EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into as of
November 1, 2002 (the "Effective Date"), between SCB Computer Technology, Inc.,
a Tennessee corporation (the "Company"), and T. Xxxxx Xxxx (the "Executive").
Introduction. The Executive currently is an employee of the Company and
serves as the President and Chief Executive Officer of the Company. The Board of
Directors of the Company (the "Board") considers the establishment and
maintenance of a sound and vital management to be essential to protecting and
enhancing the best interests of the Company and its shareholders. The Board has
determined that securing the Executive's continued services for the benefit of
the Company will promote such interests. The Board has authorized the Company to
enter into this Agreement, which sets forth the terms and conditions of the
Executive's continued employment with the Company. Based on the foregoing, and
in consideration of the premises and the mutual covenants and agreements
contained herein, the Company and the Executive hereby agree as follows:
1. Employment. The Company hereby agrees to employ the Executive,
and the Executive hereby agrees to be employed by the Company, on the terms and
subject to the conditions set forth in this Agreement.
2. Employment Period. The Company agrees to continue the
Executive in its employ, and the Executive agrees to remain an employee of the
Company, for a period beginning on the Effective Date and ending on September
30, 2006, provided that unless either party gives written notice to the contrary
at least 30 days prior to the third anniversary of this Agreement (i.e., October
1, 2005) or any anniversary thereafter, the employment period shall be
automatically extended for an additional year so that the remaining term shall
always be, unless such written notice is given, two years from such anniversary
(the "Employment Period").
3. Positions and Duties.
(a) During the Employment Period, the Executive shall
continue to serve, in name and in fact, as the President and Chief Executive
Officer of the Company and shall have such authority, duties, and
responsibilities as are customarily associated with such positions. During the
Employment Period, it is contemplated that the Executive will be asked to assume
the additional position of Chairman of the Board of the Company. In addition,
the Executive shall serve, if elected or appointed, as a director or officer of
any of the Company's subsidiaries and affiliates. During the Employment Period,
the Executive shall be entitled, but not obligated, to relinquish one or more of
his positions with the Company as part of a management succession plan that is
approved by the Board and is acceptable to the Executive.
(b) During the Employment Period, excluding periods of
vacation and sick leave to which the Executive is entitled, the Executive shall
devote reasonable attention and time during normal business hours to the
Company's business and affairs and, to the extent necessary to discharge the
responsibilities assigned to the Executive under this Agreement, to use the
Executive's reasonable best efforts to perform faithfully and efficiently these
responsibilities. The Executive may (1) serve on corporate, civic, or charitable
boards or committees, (2) deliver
lectures, fulfill speaking engagements, or teach at educational institutions,
(3) manage personal investments, and (4) undertake any other non-employment
activities, so long as such activities do not significantly interfere with the
performance of the Executive's responsibilities. To the extent that any such
activities have been conducted by the Executive prior to the Effective Date, the
continued conduct of these activities (or the conduct of activities similar in
nature and scope) after the Effective Date shall not be deemed to interfere with
the performance of the Executive's responsibilities to the Company.
4. Compensation.
(a) Base Salary. The Executive shall receive from the
Company a base salary of $450,000 during the first year, $500,000 during the
second year, $550,000 during the third year, and $600,000 during the fourth year
of the Employment Period (the "Base Salary"). The Company shall pay the Base
Salary to the Executive in substantially equal periodic installments not less
frequently than monthly during the Employment Period. The Compensation Committee
of the Board (the "Committee") shall review the Base Salary at least annually
during the Employment Period and shall increase the Base Salary at any time and
from time to time as determined by the Committee. Any increase in the Base
Salary shall not serve to limit or reduce any other obligation to the Executive
under this Agreement. The Base Salary shall not be decreased at any time during
the Employment Period.
(b) Annual and Other Bonuses. During the Employment
Period, the Executive shall be entitled to receive from the Company an annual
bonus (prorated for any fiscal year of the Company during which the Executive is
employed for only a portion thereof) and any other bonus pursuant to any bonus,
profit sharing, or other incentive plan or program approved by the Board or the
Committee. The target annual bonus for the Executive shall be an amount that is
not less than 50% of the Base Salary during the fiscal year with respect to
which the bonus is payable. The Company shall pay to the Executive any annual
bonus awarded to the Executive within 60 days after the end of the fiscal year
with respect to which the bonus is payable; provided, however, that if the
Company's annual bonus plan or program consists of quarterly performance
benchmarks, and if all the performance benchmarks for the first, second, or
third quarter of the fiscal year are met (as determined by the Committee), the
Company shall pay to the Executive an amount equal to 25% of his target annual
bonus for the fiscal year within 60 days after the end of such quarter, subject
to the Company's receipt from the Executive of written assurance that he will
repay to the Company such portion of the bonus in the event that all the
performance benchmarks for the entire fiscal year are not met (as determined by
the Committee). The Company shall pay to the Executive any other bonus awarded
to the Executive within 10 days after such bonus is approved by the Board or the
Committee. The Executive's receipt of an annual bonus for any fiscal year shall
not preclude him from receiving any other bonus from the Company during or with
respect to the same fiscal year.
(c) Incentive, Savings, and Retirement Plans. During the
Employment Period, the Executive shall be entitled to participate in, and
receive all benefits in accordance with, any and all incentive, savings, and
retirement plans and programs (including, without limitation, all stock option,
stock appreciation right, restricted stock, other stock-based incentive,
deferred compensation, pension, profit sharing, employee stock ownership,
employee savings, and other similar plans and programs) maintained by the
Company for its key executives.
(d) Welfare Benefit Plans. During the Employment Period,
the Executive and his dependents shall be entitled to participate in, and shall
receive all benefits in accordance with, any and all welfare benefit plans,
programs, and policies (including, without limitation, all
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medical, prescription, dental, disability, salary continuation, life, accidental
death, travel accident, and other insurance plans and policies) maintained by
the Company for its key executives.
(e) Expenses. During the Employment Period, the Executive
shall be entitled to receive from the Company prompt reimbursement for all
reasonable business expenses incurred by the Executive in accordance with the
expense reimbursement policy maintained by the Company for its key executives.
(f) Fringe Benefits. During the Employment Period, the
Executive shall be entitled to receive all fringe benefits from the Company in
accordance with any and all fringe benefit plans, programs and policies
maintained by the Company for its key executives.
(g) Vacation and Sick Leave. During the Employment
Period, the Executive shall be entitled to paid vacation and sick leave in
accordance with any and all vacation and sick leave plans, programs, and
policies maintained by the Company for its key executives.
5. Termination. The Executive's employment with the Company may
be terminated during the Employment Period only in accordance with the
provisions of this Section 5.
(a) Death. The Executive's employment with the Company
shall terminate automatically in the event of his death.
(b) Disability. The Company may terminate the Executive's
employment by reason of, and after having established, his Disability as defined
in this Section 5(b). For the purposes of this Agreement, the term "Disability"
means a physical or mental disability which, after the expiration of more than
180 days after its commencement, is determined to be total and permanent by a
physician who is selected by the Company or its insurers and is acceptable to
the Executive or his legal representative.
(c) Cause. The Company may terminate the Executive's
employment for Cause as defined in this Section 5(c). For the purposes of this
Agreement, the term "Cause" means:
(1) any act or acts of dishonesty by the
Executive that are intended to result in substantial personal enrichment;
(2) repeated material violations by the
Executive of his obligations under Section 3 of this Agreement that (i) are
demonstrably willful and deliberate on the Executive's part, (ii) occur other
than as a result of incapacity due to the Executive's physical or mental
illness, (iii) result in demonstrably material economic injury to the Company,
and (iv) are not remedied by the Executive within a reasonable period after
receipt of written notice from the Company specifying such breach; or
(3) the conviction of the Executive of, or the
entry by the Executive of a plea of guilty or nolo contendere to a charge of,
any crime constituting a felony.
Notwithstanding the foregoing, "Cause" shall not be deemed to exist unless and
until the Company has delivered to the Executive a copy of a resolution duly
adopted by 75% of the members of the Board at a meeting of the Board duly called
and held for such purpose (after reasonable notice to the Executive and an
opportunity for the Executive, together with his counsel, to be heard before the
Board), finding that, in the good faith opinion of the Board, the
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Executive has engaged in the conduct set forth in this Section 5(c) and
specifying the particulars in detail.
(d) Executive. During the Employment Period, the
Executive may terminate his employment with the Company for any or no reason.
(e) Termination Notice. Any termination of the
Executive's employment during the Employment Period either by the Company by
reason of his Disability or for Cause or by the Executive shall be communicated
by a Termination Notice, as defined in this Section 5(e), given by the
terminating party to the other party in accordance with Section 11(b) hereof.
For the purposes of this Agreement, a "Termination Notice" means a written
notice that (1) indicates the specific termination provision of this Agreement
relied upon; (2) for a termination pursuant to Section 5(b) or 5(c) hereof, sets
forth in reasonable detail the facts and circumstances claimed to provide a
basis for the termination of the Executive's employment under the provision so
indicated; and (3) for a termination pursuant to Section 5(b), 5(c) or 5(d)
hereof, specifies the Termination Date as defined in Section 5(f) hereof.
(f) Termination Date. For the purposes of this Agreement,
the term "Termination Date" means the date on which the Executive's employment
with the Company terminates hereunder. The Termination Date, as applicable,
shall be (1) the date on which the Executive dies, (2) 180 days after the
Executive receives the Termination Notice if his employment is terminated by
reason of his Disability, (3) the date on which the Executive receives the
Termination Notice if his employment is terminated for Cause, or (4) 90 days
after the Company receives the Termination Notice if the Executive terminates
his employment.
(g) Consequences of Termination. If the Executive's
employment is terminated in accordance with the provisions of this Section 5,
the Company shall have no further obligation after the Termination Date to the
Executive or his estate or legal representative under this Agreement other than
the obligations accrued hereunder at the Termination Date.
6. Confidentiality.
(a) From and after the Effective Date, the Executive
shall hold in a fiduciary capacity for the benefit of the Company all
Confidential Information, as defined in Section 6(a) hereof, obtained by the
Executive during his employment with the Company. From and after the Effective
Date, except as specifically provided in Section 6(c) hereof, the Executive
shall not reveal, divulge, or otherwise disclose any Confidential Information to
any person or entity and shall not use or make use of any Confidential
Information in connection with any activity. The Executive's obligations under
this Section 6 shall survive and not be affected by the expiration of the
Employment Period or the termination of the Executive's employment.
(b) For the purposes of this Agreement, the term
"Confidential Information" means any non-public, proprietary information
relating to the Company or any of its subsidiaries or other affiliates and their
respective businesses that may provide the Company with a competitive advantage,
including, without limitation, any trade secrets, supplier lists, details of
supplier contracts, customer lists, details of customer contracts, current or
anticipated customer requirements, pricing policies, price lists, market
studies, business plans, operational methods, marketing plans or strategies,
product or service development techniques or plans, computer software programs
(including any object codes and source codes), data and documentation, database
technologies, systems, structures and architectures, inventions and ideas, past,
current and planned research and development, designs, formulas, flow charts,
compilations,
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devices, methods, techniques, processes, financial information, business
acquisition plans or strategies, employee compensation and benefits information,
and new personnel acquisition plans or strategies; provided, however, that
Confidential Information shall not include any information that is available to
the general public or is generally available within the relevant business or
industry other than as a result of the Executive's breach of this Section 6.
Confidential Information may exist in any form or medium, including, without
limitation, physical documents and records, computer files, drives or discs,
microfilm, microfiche, videotapes, oral communications, audiotapes, and digital
recordings.
(c) Notwithstanding the foregoing, (1) the Executive may
disclose and use Confidential Information if, but only to the extent that, it is
necessary to properly perform his duties and responsibilities on behalf of the
Company in the ordinary course of business; and (2) the Executive may disclose
Confidential Information if, but only to the extent that, it is required to
respond to an order or legal process issued by a court or other body having
jurisdiction, provided that the Executive shall give the Company prior written
notice of any such order or legal process to enable the Company to seek an
appropriate protective order before any such required disclosure is made.
7. Non-Competition.
(a) From the Effective Date to and including the date
that is one year after the earlier to occur of the expiration of the Employment
Period or the termination of the Executive's employment with the Company (the
"Non-Competition Period"), the Executive shall not, directly or indirectly, own,
manage, operate, control, join, be employed by, be retained as an advisor,
consultant, or contractor by, or participate in the ownership, management,
operation, or control of, or be connected in any manner (including, without
limitation, holding the position of shareholder, partner, member, investor,
director, officer, employee, advisor, consultant, or contractor) with any
Competitor as defined in Section 7(b) hereof; provided, however, that the
Executive may invest in the stock, bonds, or other securities of any corporation
or other entity (but without participating in the business thereof) which has a
class of equity securities registered under Section 12 of the Securities
Exchange Act of 1934, as amended, so long as the Executive's investment does not
exceed 5% of the outstanding shares of such stock or other securities or 5% of
the outstanding aggregate principal amount of such bonds. The Executive's
obligations under this Section 7 shall survive and not be affected by the
expiration of the Employment Period or the termination of the Executive's
employment.
(b) For the purposes of this Agreement, the term
"Competitor" means any corporation or other entity that engages, in whole or in
part, in any business in which the Company or any of its affiliates is engaged
at any time during the Non-Competition Period in any geographic area in which
the Company or any of its affiliates conducts such business.
8. Return of Materials. Promptly after the earlier to occur of
the expiration of the Employment Period or the termination of the Executive's
employment, the Executive shall return to the Company (a) any and all books,
records, manuals, notebooks, reports, files, lists, letters, memoranda, notes,
statements and other materials, whether prepared by the Executive or others, and
regardless of the medium in which they are presented or stored, relating or
referring in any way to the Company or its business or affairs, except that the
Executive may retain his calendars, diaries, and rolodexes (whether in
electronic form or otherwise), and (b) any and all other property owned or
provided by the Company in connection with the Executive's service as an
employee and officer of the Company or otherwise. The Executive's obligations
under this
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Section 8 shall survive and not be affected by the expiration of the Employment
Period or the termination of the Executive's employment.
9. Indemnification. If the Executive is made a party to any
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative, and whether formal or informal, by reason of the fact that he is
or was a director or officer of the Company or is or was serving at the
Company's request as a director, officer, partner, trustee, employee, or agent
of another corporation or a partnership, joint venture, trust, employee benefit
plan, or other enterprise (including service on a committee for any lawful
purpose), the Company shall, to the fullest extent legally permitted or
authorized by the most favorable to the Executive of the Company's charter, the
Company's bylaws, the laws of the State of Tennessee, or any indemnification
agreement between the Company and the Executive, in each case as in effect on
the Effective Date and as may be amended hereafter, (a) indemnify the Executive
and his legal representatives, executors, administrators, distributees,
legatees, and heirs against any and all judgments, settlements, penalties,
fines, excise taxes assessed with respect to employee benefit plans, reasonable
expenses (including legal fees and expenses), and other liabilities incurred in
such action, suit, or proceeding, and (b) pay for all reasonable expenses
(including legal fees and expenses) incurred by the Executive and his legal
representatives, executors, administrators, distributees, legatees, and heirs in
advance of the final disposition of such action, suit, or proceeding. The
Company's obligations under this Section 9 shall survive and not be affected by
the expiration of the Employment Period or the termination of the Executive's
employment.
10. Insurance. The Company shall purchase and maintain, at its
sole expense, insurance covering the Executive against liabilities asserted
against or incurred by the Executive in his capacity as a director or officer of
the Company or, if requested to serve in such capacity by the Company, as a
director, officer, partner, trustee, employee, or agent of another corporation
or a partnership, joint venture, trust, employee benefit plan, or other
enterprise (including service on a committee for any lawful purpose), to the
same extent that the Company provides such insurance coverage for its other
executive officers. The Company's obligations under this Section 10 shall
survive and not be affected by the expiration of the Employment Period or the
termination of the Executive's employment.
11. Miscellaneous Provisions.
(a) Entire Agreement. This Agreement constitutes the
entire understanding between the Company and the Executive and is a complete and
exclusive statement of the terms and conditions of their agreement relating to
the subject matter hereof and supersedes any and all prior negotiations,
understandings, agreements, and arrangements, whether written or oral, and
whether express or implied, between the Company and the Executive with respect
to the subject matter hereof, all of which prior negotiations, understandings,
agreements, and arrangements are hereby rendered null, void and of no further
force or effect.
(b) Notices and Other Communications. All notices and
other communications provided for in this Agreement shall be made in writing,
shall be addressed to the receiving party as set forth below, and shall be
delivered either in person, by FedEx Express, UPS, or any other nationally
recognized express delivery service, or by the United States mail, return
receipt requested. For the purposes hereof, the addresses of the parties are as
follows:
Company: SCB Computer Technology, Inc.
0000 Xxxxxx Xxxx-Xxxxx Xxxx, Xxxxx 000
0
Xxxxxxx, XX 00000
Attention: Board of Directors
Executive: T. Xxxxx Xxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Any party may change its address for the purposes hereof by notifying the other
party of such change in the manner provided for herein. All notices and other
communications shall be effective upon their actual receipt.
(c) Amendment. This Agreement may be altered, amended,
modified, or changed (other than any waiver which shall be effective only if
made in accordance with Section 11(d) hereof) only by a written agreement
executed by the Company and the Executive.
(d) Waiver. No provision of this Agreement may be waived
by any party hereto unless such waiver is set forth in a written agreement
executed by the waiving party. The waiver of any breach of any provision of this
Agreement shall not be deemed to constitute a waiver of any other breach of the
same or any other provision of this Agreement.
(e) Modification and Severability. If a court of
competent jurisdiction declares that any provision of this Agreement is illegal,
invalid, or unenforceable, such provision shall be modified automatically to the
extent necessary to make such provision fully legal, valid, or enforceable. If
the court does not modify any such provision as contemplated herein, but instead
declares it to be wholly illegal, invalid, or unenforceable, such provision
shall be severed from this Agreement, this Agreement and the rights and
obligations of the parties hereto shall be construed as if this Agreement did
not contain such severed provision, and this Agreement otherwise shall remain in
full force and effect.
(f) Assignment; Enforceability.
(1) This Agreement shall inure to the benefit
of, and shall be enforceable by and against, the Company and its successors and
assigns. This Agreement shall not be terminated by any merger or consolidation
of the Company whereby the Company is not the surviving or resulting corporation
or other entity or as a result of any transfer of all or substantially all the
assets of the Company. In the event of any such merger, consolidation, or asset
transfer, the provisions of this Agreement shall be binding upon the corporation
or other entity surviving or resulting from such merger or consolidation or the
person or entity to which such assets are transferred. Concurrently with any
such merger, consolidation, or asset transfer, the Company shall cause the
successor or transferee and the ultimate parent company (if any) of such
successor or transferee to absolutely and unconditionally assume and agree to
perform all the obligations of the Company under this Agreement by a written
instrument that is satisfactory in form and substance to the Executive.
(2) This Agreement is personal to the Executive
and, without the prior written consent of the Company, shall not be assignable
by the Executive otherwise than by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of, and shall be enforceable by and
against, the Executive and his legal representatives, executors, administrators,
distributees, legatees, heirs and permitted assigns. If the Executive dies while
any amount would be payable or any benefit would be distributable to the
Executive hereunder had the Executive continued to live, all such amounts and
benefits, unless otherwise provided
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herein, shall be paid and provided in accordance with the provisions of this
Agreement to such person or persons appointed in writing by the Executive to
receive such amounts or, if no person is so appointed, to the Executive's
estate.
(g) Rights and Remedies.
(1) If the Executive breaches or threatens to
breach any covenant in Section 6, 7 or 8 of this Agreement, or if the Company
breaches or threatens to breach any covenant in Section 9 or 10 of this
Agreement, the non-breaching party shall have the right and remedy to enjoin,
preliminarily and permanently, the breaching party from breaching or threatening
to breach such covenant and to have such covenant specifically enforced by any
court of competent jurisdiction, it being understood and agreed by the parties
that any such breach or threatened breach would cause irreparable injury to the
non-breaching party and that monetary damages would not provide an adequate
remedy to the non-breaching party.
(2) The rights and remedies of the parties under
this Agreement shall be independent of each other, shall be severally
enforceable, and shall be in addition to (and not in lieu of) any and all other
rights and remedies available to the parties at law or in equity.
(h) Governing Law. This Agreement shall be governed by,
construed under, and enforced in accordance with the laws of the State of
Tennessee without regard to the conflicts-of-laws provisions thereof.
(i) Multiple Counterparts. This Agreement may be executed
by the parties hereto in multiple counterparts, each of which shall constitute
an original, and all of which together shall constitute one and the same
Agreement.
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IN WITNESS WHEREOF, this Agreement is executed and delivered on behalf
of the Company and by the Executive as of the Effective Date.
SCB COMPUTER TECHNOLOGY, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------------
Xxxx X. Xxxxx
Chairman of the Board
/s/ T. Xxxxx Xxxx
-----------------------------------
T. Xxxxx Xxxx
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