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EXHIBIT 6.4
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made as of 12/14 1998 by and
between ("Employee") and Cimnet Systems, Inc., an Illinois corporation (the
"Company");
Company is engaged in the business of creating and licensing computer
programs and related services. Employee is presently employed by Company as an
at-will employee. Employee and Company wish to set forth their agreements with
respect to the employment of Employee by Company from the date of this Agreement
forward.
In consideration of the foregoing, the agreements set forth below,
Company's continued employment of Employee, One Hundred Dollars ($100.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Company and Employee agree as follows:
1. EMPLOYMENT. Company employs Employee and Employee accepts employment
with Company on the terms and conditions set forth in this Agreement, and in
compliance with Company's rules and regulations as now in effect or as amended
or adopted from time to time.
2. DUTIES. During the term of Employee's employment with Company,
Employee shall have the title and the responsibilities and duties set forth on
Schedule A attached hereto, and such additional duties and responsibilities as
may be assigned to Employee by the officers of Company or by Employee's
supervisors.
3. COMPENSATION. During the term of Employee's employment with Company,
Company shall pay Employee the compensation set forth on Schedule A attached
hereto. No compensation or benefits of any kind shall be due Employee other than
as set forth on Schedule A. All compensation and benefits shall be subject to
all applicable taxes, including withholding tax.
4. TERM/TERMINATION. The term of this Agreement shall begin on the date
first written above and shall continue until terminated by either Employee or
Company, with or without cause, upon the terminating party giving the other
party ninety (90) days prior written notice of termination. Notwithstanding the
foregoing, Company may terminate this Agreement and Employee's employment
immediately upon written notice sent to Employee for any one of the following:
(a) Employee's intentional or continuous dereliction of Employee's duties under
this Agreement; (b) an act of dishonesty against Company or a client of Company
by Employee; (c) the performance by Employee of employment duties under the
influence of alcohol or illegal drugs; (d) the breach by Employee of any of the
terms or conditions of this Agreement; or (e) the death or permanent disability
of Employee.
In the event of the termination of this Agreement, for any reason,
Company shall only be obligated to pay Employee compensation and benefits, if
any, up to and including the actual date of
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such termination. Company may offset and recoup against any compensation owed to
Employee any money owed by Employee to Company.
5. NON-DISCLOSURE. Employee acknowledges and agrees that during
Employee's employment with Company, Employee has and will continue to create,
have contact with, and receive confidential information and/or trade secrets of
Company, including, but not limited to, existing or proposed computer programs,
source code, algorithms, instruction manuals, software tools, marketing
research, information regarding the business operations of Company and/or its
clients, financial and pricing information, customer lists, and training and
implementation methods and processes (collectively "Confidential Information").
During Employee's employment with Company, and for the "Restricted Period" (as
hereinafter defined) following the termination of Employee's employment with
Company, for any reason, Employee will not, either directly or indirectly, for
Employee's own benefit or for the benefit of any third party, use, divulge,
disclose, or communicate to any third party, any of the Confidential Information
in any manner whatsoever, except in the course of and during the performance of
Employee's duties and responsibilities under this Agreement, unless Company
otherwise consents to the disclosure or use of any of the Confidential
Information in writing prior to such disclosure or use. With respect to each
particular item of Confidential Information, the "Restricted Period" shall mean:
(a) eighteen (18) months, if the item of Confidential Information at issue does
not constitute a "trade secret" as defined in the Illinois Trade Secrets Act, or
(b) indefinitely, if the item of Confidential Information at issue constitutes a
"trade secret" as defined in the Illinois Trade Secrets Act, until such item of
Confidential Information at issue ceases to be a "trade secret" as defined in
the Illinois Trade Secrets Act, but not less than eighteen (18) months.
Notwithstanding the foregoing, Confidential Information does not include
information (i) in the public domain, (ii) received by Employee outside of
Employee's employment with Company from a party not under an obligation of
confidentiality to Company, directly or indirectly, or (iii) that later becomes
public, unless such information is made public by Employee in breach of this
Agreement or by any other party directly or indirectly under an obligation of
confidentiality to Company. All files, records, documents, drawings,
specifications, and similar items relating to the business of the Company, and
any copies, reproductions, or recordings thereof, whether prepared by Employee
or otherwise coming into the Employee's possession, shall remain the exclusive
property of Company and shall be returned to Company by Employee upon the
termination of this Agreement and Employee's employment with Company.
6. NON-SOLICITATION OF CLIENTS. To protect Company's proprietary
interest in the Confidential Information and in Company's current and
prospective clients, during the term of this Agreement and for a period of
eighteen (18) months following the termination of this Agreement and Employee's
employment with Company, for any reason, Employee will not, individually, or in
association or in combination with any other person or entity, directly or
indirectly, as proprietor or owner, or officer, director or shareholder of any
corporation, or as an employee, agent, independent contractor, consultant,
advisor, joint venturer, partner or otherwise, whether or not for monetary
benefit, except on behalf of Company, solicit, sell to, provide services to, or
assist the solicitation of, sale to, or providing to, or encourage, induce or
entice any other person or entity to solicit, sell to or provide services to,
any person or entity who is or was a customer or client of Company (or whom
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the Company is or was soliciting to become a customer or client of Company)
during the term of Employee's employment with Company, for the purpose of
providing such customer or client with the same or substantially the same
products and/or services as Company provided or sought to provide such customer
or client.
7. NON-SOLICITATION OF EMPLOYEES. To further protect the Company's
proprietary interest in its Confidential Information and in Company's
relationships with its employees and contractors, for a period of eighteen (18)
months following the termination of Employee's employment with Company, for any
reason, Employee will not, individually or in association or in combination with
any other person or entity, directly or indirectly, encourage, induce or entice
any employee or independent contractor of Company to terminate such person's or
entity's employment with or retention by Company.
8. INTELLECTUAL PROPERTY.
(a) WORK MADE FOR HIRE. Company and Employee acknowledge and
agree that Employee, during the course of Employee's employment with
Company, has and will create, design, develop, write, document, program
and/or derive work for Company or for clients or prospective clients of
Company (collectively, "Work") and that all such Work shall be deemed
to be "work made for hire", as that term is defined in the United
States Copyright Act, as amended. In the event that any of the Work is
not deemed or does not qualify as work made for hire, Employee hereby
assigns, transfers and conveys to the Company all of Employee's right,
title and interest in and to such Work, in whole or in part, as it is
reduced to fixed form, including any and all United States and foreign
design rights, copyrights, exhibition rights and other proprietary
rights thereto, and any and all renewals thereof. Employee will execute
and deliver such documents as Company may request in order to evidence
Company's ownership of the Work, and to register or perfect Company's
ownership of the Work.
(b) INVENTIONS.
(i) Employee is employed by Company for the purpose
of designing, developing, creating, deriving, programming,
and/or marketing computer programs and/or providing
implementation, training and support services for the
foregoing. Therefore, Employee agrees that all discoveries and
inventions conceived, created, or devised in whole or in part
by Employee, alone or with others, during the term of
Employee's employment with Company which (1) directly relate
in any manner, or are directly useful to, the business
conducted by Company, (2) are developed, created or discovered
as a part of Employee's employment with Company or while
Employee is performing services for Company, (3) are
developed, created or discovered, in whole or in part, through
the use of the employees, independent contractors, facilities,
equipment, trade secrets or other resources of Company, or (4)
arise out of tests, research or work carried out or being
carried out by Company, shall be the sole and exclusive
property of Company. Employee assigns and transfers to Company
all of
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Employee's right, title and interest in and to all Inventions,
including all of Employee's right, title and interest in and
to any patents, patent applications, patent rights, patent
claims and allowances, copyrights, design rights, and all
applications and registrations thereof for the Inventions
anywhere in the world. Employee agrees to promptly disclose
all Inventions to Company. Employee further agrees to execute
and deliver to Company all documents that Company requests in
order to register any patent, copyright, or other intellectual
property rights Company may have to any Invention, or to vest
ownership of any such Invention in Company, at Company's sole
cost and expense. Employee further agrees that during and
after termination of Employee's employment with Company
Employee will not use or disclose any information regarding
any Invention except in accordance with the provisions
contained in this Agreement.
(ii) Company and Employee agree that the terms of
Section (b)(i) above shall not apply to any Invention invented
and developed by Employee without the use of any of Company's
equipment, supplies, facilities, personnel or intellectual
property rights, and which is invented and developed entirely
or Employee's own time, unless the Invention (i) is directly
useful in, or directly relates in any manner to, the business
conducted by Company, or (ii) arises out of tests, research or
work carried out or being carried out by Company.
(iii) Employee acknowledges that Employee has
received from Company a copy of the Illinois Employee Patent
Act and by this Agreement all notices required in connection
with the Illinois Employee Patent Act.
9. MISCELLANEOUS.
(a) WAIVER. No waiver of any kind by Company of any past,
present or future conduct of Employee shall be valid unless it is made
in writing executed and delivered by Company.
(b) BINDING EFFECT; ASSIGNABILITY: ENTIRE AGREEMENT. This
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors, assigns and personal
representatives. This Agreement may not be assigned, or any duties
delegated, in whole or in part, by Employee without the prior written
consent of Company. Company may assign this Agreement. This Agreement
constitutes the entire agreement between Employee and Company as it
relates to Employee's employment by Company, and supersedes any other
agreement, either oral or written.
(c) REMEDIES. Employee acknowledges that it is impossible to
measure in money the damages which will accrue to Company by reason of
Employee's failure to perform any of the obligations under this
Agreement. Therefore, if the Company shall institute any action or
proceeding to specifically enforce the provisions hereof by injunctive
or other form of
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equitable relief, Employee hereby waives the claim or defense that
Company has an adequate remedy at law or that Company has not or is not
being irreparably harmed, and Employee shall not urge in any such
action or proceeding the claim or defense that such remedy at law
exists. All rights and remedies hereunder shall be cumulative and no
right or remedy of Company or Employee shall be deemed the exclusive
right or remedy of Company or Employee. If Company institutes any act
or proceeding to enforce the terms of this Agreement, Employee shall
reimburse Company for all costs and expenses incurred, including
reasonable attorneys' fees.
(d) GOVERNING LAW. This Agreement shall be governed by and
interpreted and construed in accordance with the laws of the State of
Illinois, as such laws apply to agreements entered into and fully
performed within the State of Illinois.
(e) SEVERABILITY. If any provision contained in this Agreement
is held to be invalid or unenforceable by a court of competent
jurisdiction, such provision will be severed herefrom and such
invalidity or unenforceability will not affect any other provision of
this Agreement, the balance of which will remain in and have its
intended full force and effect; provided, however, if and to the extent
such invalid or unenforceable provision may be modified so as to be
valid and enforceable as a matter of law, such provision will be deemed
to have been modified so as to be valid and enforceable to the maximum
extent permitted by law.
(f) AMENDMENT. No amendment of this Agreement shall be
effective unless in writing and signed by an authorized officer of
Company and by Employee.
(g) RECITALS. The recitals hereto are incorporated into the
body of this Agreement and made an integral part hereof, as if set
forth herein.
(h) SURVIVAL OF COVENANTS. The covenants and agreements of
Employee in Sections 5, 6, 7, and 8 above and this Section 9 shall
survive the termination of this Agreement for any reason.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the day first above written.
EMPLOYEE: COMPANY:
CIMNET SYSTEMS, INC.
/s/ Xxxxx X. Xxxxxx
---------------------------
By:/s/ X. Xxxxxxxxxxxxxxx
-------------------------
(Print Name) Title: Vice President
Xxxxx X. Xxxxxx -------------------------
12/15/98
(Print Address)
0000 X. Xxxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
(Social Security Number)
###-##-####
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SCHEDULE A TO EMPLOYMENT AGREEMENT
BETWEEN CAPRI CORP. AND XXXXX XXXXXX
DATED NOVEMBER 1, 1999
COMPENSATION
A. SALARY. Capri shall pay Officer a salary which would equal on an
annualized basis of $120,000.00 per year that he is employed by Capri or any
Company pursuant to this Employment Agreement, and pro rata for any portion of
any year based upon the above annualized rate.
B. INCENTIVE BONUS. In addition to the salary set forth in Section A
above, Capri shall pay Officer an incentive bonus with respect to each fiscal
year of Capri and its subsidiaries (the "Fiscal Year") commencing in the Fiscal
Year this Employment Agreement is entered into, and for each subsequent Fiscal
Year during Officer's employment with the Company during which the Company, on a
consolidated basis, has "Pre-tax Income" (hereinafter defined). The incentive
bonus shall be paid within ninety days (90) days of the close of the Fiscal Year
in which such incentive bonus is earned. If the Fiscal Year changes at any time,
appropriate adjustments in the incentive bonus shall be made. Officer's
incentive bonus pursuant to this Schedule A shall be referred to herein as the
"Incentive Bonus". The Incentive Bonus for each Fiscal Year shall be calculated
as follows:
Pre-Tax Income Incentive Bonus
-------------- ---------------
500,000 0
750,000 5,000
1,250,000 10,000
1,750,000 15,000
2,250,000 25,000
2,750,000 35,000
3,500,000 45,000
3,500,001 55,000
and above
Capri shall have its regularly retained independent auditor calculate the
Pre-tax Income as of the last day of each Fiscal Year and Officer's Incentive
Bonus shall be based on those calculations. For the purposes of this Schedule A
to the Employment Agreement:
(1) "Pre-tax Income" shall mean income of the Company, on a
consolidated basis, determined in accordance with generally accepted
accounting principles consistently applied; provided, however, that
Pre-tax Income shall not include income from extraordinary items, as
determined pursuant to generally accepted accounting principles.
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(2) In case of any dispute between Capri and Officer as to the
amount of the Net Income, the determination thereof by the independent
auditor of Capri shall be binding and conclusive.
Capri Corp.
By:/s/ Xxxxx X. Xxxx /s/ Xxxxx Xxxxxx
------------------------------------ ------------------------
Xxxxx X. Xxxx, President Xxxxx Xxxxxx
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