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EXHIBIT 99.2
AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the 3rd
day of August, 1999, by and among H.T.E., INC., (the "Company"), Xxxxxx X.
Xxxxxxx and Xxxx X. Xxxxxxx (collectively the "Executives").
BACKGROUND
The Executives serve as directors and officers of the Company and
certain of its subsidiaries, and the Company and Executives desire to enter
into this Agreement to provide for a transition of the Executives' relationship
with the Company and its subsidiaries.
IN CONSIDERATION of the mutual promises contained herein, the parties
hereto hereby agree as follows:
1. Resignations. Upon signing this Agreement, Xxxxxx X. Xxxxxxx is
resigning all positions with the Company (including but not limited to the
positions of Chairman of the Board, President, Chief Executive Officer and
employee of the Company) except as a director of the Company, and also is
resigning all positions with each of the Company's subsidiaries (including but
not limited to the positions of director, officer, and employee). Upon signing
this Agreement, Xxxx X. Xxxxxxx is resigning all positions with the Company
(including but not limited to the positions of officer and employee of the
Company) except as a director of the Company, and also is resigning all
positions with each of the Company's subsidiaries (including but not limited to
the positions of director, officer, and employee). The parties agree that the
foregoing resignations of the Executives shall be deemed effective, without any
action required on the part of any party, as of 9:00 a.m. on August 3, 1999.
2. Severance Payment. On or before 5:00 p.m. on August 3, 1999, the
Executives each shall receive a lump sum payment equal to (i) their base annual
salary (which is $350,000 as to Xxxxxx X. Xxxxxxx and $142,500 as to Xxxx X.
Xxxxxxx) for a six month period, less applicable tax withholdings, plus (ii)
amounts incurred by them to retain their health insurance coverage under the
Consolidated Omnibus Budget Reconciliation Act ("COBRA") for a six month
period. Further, each of the Executives will receive the foregoing base annual
salary for a period of eighteen calendar months (commencing with the month of
February 2000), less applicable tax withholdings. Such salary shall be paid
during such eighteen month period at the same time as the Company pays its
other employees. During the foregoing eighteen month period, the Company also
shall reimburse the Executives for amounts incurred by them to retain their
health insurance coverage under COBRA or, to the extent that the coverage of
the Executives expires for purposes of coverage under COBRA, an amount that
otherwise would have been paid to the Executives if they had retained their
health insurance coverage under COBRA.
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3. Director Positions. The Executives may continue their service as
directors of the Company for the remainder of the respective term for which
each Executive is presently serving, except that if the Executives at any time
own less than 30% of the outstanding shares of Company common stock, then one
of the Executives (to be determined by them) shall promptly resign as a
director of the Company and, further, if the Executives at any time own less
than 15% of the outstanding shares of Company common stock, then both
Executives will promptly resign as directors of the Company.
4. Stock Sale Issues. If after the date of this Agreement the Company
repurchases shares of its common stock in open market transactions, then the
Executives shall have the right to sell to the Company an amount of shares of
Company common stock equal to the product obtained by multiplying the
percentage of outstanding shares of Company common stock purchased by the
Company in such open market transactions by the amount of shares of Company
common stock owned by the Executives immediately prior to such open market
transaction. In order to facilitate the process for such repurchase of shares
from the Executives, the repurchases will be effected after the end of each
calendar month. Accordingly, within two business days after the end of a
calendar month in which the Company repurchases shares of its common stock in
open market transactions, the Company will provide notice to the Executives of
the number of shares purchased and the average price per share (computed on a
weighted average basis) paid by the Company for such repurchased shares. The
Executives will then have the ensuing five business days to notify the Company
of the amount of shares that the Executives desire to sell to the Company at
such average price per share (and subject to the limitation on amount of shares
to be repurchased by the Company set forth above), in which event the Company
and the Executives shall close the sale of such shares within two business days
thereafter. The repurchase of shares by the Company shall be subject to
compliance by the Company with all applicable federal and state securities
laws.
If after the date of this Agreement the Company elects to register
a sale of its shares of common stock (excluding shares registered on Form S-4
or Form S-8, or successor forms, under the Securities Act of 1933), the
Executives will have the right to require the Company to use reasonable
commercial efforts to include in such registration an amount of shares of
Company common stock owned by the Executives which, when included with the
other shares sold by the Company in such offering, is a percentage of the
shares sold in such offering equal to the percentage of Company common stock
owned by the Executives immediately prior to such registration. The shares
owned by the Executives will be included in such registration on the basis
provided in any underwriting arrangements approved by the Company and shall be
subject to the Executives completing and executing all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents required under the terms of such
underwriting arrangements. In connection with any such registration, the
Company shall use reasonable commercial efforts to register and qualify the
shares owned by the Executives included in such registration in each
jurisdiction reasonably requested by the Executives. The Executives shall pay
all discounts, commissions or fees of underwriters, selling brokers, dealer
managers or similar securities industry professionals relating to the
distribution of
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the securities owned by the Executives, and the expenses and fees of any person
or entity retained by the Executives in connection with such registration. The
rights under this Section 4 shall terminate on January 31, 2001.
5. Voting Arrangement. Until August 3, 2001, the Executives will not,
except in their capacities as members of the board of directors of the Company,
directly or indirectly: (i) initiate the "solicitation" of proxies with respect
to any Company common stock; or (ii) solicit proxies or become a participant or
a "person conducting a solicitation" (as such terms are defined in Regulation
14A under the Securities Exchange Act of 1934) with respect to any Company
common stock in opposition to the recommendation of the board of directors of
the Company with respect to any matters. In addition, until August 3, 2001, the
Executives shall effect such action as may be necessary to insure that (i) all
shares of Company common stock which are beneficially owned by them are voted
in favor of all of the nominees to, and proposals of, the board of directors as
approved by the board of directors, and (ii) are voted and deemed to be present
in person or by proxy at all meetings of the shareholders of the Company so
that all shares may be counted for purposes of determining the presence of a
quorum at such meeting. The certificates representing the shares owned by the
Executives shall not be legended to set forth the foregoing agreement, and any
shares sold or transferred by the Executives following the date of this
Agreement shall not be subject to the provisions of this Section 5 except to
the extent to which such shares in the hands of the transferee are considered
beneficially owned by either or both of the Executives. For purposes of this
Agreement, the terms "beneficially own" and "beneficially owned" shall be
determined in accordance with the provisions relating to beneficial ownership
of securities included in Rule 13d-3 under the Securities Exchange Act of 1934,
as amended.
6. Restrictive Covenants. Commencing August 3, 1999, Xxxxxx X.
Xxxxxxx shall be subject to Sections 6, 7, and 14 of the Employment Agreement
dated February 1, 1997 between the Company and Xxxxxx X. Xxxxxxx, as if such
sections were included in this Agreement and made a part hereof, with August 3,
1999 being considered as the date of the termination of Xx. Xxxxxxx'x
employment with the Company for purposes of such Sections. Commencing August 3,
1999, Xxxx X. Xxxxxxx shall be subject to Sections 6, 7, and 14 of the
Employment Agreement dated February 1, 1997 between the Company and Xxxx X.
Xxxxxxx, as if such sections were included in this Agreement and made a part
hereof, with August 3, 1999 being considered as the date of the termination of
Xx. Xxxxxxx'x employment with the Company for purposes of such Sections.
7. Contacts with Employees. The Executives will refrain from having
substantive discussions with any employees of the Company about matters of
Company business, except contacts with those executive officers necessitated as
a part of the performance by the Executives of their obligations as directors
of the Company (and in any event will make any such contacts through and in
consultation with the Company's Chief Executive Officer or such other persons
as permitted by the board of directors).
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8. Consultation on Legal Proceedings. Until August 3, 2001, the
Executives will make themselves available for consultation with the Company
from time to time as the Company may reasonably request, and to the extent as
would not unreasonably interfere with the Executives' then employment
commitments, to assist the Company in defending or prosecuting litigation
involving the Company with respect to Company services and products.
9. Non-Disparagement. The parties agree that if inquiry is made to any
of the parties (and, as to the Company, its directors) respecting the reason or
basis of the change in the Executives' employment or service with the Company,
the parties (and, as to the Company, its directors) will respond to the effect
that the Executives entered into an arrangement with the Company to provide for
a transition in the management of the Company and the opportunity for the
Executives to pursue other business endeavors, and that the Executives intend
to continue their service as members of the board of directors of the Company.
10. Stock Options. To the extent that such action does not jeopardize
the tax qualified status of the Company's stock option plan, the Company will
cause the stock options that are currently held by the Executives to be amended
(or reissued) on terms that will provide for the Executives to have the right
to exercise such options at any time, and from time to time, after the date of
this Agreement and on or before August 3, 2001, at the exercise price set forth
in such options immediately prior to such amendment or reissuance.
11. Attorneys' Fees. On or before 5:00 p.m. on August 3, 1999 and upon
submission to the Company by the Executives' counsel of an invoice therefor,
the Company will pay the reasonable legal fees incurred by the Executives in
connection with the matters relating to this Agreement in an amount not to
exceed $24,000 in the aggregate (as to which $10,000 has been previously paid
by the Company) plus reasonable out-of-pocket expenses.
12. Governing Law; Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida. The sole and
exclusive venue for any action arising out of this Agreement shall be a state
or federal court located in Orange or Seminole counties, Florida and the
parties agree to be subject to the jurisdiction of such courts.
13. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof. This
Agreement may not be modified in any way unless by written instrument signed by
the parties.
14. Notices. All notices required or permitted to be given hereunder
shall be in writing and shall be personally delivered by courier, sent by
registered or certified mail, return receipt requested, or sent by confirmed
facsimile transmission addressed as set forth herein. Notices personally
delivered, sent by facsimile or sent by overnight courier shall be deemed given
on the date of delivery and notices mailed in accordance with the foregoing
shall be deemed given upon the earlier of receipt by the addressee, as
evidenced by the return receipt thereof, or three days after deposit in the
U.S. Mail. Notice shall be sent to the parties at the
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address set forth below their respective signatures to this Agreement, or to
such other address as any party hereto may from time to time give notice of to
the others.
15. Benefits; Binding Effect. This Agreement shall be for the benefit
of and binding upon the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and, where applicable,
assigns, including, without limitation, any successor to the Company whether by
merger, consolidation, sale of stock, sale of assets or otherwise.
16. Severability. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall not
affect the enforceability of the remaining portions of this Agreement or any
part thereof, all of which are inserted conditionally upon their being valid in
law and, in the event that any one or more of the words, phrases, sentences,
clauses, or sections contained in this Agreement shall be declared invalid,
this Agreement shall be construed as if such invalid word or words, phrase or
phrases, sentence or sentences, clause or clauses, or section or sections had
not been inserted. If such invalidity is caused by the length of time or size
or area, or both, the otherwise invalid provision will be considered to be
reduced to a period or area which would cure such invalidity.
17. Waivers. No waiver by any party hereto of a breach or violation of
any term or provision of this Agreement shall operate or be construed as a
waiver of any subsequent breach or violation.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
19. Equitable Remedies. The parties agree that, in the event of a
breach of this Agreement by any party, the other party or parties may be
without an adequate remedy at law owing to the unique nature of the
contemplated transactions. In recognition thereof, in addition to (and not in
lieu of) any remedies at law that may be available to the non-breaching party,
the non-breaching party shall be entitled to obtain equitable relief, including
the remedies of specific performance and injunction, in the event of a breach
of this Agreement by the other party, and no attempt on the part of the
non-breaching party to obtain such equitable relief shall be deemed to
constitute an election of remedies by the non-breaching party that would
preclude the non-breaching party from obtaining any remedies at law to which it
would otherwise be entitled. The parties shall not be required to post any bond
in connection with any proceeding sought to obtain equitable relief.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
H.T.E., INC.
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxx Xxxx, Xxxxxxx 00000
By: /s/ Xxxxx X. Xxxxx
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Title: Vice-President
/s/ Xxxxxx X. Xxxxxxx
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Address:
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/s/ Xxxx X. Xxxxxxx
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Address:
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