers, referral sources or Organizations; financial statements, cost
reports, or other financial information; contract proposals or bidding
information; business plans; training and operations methods and manuals;
personnel records; fee structures; and management systems, policies or
procedures, including related forms and manuals. "Confidential Information"
shall not include any information or knowledge which: (a) is in the public
domain other than by Executive's breach of this Agreement; (b) is disclosed to
Executive lawfully by a third party who is not under any obligation of
confidentiality; (c) is otherwise generally known by persons engaged in the
Business; or (d) was known by Executive prior to his employment with the
Company.
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"Effective Date" shall mean the first date on which a
Change of Control (as defined in Section 6) occurs. Anything in this Agreement
to the contrary notwithstanding, if a Change of Control occurs and if the
Executive's employment with the Company is terminated within twelve months prior
to the date on which the Change of Control occurs, and if it is reasonably
demonstrated by the Executive that such termination of employment (i) was at the
request of a third party who has taken steps reasonably calculated to effect a
Change of Control or (ii) 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 of
employment.
"Organization" means any organization that has
contracted with the Company for the performance of services in connection with
the Business.
"Person" means an individual, a partnership, a
limited liability company, a corporation, an association, a joint stock company,
a trust, a joint venture, an unincorporated organization and a governmental
entity or any department, agency or political subdivision thereof.
"Subsidiary" means any corporation of which the
Company owns securities having a majority of the ordinary voting power in
electing the board of directors directly or through one or more subsidiaries.
5. Notices. Any notice provided for in this Agreement must be
in writing and must be either personally delivered, mailed by first class United
States mail (postage prepaid, return receipt requested) or sent by reputable
overnight courier service (charges prepaid) or by facsimile to the recipient at
the address below indicated:
If to the Executive:
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Xxxxxxx Xxxxxxx
c/o Global Imaging Systems, Inc.
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000X
Xxxxx, Xxxxxxx 00000
Tel No.: (000) 000-0000
Fax No.: (000) 000-0000
and to:
00000 Xxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
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If to the Company:
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0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000X
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Tel No.: (000) 000-0000
Fax No.: (000) 000-0000
with a copy to:
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Xxxxx & Xxxxxxx, LLP
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxxxxxx X. Xxxxx
Tel No.: (000) 000-0000
Fax No.: (000) 000-0000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
6. Change of Control. For the purpose of this Agreement, a
"Change of Control" shall mean:
(a) The acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person"), other than
Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV, L.P. and its Affiliates, of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 30% or more of either (i) the then-outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or (ii) the combined voting
power of the then-outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this subsection (a), the
following acquisitions shall not constitute a Change of Control: (i) any
acquisition directly from the Company approved by the Board and Executive, (ii)
any acquisition by the Company, (iii) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or (iv) any acquisition by any
corporation pursuant to a transaction which complies with clauses (i), (ii) and
(iii) of subsection (c) of this Section 6(a); or
(b) Individuals who, as of the date hereof,
constitute the Board (the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board; provided, however, that any individual
becoming a director subsequent to the date hereof whose election, or nomination
for election by the Company's stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election
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contest with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other
than the Board; or
(c) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), in each case, unless,
following such Business Combination, (i) all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then-outstanding voting
securities entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination (including,
without limitation, a corporation which as a result of such transaction owns the
Company or all or substantially all of the Company's assets either directly or
through one or more subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the Outstanding
Company Common Stock and Outstanding Company Voting Securities, as the case may
be, (ii) no Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of the Company or
such corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, 30% or more of, respectively, the then-outstanding
shares of common stock of the corporation resulting from such Business
Combination, or the combined voting power of the then-outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Business Combination and (iii) at least a majority of the members
of the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of
the initial agreement, or of the action of the Board, providing for such
Business Combination; or
(d) Approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company.
7. General Provisions.
(a) Expenses. Each party shall bear his or its own
expenses in connection with the negotiation and execution of this Agreement and
the consummation of the transactions contemplated by this Agreement.
(b) Severability. Whenever possible, each provision
of this Agreement will be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or any other jurisdiction, but this Agreement
will be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
(c) Complete Agreement. This Agreement, those
documents expressly referred to herein and other documents of even date herewith
embody the complete agreement and
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understanding among the parties and supersede and preempt any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way.
(d) Counterparts. This Agreement may be executed in
separate counterparts, each of which is deemed to be an original and all of
which taken together constitute one and the same agreement.
(e) Successors and Assigns. Except as otherwise
provided herein, this Agreement shall bind and inure to the benefit of and be
enforceable by Executive, the Company and their respective successors and
assigns; provided that the rights and obligations of Executive under this
Agreement shall not be assignable.
(f) Choice of Law. This Agreement will be governed by
and construed in accordance with the internal laws of the State of Florida,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Florida or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Florida.
(g) Remedies and Arbitration. Each of the parties to
this Agreement will be entitled to enforce its rights under this Agreement to
recover damages and costs (including reasonable attorney's fees) caused by any
breach of any provision of this Agreement and to exercise all other rights
existing in its favor. Except for the remedies of the Company provided in
Section 3(c) hereof, the parties hereto agree to submit any disputes arising out
of or relating to this Agreement to binding arbitration in Tampa, Florida
administered by the American Arbitration Association under its Commercial
Arbitration Rules, before a panel of three arbitrators, and judgment on the
award rendered by the arbitrators may be entered into any court having
jurisdiction thereof. The prevailing party in any arbitration shall be entitled
to recover its reasonable attorneys' fees and costs from the other party or
parties.
(h) Amendment and Waiver. The provisions of this
Agreement may be amended and waived only with the prior written consent of the
Company and Executive.
(i) Business Days. If any time period for giving
notice or taking action hereunder expires on a day which is a Saturday, Sunday
or holiday in the state in which the Company's chief executive office is
located, the time period shall be automatically extended to the business day
immediately following such Saturday, Sunday or holiday.
(j) Termination. This Agreement (except for the
provisions of Section 1) shall survive the termination of Executive's employment
with the Company and shall remain in full force and effect after such
termination.
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[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first written above.
GLOBAL IMAGING SYSTEMS, INC.
By: ______________________________
Xxxxxx X. Xxxxxxx
President
____________________________________
XXXXXXX XXXXXXX
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