EX-99.E.14 3 dex99e14.htm SENIOR EXECUTIVE AGREEMENT BETWEEN THE COMPANY & C.MICHAEL MOORE Exhibit (e) (14) EXECUTIVE AGREEMENT
Exhibit (e) (14)
THIS EXECUTIVE AGREEMENT (this “Agreement”) is made effective for all purposes and in all respects as of the 1st day of February, 2007, by and between (i) Global Imaging Systems, Inc., a Delaware corporation (“Employer” or “Global”), and (ii) C. ▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Executive”).
WHEREAS, Employer desires to employ Executive as Senior Vice President – Finance of Employer;
WHEREAS, Executive desires to be employed by Employer in the aforesaid capacity; and
accordance with the provisions of Sections 2(b) or 2(c) hereof; provided, however, that the term of Executive’s employment with Employer shall be automatically extended for one (1) year on April 1, 2010 and on each subsequent April 1 unless Executive or Employer shall have given written notice to the other at least thirty (30) days prior thereto that the term of Executive’s employment shall be not be so extended. If Employer chooses not to extend the term of this Agreement as provided in this Section 2(a). it shall pay to Executive a Severance Payment (as defined below) in accordance with Section 3(d), provided that such Severance Payment upon non-renewal by Employer shall be paid for a period of six (6) months.
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Executive may receive are health, dental, life or disability insurance and vacation benefits. Employer shall reimburse Executive for all reasonable travel, entertainment and other expenses which Executive may incur in regard to the business of Employer, in accordance with and subject to the limitations of Employer’s standard practices and policies and Executive’s presentation of such documents and records as Employer shall require to substantiate such expenses. Executive shall also receive up to $1,200 per month for the lease, maintenance, operation and expense of an automobile to be utilized by the Executive in connection with the Employer’s business.
▇. ▇▇▇▇▇▇▇▇▇. In the event that Executive is terminated by Employer without Cause or Executive terminates his employment for Good Reason (other than in connection with a non-renewal of this Agreement by the Employer pursuant to Section 2(a) above or within one year after the Effective Date of a Change of Control pursuant to Section 3(e) below), Employer shall pay to Executive a severance payment (the “Severance Payment”) consisting of (i) in the event of termination by Executive for Good Reason, Executive’s Base Salary in effect at the time of termination for a period of twelve (12) months in accordance with Employer’s normal payroll practices and less all applicable withholding taxes or (ii) in the event of termination by Employer without Cause, Executive’s Base Salary in effect at the time of such termination for a period of twelve (12) months in accordance with Employer’s normal payroll practices and less all applicable withholding taxes; or (iii) in the event of termination by the Employer within one year after the Effective Date of a Change of Control pursuant to Section 3(e) below by Executive for any reason or by Employer without Cause, Executive’s Base Salary in effect at the time of such termination for a period of twenty-four (24) months in accordance with Employer’s normal payroll practices and less all applicable withholding taxes. In addition, during the period in which Executive receives the Severance Payment, Employer shall continue to pay the Employer’s normal portion of the costs of Executive’s health and dental insurance premiums in an amount consistent with that paid on the date of termination, provided that Executive chooses to participate in COBRA or a similar health insurance continuation program and provides Employer with proof of such participation. The Severance Payments and benefits described in this Section 3(d) are expressly contingent on Executive’s execution of a standard severance and release agreement containing a release of any and all claims by him against Employer. Only in the event that Executive signs and executes a severance and release agreement will Executive receive any Severance Payment or benefits described in this Section 3(d). In addition, Employer retains the right to terminate the initiation or continuation of the Severance Payment and other benefits described in this Section 3(d) and to recover from Executive any and all amounts previously paid (as well as to pursue any other remedies available at law or in equity) if it discovers that Executive engaged in any fraud, theft, embezzlement, serious or substantial misconduct materially injuring Employer’s reputation, or gross negligence while employed by Employer, if Executive materially breaches this Agreement, or if Executive breaches his obligations under Section 4. If Executive’s employment is terminated by Employer for Cause or by Executive without Good Reason, then Executive shall not be entitled to, and Employer shall not be obligated to pay, any Severance Payment.
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period of twenty-four (24) months, in accordance with Employer’s normal payroll practices and less all applicable withholding taxes. In addition, during the period in which Executive receives the Change of Control Payment, Employer shall continue to pay the Employer’s normal portion of the costs of Executive’s health and dental insurance premiums in an amount consistent with that paid on the date of termination, provided that Executive chooses to participate in COBRA or a similar health insurance continuation program and provides Employer with proof of such participation. The Change of Control Payments and benefits described in this Section 3(e) are expressly contingent on Executive’s execution of a standard severance and release agreement containing a release of any and all claims by him against Employer. Only in the event that Executive signs and executes a severance and release agreement will Executive receive any Change of Control Payment or benefits described in this Section 3(e). In addition, Employer retains the right to terminate the initiation or continuation of the Change of Control Payment and other benefits described in this Section 3(e) (as well as to pursue any other remedies available at law or in equity) if it discovers that Executive materially breaches his obligations under Section 4.
4. Confidential Information and Post-Employment Obligations.
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generated or compiled by any employee of Employer. Such information is, and shall remain, the exclusive property of Employer, and Executive hereby covenants and agrees that he shall promptly return all such information to Employer upon termination of his employment.
(i) own, maintain, engage in, render any services for, manage, have any financial interest in, or permit his name to be used in connection with as a shareholder, bondholder, creditor, officer, director, partner, agent, contractor with, employer or representative of, or in any manner associated with, or give financial, technical or other assistance to, any person, firm or corporation for the purpose of engaging in the copier/office equipment dealer, distribution, sales or service business, or in any other business in which Executive is actively engaged in on behalf of Employer, within a 100 mile radius of any of Employer’s office facilities in the United States of America that Employer operates an office facility in existence on the date of Executive’s termination of employment (the “Current Trade Area”);
(ii) enter into any agreement with, service, assist or solicit the business of any persons or entities who were customers of Employer as of, or within two (2) years of, the date of Executive’s termination of employment, for the purpose of providing copier/office equipment dealer sales or service to such customers in the Current Trade Area in competition with Employer or any of its affiliates or to cause such customers to reduce or end their business with Employer; or
(iii) enter into any agreement with, or solicit the employment of any persons who were employees, consultants or representatives of Employer as of, or within two (2) years of, the date of Executive’s termination of employment, for the purpose of causing such persons to leave the employment of Employer;
provided, however, that no owner of less than one percent (1%) of the outstanding stock of any publicly-traded corporation shall be deemed to be in violation of this Section 4(b) solely by reason thereof.
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the separate covenants deemed included herein, then at Employer’s option, wholly unenforceable covenants shall be deemed eliminated from this Section 4 for the purpose of such action or proceeding to the extent necessary to permit the remaining separate covenants to be enforced in such action or proceeding.
a. For purposes of this Agreement, “Affiliate” of any Person means any other Person which directly or indirectly controls, is controlled by or is under common control with such Person.
b. For purposes of this Agreement, “Board” means the Employer’s board of directors or the board of directors or similar management body of any successor of the Employer.
c. For purposes of this Agreement, “Cause” shall mean, without limitation: (i) the inability of Executive, through sickness or other incapacity, to perform the essential functions of his position for a period in excess of ninety (90) substantially consecutive days or upon Executive’s death (but Executive shall remain eligible for any death or disability policies, if any, which the Employer maintains for Executive); (ii) the commission of a felony or a crime involving moral turpitude or the commission of any other act or omission involving dishonesty or fraud; (iii) substantial and repeated failure to perform duties of the office held by Executive as reasonably directed by the Board; (iv) gross negligence or willful misconduct with respect to the Employer or any of its Subsidiaries; (v) a material breach of this Agreement (including without limitation breaches of Sections l(b) and 4(a) or 4(b)); (vi) the failure of Executive for any reason, within ten (10) days after receipt by Executive of written notice thereof from Employer, to correct, cease or otherwise alter any failure to comply with instructions or other action or omission which the Board reasonably believes does or may materially or adversely affect its business or operations; (vii) misconduct by Executive which is of such a serious or substantial nature that a reasonable likelihood exists that such misconduct will materially injure the reputation of Employer if Executive were to remain employed by Employer; (viii) continued substandard performance by Executive as determined in good faith by the Board; (ix) harassing or discriminating against Employer’s employees, customers or vendors in violation of Employer’s policies; and/or (x) any other act or omission which is grounds for termination with “good cause” under the laws of the State of Florida.
d. For the purposes of this Agreement, a “Change of Control” shall mean:
(i) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
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“Exchange Act”)) (a “Person”), other than Golder, Thoma, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Fund IV, L.P. and its Affiliates, of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 50% or more of either (A) the then-outstanding shares of common stock of Global (the “Outstanding Global Common Stock”) or (B) the combined voting power of the then-outstanding voting securities of Global entitled to vote generally in the election of directors (the “Outstanding Global Voting Securities”); provided, however, that for purposes of this subsection (i), the following acquisitions shall not constitute a Change of Control: (A) any acquisition directly from Global approved by the Board of Directors of Global (the “Global Board”), (B) any acquisition by Global, (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Global or any corporation controlled by Global, or (D) any acquisition by any corporation pursuant to a transaction which complies with clauses (A), (B) and (C) of subsection (iii) of this Section 5(j); or
(ii) Individuals who, as of the date hereof, constitute the Global Board (the “Incumbent Global Board”) cease for any reason to constitute at least a majority of the Global Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by Global’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Global Board shall be considered as though such individual were a member of the Incumbent Global Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Global Board; or
(iii) Consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of Global (a “Business Combination”), in each case, unless, following such Business Combination, (A) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Global Common Stock and Outstanding Global Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of, respectively, the then outstanding shares of common stock and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation which as a result of such transaction owns Global or all or substantially all of Global’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Business Combination of the Outstanding Global Common Stock and Outstanding Global Voting Securities, as the case may be, (B) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of Global or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 50% or more of, respectively, the then-outstanding shares of common stock of the corporation resulting from such Business Combination, or the combined voting power of the then-outstanding voting securities of such corporation except to the extent that such ownership existed prior to the Business Combination or (C) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Incumbent Global Board at the time of the execution of the initial agreement, or of the action of the Global Board, providing for such Business Combination; or
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(iv) Approval by the stockholders of Global of a complete liquidation or dissolution of Global.
e. For purposes of this Agreement, “Change of Control Period” shall mean the period commencing on the Effective Date and ending on the first anniversary of the Effective Date.
f. For purposes of this Agreement, “Effective Date” shall mean the first date on which a Change of Control occurs. Anything in this Agreement to the contrary notwithstanding, if a Change of Control occurs and if the Executive’s employment with the Employer is terminated within six (6) months prior to the date on which the Change of Control occurs, and if it is reasonably demonstrated by the Executive that such termination of employment (i) was at the request of a third party who has taken steps reasonably calculated to effect a Change of Control or (ii) otherwise arose in connection with or anticipation of a Change of Control, then for all purposes of this Agreement the “Effective Date” shall mean the date immediately prior to the date of such termination of employment.
g. For purposes of this Agreement, “Good Reason” shall mean (i) a decrease in the total amount of Executive’s Base Salary below its level in effect on the date hereof, (ii) a geographical relocation of Executive more than thirty-five (35) miles from the Employer’s current executive office location without his consent; provided, however, that Executive will travel to such other locations of Employer as may be reasonably necessary in order to discharge his duties hereunder, or (iii) the Executive’s resignation within one year following the Effective Date of a Change of Control.
h. For purposes of this Agreement, a “Notice of Termination” shall mean a written notice which shall indicate the specific termination provision in this Agreement relied upon and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated.
i. For purposes of this Agreement, “Person” means an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof.
j. For purposes of this Agreement, “Subsidiary” means any corporation of which Employer owns securities having a majority of the ordinary voting power in electing the board of directors directly or through one or more subsidiaries.
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rules of conflicts of laws. Any claim, complaint, or action brought under this Agreement shall be brought in a court of competent jurisdiction in the State of Florida, whose courts shall have exclusive jurisdiction over claims, complaints, or actions brought under this Agreement, and Employer and Executive hereby agree and submit to the personal jurisdiction and venue thereof.
15. Entire Agreement; Amendment. This Agreement contains the entire agreement and understanding by and between Employer and Executive with respect to the subject matter hereof, including the Executive Agreement between Executive and Employer dated August 1, 2004 or any other employment agreement or arrangement previously entered into by the Executive and Employer, and no representations, promises, agreements or understandings, written or oral, not contained herein shall be of any force or effect. No change or modification hereof shall be valid or binding unless the same is in writing and signed by both Employer and Executive.
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| EMPLOYER: | ||
| Global Imaging Systems, Inc. | ||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
| Title: | Chairman and Chief Executive Officer | |
| EXECUTIVE: | ||
| /s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| C. ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
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