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EXHIBIT 10(E)
FORM OF
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of May 1, 1997, between Business Information
Systems, Inc., an Indiana corporation with offices at 000 Xxxxxxxx Xxxx, Xxxxx
0, Xxxx Xxxxx, XX 00000 (the "Company"), and Xxxxxx X. Xxxxxxx, an individual
residing at 000 Xxxxxx Xxxx, XxXxxxxx, XX, ("Employee").
The company desires to engage Employee to perform services for the Company
and Employee desires to perform such services, on the terms and conditions
hereinafter set forth.
1. Term. The Company agrees to employ Employee, and Employee agrees to
serve, on the terms and conditions of this Agreement for a period commencing on
May 1, 1997 and ending May 1, 2000, or such shorter period as may be provided
for herein. The period beginning on May 1, 1997 and ending on May 1, 2000 is
referred to as the "Initial Term". This Agreement shall automatically renew at
the end of the Initial Term, and on each successive anniversary of the end of
the Initial Term, in each case if the Agreement has not previously expired or
been terminated, for successive additional one year terms (each, a "Renewal
Term"), provided, that either the Company or Employee may cause such automatic
renewal not to occur by giving notice to the other party not less than six
months prior to the end of the Initial Term or Renewal Term, as applicable. The
period during which Employee is employed hereunder is hereinafter referred to as
the "Employment Period".
2. Duties and Services. During the Employment Period, Employee shall be
employed in the business of the Company as its CEO. In performance of his
duties, Employee shall be subject to the direction of the Board of Directors of
the Company or its designee. Employee agrees to his employment as described in
this Section 2 and agrees to devote a minimum of 40 hours per week of his
working time and efforts to the performance of his duties under this Agreement,
excepting disabilities, illness, and vacation time as provided by Section 3(d).
In performing his duties hereunder, Employee shall be available for reasonable
travel as the needs of the business require.
3. Compensation and Other Benefits.
(a) As compensation for his services hereunder, the Company shall pay
Employee, during the Employment Period, a salary payable in equal semi-monthly
installments at the annual rate of $175,000.
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(b) Employee's salary rate shall be reviewed annually by the Board of
Directors. Upon such review, Employee's salary may be adjusted upwards to such
rate as shall be considered appropriate and fixed by the Board of Directors,
taking into account economic conditions, competitive conditions within the
industry, the financial condition, operations, and prospects of the Company, and
Employee's performance and salary. In addition, Employee shall be entitled to
receive such bonuses as the Board of Directors of the Company may, in its sole
discretion, award from time to time.
(c) Employee shall to entitled to participate in all group health
Insurance programs and all other fringe benefit or retirement plans or
additional compensation which the Company may hereafter, in its sole and
absolute discretion, elect to make available to its employees generally,
provided Employee meets the qualifications therefor, but the Company shall not
be required to establish any such program or plan or otherwise to pay any such
additional compensation.
(d) Employee shall be entitled to three weeks of vacation per year of
the Employment Period. Each year's vacation allowance shall vest in full at the
beginning of that year.
4. Expenses. Employee shall be entitled to reimbursement for all
reasonable travel and other out-of-pocket expenses necessarily incurred in the
performance of his duties hereunder, upon submission and approval of written
statements and bills in accordance with the then regular procedures of the
Company.
5. Representations and Warranties of Employee. Employee represents and
warrants to the Company that (a) Employee is under to contractual or other
restriction or obligation which is inconsistent with the execution of this
Agreement the performance of his duties hereunder, or the other rights of the
Company hereunder and (b) Employee is under no physical or mental disability
that would hinder his performance of duties under this Agreement.
6. Non-Competition.
(a) In view of the unique and valuable services it is expected
Employee will render to the Company, Employee's knowledge of the customer, trade
secrets, and other proprietary information relating to the business of the
Company and its customers and suppliers and similar knowledge regarding the
Company it is expected Employee will obtain, and in consideration of the
compensation to be received hereunder, Employee agrees that he will not during
the Employment Period and for two years thereafter Participate In (hereinafter
defined in this Section 6) any other business or organization, which is or shall
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then be competing with or of a nature similar to the business of the Company;
provided, however, that the provisions of this Section 6 will not be deemed
breached merely because Employee owns not more than 5% of the outstanding common
stock or other equity or debt securities of a corporation, if, at the time of
its acquisition by Employee, such securities are listed on a national securities
exchange, reported on NASDAQ, or regularly traded in the over-the-counter market
by a member of a national securities exchange. The term "Participate In" shall
mean "engage in as a principal, partner, director, officer, agent, employee,
consultant or otherwise, or be financially interested in".
(b) During the Employment Period and for one year thereafter, Employee
will not directly or indirectly reveal the name of, solicit or interfere with,
or endeavor to entice away from the Company any of its suppliers, customers, or
employees.
(c) Since a breach of the provisions of this Section 6 could not
adequately be compensated by money damages, the Company shall be entitled, in
addition to any other right and remedy available to it, to an injunction
restraining such breach or a threatened breach, and in either case no bond or
other security shall be required in connection therewith. Employee agrees that
the provisions of this Section 6 are necessary and reasonable to protect the
Company in the conduct of its business. If any restriction contained in this
Section 6 shall be deemed to be invalid, illegal, or unenforceable by reason of
the extent, duration, or geographical scope hereof, or otherwise, then the court
making such determination shall have the right to reduce such extent, duration,
geographical scope, or other provisions hereof, and in its reduced from such
restriction shall then be enforceable in the manner contemplated hereby.
7. Patents, etc. Any interest in patents, patent applications, inventions,
technological innovations, copyrights, copyrightable works, developments,
discoveries, designs, and processes which Employee now or hereafter during the
Employment Period may own, conceive of, or develop and either relating to the
fields in which the Company may then be engaged or contemplates (as demonstrated
by the records of the Company) being engaged or conceived of or developed
utilizing the time, material, facilities, or proprietary information of the
Company ("Such Inventions") shall belong to the Company; as soon as Employee
owns, conceives of, or develops any such Invention, he agrees immediately to
communicate such fact in writing to the Secretary of the Company, and without
further compensation, but at the Company's expense, forthwith upon request of
the Company, Employee shall execute all such assignments and other documents
(including applications for patents, copyrights, trademarks, and assignments
thereof) and take all such other action as the Company may reasonably request in
order (a) to vest in the Company all Employee's right, title, and interest in
and to Such Inventions, free and clear of liens, mortgages, security interests,
pledges, charges, and encumbrances
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arising from the acts of Employee ("Liens") (Employee to take such action, at
his expense, as is necessary to remove all such Liens) and (b) if patentable or
copyrightable, to obtain patents or copyrights (including extensions and
renewals) therefor in any and all countries in such name as the company shall
determine.
8. Confidential Information. All Confidential Information which Employee
may now possess, may obtain during of after the Employment Period, or may create
prior to the end of the period he is employed by the Company under this
Agreement or otherwise relating to the business of the Company or of any
customer or supplier of the Company shall not be published, disclosed, or made
accessible by him to any other person, firm, or corporation either during or
after the termination of his employment or used by him except during the
Employment Period in the business and for the benefit of the Company, in each
case without the prior written permission of the Company. Employee shall return
all physical evidence of such confidential information to the Company prior to
or at the termination of his employment. As used in this Section 8,
"Confidential Information" means confidential or other proprietary information
that is received or produced or developed by employee (including, without
limitation, software designs and code, product specifications and documentation,
business and product plans, customer lists and other confidential business
information) and that is generated by or utilized in the operations of the
Company. Confidential Information does not include information which becomes
public knowledge without any action by employee or without employee involvement.
9. Life Insurance. If requested by the Company, Employee shall submit to
such physical examinations and otherwise take such actions and execute and
deliver such documents as may be reasonably necessary to enable the Company, at
its expense and for its own benefit to obtain life insurance on the life of the
Employee. Employee has no reason to believe that his life is not insurable with
a reputable insurance company at rates now prevailing in the City of Xxxxxxxxxx.
00. Termination. Notwithstanding anything herein contained, if on or after
the date hereof and prior to the end of the Employment Period:
(a) either (i) Employee shall be physically or mentally incapacitated
or disabled or otherwise unable fully to discharge his duties hereunder for a
period of three months, as determined by the Board of Directors, (ii) Employee
shall be convicted of a crime of moral turpitude or a felony, (iii) Employee
shall breach any fiduciary duty to the Company, or (iv) Employee shall breach
any material term of this Agreement and fail to correct such breach within 10
days after notice by the Company to Employee of his commission of the same,
then, and in each such case, the Company shall have the right to give notice of
termination of Employee's services hereunder as of a date (not earlier
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than 10 days from such notice) to be specified in such notice and this Agreement
shall terminate on the date so specified, or
(b) If the Employee shall die, then this Agreement shall terminate on
the date of Employee's death, whereupon Employee or his estate, as the case may
be, shall be entitled to receive only his compensation at the rate then provided
pursuant to Sections 3(a) and 3(b) to the date on which termination shall take
effect; provided, however, that if this Agreement is terminated as a result of
Employee's death, and if the Company shall not at the date of such death be
providing life insurance coverage for the benefit of Employee's estate,
Employee's estate shall be entitled to receive a payment in the amount of Three
months' compensation at the rate then provided pursuant to Section 3(a) and
3(b).
Nothing contained in this Section 10 shall be deemed to limit any other right
the Company may have to terminate Employee's employment hereunder upon any
ground permitted by law.
11. Survival. The covenants, agreements, representations, and warranties
contained in or made pursuant to this Agreement shall survive Employee's
termination of employment as provided herein.
12. Entire Agreement; Modification. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof,
supersedes all existing agreements between them concerning such subject matter,
and may be modified only by a written instrument duly executed by each party.
13. Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be mailed by certified mail,
return receipt requested; or delivered against receipt to the party to whom it
is to be given at the address of such party set forth in the preamble to this
Agreement (or to such other address as the party shall have furnished in writing
in accordance with the provisions of this Section 14). Notice to the estate of
Employee shall be sufficient if addressed to Employee as provided in this
Section 14. Any notice or other communication given by certified mail shall be
deemed given three days after the time of certification thereof, except for a
notice changing a party's address which shall be deemed given at the time of
receipt thereof.
14. Waiver. Any waiver by either party of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
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deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing,
signed by the party giving such waiver.
15. Binding Effect. Employee's rights and obligations under this Agreement
shall not be transferable by assignment or otherwise, such rights shall not be
subject to commutation, encumbrance, or the claims of Employee's creditors, and
any attempt to do any of the foregoing shall be void. The provisions of this
Agreement shall be binding upon and inure to the benefit of Employee and his
heirs and personal representatives, and shall be binding upon and inure to the
benefit of the company and its successors and those who are its assigns under
Section 11.
16. No Third Party Beneficiaries. This Agreement does not create, and shall
not be construed as creating, any rights enforceable by any person not a party
to this Agreement (except as provided in Section 16).
17. Headings. The headings in this Agreement are solely for the convenience
of reference and shall be given no effect in the construction or interpretation
of this Agreement.
18. Counterparts; Governing Law. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. It shall be
governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania, without giving effect to the conflict of laws.
IN WITNESS WHEREOF, the parties have duly executed this agreement as of
the date first above written.
Employee Company
By:
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Name:
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Title: President
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