Exhibit 10.4
NATIONAL INFORMATION CONSORTIUM, INC.
KEY EMPLOYEE AGREEMENT
FOR
Xxxxxxx X. Xxxxxx
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of the 1st
day of July 1998, by and between XXXXXXX X. XXXXXX ("Executive") and NATIONAL
INFORMATION CONSORTIUM, INC. a Delaware corporation (the "Company").
WHEREAS, the Company desires to employ Executive to provide personal
services to the Company and to the Company's subsidiaries, and wishes to
provide Executive with certain compensation and benefits in return for his
services; and
WHEREAS, Executive wishes to be employed by the Company and provide
personal services to the Company in return for certain compensation and
benefits;
NOW, THEREFORE, the parties hereto agree as follows:
1. EMPLOYMENT BY THE COMPANY.
1.1 Subject to terms set forth herein, the Company or a subsidiary of
the Company, agrees to employ Executive in the position of
President and Executive hereby accepts such employment effective
as of the date first written above. During the term of his
employment with the Company, Executive will devote his best
efforts and substantially all of his business time and attention
(except for vacation periods and reasonable periods of illness or
other incapacity's permitted by the Company's general employment
policies) to the business of the Company.
1.2 Executive will serve in an executive capacity and shall perform
such duties as are customarily associated with his then current
title, consistent with the Bylaws of the Company and as required
by the Company's Board of Directors (the "Board").
1.3 The employment relationship between the parties shall also be
governed by the general employment policies and practices of the
Company, including those relating to protection of confidential
information and assignment of inventions, except that when the
terms of this Agreement differ from or are in
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conflict with the Company's general employment policies or
practices, this Agreement shall control.
2. COMPENSATION
2.1 SALARY. Executive shall receive for services to be rendered
hereunder an annualized base salary of $249,000, payable in equal
installments (prorated for portions of a pay period) on the
Company's regular pay days and the Company will withhold from
such compensation all applicable federal and state income, social
security and disability and other taxes as required by applicable
laws.
2.2 STANDARD COMPANY BENEFITS. Executive shall be entitled to all
rights and benefits for which he is eligible under the terms and
conditions of the standard Company benefits and compensation
practices which may be in effect from time to time and provided
by the Company to its employees generally.
3. PROPRIETARY INFORMATION OBLIGATIONS
3.1 AGREEMENT. Executive agrees to execute and abide by the
Proprietary Information and Inventions Agreement attached hereto
as EXHIBIT A (the "Proprietary Information Agreement").
4. TERMINATION OF EMPLOYMENT
4.1 TERMINATION WITHOUT CAUSE.
(a) The Company shall have the right to terminate Executive's
employment with the Company at any time without cause.
(b) In the event Executive's employment is terminated without
cause before July 1st, 2001, the Company shall pay Executive
one year's base compensation in a single lump sum
distribution on the first regular Company pay period after
said termination; PROVIDED, HOWEVER, if Executive is
terminated without cause during the final twelve months of
his Employment Agreement, he shall only be entitled to the
equivalent of his base compensation in a single lump sum
distribution on the first regular Company pay period after
said termination for the remaining number of months until
expiration of Employment Agreement,
(c) In the event Executive's employment is terminated without
cause on or after July 1st, 2001, he will not be entitled
to severance pay, pay in lieu of notice or any other such
compensation, except as provided in the
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Company's Severance Benefit Plan, if any, in effect on the
termination date.
4.2 TERMINATION FOR CAUSE.
(a) The Company shall have the right to terminate Executive's
employment with the Company at any time for cause. Written
notification of termination and specific cause of
termination shall be provided to the Executive at the time
of termination.
(b) "Cause" for termination shall mean: (a) indictment or
conviction of any felony or of any crime involving
dishonesty; (b) willful participation in any fraud against
the Company; (c) willful breach of Executive's duties to the
Company, including persistent unsatisfactory performance of
job duties; (d) intentional damage to any property of the
Company; or (e) conduct by Executive which in the good faith
and reasonable determination of the Board demonstrates gross
unfitness to serve.
(c) In the event the Executive is notified in writing that his
employment is to be terminated for cause, the Executive
shall be given thirty days from date of notification to cure
the specific cause(s) set forth in the notification.
(d) In the event Executive's employment is terminated at any
time with cause, the executive will not be entitled to
severance pay, pay in lieu of notice or any other such
compensation; PROVIDED, HOWEVER, Executive is entitled and
shall receive all compensation earned prior to and including
the date of termination.
4.3 VOLUNTARY OR MUTUAL TERMINATION.
(a) Executive may voluntarily terminate his employment in
writing with the Company at any time, after which no
further compensation will be paid to Executive.
(b) In the event Executive voluntarily terminates his
employment, he will not be entitled to severance pay, pay in
lieu of notice or any other such compensation; PROVIDED,
HOWEVER, Executive is entitled and shall receive all
compensation earned prior to and including the date of
termination.
5. NON-INTERFERENCE; NON-COMPETITION.
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(a) While employed by the Company, and for three (3) years
immediately following the Termination Date, Executive agrees not
to interfere with the business of the Company by:
(i) soliciting, attempting to solicit, inducing, or otherwise
causing any employee of the Company to terminate his or her
employment in order to become an employee, consultant or
independent contractor to or for any competitor of the
Company; or
(ii) directly or indirectly soliciting the business of any
customer of the Company which at the time of termination or
one year immediately prior thereto was listed on the
Company's customer list.
(b) Executive agrees to execute and abide by the Non-Competition Agreement
attached hereto as EXHIBIT B.
6. GENERAL PROVISION.
6.1 NOTICES. Any notices provided hereunder must be in writing and
shall be deemed effective upon the earlier of personal delivery
(including personal delivery by telex) or the third day after mailing
by first class mail, to the Company at its primary office location and
to Executive at his address as listed on the Company payroll.
6.2 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 provisions had never been contained herein.
6.3 WAIVER. If either party should waive any breach of any
provisions of this Agreement, he or it shall not thereby be deemed to
have waived any preceding or succeeding breach of the same or any
other provision of this Agreement.
6.4 COMPLETE AGREEMENT. This Agreement and its Exhibits, constitute
the entire agreement between Executive and the Company and it is the
complete, final, and exclusive embodiment of their agreement with
regard to the material terms of executive employment, compensation,
and duration. It is entered into without reliance on any promise or
representation other than those expressly contained herein, and it
cannot be modified or amended except in a writing signed by Executive
and an officer of the Company.
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6.5 COUNTERPARTS. This Agreement may be executed in separate
counterparts, any one of which need not contain signatures of more
than one party, but all of which taken together will constitute one
and the same Agreement.
6.6 HEADINGS. The headings of the sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof
nor to affect the meaning thereof.
6.7 SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive and the
Company, and their respective successors, assigns, heirs, executors
and administrators, except that Executive may not assign any of his
duties hereunder and he may not assign any of his rights hereunder
without the written consent of the Company, which shall not be
withheld unreasonably.
6.8 ATTORNEY FEES. If either party hereto brings any action to
enforce his or its rights hereunder, the prevailing party in any such
action shall be entitled to recover his or its reasonable attorneys'
fees and costs incurred in connection with such action.
6.9 CHOICE OF LAW. All questions concerning the construction,
validity and interpretation of this Agreement will be governed by the
law of the State of Kansas.
IN WITNESS WHEREOF, the parties have executed this Key Employee Agreement
on the day and year first above written.
NATIONAL INFORMATION
CONSORTIUM, INC.:
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Vice President
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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