EXHIBIT 10.17
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("AGREEMENT") dated as of October 10,
1996, between XXXXX X. XXXXXXXXXX ("EMPLOYEE"), and MANATRON, INC., a
Michigan corporation, maintaining its principal executive offices at 0000
Xxxxx 0xx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 ("EMPLOYER").
Accordingly, the parties agree as follows:
1. EMPLOYMENT. Employer hereby employs Employee, and Employee
hereby accepts this employment, on the terms and subject to the conditions
set forth herein.
2. POSITION. Employee agrees to serve Employer in the position and
with the job description as described on Exhibit A, or to serve Employer
and its subsidiaries in such other executive or operational positions
commensurate with Employee's experience and expertise as may be determined
by Employer. Employee shall devote his full business time, energies, best
efforts, skill and attention to the duties arising out of or incident to
his position and responsibilities pursuant to this Agreement, during the
term of employment, and shall not engage in other employment or business
opportunity, unless the employment or business opportunity is disclosed to
and approved by the Chief Executive Officer in advance of the employment or
business opportunity.
3. DURATION. Employment under this Agreement shall commence on the
date set forth above and shall continue until terminated as provided in
this Agreement.
4. COMPENSATION. In consideration for his services, Employee shall
receive the following compensation:
(a) SALARY. Employee shall be paid by Employer (or, if
applicable, by an affiliate of Employer) a minimum annual salary of
$95,220 per year while this Agreement is in effect (the "BASE
SALARY"). The Base Salary shall be reviewed annually and adjusted as
the President of Employer in his discretion deems appropriate and
which shall be commensurate with Employee's position. If the
President of Employer decides to reduce Employee's Base Salary,
Employer shall provide Employee three (3) months' written notice
before the reduction shall go into effect.
(b) VACATION. Employee shall receive paid vacation in
accordance with Employer's vacation and hiring policies as in effect
from time to time.
(c) AUTOMOBILE EXPENSES. If Employee is provided with an
automobile or a car allowance for business purposes, it shall be
provided in accordance with Employer's standard automobile use
policies and practices.
(d) BONUS. Employee will be eligible to participate in
Employer's executive incentive bonus plan as in effect from time to
time. A copy of Employer's current executive incentive bonus plan
(Manatron, Inc. Executive Incentive Plan for Fiscal 1997) has been or
will be separately provided to Employee. Employee acknowledges that
the terms of the bonus plan are subject to revision at Employer's
discretion. If Employee is terminated for any reason described in
Section 5, Employee shall be entitled to receive his pro rata share of
an Award (as defined in the plan in effect on the date of termination)
for the portion of the fiscal year in which Employee participated in
the plan.
(e) BENEFITS. Employee shall receive standard benefits offered
to all employees as determined from time to time by the Board of
Directors of Employer.
(f) REIMBURSEMENT OF EXPENSES. Employer shall reimburse
Employee for all reasonable proper travel and out-of-pocket expenses
incurred by him in connection with the performance of his duties under
this Agreement in accordance with Employer's policies for
reimbursement.
5. TERMINATION OF EMPLOYMENT. This Agreement and Employee's
employment pursuant to this Agreement may be terminated prior to the
expiration of the stated term of this Agreement as follows:
(a) TERMINATION BY EMPLOYEE. Employee is free to resign from
employment at any time with or without cause, by providing thirty (30)
days' prior written notification to Employer. For purposes of this
Agreement, "With Cause" shall mean:
(i) Without Employee's express written consent, the
assignment to Employee of any duties inconsistent with Employee's
present position or positions, duties, responsibilities and
status with Employer or a subsidiary, except in connection with
Employee's termination as provided below in Sections 5(c), (d) or
(e) or by Employee other than "With Cause";
(ii) A reduction in Employee's Base Salary as in effect on
the date of this Agreement or as the same may be increased from
time to time, by more than fifteen percent (15%); or
(iii) Without Employee's express written consent, a
relocation of Employee to a location outside of Employee's
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current employment location, except for required travel on
business of Employer to an extent substantially consistent with
Employee's present business travel obligations.
(b) TERMINATION BY EMPLOYER. Employer may terminate Employee's
employment at any time, with or without cause and with or without
prior review, notice or warning by providing thirty (30) days' prior
written notification to Employee.
(c) DEATH. Employee's employment under this Agreement shall
terminate in the event of Employee's death. Obligations of Employer
hereunder shall terminate as of the date of Employee's termination for
death.
(d) DISABILITY. Employer may terminate this Agreement for
"Disability" if, as a result of Employee's incapacity due to physical
or mental illness, he shall have been absent from his duties with
Employer on a full-time basis for six (6) consecutive months, and if
he shall not have returned to the full time performance of his duties
within thirty (30) days after written notice after such six (6) month
period.
(e) FOR CAUSE. Employee's employment under this Agreement may
be terminated by Employer for "Cause" at any time. For purposes of
this Agreement, termination shall be considered to be for "Cause" if
based upon (i) Employee's conviction of a crime involving moral
turpitude or embezzlement; (ii) Employee's willful activities in
competition with Employer or in aid of its competitors; (iii) the
willful and continued failure to substantially perform Employee's
duties with Employer under this Agreement (other than any other such
failure resulting from Disability), after a written demand for
substantial performance is delivered to Employee that specifically
identifies the manner in which Employer believes Employee has
willfully failed to substantially perform his duties, and after
Employee has failed to resume substantial performance of his duties on
a continuous basis within fourteen (14) calendar days of receiving
such demand; or (iv) Employee willfully engaging in conduct which is
demonstrably and materially injurious to Employer, monetarily or
otherwise. For purposes of (ii), (iii) and (iv) above, no act, or
failure to act, on Employee's part shall be deemed "willful" unless
done, or omitted to be done, by the Employee not in good faith and
without reasonable belief that the action or omission was in the best
interest of Employer.
6. SEVERANCE PAY. If Employer terminates Employee under Section
5(b) without cause or if Employee resigns from employment "With Cause" (as
defined in Section 5(a)), above, prior to the expiration of this Agreement,
Employer or its successor in interest shall pay Employee six (6) months'
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severance pay of an amount equal to Employee's Base Salary and any and all
benefits in effect at the time of termination ("SEVERANCE PAY"). Employee
agrees that Employee's right to receive Severance Pay is conditioned on the
prior execution by Employee of a binding general release (in such form as
Employer may determine) of any and all claims against Employer and all co-
owned entities, and their officers, directors, employees, agents and
owners.
7. COVENANTS OF EMPLOYEE. While employed by Employer and during the
period after termination during which Employee receives any Severance Pay,
Employee shall not:
(a) Engage, and shall have no investment, involvement or other
connection whatsoever, direct or indirect, with any corporation,
partnership, proprietorship, individual or other business entity that
is engaged, in whole or in part, in any line of business that is the
same as, similar to or directly or indirectly in competition with the
business of Employer, or its successors and assigns, as it is now, or
as it may during Employee's employment be, conducted east of the
Mississippi River ("Competing Entity"); this provision shall not,
however, restrict the right of Employee to own less than one percent
(1%) of the issued and outstanding shares of capital stock in any
company listed on a national or regional stock exchange, or whose
stock is quoted on a NASDAQ market, regardless of the nature of the
business.
(b) Be or become a shareholder, partner or other investor, or an
officer, employee, consultant, adviser or director or an agent
(whether independent or otherwise) for any Competing Entity; this
provision shall not, however, restrict the right of Employee to own
less than one percent (1%) of the issued and outstanding shares of
capital stock in any company listed on a national or regional stock
exchange, or whose stock is quoted on a NASDAQ market, regardless of
the nature of the business.
(c) Solicit either for himself or on behalf of any Competing
Entity, any "active customer of Employer" where an "active customer of
Employer" is a person or entity who or which is or has been a customer
of Employer during the term of Employee's employment or during the two
(2) years preceding Employee's termination of employment.
(d) Employee acknowledges that Employer has previously conducted
its business east of the Mississippi, and that the restrictive
covenant assumed by Employee pursuant to this section is essential to
the business of Employer and its goodwill. To the extent any part of
this covenant may be held unenforceable as set forth herein, the
restrictions set forth herein shall be severable so as to confine
their application to the geographical and time restrictions as a court
deems to be reasonable.
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(e) The provisions set forth in this Section 7 shall be in
effect while Employee is employed by Employer and for the period of
time during which Employee receives Severance Pay. In the event
Employee breaches any of the terms, conditions or provisions under
this Section, the remedy available to Employer shall be the right of
Employer to receive actual damages along with the forfeiture of
Severance Pay (paid or unpaid) if such breach occurs prior to any
employment termination. If such breach occurs subsequent to any
employment termination, the sole remedy of Employer for the breach
shall be the forfeiture of the right of Employee to receive any unpaid
Severance Pay.
8. COVENANT NOT TO SOLICIT EMPLOYEES. During the period after
termination during which Employee receives any Severance Pay, Employee
shall not, directly or indirectly, induce or attempt to influence any
employee of Employer to terminate employment, except in his capacity as an
officer of Employer in the ordinary course of business or as approved by
the Board of Directors of Employer. The sole remedy of Employer for breach
of the covenant set forth in this Section 8 shall be the forfeiture of the
right of Employee to receive any unpaid Severance Pay.
9. COVENANT NOT TO DISCLOSE CONFIDENTIAL INFORMATION. Employee
agrees that all information regarding manufacturing technique, process,
formula, development or experimental work, work in process, business, trade
secret or any other secret or confidential matter relating to the products,
sales or business at Employer, including, but not limited to, customer
lists, sales records, financial statements, payroll records, ledgers,
corporate records, account numbers, contact lists and other information of
any nature whatsoever pertaining to the business of Employer are of a
proprietary and confidential nature and that none of such information shall
be disclosed, published or made use of for any purpose by Employee without
the prior written consent of Employer.
10. COVENANT NOT TO USE TRADE NAME. Employee agrees that he shall
not, directly or indirectly, be or become an investor, partner,
shareholder, officer, employee, director, consultant, adviser or agent of,
or have any other affiliation with or economic interest in, any
corporation, partnership, proprietorship or other business entity that has
"Manatron," "ATEK," "Specialized Data Systems" or "Sabre" as any part of
its name or trade name except for Employer or any companies or businesses
affiliated with Employer; this provision shall not, however, restrict the
right of Employee to own less than one percent (1%) of the issued and
outstanding shares of capital stock in any company listed on a national or
regional stock exchange, or whose stock is quoted on a NASDAQ market,
regardless of the nature of the business.
11. SPECIFIC PERFORMANCE AVAILABLE. The provisions set forth in
Sections 9 and 10 shall be in effect while Employee is employed by Employer
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and also following termination of employment. Employee recognizes and
acknowledges that in the event of any default in, or breach of any of, the
terms, conditions and provisions of Sections 9 or 10, Employer's remedies
at law shall be inadequate. Accordingly, Employee agrees that in such
event, Employer shall be entitled to the remedies of specific performance
and injunctive relief in addition to actual damages and any and all other
remedies and rights at law or in equity, and such rights and remedies shall
be cumulative.
12. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties as to Employee's employment. All prior
discussions, compensation understandings, negotiations and agreements
notwithstanding, this Agreement constitutes the parties' sole source of
rights and duties with respect to Employee's employment. This Agreement
may not be changed orally, but only by agreement in writing expressly
identifying itself as an amendment to this Agreement and signed by Employee
and Employer.
13. AGREEMENT BINDING ON SUCCESSORS. This Agreement shall be binding
upon Employer and its successors and assigns. The rights and duties of
Employee are personal to him and shall not be subject to transfer,
delegation or assignment.
14. AMENDMENT AND WAIVER. This Agreement has been authorized by
Employer's Board of Directors. No employee or officer of Employer has
authority to offer employment other than employment terminable at will, or
to limit Employer's ability to terminate employment at will in any way;
employment on any other terms may only be authorized by a written
resolution of the Board of Directors. No waiver by either party at any
time of any breach by the other party or compliance with any condition or
provision of this Agreement to be performed by the other party shall be
deemed a waiver of similar or dissimilar provisions or condition at the
time or any time prior or subsequent time.
15. SEVERABILITY. Any provision or term of this Agreement that shall
be found to be contrary to law or otherwise unenforceable, in whole or in
part, shall not affect the remaining terms of this Agreement, which shall
be continued as if the unenforceable provision were absent from this
Agreement. It is the desire and intent of the parties to this Agreement
that the provisions of this Agreement be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction
in which enforcement is sought.
16. GOVERNING LAW. This Agreement shall be governed, construed and
enforced in accordance with the laws of the State of Michigan.
17. ARBITRATION. Any dispute or controversy under this Agreement
shall be settled exclusively by arbitration in Kalamazoo, Michigan, in
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accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitration award in any court
having jurisdiction. Employer will reimburse Employee for all reasonable
attorneys' fees incurred by Employee as a result of any arbitration with
regard to any issue under this Agreement (or any judicial proceeding to
compel or to enforce such arbitration): (a) which is initiated by Employee
if Employer is found in such proceeding to have violated this Agreement
substantially as alleged by Employee; or (b) which is initialed by
Employer, unless Employee is found in such proceeding to have violated this
Agreement substantially as alleged by Employer.
18. NOTICE. All notices, request, demands, consents, waivers,
instructions, approvals and the communications hereunder shall be in
writing and shall be deemed to have been given if personally delivered to
or mailed as follows:
If to Employer:
Manatron, Inc.
0000 Xxxxx 0xx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: President
If to Employee:
Xxxxx X. Xxxxxxxxxx
0000 Xxxxx 0xx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
/S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
"Employee"
MANATRON, INC.
By /S/ XXXXXXX X. XXXX
Xxxxxxx X. Xxxx
Its Chairman of the Board
By /S/ XXXX X. XXXXXXXXX
Xxxx X. Xxxxxxxxx
Its President and Chief Executive Officer
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