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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of
August 15, 2000, by and between H.T.E., INC., a Florida corporation (the
"Company"), and XXXXXX X. XXXXXXX (hereinafter called the "Executive").
RECITALS
The Executive and the Company have agreed that the Executive shall be
employed by the Company pursuant to the terms and conditions hereinafter set
forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties agree as follows:
1. Employment.
1.1 Employment and Term. The Company hereby agrees to
employ the Executive and the Executive hereby agrees to serve the Company on the
terms and conditions set forth herein.
1.2 Duties of Executive. During the term of this
Agreement, the Executive shall serve as Executive Vice President - Operations of
the Company, and shall diligently perform all services as may be assigned to him
by the Board of Directors or the Chief Executive Officer of the Company and
shall exercise such power and authority as may from time to time be delegated to
him by the Board or the CEO of the Company. The Executive will initially report
to CEO. The Executive shall devote his full time and attention to the business
and affairs of the Company, render such services to the best of his ability, and
use his best efforts to promote the interests of the Company.
2. Term.
2.1 Initial Term. The initial term of this Agreement, and
the employment of the Executive hereunder, shall commence on September 11, 2000
(the "Commencement Date") and shall expire on December 31, 2001, unless sooner
terminated in accordance with the terms and conditions hereof (the "Initial
Term").
2.2 Renewal Terms. At the end of the Initial Term, this
Agreement shall automatically renew for successive one year terms, subject to
earlier termination of this Agreement as provided herein, unless either party
provides written notice of non-renewal to the other party at least ninety (90)
days prior to the end of such renewal term.
2.3 Expiration Date. The date on which the term of this
Agreement shall expire (including the date on which any renewal term shall
expire) is sometimes referred to in this Agreement as the Expiration Date.
3. Compensation.
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3.1 Base Salary. The Executive shall receive an initial
base salary at the annual rate of One Hundred Eighty-five Thousand Dollars
($185,000) (the "Base Salary"), with such Base Salary payable in installments
consistent with the Company's normal payroll schedule, subject to applicable
withholding and other taxes. The Base Salary shall be reviewed, at least
annually, for merit increases and may, by action and in the discretion of the
Company, be increased at any time or from time to time.
3.2 Bonuses. During the term of this Agreement, the
Executive shall be eligible to receive bonuses ("Incentive Compensation")
pursuant to the H.T.E., Inc. Incentive Compensation Bonus Program, as may be
amended from time to time (the "Incentive Compensation Plan") which shall in the
aggregate be up to fifty percent (50%) of the Executive's Base Salary based upon
satisfaction of the individual and Company performance goals set in accordance
with the Incentive Compensation Plans. Each period for which Incentive
Compensation is payable under the Incentive Compensation Plan is sometimes
hereinafter referred to as a Bonus Period.
4. Expense Reimbursement and Other Benefits.
4.1 Reimbursement of Expenses. During the term of
Executive's employment hereunder, upon the submission of proper substantiation
by the Executive, and subject to such rules and guidelines as the Company may
from time to time adopt, the Company shall reimburse the Executive for all
reasonable expenses actually paid or incurred by the Executive in the course of
and pursuant to the business of the Company. The Executive shall account to the
Company in writing for all expenses for which reimbursement is sought and shall
supply to the Company copies of all relevant invoices, receipts or other
evidence reasonably requested by the Company.
4.2 Compensation/Benefit Programs. During the term of
this Agreement, the Executive shall be entitled to participate in all medical,
dental, hospitalization, accidental death and dismemberment, disability, travel
and life insurance plans, and any and all other qualified plans as are presently
and hereinafter offered by the Company to its executives, including stock
option, stock purchase and 401-k plans.
4.3 Working Facilities. The Company shall furnish the
Executive with an office and such other facilities and services suitable to his
position and adequate for the performance of his duties hereunder.
4.4 Stock Options. The Company shall grant to the
Executive Non-Qualified Stock Options for the Company's common stock, pursuant
to the Company's 1997 Employee Incentive Compensation Plan, as follows:
a. Eighty thousand (80,000) options, which
shall have: (i) an equal annual time vesting schedule for such
granted options of August 15, 2001, August 15, 2002, August
15, 2003, and August 15, 2004; and (ii) a strike or exercise
price per share equal to the closing price per share on NASDAQ
for August 15, 2000.
b. Forty thousand (40,000) options with: (i) a
strike or exercise price per share equal to
the closing price per share on NASDAQ for August 15, 2000 of
$1.25; and (ii) vesting, subject to the Company's common stock
price achieving certain levels as follows:
i. 10,000 options upon the closing
price per share on NASDAQ for the Company's common
stock being above $10.00 for twenty consecutive
trading days during the calendar year 2001, if not,
the vesting for such unvested options shall be
carried forward to the next succeeding calendar year
and added to the
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number of options scheduled to vest based on the
stock performance vesting price for such year;
ii. 10,000 options (plus any options
carried forward) upon the closing price per share on
NASDAQ for the Company's common stock being above
$12.50 for twenty consecutive trading days during the
calendar year 2002, if not, the vesting for such
unvested options shall be carried forward to the next
succeeding calendar year and added to the number of
options scheduled to vest based on the stock
performance vesting price for such year;
iii. 10,000 options (plus any options
carried forward) upon the closing price per share on
NASDAQ for the Company's common stock being above
$17.50 for twenty consecutive trading days during the
calendar year 2003, if not, the vesting for such
unvested options shall be carried forward to the next
succeeding calendar year and added to the number of
options scheduled to vest based on the stock
performance vesting price for such year; and
iv. 10,000 options (plus any options
carried forward) upon the closing bid price per share
on NASDAQ for the Company's common stock being above
$22.50 for twenty consecutive trading days during the
calendar year 2004.
The above described Non-Qualified Stock Options shall be granted to the
Executive subject to all terms and conditions of the Company's 1997
Employee Incentive Compensation Plan, and any amendments or successor
plan thereto and all rules of regulation of the Securities and Exchange
Commission applicable to stock option plans then in effect.
4.5 Other Benefits. The Executive shall be entitled to
vacation time in accordance with the Company's policy for its executive officers
during the term of this Agreement, to be taken at such times as the Executive
and the Company shall mutually determine and provided that no vacation time
shall interfere with the duties required to be rendered by the Executive
hereunder. Any vacation time not taken by Executive during any calendar year may
be carried forward into any succeeding calendar year in accordance with HTE
policy. The Executive shall receive such additional benefits, if any, as the
Company shall from time to time determine.
5. Termination.
5.1 Termination for Cause. The Company shall at all times
have the right, upon written notice to the Executive, to terminate the
Executive's employment hereunder, for cause. For purposes of this Agreement, the
term "cause" shall mean: (a) an action or omission of the Executive which
constitutes a material breach of this Agreement which is not cured within thirty
(30) days after receipt by the Executive of written notice of same, (b) fraud,
embezzlement, misappropriation of funds or breach of trust in connection with
his services hereunder, (c) conviction of any crime which involves dishonesty, a
breach of trust, or which could cause material negative publicity to the Company
as determined by the Board, or (d) negligence failure in connection with the
performance of the Executive's duties hereunder. Any termination for cause shall
be made in writing to the Executive, which notice shall set forth in detail all
acts or omissions upon which the Company is relying for such termination. The
Executive shall have the right to address the Board regarding the acts set forth
in the notice of termination. Upon any termination pursuant to this Section 5.1,
the Company shall pay to the Executive his Base Salary to the date of
termination. The Company shall have no further liability hereunder other than
for: (i) reimbursement for reasonable business expenses incurred
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prior to the date of termination, subject, however, to the provisions of Section
4.1, and (ii) payment of compensation for unused vacation days that have
accumulated during the calendar year in which such termination occurs.
5.2 Disability. The Company shall at all times have the
right, upon written notice to the Executive, to terminate the Executive's
employment hereunder, if the Executive shall become entitled to benefits under
the Company's Long Term Disability Plan as then in effect, or, if the Executive
shall as the result of mental or physical incapacity, illness or disability,
become unable to perform his obligations hereunder for a period of 120 days in
any 12-month period. The Company shall have sole discretion based upon competent
medical advice to determine whether the Executive continues to be disabled. Upon
any termination pursuant to this Section 5.2, the Company shall: (a) pay to the
Executive any unpaid Base Salary through the effective date of termination
specified in such notice, (b) pay to the Executive his accrued and declared but
unpaid Incentive Compensation, if any, for any Bonus Period ending on or before
the date of termination of the Executive's employment with the Company, and (c)
pay to the Executive (within forty-five (45) days after the end of the Bonus
Period in which such termination occurs) a prorata portion (based upon the
period ending on the date of termination of the Executive's employment
hereunder) of the Incentive Compensation, if any, for the Bonus Period in which
such termination occurs, as calculated pursuant to the Incentive Compensation
Plan; provided that the goals under the Incentive Compensation Plan for each
period used in the calculation of the Executive's Incentive Compensation, shall
be based on: (i) the portion of the Bonus Period through the end of the Bonus
Period in which such termination occurs and (ii) unaudited financial information
prepared in accordance with generally accepted accounting principles, applied
consistently with prior periods, as approved and reviewed by the Board. The
Company shall have no further liability hereunder other than for: (x)
reimbursement for reasonable business expenses incurred prior to the date of
termination, subject, however to the provisions of Section 4.1, and (y) payment
of compensation for unused vacation days that have accumulated during the
calendar year in which such termination occurs.
5.3 Death. In the event of the death of the Executive
during the term of his employment hereunder, the Company shall: (a) pay to the
estate of the deceased Executive any unpaid Base Salary through the Executive's
date of death, (b) pay to the estate of the deceased Executive his accrued and
declared but unpaid Incentive Compensation, if any, for any Bonus Period ending
on or before the Executive's date of death, (c) pay to the estate of the
deceased Executive (within forty-five (45) days after the end of the Bonus
Period in which his death occurs) a prorata portion (based upon the period
ending on the date of death) of the Incentive Compensation, if any, for the
Bonus Period in which his death occurs, as calculated pursuant to the terms of
the Incentive Compensation Plan; provided that, the goals under the Incentive
Compensation Plan for each period used in the calculation of the Executive's
Incentive Compensation shall be based on: (i) the portion of the Bonus Period
through the end of the Bonus Period in which the Executive's death occurs, and
(ii) unaudited financial information prepared in accordance with generally
accepted accounting principles, applied consistently with prior periods, as
approved and reviewed by the Board. The Company shall have no further liability
hereunder other than for: (x) reimbursement for reasonable business expenses
incurred prior to the date of the Executive's death, subject, however to the
provisions of Section 4.1, and (y) payment of compensation for unused vacation
days that have accumulated during the calendar year in which such termination
occurs.
5.4 Termination Without Cause. At any time the Company
shall have the right to terminate the Executive's employment hereunder by
written notice to the Executive. Upon any termination pursuant to this Section
5.4 that is not a termination under any of Sections 5.1, 5.2, 5.3 or 5.5, the
Company shall: (a) pay to the Executive any unpaid Base Salary through the
effective date of termination specified in such notice, (b) pay to the Executive
the accrued and declared but unpaid Incentive Compensation, if any, for any
Bonus Period ending on or before the date of the termination of the Executive's
employment with the
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Company, (c) continue to pay the Executive's Base Salary for a period of six (6)
months following the termination of the Executive's employment with the Company,
in the manner and at such time as the Base Salary otherwise would have been
payable to the Executive, and (d) continue to provide the Executive with the
benefits he was receiving under Sections 4.2 and 4.5 hereof, for the same salary
continuation period described above following the termination of the Executive's
employment with the Company, in the manner and at such times as the compensation
or benefits otherwise would have been payable or provided to the Executive. The
Company shall have no further liability hereunder other than for: (i)
reimbursement for reasonable business expenses incurred prior to the date of
termination, subject, however, to the provisions of Section 4.1, and (ii)
payment of compensation for unused vacation days that have accumulated during
the calendar year in which such termination occurs.
6. Restrictive Covenants.
6.1 Non-competition. At all times while the Executive is
employed by the Company and for a two years (2) year period after the
termination of the Executive's employment with the Company for any reason, the
Executive shall not, directly or indirectly, engage in or have any interest in
any sole proprietorship, partnership, corporation or business or any other
person or entity (whether as an employee, officer, director, partner, agent,
security holder, creditor, consultant or otherwise) that directly or indirectly
(or through any affiliated entity) engages in competition with the Company in
the United States, Canada or any foreign market where the Company markets and
sells software applications or its services (for this purpose, any business that
engages in the development and/or marketing of software applications in the
public sector marketplace shall be deemed to be in competition with the
Company); provided that such provision shall not apply to the Executive's
ownership of Common Stock of the Company or the acquisition by the Executive,
solely as an investment, of securities of any issuer that is registered under
Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, and
that are listed or admitted for trading on any United States national securities
exchange or that are quoted on the National Association of Securities Dealers
Automated Quotations System, or any similar system or automated dissemination of
quotations of securities prices in common use, so long as the Executive does not
control, acquire a controlling interest in or become a member of a group which
exercises direct or indirect control or, more than five percent (5%) of any
class of capital stock of such corporation.
6.2 Nondisclosure. The Executive shall not at any time
divulge, communicate, use to the detriment of the Company or for the benefit of
any other person or persons, or misuse in any way, any Confidential Information
(as hereinafter defined) pertaining to the business of the Company. Any
Confidential Information or data now or hereafter acquired by the Executive with
respect to the business of the Company (which shall include, but not be limited
to, information concerning the Company's financial condition, prospects,
technology, customers, suppliers, sources of leads and methods of doing
business) shall be deemed a valuable, special and unique asset of the Company
that is received by the Executive in confidence and as a fiduciary, and
Executive shall remain a fiduciary to the Company with respect to all of such
information. For purposes of this Agreement, "Confidential Information" means
information disclosed to the Executive or known by the Executive as a
consequence of or through his employment by the Company (including information
conceived, originated, discovered or developed by the Executive) prior to or
after the date hereof, and not generally known, about the Company or its
business. Notwithstanding the foregoing, nothing herein shall be deemed to
restrict the Executive from disclosing Confidential Information to the extent
required by law.
6.3 Nonsolicitation of Employees and Clients. At all
times while the Executive is employed by the Company and for a two (2) year
period after the termination of the Executive's employment with the Company for
any reason, the Executive shall not, directly or indirectly, for himself or for
any other
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person, firm, corporation, partnership, association or other entity: (a) employ
or attempt to employ or enter into any contractual arrangement with any employee
or former employee of the Company, unless such employee or former employee has
not been employed by the Company for a period in excess of six (6) months,
and/or (b) call on or solicit any of the actual or targeted prospective clients
of the Company on behalf of any person or entity in connection with any business
competitive with the business of the Company, nor shall the Executive make known
the names and addresses of such clients or any information relating in any
manner to the Company's trade or business relationships with such customers,
other than in connection with the performance of Executive's duties under this
Agreement.
6.4 Ownership of Developments. All copyrights, patents,
trade secrets, or other intellectual property rights associated with any ideas,
concepts, techniques, inventions, processes, or works of authorship developed or
created by Executive during the course of performing work for the Company or its
clients (collectively, the "Work Product") shall belong exclusively to the
Company and shall, to the extent possible, be considered a work made by the
Executive for hire for the Company within the meaning of Title 17 of the United
States Code. To the extent the Work Product may not be considered work made by
the Executive for hire for the Company, the Executive agrees to assign, and
automatically assign at the time of creation of the Work Product, without any
requirement of further consideration, any right, title, or interest the
Executive may have in such Work Product. Upon the request of the Company, the
Executive shall take such further actions, including execution and delivery of
instruments of conveyance, as may be appropriate to give full and proper effect
to such assignment.
6.5 Books and Records. All books, records, and accounts
relating in any manner to the customers or clients of the Company, whether
prepared by the Executive or otherwise coming into the Executive's possession,
shall be the exclusive property of the Company and shall be returned immediately
to the Company on termination of the Executive's employment hereunder or on the
Company's request at any time.
6.6 Definition of Company. Solely for purposes of this
Section 6, the term "Company" also shall include any existing or future
subsidiaries of the Company that are operating during the time periods described
herein and any other entities that directly or indirectly, through one or more
intermediaries, control, are controlled by or are under common control with the
Company during the periods described herein.
6.7 Acknowledgment by Executive. The Executive
acknowledges and confirms that the length of the term of the provisions of this
Section 6 and the geographical restrictions contained in Section 6.1 are fair
and reasonable and not the result of overreaching, duress or coercion of any
kind. The Executive further acknowledges and confirms that his full, uninhibited
and faithful observance of each of the covenants contained in this Section 6
will not cause him any undue hardship, financial or otherwise, and that
enforcement of each of the covenants contained herein will not impair his
ability to obtain employment commensurate with his abilities and on terms fully
acceptable to him or otherwise to obtain income required for the comfortable
support of him and his family and the satisfaction of the needs of his
creditors. The Executive acknowledges and confirms that his special knowledge of
the business of the Company is such as would cause the Company serious injury or
loss if he were to use such ability and knowledge to the benefit of a competitor
or were to compete with the Company in violation of the terms of this Section 6.
6.8 Reformation by Court. In the event that a court of
competent jurisdiction shall determine that any provision of this Section 6 is
invalid or more restrictive than permitted under the governing law of such
jurisdiction, then only as to enforcement of this Section 6 within the
jurisdiction of such court, such provision shall be interpreted and enforced as
if it provided for the maximum restriction permitted under such governing law.
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6.9 Extension of Time. If the Executive shall be in
violation of any provision of this Section 6, then each time limitation set
forth in this Section 6 shall be extended for a period of time equal to the
period of time during which such violation or violations occur. If the Company
seeks injunctive relief from such violation in any court, then the covenants set
forth in this Section 6 shall be extended for a period of time equal to the
pendency of such proceeding including all appeals by the Executive.
6.10 Survival. The provisions of this Section 6 shall
survive the termination of this Agreement, as applicable.
7. Injunction. It is recognized and hereby acknowledged by the
parties hereto that a breach by the Executive of any of the covenants contained
in Section 6 of this Agreement will cause irreparable harm and damage to the
Company, the monetary amount of which may be virtually impossible to ascertain.
As a result, the Executive recognizes and hereby acknowledges that the Company
shall be entitled to an injunction from any court of competent jurisdiction
enjoining and restraining any violation of any or all of the covenants contained
in Section 6 of this Agreement by the Executive or any of his affiliates,
associates, partners or agents, either directly or indirectly, and that such
right to injunction shall be cumulative and in addition to whatever other
remedies the Company may possess.
8. Assignment. Neither party shall have the right to assign or
delegate its rights or obligations hereunder, or any portion thereof, to any
other person.
9. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
10. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and, upon its effectiveness, shall supersede all prior agreements,
understandings and arrangements, both oral and written, between the Executive
and the Company (or any of its affiliates) with respect to such subject matter.
This Agreement may not be modified in any way unless by a written instrument
signed by both the Company and the Executive.
11. 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 (3) days after deposit in the U.S. Mail.
Notice shall be sent: (a) if to the Company, addressed to 0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxx Xxxx, Xxxxxxx, 00000, Attention: President, and (b) if to the
Executive, to his address as reflected on the payroll records of the Company, or
to such other address as either party hereto may from time to time give notice
of to the other.
12. 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.
13. 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
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Agreement or any part thereof, all of which are inserted conditionally on 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 length of
time or size of area, or both, the otherwise invalid provision will be
considered to be reduced to a period or area which would cure such invalidity.
14. Waivers. The waiver by either party hereto of a breach or
violation of any term or provision of this Agreement shall not operate nor be
construed as a waiver of any subsequent breach or violation.
15. Damages. Nothing contained herein shall be construed to
prevent the Company or the Executive from seeking and recovering from the other
damages sustained by either or both of them as a result of its or his breach of
any term or provision of this Agreement. In the event that either party hereto
brings suit for the collection of any damages resulting from, or the injunction
of any action constituting, a breach of any of the terms or provisions of this
Agreement, then the party found to be at fault shall pay all reasonable court
costs and attorneys' fees of the other.
16. Section Headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
17. No Third Party Beneficiary. Nothing expressed or implied in
this Agreement is intended, or shall be construed, to confer upon or give any
person other than the Company, the parties hereto and their respective heirs,
personal representatives, legal representatives, successors and assigns, any
rights or remedies under or by reason of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
COMPANY: EXECUTIVE:
H.T.E., INC.
By: /s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxx
--------------------------------- -------------------------------
Xxxxxx X. Xxxxxxx, III, President Xxxxxx X. Xxxxxxx
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