EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
effective as of April 29, 1999, by and between NEWGEN RESULTS CORPORATION, a
Delaware corporation (the "Company") and _______________ ("Executive"). The
Company and Executive are hereinafter collectively referred to as the "Parties,"
and individually referred to as each or any "Party."
RECITALS:
A. The Company desires assurance of the association and services of
Executive in order to retain Executive's experience, skills, abilities,
background and knowledge, and is willing to engage Executive's services on the
terms and conditions set forth in this Agreement.
B. Executive desires to be in the employ of the Company, and is willing
to accept such employment on the terms and conditions set forth in this
Agreement.
AGREEMENT:
In consideration of the foregoing premises and the mutual covenants herein
contained, and for other good and valuable consideration, the Parties, intending
to be legally bound, agree as follows:
1. EMPLOYMENT.
1.1 The Company hereby employs Executive, and Executive hereby
accepts employment by the Company, upon the terms and conditions set forth in
this Agreement.
1.2 Executive shall be the ______________ of the Company or shall
serve in such other executive managerial capacity or capacities as the Board of
Directors of the Company may from time to time prescribe.
1.3 Executive shall do and perform all services, acts or things
necessary or advisable to manage and conduct the business of the Company,
provided, however, that at all times during his employment Executive shall be
subject to the direction and policies from time to time established by the Board
of Directors of the Company.
2. LOYAL AND CONSCIENTIOUS PERFORMANCE; NONCOMPETITION. During his
employment by the Company, Executive shall devote his full business and
professional energies, interest, abilities and time to the proper and efficient
performance of this Agreement and shall not, without the prior written consent
of the Board of Directors of the Company, directly or indirectly, render
services of a business, professional or commercial nature to any other person or
entity, whether for compensation or otherwise, or engage in any business
activities, including, but not limited to, such activities which are competitive
with or adverse to the Company's business or welfare, or have any beneficial
financial interest in any suppliers of the Company,
whether alone, through Executive's spouse or children, as a partner, or as a
shareholder, officer or director of any other corporation, or as a trustee,
fiduciary or in a similar representative capacity.
3. TERM OF EMPLOYMENT. Subject to the Section 5 of this Agreement,
Executive shall be employed by the Company for two (2) years, commencing on the
date first above written (the "Term of Employment"). Upon the expiration of the
Term of Employment, the Consulting Agreement, a form of which is attached hereto
as Exhibit A, shall have no effect and shall not be binding upon either the
Company or Executive, provided that Executive's employment has not been
terminated with or without cause prior to the expiration of the Term of
Employment.
4. COMPENSATION OF EXECUTIVE.
4.1 BASE SALARY. The Company shall pay Executive a salary (the "Base
Salary") at a rate equal to $ __________________ per year. Such Base Salary
shall be payable semi-monthly and shall be prorated for any partial employment
on the basis of a 365 day year. The Board of Directors shall annually consider
whether to increase the Base Salary, which decision shall be in the sole
discretion of the Board.
4.2 BONUS. Executive's performance shall be reviewed by the Board of
Directors of the Company on a periodic basis (but not less than once in each
year during the term of this Agreement) and the Board may, in its sole
discretion, award such bonuses to Executive as shall be appropriate or desirable
based on Executive's performance.
4.3 WITHHOLDING TAXES, ETC. All of Executive's compensation shall be
subject to customary withholding taxes and any other employment taxes as are
commonly required to be collected or withheld by the Company.
5. TERMINATION.
5.1 TERMINATION BY COMPANY WITHOUT CAUSE. The Company may
voluntarily terminate Executive's employment hereunder without cause for any
reason in its sole discretion by giving not less than twelve (12) months' prior
written notice to Executive. (As used herein, a termination by the Company
"without cause" shall mean any termination that is not "for cause" as defined in
Section 5.2 below.) Upon the date of notice of termination without cause by the
Company (the "Notice Date"), Executive shall be engaged to perform services
pursuant to a Consulting Agreement, a form of which is attached hereto as
Exhibit A. On the Notice Date, the Company shall pay Executive any unpaid
salary accrued up to the Notice Date, a bonus equal to the bonus earned by
Executive in the prior year and any accrued but unused vacation pay. No other
amounts shall be payable to Executive except pursuant to the Consulting
Agreement.
5.2 TERMINATION BY COMPANY FOR CAUSE. At the direction of the
Company's Board of Directors, the Company may terminate Executive's employment
hereunder for cause by delivery of written notice to Executive specifying the
cause or causes relied upon for such termination. Executive shall be entitled
to receive as compensation the higher of the Base Salary or the Executive's
salary as of the date of termination prorated to the date of termination, and
any accrued but unused vacation pay, and shall be engaged to perform services
for the Company
2.
pursuant to the Consulting Agreement; PROVIDED THAT, at the Company's sole
option, the Company may elect not to engage Executive under the Consulting
Agreement, in which event Executive shall receive only the prorated salary to
the date of termination, and the accrued vacation pay. Grounds for the Company
to terminate "for cause" shall consist of the occurrence of any of the following
events:
5.2.1 Executive's failure or refusal to perform the duties
reasonably related to the capacity in which he is employed hereunder which have
been or may be assigned to him by the Board of Directors of the Company, and
Executive has not corrected such conduct within thirty (30) days of written
notice thereof from the Company to Executive;
5.2.2 Executive's performance of any action when specifically
and reasonably instructed not to do so by the Board of Directors of the Company;
5.2.3 Executive's commission of any fraud against the Company
or use or appropriation for his personal use or benefit of any funds or
properties of the Company in a material amount not authorized by the Board of
Directors to be so used or appropriated;
5.2.4 Executive's conviction of any crime involving moral
turpitude;
5.2.5 Executive's material breach of any provision of this
Agreement or any other agreement between Executive and the Company, and
Executive's failure to cure such breach within thirty (30) days of written
notice thereof from the Company to Executive.
5.3 TERMINATION BY EXECUTIVE WITHOUT CAUSE. Executive may
voluntarily terminate his employment hereunder without cause for any reason in
his sole discretion by giving prior written notice to the Company. (As used
herein, a termination by Executive "without cause" shall mean any termination
that is not "for cause" as defined in Section 5.4 below.) Executive shall be
entitled to receive as compensation the higher of the Base Salary or the
Executive's salary as of the date of termination prorated to the date of
termination, and any accrued but unused vacation pay, and shall be engaged to
perform services for the Company pursuant to the Consulting Agreement; PROVIDED
THAT, at the Company's sole option, the Company may elect not to engage
Executive under the Consulting Agreement, in which event Executive shall receive
only the prorated salary to the date of termination, and the accrued vacation
pay.
5.4 TERMINATION BY EXECUTIVE FOR CAUSE. Executive may terminate his
employment hereunder for cause by delivery of written notice to the Company
specifying the cause or causes relied upon for such termination. If Executive's
employment under this Agreement is terminated by Executive for cause, Executive
shall be engaged to perform services pursuant to the Consulting Agreement, and
Executive shall be entitled to receive as compensation the higher of the Base
Salary or the Executive's salary as of the date of termination prorated to the
date of termination and any accrued but unused vacation pay. Grounds for
Executive to terminate his employment "for cause" shall consist of the
occurrence of any of the following events:
3.
5.4.1 If the Company requires Executive to perform any act
which is illegal, including commission of any crime involving moral turpitude,
notwithstanding Executive's notice thereof to the Board of Directors;
5.4.2 If the Company is in material breach of any provision
of this Agreement and the Company has not cured such breach within thirty (30)
days of written notice thereof from Executive to the Company; and
5.4.3 If, without Executive's prior consent, there is a
substantial change in Executive's duties or responsibilities relating to his
employment with the Company.
5.5 TERMINATION UPON DEATH OR DISABILITY. Executive's employment
hereunder shall terminate without notice upon the date of Executive's death or
the date when Executive becomes "completely disabled" as that term is defined in
Section 6.2.
5.6 NONSOLICITATION. For a period of two (2) years following the
termination of Executive's employment with the Company, Executive shall not
solicit or in any manner encourage employees of the Company to leave its employ.
6. DEATH OR DISABILITY DURING TERM OF EMPLOYMENT.
6.1 PAYMENT OF BASE SALARY. Upon termination of Executive's
employment pursuant to Section 5.5, Executive or his estate or personal
representative, as the case may be, shall be entitled to receive Executive's
Base Salary at the applicable rate set forth in Section 4.1 for a period of
three (3) months following the date of death or the date when Executive becomes
completely disabled.
6.2 DISABILITY DEFINED. The term "completely disabled" as used in
this Agreement shall mean the inability of Executive to perform his duties under
this Agreement because he has become permanently disabled within the meaning of
the policy of disability income insurance provided to him by the Company.
7. OTHER BENEFITS.
7.1 BENEFIT PLANS. Executive shall be eligible to participate in and
be covered by any pension, profit sharing, life insurance, accident insurance,
health insurance, hospitalization, disability, medical reimbursement or other
plan(s) maintained from time to time by the Company for its employees. The
Company shall provide Executive with long-term disability benefits.
7.2 VACATION. During each fiscal year of the Term of Employment,
Executive shall be entitled to vacation of twenty (20) working days (which shall
accrue ratably) in each such fiscal year at full salary. In the event that
Executive accrues forty (40) days of vacation, no further vacation shall accrue
until the accrued balance is brought below forty (40) days.
7.3 EXPENSE REIMBURSEMENT. The Company shall pay on Executive's
behalf, or reimburse Executive for, any expenses reasonably incurred in
connection with his employment and which are not incurred in violation of any
policy or policies regarding expenses
4.
which may be adopted by the Board of Directors from time to time. Executive
agrees to submit receipts and other documentation to support the above expenses
as a condition of reimbursement therefor.
8. ASSIGNMENT. This Agreement and any agreements referenced herein
constitute the entire agreement between the parties and may be waived, modified
or amended only by an agreement in writing signed by both parties.
9. NOTICES. All notices or demands of any kind required or permitted to
be given by the Company or Executive under this Agreement shall be given in
writing and shall be personally delivered (and receipted for) or mailed by
certified mail, return receipt requested, postage prepaid, addressed as follows:
9.1 If to the Company:
Board of Directors of Newgen Results Corporation
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Chairman
9.2 If to Executive:
------------------------
------------------------
------------------------
Any such written notice shall be deemed received when personally delivered or
three (3) days after its deposit in the United States mail as specified above.
Either Party may change his/its address for notices by giving notice to the
other Party in the manner specified in this section.
10. CHOICE OF LAW. This Agreement is made in San Diego, California. This
Agreement shall be construed and interpreted in accordance with the internal
laws of the State of California.
11. INTEGRATION. This Agreement and the Consulting Agreement dated as of
the date hereof between Executive and the Company contain the entire agreement
of the parties relating to the subject matter of this Agreement, and supersede
all prior oral and written employment agreements or arrangements between the
Parties. This Agreement cannot be amended or modified except by a written
agreement signed by Executive and the Company.
12. WAIVER. No term, covenant or condition of this Agreement or any
breach thereof shall be deemed waived, except with the written consent of the
Party against whom the waiver is claimed, and any waiver of any such term,
covenant, condition or breach shall not be deemed to be a waiver of any
preceding or succeeding breach of the same or any other term, covenant,
condition or breach.
13. SEVERABILITY. If any provision set forth in this Agreement is
determined by any arbitrator or court of competent jurisdiction to be invalid or
unenforceable for any reason, such
5.
provision, to the specific extent that it is unenforceable, shall be interpreted
to the maximum extent as to which it is valid and enforceable in order to
effectuate the Parties' intent to the greatest extent possible. Any such
deletion or interpretation shall have no effect on the validity or
enforceability of any remaining provision of this Agreement.
14. INTERPRETATION. The headings set forth in this Agreement are for
convenience only and shall not be used in interpreting this Agreement.
15. REPRESENTATIONS AND WARRANTIES. Executive represents and warrants
that he is not restricted or prohibited, contractually or otherwise, from
entering into and performing each of the terms and covenants contained in this
Agreement, and that his execution and performance of this Agreement will not
violate or breach any other agreement between Executive and any other person or
entity.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
The Company:
NEWGEN RESULTS CORPORATION
a Delaware corporation
By:
---------------------------
Name:
------------------------
Title:
-----------------------
Executive:
------------------------------
6.
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EMPLOYMENT AGREEMENT
BY AND BETWEEN
NEWGEN RESULTS CORPORATION
A DELAWARE CORPORATION
AND
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TABLE OF CONTENTS
PAGE
1. EMPLOYMENT..............................................................1
2. LOYAL AND CONSCIENTIOUS PERFORMANCE; NONCOMPETITION.....................1
3. TERM OF EMPLOYMENT......................................................2
4. COMPENSATION OF EXECUTIVE...............................................2
5. TERMINATION.............................................................2
6. DEATH OR DISABILITY DURING TERM OF EMPLOYMENT...........................4
7. OTHER BENEFITS..........................................................4
8. ASSIGNMENT..............................................................5
9. NOTICES.................................................................5
10. CHOICE OF LAW...........................................................5
11. INTEGRATION.............................................................5
12. WAIVER..................................................................5
13. SEVERABILITY............................................................5
14. INTERPRETATION..........................................................6
15. REPRESENTATIONS AND WARRANTIES..........................................6
Exhibit A
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into
effective as of April 29, 1999 by and between NEWGEN RESULTS CORPORATION, a
Delaware corporation (the "Company") and ________________ ("Consultant").
A. The Company provides consulting, marketing and database management
services to automobile dealerships and manufacturers;
B. Consultant is the [INSERT TITLE] of the Company pursuant to an
employment agreement dated as of the date hereof (the "Employment Agreement");
and
C. Because of Consultant's intimate knowledge of the business of the
Company, the Company desires the option to engage the services of Consultant,
and Consultant desires to be so engaged, upon notice of termination of
employment pursuant to the Employment Agreement.
NOW, THEREFORE, in consideration of the above facts and the mutual promises
set forth in this Agreement, the parties agree as follows:
1. SERVICES. In the event Consultant's employment under the Employment
Agreement is terminated, by either the Company or by Consultant, for any reason
other than death or disability, then for a period of one (1) year following the
date of either party's notice to the other of such termination (the "Notice
Date"), the Company shall engage Consultant to perform the services and
undertake the duties and responsibilities set forth in Schedule A attached
hereto and incorporated herein (collectively, the "Services"), provided that, at
the Company's sole option, the Company may elect within 30 days of the Notice
Date, in the event of a termination by the Company with "cause" or the
termination by Consultant without "cause", not to engage Consultant under this
Agreement. Consultant agrees to render the Services under the terms and
conditions set forth in this Agreement.
2. TERM. The term of this Agreement (the "Term") shall commence upon the
Notice Date. This Agreement shall remain in full force and effect for one (1)
year following the Notice Date. In the event that the Company terminates
Consultant's employment with "cause" or Consultant terminates his employment
without "cause", and the Company does not elect to engage Consultant within 30
days of the Notice Date, then this Agreement shall have no effect and shall not
be binding upon either the Company or upon Consultant.
3. CONSULTING FEES. As payment for the Services, Consultant shall
receive cash fees as set forth in Schedule B attached hereto and incorporated
herein, which shall constitute complete payment for the Services. The Company
shall be entitled to set off against the consulting fees any other income
Consultant receives during the Term from other employment or from contracting
engagements with any entity other than the Company. Consultant agrees to
immediately inform the Company of any other such income he earns during the
Term.
4. NO OTHER BENEFITS. During the Term, Consultant shall not be entitled
to any other compensation or benefits, including benefits provided generally to
employees of the
Company, and Consultant's compensation shall not be subject to withholding,
unless, in the Company's view, withholding is required by applicable law.
5. CONFIDENTIAL INFORMATION. In connection with the performance of
Services hereunder, Consultant may become familiar with trade secrets and
confidential information of the Company (which shall include all trade secrets
and work product resulting from Consultant's provision of the Services to the
Company), which derive independent economic value, actual or potential, from not
being generally known to the public or to other persons who can obtain economic
value from its disclosure or use ("Confidential Information"). Except as may be
reasonably necessary while providing the Services, Consultant agrees that,
during the Term of this Agreement and thereafter, Consultant and any agents and
employees of Consultant will not disclose or utilize any of the Confidential
Information (including without limitation details regarding the Company's
services, plans for new services, supplier and customer information and
relationships, information regarding the Company's employees, and business and
financial information relating to the actual or planned business, products,
practices and techniques of the Company) to which Consultant has been privy,
unless Consultant becomes legally required to disclose any such Confidential
Information, in which event Consultant shall provide the Company with prompt
notice thereof so that the Company may seek a protective order or other
appropriate remedy. Upon the termination of this Agreement, Consultant shall
deliver to the Company all equipment, notes, documents, memoranda, reports,
files, books, correspondence, lists or other written or graphic records and the
like belonging to the Company which are or have been in Consultant's possession
or control.
6. PRESERVATION OF CONFIDENTIAL INFORMATION; NONCOMPETITION.
Consultant agrees that in order to protect the Confidential
Information of the Company and in consideration of the fees receives hereunder
and the Company's execution of the Employment Agreement, during the Term of this
Agreement, Consultant shall not engage as an advisor, principal, agent, partner,
officer, director, stockholder, employee, member of any association or otherwise
in any business or activity conducted within the United States or Canada which:
6.1 is substantially similar to any business or activity of the
Company as the same is conducted or proposed to be conducted (as evidenced by a
written plan) by the Company as of the first day of the Term; or
6.2 is competitive with any business or activity of the Company as
the same is conducted or proposed to be conducted (as evidenced by a written
plan) by the Company on the first day of the Term.
7. CUSTOMERS AND EMPLOYEES. Consultant agrees that during the Term and
for a period of one year thereafter, he will not solicit or cause to be
solicited (i) any of the existing customers of the Company for purposes of
obtaining their custom or trade for a business which is competitive with the
business which is conducted by the Company as of the Notice Date or during the
Term, or (ii) any of the existing employees of the Company for purposes of
obtaining their employment services.
2.
8. SEVERABILITY. To the extent any provision of this Agreement shall be
adjudicated to be invalid or unenforceable, it shall be considered deleted
herefrom and the remainder of such provision and of this Agreement shall be
unaffected, such deletion to apply only with respect to the operation of this
Agreement in the particular jurisdiction in which such adjudication is made. In
furtherance and not in limitation of the foregoing, should the duration or
geographical extent of, or business activities covered by, any provision of this
Agreement be in excess of that which is valid and enforceable under applicable
law, then such provision shall be construed to cover only the duration, extent
or activities which may validly and enforceably be covered.
9. REMEDIES. In any event of a breach of Consultant's obligations under
this Agreement, Consultant agrees that (a) any and all proceeds, funds, payments
and proprietary interests, of every kind and description, arising from, or
attributable to, such breach shall be the sole and exclusive property of the
Company and (b) the Company shall be entitled to recover any additional actual
damages incurred as a result of such breach.
10. INJUNCTIVE RELIEF. Consultant understands and agrees that the Company
could not be reasonably or adequately compensated in damages in an action at law
for Consultant's breach of his obligations under this Agreement. Accordingly,
Consultant specifically agrees that the Company shall be entitled to an
injunction enjoining Consultant or any person or persons acting for or with
Consultant in any capacity whatsoever from violating any of the terms herein.
This provision with respect to injunctive relief shall not diminish the right of
the Company to claim and recover damages pursuant to Section 9 in addition to
injunctive relief.
11. REPRESENTATIONS AND WARRANTIES. Consultant represents and warrants
that (a) Consultant is not restricted or prohibited, contractually or otherwise,
from entering into and performing each of the terms and covenants contained in
this Agreement, and (b) Consultant's execution and performance of this Agreement
is not a violation or breach of any other agreement to which Consultant is a
party.
12. GOVERNING LAW. This Agreement is made in San Diego, California and
shall be interpreted and enforced under the internal laws of the State of
California.
13. ENTIRE AGREEMENT. This Agreement and any agreements referenced herein
constitute the entire agreement between the parties and may be waived, modified
or amended only by an agreement in writing signed by both parties.
14. ASSIGNMENT. This Agreement shall inure to the benefit of, and be
binding upon, the successors and permitted assigns of the parties hereto. This
Agreement may not be assigned by Consultant. This Agreement may not be assigned
by the Company except in connection with a merger of the Company or pursuant to
the sale, transfer or other conveyance of all or substantially all of the assets
of the Company.
15. WAIVER. No covenant, term or condition of this Agreement or breach
thereof shall be deemed waived unless the waiver is in writing, signed by the
party against whom enforcement is sought, and any waiver shall not be deemed to
be a waiver of any preceding or succeeding breach of the same or any other
covenant, term or condition.
3.
16. NOTICE. All notices and other communications required or permitted to
be given under this Agreement shall be in writing and shall be deemed to have
been given if delivered personally or sent by certified mail, return receipt
requested, postage prepaid, to the parties at the following addresses or to such
other address as either party to this Agreement shall specify by notice to the
other:
If to Company:
NEWGEN RESULTS CORPORATION
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Chairman
If to Consultant:
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17. HEADINGS. Headings or captions of paragraphs or sections of this
Agreement are for convenience of reference only and shall not be considered in
the interpretation of this Agreement.
4.
18. ATTORNEY CONSULTATION. Each party has been informed of his/its right
to consult with his/its attorney prior to signing this Agreement and has either
done so or has considered the matter and decided not to do so.
The Company:
NEWGEN RESULTS CORPORATION
a Delaware corporation
By:
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Name:
----------------------------
Title:
---------------------------
Consultant:
---------------------------------
5.
SCHEDULE A
SERVICES, DUTIES AND RESPONSIBILITIES
During the Term, Consultant shall, upon request, consult with the Company
by telephone, by mail and in person from time to time on a part-time basis
during regular business hours. The consultation shall concern the management,
operation, marketing, sales, purchasing, leasing, financing and other aspects of
the business of the Company, and may include Consultant's direct contacting of
third parties at the reasonable request of the Company. Unless otherwise agreed
in writing by the parties, the consultation shall not exceed five (5) hours per
week on average during the Term.
SCHEDULE B
CONSULTING FEE
The Company shall pay to Consultant for the Services, a consulting fee
equal to the Base Salary as defined in the Employment Agreement or Consultant's
salary on the Notice Date, whichever is higher, paid according to the Company's
regular payroll during the Term as provided herein.
The Company shall pay on Consultant's behalf, or reimburse Consultant for,
any expenses reasonably incurred in connection with his rendering of the
Services and which are not incurred in violation of any policy or policies
regarding expenses which may be adopted by the Board of Directors from time to
time. Consultant agrees to submit receipts and other documentation to support
the above expenses as a condition of reimbursement therefor.
Schedule to Form of Employment Agreement
Employee Base Salary
------------ -------------
Xxxxxx X. Xxxxxxxx $ 275,000
Xxxxxx X. Silver $ 250,000
Xxxxxx Xxxxxx $ 154,000
Xxxxx X. Xxxxx $ 130,000
