1
EXHIBIT 6.2
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into as of July 1, 1997,
by and between Capri Corp., a Minnesota corporation ("Capri"), and Xxxxx X.
Xxxx, a resident of the State of Illinois ("Officer").
Capri currently owns all of the issued and outstanding shares of
capital stock of Cimnet Systems, Inc., an Illinois corporation ("Cimnet").
Cimnet is currently engaged in the business of designing, licensing,
implementing and maintaining custom software, and designing, configuring and
selling computer systems, for manufacturing businesses throughout the world (the
"Business"). Officer is currently employed by Capri as its President and Chief
Executive Officer as an "at will" employee. Officer is also currently employed
by Cimnet as its President and Chief Executive Officer, pursuant to that certain
Contract of Employment dated July 25, 1989, by and between Cimnet and Officer
(the "Cimnet Agreement"). Contemporaneously with the execution of this
Employment Agreement Cimnet and Officer shall terminate those certain provisions
of the Cimnet Agreement specified in this Employment Agreement. Capri desires to
employ Officer, and Officer desires to be employed Capri, pursuant to and in
accordance with the terms and conditions set forth in this Employment Agreement.
In consideration of the foregoing, the mutual covenants, agreements and
obligations set forth in this Employment Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties hereto, Capri and Officer hereby agree as set forth in this
Employment Agreement.
1. EMPLOYMENT. Capri hereby employs Officer, and Officer hereby agrees
to be employed by Capri, pursuant to and in accordance with the terms and
conditions set forth in this Employment Agreement and with the understanding
that Officer will comply with Capri's rules and regulations as now in effect and
as hereafter amended or adopted from time to time.
2. DUTIES. During the "Term" (hereinafter defined), Officer shall have
the title and the duties and obligations of President and Chief Executive
Officer of Capri, President and Chief Executive Officer of Cimnet and such
additional titles, duties and obligations of Capri, Cimnet and any parent,
subsidiary or affiliated corporation of Capri or Cimnet (collectively and
individually, "Company") as the Board of Directors of Capri may, from time to
time, assign to Officer. Officer will devote his full time, attention, energy,
expertise and best efforts to fully and timely perform his duties and
obligations as required under this Employment Agreement.
3. COMPENSATION. During the Term, Capri shall pay Officer the
compensation set forth on Schedule A attached hereto, which Schedule A may be
amended from time to time in accordance with Section 19.3 hereof.
2
3.1 All compensation and benefits payable to Officer pursuant
to the terms of this Employment Agreement will be paid in accordance
with each Company's regular payroll practices, in effect from time to
time.
3.2 All compensation and benefits payable to Officer pursuant
to the term of this Employment Agreement will be subject to normal
employee withholding and all other applicable tax deductions as
required by law, including, without limitation, social security and
federal, state and local withholding taxes.
3.3 Officer's compensation and performance under this
Employment Agreement shall be reviewed on an annual basis by the Board
of Directors of each Company.
3.4 As an executive employee of each Company, Officer
acknowledges and agrees that he is exempt from and not entitled to
receive overtime in the event he works in excess of eight (8) hours per
day or forty (40) hours per week, except as required by law.
4. ADDITIONAL EMPLOYMENT BENEFITS. During the Term,
4.1 Officer will be entitled to participate in Company's
employee benefit plans and programs in effect from time to time,
including, without limitation, pension and/or profit sharing plans,
medical reimbursement plans and group life, health, disability and
other insurance programs, if any, as determined by the Board of
Directors to avoid inequitable compensation among each Company and as
applicable to Officer as an executive officer of each Company;
provided, however, each Company shall be under no obligation to adopt
or maintain any fringe benefit program, whether or not such fringe
benefit program is in existence as of the date hereof or Officer is
eligible to participate therein; and
4.2 Officer will receive such paid vacation time and sick
leave as he is entitled in accordance with Capri's policies in effect
from time to time.
5. EXPENSES.
5.1 Upon presentation of such supporting documentation as may
be reasonably satisfactory to the respective Company, the respective
Company will pay or reimburse Officer for all reasonable and necessary
travel, entertainment and other business expenses incurred by Officer
in the performance of his employment duties during the Term.
5.2 If a federal, state or local income tax deduction is
disallowed to the respective Company for any part of an expense payment
or reimbursement made by the respective Company to or on behalf of
Officer, upon written request, Officer will repay to the respective
Company, in the sole discretion of the respective Company, either: (i)
the amount of such disallowed expense payment or reimbursement; or (ii)
the amount of taxes incurred by the respective Company in connection
with such expense payment or reimbursement.
2
3
5.3 If there is a dispute between the respective Company and
Officer as to the nature of any expense or whether any such expense is
reasonable and necessary, the decision of the Board of Directors of the
respective Company shall be binding and controlling.
6. TERM/TERMINATION. The initial term of Officer's employment with
Capri under this Employment Agreement and each and every other Company will
commence as of the date hereof and, unless sooner terminated as hereinafter
provided, will terminate at the close of business of Capri on June 30, 2002 (the
"Initial Term").
6.1 Thereafter, the Initial Term will automatically be
extended for successive and consecutive renewal terms of one year each
(a "Renewal Term") [the Initial Term, together with any and all Renewal
Terms, are sometimes collectively referred to as the "Term"]; provided,
however:
A. Officer may elect to terminate the Term at any
time by giving the Board of Directors of Capri not less than
one hundred twenty (120) days prior written notice thereof,
and such notice shall be effective for each Company; and
B. Capri may terminate the Term for every Company
without "Cause" (hereinafter defined) at any time by giving
Officer not less than one hundred twenty (120) days prior
written notice thereof, and such notice shall be effective for
each Company.
6.2 Notwithstanding the foregoing, Capri may terminate the
Term, upon notice to Officer, upon the occurrence of any one or more of
the following (collectively and individually "Cause"):
A. The commission by Officer of fraud,
misappropriation of funds, embezzlement, or an intentional
dishonest act which causes injury to any Company, or which
causes injury to any client of any Company, whether or not in
connection with the performance of his duties and obligations
under this Employment Agreement;
B. Officer's conviction of a crime which constitutes
a felony in the State of Illinois, regardless of whether such
crime involves any Company, or the clients of any Company; or
C. The performance by Officer of any of his duties
and obligations under this Employment Agreement while under
the continuing and habitual influence of alcohol or illegal
drugs.
6.3 The Term will immediately terminate upon the occurrence of
any of the following:
3
4
A. The effective date of a written agreement of
termination entered into between Capri and Officer;
B. The death of Officer; or
C. The effective date of the "Disability"
(hereinafter defined) of Officer.
6.4 For purposes of this Employment Agreement, Officer will be
deemed to be suffering from a "Disability" when, in the written opinion
of an actively practicing physician reasonably acceptable to Capri and
Officer (or his legal representative), due to physical, mental or
emotional injury or illness, Officer is unable and either does not or,
in the opinion of such physician, will not be able to perform his
duties and obligations pursuant to this Employment Agreement for a
continuous period of twelve (12) months.
7. TERMINATION COMPENSATION.
7.1 Upon the termination of the Term for any reason
whatsoever, Capri shall pay Officer that amount of Officer's then
salary, "Bonus" (as defined on Schedule A) pro-rated to the date of
termination within ninety (90) days of the close of Capri's fiscal
year, and other benefits which have accrued through the effective date
of the termination of the Term.
7.2 If Company terminates the Term other than for Cause or if
Capri and Officer mutually agree to terminate the Term pursuant to
Section 6.3A, in addition to the compensation payable by Capri to
Officer pursuant to Section 7.1 above, Capri shall pay Officer a
severance benefit in an amount equal to two (2) times Officer's then
current annual salary ("Severance Benefit"), payable in thirty-six (36)
equal monthly installments commencing on the first day of the first
month immediately following the effective date of the termination of
the Term, and continuing on the first day of each of the next
thirty-five (35) consecutive calendar months hereafter.
7.3 If Officer voluntarily terminates the Term pursuant to
Section 6.1A, in addition to the compensation payable by Capri to
Officer pursuant to Section 7.1 above, Capri shall pay Officer a
severance benefit in an amount equal to one-half (1/2) of the Severance
Benefit, payable in thirty-six (36) equal monthly installments
commencing on the first day of the first month immediately following
the effective date of the termination of the Term, and continuing on
the first day of each of the next thirty-five (35)consecutive calendar
months thereafter.
7.4 If Capri terminates the Term for Cause, Capri shall only
pay Officer the compensation described in Section 7.1 and shall not be
obligated or liable in any way, or under any circumstance, to pay
Officer any other compensation or benefit whatsoever.
7.5 If the Term is terminated pursuant to Section 6.3B or
Section 6.3C, in addition to the compensation payable by Capri to
Officer pursuant to Section 7.1 above, Capri shall
4
5
pay Officer or Officer's estate or personal representative, as the case
may be, a termination benefit in an amount equal to the Severance
Benefit, payable in twelve (12) equal monthly installments commencing
on the first day of the first month immediately following the effective
date of the termination of the Term, and continuing on the first day of
each of the next eleven (11) consecutive calendar months thereafter.
7.6 Capri may, in its sole discretion and upon notice to
Officer, offset and recoup against any payment which Capri is obligated
to make to Officer pursuant to this Section 7 any money owed by Officer
to Capri, whether as a result of a loan or advance to Officer or
otherwise.
7.7 Notwithstanding the foregoing, Officer acknowledges and
agrees that Capri's obligation to make payments pursuant to this
Section 7 shall immediately cease, and Capri shall have no further
liability whatsoever with respect thereto, upon the breach by Officer
of any of his covenants, agreements or obligations set forth in
Sections 8, 9, 10, 11 or 12 of this Employment Agreement.
8. NON DISCLOSURE.
8.1 During Officer's prior employment with Cimnet and during
the Term, Officer, by virtue of his positions with Capri, Cimnet and
Cimnet Infonnationssysteme GmbH, has created, had contact with and
received, and will continue to create, have contact with and receive,
confidential information and/or trade secrets of each Company,
including, without limitation, "Client" (hereinafter defined) lists,
"Prospects" (hereinafter defined) lists, price lists, advertising,
promotion or marketing plans, business plans, methods of doing
business, concepts, ideas, software programs, source code, trade
secrets, market or other research or any program, product or service
which was developed by Company or which Company provides or intends to
provide to its Clients or markets to its Clients or Prospects
(collectively, "Confidential Information").
8.2 During the Term and for the "Restricted Period" (as
hereinafter defined) following the termination of the Term for any
reason whatsoever, Officer will not, either directly or indirectly, for
his own benefit or for the benefit of any other person or entity, use,
divulge, disclose or communicate to any other person or entity, any of
the Confidential Information in any manner whatsoever, except in the
course of and during the performance of his duties and obligations
under this Employment Agreement, unless the applicable Company
otherwise consents to the disclosure or use of any of the Confidential
Information in writing prior to such disclosure or use.
8.3 With respect to each particular item of Confidential
Information, the "Restricted Period" shall mean: (i) thirty six (36)
months, if the item of Confidential Information at issue does not
constitute a trade secret, or (ii) indefinitely, if such item of
5
6
Confidential Information constitutes a trade secret, until such item of
Confidential Information ceases to be a trade secret, but not less than
thirty six (36) months.
8.4 Notwithstanding the foregoing, Confidential Information
does not include information: (i) in the public domain (ii) received by
Officer outside of his employment with any Company from a person or
entity not under an obligation of confidentiality to the applicable
Company, directly or indirectly, or (iii) that later becomes public,
unless such information is made public by Officer in breach of this
Employment Agreement or by any other person or entity, directly or
indirectly, under an obligation of confidentiality to the applicable
Company.
8.5 Upon the effective date of the termination of the Term,
Officer will immediately return to Capri all original and all copies of
Confidential Information, and all notes, analyses, memoranda or any
other documents or writings incorporating or referring to any of the
Confidential Information, and all disks, software, hard drives,
computer memory or other electronic or magnetic storage containing any
Confidential Information, whether in his possession or under his
control, and will certify in writing to Capri that, except on behalf of
Company in the course of the performance of his duties and obligations
under this Employment Agreement he has not retained, disseminated,
disclosed or delivered to any person or entity any original or copy, in
any form, electronically, magnetically or otherwise, of any of the
Confidential Information or any notes, analyses, memoranda or other
documents or writings, disks, software, hard drives, computer memory or
other magnetic or electronic storage incorporating or referring to any
of the Confidential Information.
9. NON-COMPETITION. To protect each Company's proprietary interest in
the Confidential Information and in their respective Clients and Prospects,
during the Term and for a period of thirty-six (36) months following the
effective date of the termination of the Term for any reason whatsoever, Officer
will not, directly or indirectly, individually or in combination or association
with any other person or entity, whether as an officer, director, shareholder,
manager, member, partner, joint venture, solo proprietor, employee, agent,
independent contractor, consultant, advisor or otherwise, whether or not for
pecuniary benefit, except on behalf of the applicable Company in the course of
the performance of his duties and obligations under this Employment Agreement,
engage in or own (in whole or in part), manage, operate or otherwise carry on
any business which competes with or is substantially similar to the Business or
any then business of any Company in the world (the "Territory"). Nothing
contained in this Section 9 shall prohibit Officer from beneficially owning,
either directly or indirectly, five percent (5%) or less of the stock or
ownership interest of a company which engages in the Business if such stock or
ownership interest is publicly traded on a national exchange or
over-the-counter.
Officer recognizes and acknowledges that the businesses and markets of
each Company are, in the aggregate, national and international in scope, and
that the restrictive covenants of Officer set forth in this Section 9 are
necessary in order to protect and maintain the proprietary interests and other
legitimate business interests of each Company and are reasonable in all
respects. Officer further
6
7
acknowledges and agrees that the products and services of the Business can be
marketed, sold and distributed to Clients and Prospects worldwide, and have been
and are presently being marketed throughout the world. Consequently, Officer
acknowledges and agrees that it is not possible to limit the geographic scope of
the non-competition covenant set forth in this Section 9 to particular cities,
counties or other geographic subdivisions of any jurisdiction.
10. NON-SOLICITATION OF CLIENTS AND PROSPECTS. To protect each
Company's proprietary interest in the Confidential Information and in their
respective Clients and Prospects, during the Term and for a period of thirty-six
(36) months following the effective date of the termination of the Term for any
reason whatsoever, Officer will not, directly or indirectly, individually or in
combination or association with any other person or entity, whether as an
officer, director, shareholder, manager, member, partner, joint venturer, sole
proprietor, employee, agent, independent contractor, consultant, advisor or
otherwise, whether or not for pecuniary benefit, except on behalf of the
applicable Company in the course of the performance of his duties and
obligations under this Employment Agreement, solicit, or assist or encourage any
other person or entity to solicit, any Client or any Prospect, for the purpose
of:
10.1 selling such Client products sold, or services rendered,
in conjunction with the operation of the Business or any product or
service that can or may be used in substitution for or replacement of
the products and/or services designed, licensed, implemented,
maintained, marketed and/or sold by any Company,
10.2 terminating, altering or modifying such Client's business
relationship with the applicable Company,
10.3 altering or modifying the terms or reducing the volume of
business which such Client transacts with the applicable Company, or
10.4 negatively influencing such Prospect's decision as to
whether to purchase any products or services from Capri or the terms of
such intended business transaction or relationship.
11. NON-SOLICITATION OF EMPLOYEES, INDEPENDENT CONTRACTORS AND AGENTS.
To further protect each Company's proprietary interest in the Confidential
Information and in their respective relationships with their employees,
independent contractors and agents, during the Term and for a period of
thirty-six (36) months following the effective date of the termination of the
Term for any reason whatsoever, Officer will not, directly or indirectly,
individually or in combination or association with any other person or entity,
whether as an officer, director, shareholder, manager, member, partner, joint
venturer, sole proprietor, employee, agent, independent contractor, consultant,
advisor or otherwise, whether or not for pecuniary benefit, except on behalf of
the applicable Company in the course of the performance of his duties and
obligations under this Employment Agreement contact, encourage or solicit any
then employee, independent contractor or agent of any
7
8
Company to terminate or modify his, her or its respective employment, engagement
or business relationship with such Company or hire or retain any other person or
entity.
12. INTELLECTUAL PROPERTY.
12.1 Capri and Officer each acknowledge and agree that, during
the Term, Officer may create, design and develop work for some or all
of the Companies or for Clients or Prospects (collectively, "Work") and
that all such Work that is reduced to fixed form or otherwise capable
of copyright protection shall be deemed to be "work made for hire", as
that term is defined in the United States Copyright Act, as amended,
and shall be the sole and exclusive property of the respective Company.
If any of the Work is not deemed or does not qualify as work made for
hire, Officer hereby assigns, transfers and conveys to the applicable
Company all of Officer's right, title and interest in and to such Work,
including any and all United States and foreign design rights,
copyrights, mask work rights, exhibition rights, registration rights
and other proprietary rights thereto, and any and all renewals thereof.
Officer will execute and deliver such documents as the applicable
Company may request in order to evidence such respective Company's
ownership of the Work, and to register or perfect such respective
Company's ownership of the Work.
12.2 Officer is employed by Capri and, in connection with such
employment, may create, design and develop Work for some or all of the
Companies, Clients and/or Prospects. Therefore, Officer agrees that all
discoveries and inventions conceived, created or devised in whole or in
part by Officer, alone or with others, during the term of officers
employment with Capri (individually, an "Invention" and collectively,
"Inventions") which (A) directly relate in any manner, or are directly
useful to, the Business or any other business then conducted by any
Company, (B) are developed, created or discovered as a part of
Officer's employment with Capri or while Officer is performing services
for any Company, (C) 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 any Company,
or (D) arise out of tests, research or work carried out or being
carried out by any Company, shall be the sole and exclusive property of
the respective Company. Officer assigns and transfers to the respective
Company all of Officer's right, title and interest in and to all
Inventions, including all of Officer'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, Officer
agrees to promptly disclose all Inventions to the respective Company.
Officer further agrees to execute and deliver to the respective Company
all documents that such Company requests in order to register any
patent copyright, or other intellectual property rights such Company
may have to any Invention, or to vest ownership of any such Invention
in such Company, at the respective Company's sole cost and expense.
Officer further agrees that both during and after the effective date of
the termination of Officer's employment with Capri, Officer will not
use or disclose any information regarding any Invention, except in
accordance with the provisions contained in this Employment Agreement.
8
9
12.3 Capri and Officer agree that the terms of Section 12.2
above shall not apply to any Invention invented and developed by
Officer without the use of any of any Company's equipment supplies,
facilities, personnel or intellectual property rights, and which is
invented and developed entirely on Officer's own time, unless the
Invention (A) is directly useful in, or directly relates in any manner
to, the Business or any other business then conducted by any Company,
or (B) arises out of tests, research or work carried out or being
carried out by any Company.
12.4 Officer acknowledges that Officer has received from Capri
a copy of the Illinois Employee Patent Act and by this Employment
Agreement all notices required in connection with the Illinois Employee
Patent Act.
13. SURVIVAL. All of Officer's covenants, agreements and obligations
contained in Sections 8, 9, 10, 11, 12 and 14 will be revived continuously
during the Term and will survive the termination of the Term for any reason
whatsoever.
14. INJUNCTIVE RELIEF. Officer hereby agrees that it is impossible to
measure in money the damages which will be sustained by Capri or its successors
or assigns, if Officer breaches or defaults in the full and timely performance
of any of his covenants, agreements or obligations set forth in Sections 8, 9,
10, 11 or 12 of this Employment Agreement. Accordingly, Officer agrees that if
he breaches or defaults in the full and timely performance of any of his
covenants, duties and obligations set forth in Sections 8, 9, 10, 11 or 12 of
this Employment Agreement, then, in addition to any and all other rights and
remedies available to Capri or any Company, at law, in equity or otherwise,
Capri or any Company will be entitled to the immediate entry of injunctive
relief without notice to Officer or the requirement of posting any bond or
security therefor, including, without limitation, the entry of an order of
specific performance, a temporary restraining order, preliminary and permanent
injunction, and in connection therewith, Officer hereby waives and will not
raise or suggest the claim or defense that Capri or any Company has an adequate
remedy at law or is not being irreparably injured.
15. DEFAULT. If Capri or Officer shall breach or default in the fall or
timely performance of any of its or his respective covenants, agreements or
obligations set forth in this Employment Agreement, the defaulting party shall
be liable for, and shall promptly pay to the non-defaulting party upon written
demand, all of the costs and expenses, together with interest thereon at the
rate of nine percent (9%) per annum, which the non-defaulting party incurs as a
result of or arising from such breach or default, including, without limitation,
reasonable attorneys' fees and court costs. Capri and Officer each acknowledge
and agree that all of their respective rights and remedies set forth in this
Employment Agreement are cumulative and are in addition to all other rights and
remedies, at law, in equity or otherwise.
16. WAIVER OF BREACH. The waiver by either party of the other party's
breach of any provision of this Employment Agreement will be effective only if
in writing and signed by both parties
9
10
and will be limited to the breach described therein; no such waiver will be or
be deemed a waiver of any other, similar, prior, continuing or subsequent
breach.
17. ASSIGNMENT. Officer acknowledges that the services to be rendered
by him pursuant to this Employment Agreement are unique and personal and that he
may not assign any of his rights or delegate any of his covenants, agreements,
duties or obligations hereunder. Any attempted assignment, transfer, pledge or
hypothecation or other disposition of this Employment Agreement, or of such
rights, covenants, duties or obligations by Officer, will be null and void and
of no force or effect whatsoever. Capri, on behalf of itself or any other
Company, may assign this Employment Agreement upon written notice to Officer.
18. NOTICES. Any and all notices, demands, consents, waivers,
directions, designations or other communications required or desired to be given
in connection with this Employment Agreement will be given in writing and will
be deemed effective upon personal delivery, or on the third day after mailing if
sent by certified mail, postage prepaid, return receipt requested, and addressed
to the following:
If to Capri or any Capri Corp.
other Company, then to: 0000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
U.S.A.
with a copy to: Xxxxx X. Xxxxx
Xxxxx & Xxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
If to Officer, then to: Xxxxx X. Xxxx
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
U.S.A.
or to such other person, entity or address as Capri or Officer may respectively
designate in like manner from time to time.
19. CONSTRUCTION. This Employment Agreement will be governed by,
construed in accordance with and interpreted under and consistent with the laws
and decisions of the State of Illinois, including, without limitation, the
Illinois Trade Secrets Act, as such laws apply to agreements entered into and
fully performed within the State of Illinois.
10
11
19.1 If any provision contained in this Employment 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 Employment Agreement, the balance of which will remain in and have
its intended full force and effect; provided, however, if 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.
19.2 If the duration, scope or territories of any of Officer's
covenants, agreements or obligations set forth in Sections 9, 10 or 11
is held to be excessive, unreasonable, invalid or unenforceable by a
court of competent jurisdiction, such duration or scope will be
modified so as to be reasonable, valid and enforceable to the maximum
extent permitted by law as determined by such court of competent
jurisdiction.
19.3 Except as provided in Section 6, this Employment
Agreement may not be amended, changed, modified, discharged or
terminated, except by a writing executed by Capri and Officer;
provided, however, except for any proposed reduction in compensation,
bonus or any benefit payable to Officer, Capri may unilaterally amend,
change or modify Schedule A, from time to time, upon thirty (30) days
prior written notice to Officer.
19.4 This Employment Agreement, together with Schedule A,
constitute the entire agreement and understanding between Capri and
Officer with respect to the subject matter hereof, and supersede any
and all prior and contemporaneous agreements and understandings,
whether verbal or written, with respect thereto; provided, however, the
provisions of the Cimnet Agreement relating to the protection of
confidential information and ownership of intellectual property shall
survive and merge into the terms and conditions of this Employment
Agreement, and in the event of a conflict or inconsistency between the
terms of such provisions in the Cimnet Agreement and the terms and
conditions of this Employment Agreement the terms and conditions of
this Employment Agreement shall control.
19.5 The rights, covenants, duties and obligations of Capri
and Officer under this Employment Agreement will be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
if applicable, legal representatives, successors, permitted assigns.
19.6 This Employment Agreement may be executed in multiple
counterparts; each such executed counterpart will be considered an
original and no other counterpart need be produced for any purpose
whatsoever.
19.7 The numbers, headings, titles or designations of the
various Sections are not a part of this Employment Agreement, but are
for convenience of reference only, and do not and will not be used to
define, limit or construe the contents of the Sections.
11
12
19.8 The recitals set forth at the beginning of this
Employment Agreement are incorporated into the body of this Employment
Agreement and make an integral pie hereof, as if set forth herein.
19.9 The Schedule referred to in this Employment Agreement is
attached hereto, made a part hereof and is incorporated herein by this
reference.
19.10 For purposes of this Employment Agreement, the term
"Client" shall mean any person or entity who is or was a client of any
Company within the one (1) year period immediately preceding the
effective date of the termination of the Term, and the term "Prospect"
shall mean any prospect or prospective client whom any Company or its
respective employees, independent contractors or agents contacted or
solicited with the one (1) year period immediately preceding the
effective date of the termination of the Term.
IN WITNESS WHEREOF, Capri and Officer have executed this Employment
Agreement as of the date first set forth above.
Capri Corp.
By:/s/ X. Xxxxxxxxxxxxxxx /s/ Xxxxx X. Xxxx
------------------------------------- ----------------------
X. Xxxxxxxxxxxxxxx, Mehuld J. Xxxx
Executive Vice President
12
13
SCHEDULE A TO EMPLOYMENT AGREEMENT
BETWEEN CAPRI CORP. AND XXXXX X. XXXX
DATED JULY 1, 1997
COMPENSATION
A. SALARY. Capri shall pay Officer a salary which would equal on an
annualized basis of $157,200.00 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 "Net 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:
Net Income Incentive Bonus
---------- ---------------
250,000 5,000
500,000 15,000
750,000 35,000
1,000,000 50,000
1,500,000 75,000
2,000,000 100,000
2,500,000 150,000
3,000,000 200,000
Capri shall have its regularly retained independent auditor calculate the Net
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) "Net Income" shall mean income of the Company, on a
consolidated basis, determined in accordance with generally accepted
accounting principles consistently applied; provided, however, that Net
Income shall not include income from extraordinary items, as determined
pursuant to generally accepted accounting principles.
13
14
(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.
By:/s/ X. Xxxxxxxxxxxxxxx /s/ Xxxxx X. Xxxx
------------------------------------- ----------------------
X. Xxxxxxxxxxxxxxx, Xxxxx X. Xxxx
Executive Vice President
14
