EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of the _____ day
of __________, 1996, by and between CUSA TECHNOLOGIES, INC., a Nevada
corporation, hereinafter referred to as CTI , and XXXXXXX X.
XXXXXXXXXX, hereinafter referred to as Employee.
R E C I T A L S:
A. Employee has been serving as Chief Executive Officer of CTI.
B. CTI and Employee believe it to be in their mutual best interests to
enter into a formal employment agreement.
NOW, THEREFORE, in consideration of their mutual promises and covenants
set forth hereinafter, the parties agree as follows:
1. Employment. CTI hereby employs Employee and Employee hereby accepts
employment with CTI on the terms and conditions set forth in this Employment
Agreement.
2. Term. This Agreement shall commence as of the date hereof and
shall continue for five (5) years and then from year to year unless terminated
by one of the parties pursuant to paragraph 11 hereinafter.
3. Services. Employee agrees to devote substantially all of his working
time and talents to CTI as Chief Executive Officer. Employee shall also render
such other services to CTI as the Board of Directors of CTI shall reasonably
request during the term of this Agreement. The expenditure of time for personal
or outside business, including but not limited to Xxxxxxxxxx Management
Corporation, real estate ventures and business consulting, as well as charitable
or professional activities shall not be deemed to be a breach of this Agreement.
Employee shall not, during the term of this Agreement, engage in any activity
competitive with or adverse to CTI's business, whether alone, as a partner or as
an officer, director, employee or shareholder of any other corporation, or as a
trustee, fiduciary or other representative of any other activity. The making of
passive and personal investments and the conduct of private business affairs
shall not be prohibited hereunder.
4. Professional Standards. Employee shall perform his duties under
this Agreement in accordance with such standards of professional ethics and
practice as may, from time to time, be applicable during the term of
his employment with CTI.
5. Confidential Information.
(a) Employee agrees that for a period of one (1) year
following the termination of his employment:
(i) He will not engage in competition with CTI or any
of its affiliates directly, or indirectly, in the market
defined in subparagraph 5(c) hereinafter, whether as an
employer, proprietor, partner, stockholder (other than as a
stockholder of less than five percent (5%) of the stock of a
corporation the securities of which are traded on a national
securities exchange or in the over-the-counter market),
director, officer, employee, consultant or agent in the
business of supplying proprietary software and other services
to the industries served by CTI and any of its affiliates at
any time during his employment by CTI.
(ii) He will not solicit, in competition with CTI,
the business of any person or entity who was a customer of CTI
at any time during the term of his employment by CTI.
(iii) He will not induce or attempt to persuade any
employee of CTI to terminate his or her employment
relationship in order to enter into employment with any party
in competition with CTI.
(b) Employee further agrees that he will not, at any time
during the term of his employment by CTI or thereafter, divulge any
trade secrets or other confidential information of CTI, except to the
extent CTI may so authorize in writing. Upon termination of his
employment hereunder, Employee shall surrender to CTI all records
obtained by him, entrusted to him or developed by him during the course
of his employment by CTI (together with all copies thereof). For
purposes of this Agreement, records shall include, without limitation,
files, customer lists, financial information regarding CTI, designs,
proprietary technology, proprietary technical information and
proprietary software. CTI shall maintain unaltered original versions of
any such records for a period of not less than five (5) years following
termination of this Agreement. Notwithstanding the foregoing, Employee
may retain copies of such documents as are necessary for his personal
records for income tax purposes. For purposes of this paragraph 5,
information about the business of CTI shall be treated as confidential
until it has been published or is generally or publicly known outside
CTI and its affiliates or, in the case of information about processes,
procedures, machinery and equipment, until it has been recognized as
standard practice outside CTI and its affiliates.
(c) The following provisions shall apply to the covenants of
Employee contained in this paragraph 5:
(i) The covenants contained in clauses (i) and (ii)
of subparagraph 5(a) shall apply to those markets in which CTI
is doing business at the termination of Employee's employment
and those markets in which CTI has publicly announced plans to
enter prior to the termination of Employee's employment.
(ii) Without limiting the right of CTI to pursue all
other legal and equitable remedies available for violation by
Employee of the covenants contained in this paragraph 5, it is
expressly agreed that remedies other than injunctive relief
cannot fully compensate CTI for such a violation and that CTI
shall be entitled to injunctive relief to prevent any such
violation or continuing violation thereof.
(iii) It is the intent and understanding of each
party hereto that if, in any action before any court or agency
legally empowered to enforce the covenants contained in this
paragraph 5, any term, restriction, covenant or promise
contained therein is found to be unreasonable and for that
reason unenforceable, then such term, restriction, covenant or
promise shall be deemed modified to the extent necessary to
make it enforceable by such court or agency.
(d) The provisions of subparagraph 5(a)(i) shall not apply in
the event that CTI is in default in the payment of its obligations to
Employee hereunder.
6. Business Ideas.
(a) Employee acknowledges that CTI will own all rights in all
Business Ideas (as hereinafter defined) that are originated or
developed by Employee, either alone or with employees or consultants of
CTI, during the term of his employment by CTI.
(b) Employee agrees that during the term of his employment by
CTI he will:
(i) Assign to CTI all Business Ideas and promptly
execute all documents that CTI may reasonably require to
protect its patent or other rights to such Business Ideas
throughout the world; and
(ii) Promptly disclose to CTI all information
concerning all material business ideas, inventions, data and
developments originated by Employee or any other employee of
CTI that come to his attention and which concern the business
of CTI.
(c) For purposes of this paragraph 6, Business Ideas shall
mean all ideas, whether or not capable of being patented or
copyrighted, that are originated or developed by Employee in connection
with his employment by CTI.
7. Compensation. CTI shall pay Employee a base salary of Three Hundred
Twenty Thousand Dollars ($320,000.00) per year, payable in twenty-four (24)
equal semi-monthly installments. Employee shall be eligible to participate in
any bonus program established by the Board of Directors for executive employees
or directors as well as any performance-based bonus program.
The Board of Directors shall review Employee's compensation annually
prior to the anniversary date of this Agreement and shall increase Employee's
compensation for the next year, taking into account such factors as earnings and
profits of CTI, compensation of chief executive officers of other public
corporations engaged in similar business enterprises and changes in the consumer
price index.
8. Employee Benefits. Employee shall be eligible to participate in any
and all employee benefit programs maintained by CTI, including, without
limitation, medical, dental, life and disability insurance plans and the 401(k)
Plan. Employee's participation in such plans shall be upon the terms and
conditions specified in the various plans.
9. Professional Activities. CTI desires Employee to attend and take
part in professional seminars, conventions or postgraduate courses and other
related activities as he shall deem appropriate. CTI will pay Employee for
reasonable expenses incurred by Employee in connection with attending such
professional seminars, conventions or postgraduate courses, including continuing
education programs for certified public accountants. The compensation provided
in paragraph 7 hereinabove shall not be reduced or otherwise adjusted because of
the absence of Employee from work in order to attend such professional seminars
or conventions, and absence from work for such purposes shall not affect the
vacation time to which Employee is otherwise entitled under this Agreement.
10. Vacation. Employee shall be entitled to an annual vacation of six
(6) weeks without loss of compensation in accordance with the vacation policies
of CTI.
11. Termination. This Agreement shall terminate upon the occurrence
of any of the following events:
(a) Upon six (6) months' written notice by either party at
any time; provided, no such notice may be given by CTI prior to the date twelve
(12) months after the date of this Agreement.
(b) Upon mutual agreement of the parties.
(c) Upon the death of Employee.
(d) Upon the total and permanent disability of Employee. For
purposes of this Agreement, total and permanent disability shall be
deemed to be Employee's inability, by reason of physical or mental
illness or other cause, to perform any substantial portion of his usual
duties for a period of ninety (90) days or more, as confirmed by
medical evidence. In connection therewith, Employee hereby agrees to
submit to any medical examination or examinations as may be recommended
by CTI for the purpose of determining the existence or absence of a
total and permanent disability. In the event the examining physician
determines that Employee has incurred a total and permanent disability,
CTI shall give written notice thereof to Employee or his personal
representative.
(e) Upon written notice by CTI to Employee, if the termination
is for cause. For purposes of this Agreement, cause shall be deemed to
include the following:
(i) Fraud, dishonesty, embezzlement, misappropriation
of corporate funds or other theft from CTI.
(ii) Deliberate disregard of the rules of CTI.
(iii) Breach of any provision of this Agreement.
(iv) Acting in any manner that endangers the person
or property of any other person while performing services for
CTI.
Upon termination, Employee shall be entitled to receive the
compensation accrued but unpaid as of the date of his termination. In addition,
if CTI terminates Employee's employment pursuant to the provisions of
subparagraph 11(a) hereinabove, CTI shall pay to Employee severance compensation
equal to twelve (12) months' compensation at the rate of compensation that CTI
is paying to Employee on the date it gives Employee notice of termination.
Upon termination, CTI shall immediately cause all loans guaranteed by
Employee and Employee's spouse to be repaid. In the alternative, CTI may arrange
for the lenders to release all loan guarantees executed by Employee and
Employee's spouse.
Upon termination, CTI shall immediately redeem five hundred thousand
(500,000) shares of the CTI common stock held by Employee, Employee's spouse or
any entity controlled by Employee, as Employee shall designate. Such stock shall
be redeemed at a price equal to the average bid price during the twenty (20)
days prior to the date notice of termination is given by either CTI or the
Employee.
12. Authority of CTI. Employee agrees to observe and comply with the
rules and regulations adopted by the Board of Directors of CTI and to carry out
and to perform orders, directions and policies announced to him by the Board of
Directors. The power to direct, control and supervise Employee shall be vested
in the Board of Directors of CTI.
13. Corporate Facilities. CTI shall provide and maintain such
facilities, equipment and supplies as CTI deems necessary for Employee's
performance of his duties under this Agreement. Such facilities shall also
include the services of receptionists, secretaries, bookkeepers and other help
as needed.
14. Expenses. During the term of this Agreement, CTI shall reimburse
Employee for any reasonable business expenses incurred by Employee in the course
of his employment in accordance with the general policy of CTI as adopted by the
Board of Directors of CTI from time to time or announced by the Chief Executive
Officer, Chief Operating Officer or Chief Financial Officer. In addition to such
reimbursable expenses, Employee may incur and pay in the course of his
employment with CTI certain other expenses of a professional or business nature
for which CTI shall have no obligation to reimburse Employee, including, without
limitation, automobile and transportation expenses; professional entertainment
and promotional expenses; home telephone expenses; expenses for maintaining
facilities for conferring with and rendering services for persons in Employee's
home; educational expenses incurred for the purpose of maintaining or improving
Employee's skills; membership dues and expenses in civic groups, professional
societies and fraternal organizations; and all other items of reasonable
professional or business expenses incurred by Employee in the interest of his
services to CTI. Nothing in this paragraph, however, shall prevent CTI from
assuming or reimbursing Employee for such expenses.
15. Binding. This Agreement shall inure to the benefit of and be
binding upon the parties, their successors, heirs, personal representatives and
assigns.
16. Notices. Any notice or request required or permitted to be given
pursuant to this Agreement shall be sufficient if in writing and delivered
personally, sent by facsimile transmission or sent by certified mail, return
receipt requested, to the addresses set forth hereinafter or to any other
address designated by either of the parties hereto by notice similarly given.
Such notice shall be deemed to have been given upon such personal delivery,
facsimile transmission or mailing, as the case may be.
If to CTI: CUSA Technologies, Inc.
000 Xxxx Xxxxxxxx Xxxxx
Xxxx Xxxx Xxxx, XX 00000
If to Employee: Xxxxxxx X. Xxxxxxxxxx
0000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
17. Attorney's Fees. In the event of any legal action or other
proceeding arising out of or in connection with this Agreement, the prevailing
party shall be entitled to recover all of such party's costs, including
reasonable attorney's fees, incurred in such action or other proceeding,
including any and all appeals or petitions therefrom.
18. Validity and Severability. If any provision of this Agreement is,
or becomes, or is deemed to be invalid, illegal or unenforceable in any
jurisdiction, such provision shall be deemed amended to conform to the
applicable jurisdiction. If such provision cannot be so amended without
materially altering the intention of the parties, it shall be stricken.
Notwith-standing the foregoing, the validity, legality and enforceability of any
such provision shall not in any way be affected or impaired thereby in any other
jurisdiction, and the remainder of this Agreement shall remain in full force and
effect.
19. Entire Agreement. This Agreement, together with the exhibits
hereto, which are incorporated herein by reference, and the agreements referred
to herein constitute the entire agreement and understanding between the parties
pertaining to the subject matter of this Agreement. This Agreement supersedes
all prior agreements, if any, any understandings, negotiations and discussions,
whether oral or written. No supplement, modification, waiver or termination of
this Agreement shall be binding unless executed in writing by the party to be
bound thereby.
20. Governing Law. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of the state of Utah.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
CUSA TECHNOLOGIES, INC.
By_________________________________
Its: _______________
EMPLOYEE:
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XXXXXXX X. XXXXXXXXXX
