NATIONAL INFORMATION CONSORTIUM, INC.
KEY EMPLOYEE AGREEMENT
For
XXXX BUR
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of the 1st
day of April, 2001, by and between Xxxx Bur ("Executive") and NATIONAL
INFORMATION CONSORTIUM, INC., a Colorado corporation (the "Company"). This
Agreement amends and restates all prior agreements between Executive and the
Company with respect to the subject matter hereof.
WHEREAS, the Company desires to employ Executive to provide personal
services to the Company and to the Company's subsidiaries, and wishes to provide
Executive with certain compensation and benefits in return for Executive's
services; and
WHEREAS, Executive wishes to be employed by the Company and provide
personal services to the Company and to the Company's subsidiaries in return for
certain compensation and benefits;
NOW, THEREFORE, the parties hereto agree as follows:
1. EMPLOYMENT BY THE COMPANY.
1.1 Acceptance. Subject to terms set forth herein, the Company or
a subsidiary of the Company, agrees to employ Executive in the position of NIC
Chief Financial Officer and Executive hereby accepts such employment effective
as of the date first written above. During the term of employment with the
Company, Executive will devote his best efforts and substantially all of his
business time and attention (except for vacation periods and reasonable periods
of illness or other incapacity's permitted by the Company's general employment
policies) to the business of the Company.
1.2 Duties. Executive will serve in an executive capacity and
shall perform such duties as are customarily associated with his then current
title, consistent with the Bylaws of the Company and as required by the
Company's Board of Directors (the Board).
1.3 Employment Policies. The employment relationship between the
parties shall also be governed by the general employment policies and practices
of the Company, including those relating to protection of confidential
information and assignment of inventions, except that when the terms of this
Agreement differ from or are in conflict with the Company's general employment
policies or practices, this Agreement shall control.
2. COMPENSATION.
2.1 Salary. Executive shall receive for services to be rendered
hereunder an annualized base salary of $ 160,000, payable in equal installments
(prorated for portions of a pay period) on the Company's regular pay days and
the Company will withhold from such compensation all applicable federal and
state income, social security and disability and other taxes as required by
applicable laws.
2.2 Standard Company Benefits. Executive shall be entitled to all
rights and benefits for which they are eligible under the terms and conditions
of the standard Company benefits and compensation practices which may be in
effect from time to time and provided by the Company to its employees generally.
3. PROPRIETARY INFORMATION OBLIGATIONS.
3.1 Agreement. Executive agrees to execute and abide by the
Proprietary Information and Inventions Agreement attached hereto as Exhibit A.
4. TERMINATION OF EMPLOYMENT.
4.1 Termination Without Cause.
(a) The Company shall have the right to terminate Executive's
employment with the Company at any time without cause.
(b) In the event Executive's employment is terminated without
cause before April 1, 2004, the Company shall pay Executive 12 months'
base compensation in a single lump sum distribution on the first
regular Company pay period after said termination.
(c) In the event Executive's employment is terminated without
cause on or after April 1, 2004, Executive will not be entitled to
severance pay, pay in lieu of notice or any other such compensation,
except as provided in the Company's Severance Benefit Plan, if any, in
effect on the termination date.
4.2 Termination for Cause.
(a) The Company shall have the right to terminate Executive's
employment with the Company at any time for cause. Written notification
of termination and specific cause of termination shall be provided to
the Executive at the time of termination.
(b) "Cause" for termination shall mean an employee's
conviction of a felony or the willful and deliberate failure of an
employee to perform his customary duties, in a manner consistent with
the manner reasonably prescribed by the Board of Directors or President
of Company (other than any failure resulting from his incapacity due to
physical
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or mental illness, disability or death) after not less than thirty (30)
days prior written notice from Company.
(c) In the event the Executive is notified in writing his
employment is to be terminated for cause and the cause is curable, the
Executive shall be given thirty days from date of notification to cure
the specific cause(s) set forth in the notification.
(d) In the event Executive's employment is terminated at any
time for cause, the executive shall not be entitled to severance pay,
pay in lieu of notice or any other such compensation; provided,
however, Executive shall be entitled and shall receive all compensation
earned prior to and including the date of termination.
4.3 Voluntary or Mutual Termination.
(a) Executive may voluntarily terminate his employment in
writing with the Company at any time, after which no further
compensation will be paid to Executive.
(b) In the event Executive voluntarily terminates his
employment, Executive shall not be entitled to severance pay, pay in
lieu of notice or any other such compensation; provided, however,
Executive shall be entitled and shall receive all compensation earned
prior to and including the date of termination.
4.4 Termination In Connection With a Change of Control
(a) In the event of a "Change in Control" of the Company (as
defined herein), and in the event that either in contemplation of such
Change of Control or after such Change of Control, Executive's
employment is terminated without cause, in addition to any payments to
which Executive may be entitled pursuant to Section 4.1, subject to the
provisions of paragraph (c) below, Executive shall be entitled to a
severance payment equal to the product of the number of full years of
employment of Executive with the Company times the sum of (i) one
month's salary, and (ii) one/twelfth the annual bonus earned by
Executive for the last complete calendar year or year of employment,
whichever is greater. In the event Executive voluntarily terminates his
employment with the Company within six months of a Change of Control,
subject to the provisions of paragraph (c) below, Executive shall be
entitled to a severance payment equal to the product of the number of
full years of employment of Executive with the Company times the sum of
(i) one month's salary, and (ii) one/twelfth times the annual bonus
earned by Executive for the last complete calendar year or year of
employment, whichever is greater. In addition, in either case,
notwithstanding the provisions of any stock option agreement, all stock
options held by the Executive shall vest upon such Change of Control.
(b) For purposes of this Section 4.4, a "Change in Control" of
the Company shall be deemed to have occurred if (i) any "person" (as
such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended), other than a trustee
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or other fiduciary holding securities under an employee benefit plan of
the Company, who is not a "beneficial owner" (as defined in Rule 13d-3
under said Act), of 5% or more of the Company's common stock as of the
date of this agreement becomes the beneficial owner, directly or
indirectly, of capital stock of the Company representing 40 percent or
more of the total voting power represented by the Company's then
outstanding capital stock, or (ii) the shareholders of the Company
approve (x) a merger or consolidation of the Company with any other
company, other than a merger or consolidation in which the shareholders
of the Company would own 50% or more of the voting stock of the
surviving corporation, (y) the sale of all of substantially all of the
assets of the Company, or (z) the liquidation or dissolution of the
Company.
(c) Anything in this Agreement to the contrary
notwithstanding, prior to the payment of any compensation or benefits
payable under paragraph (a) of this Section 4.4 hereof, the certified
public accountants of the Company immediately prior to a Change of
Control (the "Certified Public Accountants") shall determine as
promptly as practical and in any event with 20 business days following
the sale of the Company whether any payment or distribution by the
Company to or for the benefit of Executive (whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement,
any other agreements or otherwise) (a "Payment") would more likely than
not be nondeductible by the Company for Federal income tax purposes
because of section 280G of the Internal Revenue Code of 1986, as
amended (the "Code") and if it is, then the aggregate present value of
amounts payable or distributable to or for the benefit of the Company
pursuant to this Agreement (such payments or distributions pursuant to
this Agreement are thereinafter referred to as "Contract Payments")
shall be reduced (but not below zero) to the Reduced Amount. For
purposes of this Section, the "Reduced Amount" shall be an amount
expressed in present value which maximizes the aggregate present value
of Contract Payments without causing any payment to be nondeductible by
the Company because of said Section 280G of the Code.
If under the Section the certified Public Accountants
determine that any payment would more likely than not be nondeductible
by the Company because of Section 280G of the Code, the Company shall
promptly give Executive notice to that effect and a copy of the
detailed calculation thereof and of the Reduced Amount, and the
Executive may then elect, in his sole discretion, which and how much of
the Contract Payments or any other payments shall be eliminated or
reduced (as long as after such election the aggregate present value of
the Agreement Payments or any other payments equals the Reduced
Amount), and shall advise the Company in writing of his election within
20 business days of his receipt of notice. If no such election is made
by Executive within such 20-day period, the Company may elect which and
how much of the Contract Payments or any other payments shall be
eliminated or reduced (as long as after such election the Aggregate
present value of the Contract Payments equals the Reduced Amount) and
shall notify Executive promptly of such election. For purposes of this
Section, present value shall be determined in accordance with Section
280G(d)(4) of the Code. All determinations made by the Certified Public
Accountants shall be binding upon the Company and Executive and the
payment to Executive shall be made within 20 days of
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sale of the Company. The Company may suspend for a period of up to 30
days after the sale of the Company the Payment and any other payments
or benefits due to Executive until the Certified Public Accountants
finish the determination and Executive (or the Company, as the case may
be) elects how to reduce the Contract Payments or any other payments,
if necessary. As promptly as practicable following such determination
and the elections hereunder, the Company shall pay to our distribute to
or for the benefit of Executive such amounts as are then due to
Executive under this Agreement.
5. NON-INTERFERENCE; NON-COMPETITION.
5.1 Agreement. Executive agrees to execute and abide by the
Noncompetition Agreement attached hereto as Exhibit B.
6. GENERAL PROVISION.
6.1 Notices. Any notices provided hereunder must be in writing and
shall be deemed effective upon the earlier of personal delivery (including
personal delivery by facsimile) or the third day after mailing by first class
mail, to the Company at its primary office location and to Executive at the
address listed on the Company payroll.
6.2 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions had never been contained herein.
6.3 Waiver. If either party should waive any breach of any
provisions of this Agreement, they or it shall not thereby be deemed to have
waived any preceding or succeeding breach of the same or any other provision of
this Agreement.
6.4 Complete Agreement. This Agreement and its Exhibits,
constitute the entire agreement between Executive and the Company and it is the
complete, final, and exclusive embodiment of his agreement with regard to the
material terms of executive employment, compensation, and duration. It is
entered into without reliance on any promise or representation other than those
expressly contained herein, and it cannot be modified or amended except in a
writing signed by Executive and an officer of the Company.
6.5 Counterparts. This Agreement may be executed in separate
counterparts, any one of which need not contain signatures of more than one
party, but all of which taken together will constitute one and the same
Agreement.
6.6 Headings. The headings of the sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
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6.7 Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive and the Company, and his
respective successors, assigns, heirs, executors and administrators, except that
Executive may not assign any of his duties hereunder and they may not assign any
of his rights hereunder without the written consent of the Company, which shall
not be withheld unreasonably.
6.8 Attorneys' Fees. If either party hereto brings any action to
enforce his or its rights hereunder, the prevailing party in any such action
shall be entitled to recover his or its reasonable attorneys' fees and costs
incurred in connection with such action.
6.9 Choice of Law. All questions concerning the construction,
validity and interpretation of this Agreement will be governed by the law of the
State of Kansas.
IN WITNESS WHEREOF, the parties have executed this Key Employee
Agreement on the day and year first above written.
NATIONAL INFORMATION CONSORTIUM, INC.:
By:
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Name: XXX XXXXXXXXXXX
Title: EXECUTIVE VICE PRESIDENT
EXECUTIVE:
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Name: XXXX BUR
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EXHIBIT "A"
EMPLOYEE PROPRIETARY INFORMATION
AND INVENTIONS AGREEMENT
In consideration of my employment or continued employment by NATIONAL
INFORMATION CONSORTIUM, INC., a Colorado corporation, or any controlled
subsidiary of the Company (collectively, the "Company"), and in consideration of
the compensation now and hereafter paid to me, I, the undersigned, hereby agree
as follows:
1. NONDISCLOSURE.
1.1 Recognition of Company's Rights; Nondisclosure. At all times
during my employment and thereafter, I will hold in strictest confidence and
will not disclose, use, lecture upon or publish any of the Company's Proprietary
Information (defined below), except as such disclosure, use or publication may
be required in connection with my work for the Company, or unless an officer of
the Company expressly authorizes such in writing. I will obtain Company's
written approval before publishing or submitting for publication any material
(written, verbal, or otherwise) that relates to my work at Company and/or
incorporates any Proprietary Information. I hereby assign to the Company any
rights I may have or acquire in such Proprietary Information and recognize that
all Proprietary Information shall be the sole property of the Company and its
assigns.
1.2 Proprietary Information. The term "Proprietary Information"
shall mean any and all confidential and/or proprietary knowledge, data or
information of the Company. By way of illustration but not limitation,
"Proprietary Information" includes (a) trade secrets, inventions, ideas,
processes, formulas, source and object codes, data, programs, other works of
authorship, know-how, improvements, discoveries, developments, designs and
techniques (hereinafter collectively referred to as "Inventions"); and (b)
information regarding plans for research, development, new products, marketing
and selling, business plans, budgets and unpublished financial statements,
licenses, prices and costs, suppliers and customers; and (c) information
regarding the skills and compensation of other employees of the Company.
Notwithstanding the foregoing, it is understood that, at all such times, I am
free to use information which is generally known in the trade or industry, which
is not gained as result of a breach of this Agreement, and my own, skill,
knowledge, know-how and experience to whatever extent and in whichever way I
wish.
1.3 Third Party Information. I understand, in addition, that the
Company has received and in the future will receive from third parties
confidential or proprietary information ("Third Party Information") subject to a
duty on the Company's part to maintain the confidentiality of such information
and to use it only for certain limited purposes. During the term of my
employment and thereafter, I will hold Third Party Information in the strictest
confidence and will not disclose to anyone (other than Company personnel who
need to know such information in connection with his work for the Company) or
use, except in connection with my work for the Company, Third Party Information
unless expressly authorized by an officer of the Company in writing.
1.4 No Improper Use of Information of Prior Employers and Others.
During my employment by the Company I will not improperly use or disclose any
confidential information or trade secrets, if any, of any former employer or any
other person to whom I have an obligation of confidentiality, and I will not
bring onto the premises of the Company any unpublished documents or any property
belonging to any former employer or any other person to whom I have an
obligation of confidentiality unless consented to in writing by that former
employer or person. I will use in the performance of my duties only information
which is generally known and used by persons with training and experience
comparable to my own, which is common knowledge in the industry or otherwise
legally in the public domain, or which is otherwise provided or developed by the
Company.
2. ASSIGNMENT OF INVENTIONS.
2.1 Proprietary Rights. The term "Proprietary Rights" shall mean
all trade secret, patent, copyright, and other intellectual property rights
throughout the world.
2.2 Prior Inventions. Inventions, if any, patented or unpatented,
which I made prior to the commencement of my employment with the Company are
excluded from the scope of this Agreement. To preclude any possible uncertainty,
I have set forth on Exhibit A (Previous Inventions) attached hereto a complete
list of all Inventions that I have, alone or jointly with others, conceived,
developed or reduced to practice or caused to be conceived, developed or reduced
to practice prior to the commencement of my employment with the Company, that I
consider to be my property or the property of third parties and that I wish to
have excluded from the scope of this Agreement (collectively referred to as
"Prior Inventions"). If disclosure of any such Prior Invention would cause me to
violate any prior confidentiality agreement, I understand that I am not to list
such Prior Inventions in Exhibit A but am only to disclose a cursory name for
each such invention, a listing of the party(ies) to whom it belongs and the fact
that full disclosure as to such inventions has not been made for that reason. A
space is provided on Exhibit A for such purpose. If no such disclosure is
attached, I represent that there are no Prior Inventions. If, in the course of
my employment with the Company, I incorporate a Prior Invention into a Company
product, process or machine, the Company is hereby granted and shall have a
nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with
rights to sublicense through multiple tiers of sublicensees) to make, have made,
modify, use and sell such Prior Invention. Notwithstanding the foregoing, I
agree that I will not incorporate, or permit to be incorporated, Prior
Inventions in any Company Inventions without the Company's prior written
consent.
2.3 Assignment of Inventions. Subject to Sections 2.4, and 2.6, I
hereby assign and agree to assign in the future (when any such Inventions or
Proprietary Rights are first reduced to practice or first fixed in a tangible
medium, as applicable) to the Company all my right, title and interest in and to
any and all Inventions (and all Proprietary Rights with respect thereto) whether
or not patentable or registrable under copyright or similar statutes, made or
conceived or reduced to practice or learned by me, either alone or jointly with
others, during the period of my
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employment with the Company. Inventions assigned to the Company, or to a third
party as directed by the Company pursuant to this Section 2, are hereinafter
referred to as "Company Inventions."
2.4 Nonassignable Inventions. This Agreement will not be deemed to
require assignment of and "Company Inventions" shall not be decerned to include
any invention which was developed entirely on my own time without using the
Company's equipment, supplies, facilities, or trade secrets and neither related
to the Company's actual or anticipated business, research or development, nor
resulted from work performed by me for the Company.
2.5 Obligation to Keep Company Informed. During the period of my
employment and for six (6) months after termination of my employment with the
Company, I will promptly disclose to the Company fully and in writing all
Inventions authored, conceived or reduced to practice by me, either alone or
jointly with others. In addition, I will promptly disclose to the Company all
patent applications filed by me or on my behalf within a year after termination
of employment. At the time of each such disclosure, I will advise the Company in
writing of any Inventions that I believe fully qualify for protection "as
non-Company Inventions" and I will at that time provide to the Company in
writing all evidence necessary to substantiate that belief. The Company will
keep in confidence and will not use for any purpose or disclose to third parties
without my consent any confidential information disclosed in writing to the
Company pursuant to this Agreement relating to Inventions that "are not Company
Inventions." I will preserve the confidentiality of any Invention which "is a
Company Invention."
2.6 Government or Third Party. I also agree to assign all my
right, title and interest in and to any particular Company Invention to a third
party, including without limitation the United States, as directed by the
Company.
2.7 Works for Hire. I acknowledge that all original works of
authorship which are made by me (solely or jointly with others) within the scope
of my employment and which are protectable by copyright are "works made for
hire," pursuant to United States Copyright Act (17 U.S.C., Section 101).
2.8 Enforcement of Proprietary Rights. I will assist the Company
in every proper way to obtain, and from time to time enforce, United States and
foreign Proprietary Rights relating to Company Inventions in any and all
countries. To that end I will execute, verify and deliver such documents and
perform such other acts (including appearances as a witness) as the Company may
reasonably request for use in applying for, obtaining, perfecting, evidencing,
sustaining and enforcing such Proprietary Rights and the assignment thereof. In
addition, I will execute, verify and deliver assignments of such "Company
Inventions" to the Company or its designee. My obligation to assist the Company
with respect to Proprietary Rights relating to such Company Inventions in any
and all countries shall continue beyond the termination of my employment, but
the Company shall compensate me at a reasonable rate after my termination for
the time actually spent by me at the Company's request on such assistance.
In the event the Company is unable for any reason, after reasonable
effort, to secure my
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signature on any document needed in connection with the actions specified in the
preceding paragraph, I hereby irrevocably designate and appoint the Company and
its duly authorized officers and agents as my agent and attorney in fact, which
appointment is coupled with an interest, to act for and in my behalf to execute,
verify and file any such documents and to do all other lawfully permitted acts
to further the purposes of the preceding paragraph with the same legal force and
effect as if executed by me. I hereby waive and quitclaim to the Company any and
all claims, of any nature whatsoever, which I now or may hereafter have for
infringement of any Proprietary Rights or Company Inventions assigned hereunder
to the Company.
3. RECORDS.
I agree to keep and maintain adequate and current records (in the form
of notes, sketches, drawings and in any other form that may be required by the
Company) of all Proprietary Information developed by me and all Inventions made
by me during the period of my employment at the Company, which records shall be
available to and remain the sole property of the Company at all times.
4. NO CONFLICTING OBLIGATION.
I represent that my performance of all the terms of this Agreement and
as an employee of the Company does not and will not breach any agreement to keep
in confidence information acquired by me in confidence or in trust prior to my
employment by the Company. I have not entered into, and I agree I will not enter
into, any agreement either written or oral in conflict herewith.
5. RETURN OF COMPANY DOCUMENTS.
When I leave the employ of the Company, I will deliver to the Company
any and all original drawings, notes, memoranda, specifications, devices,
formulas, and documents, and any other material containing or disclosing any
Company Inventions, Third Party Information or Proprietary Information of the
Company. I further agree that any property situated on the Company's premises
and owned by the Company, including disks and other storage media, filing
cabinets or other work areas, is subject to inspection by Company personnel at
any time with or without notice. Prior to leaving, I will cooperate with the
Company in completing and signing the Company's termination statement.
6. LEGAL AND EQUITABLE REMEDIES.
Because my services are personal and unique and because I may have
access to and become acquainted with the Proprietary Information of the Company,
the Company shall have the right to enforce this Agreement and any of its
provisions by injunction, specific performance or other equitable relief,
without bond and without prejudice to any other rights and remedies that the
Company may have for a breach of this Agreement.
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7. NOTICES.
Any notices required or permitted hereunder shall be given to the
appropriate party at the address specified below or at such other address as the
party shall specify in writing. Such notice shall be deemed given upon personal
delivery to the appropriate address or if sent by certified or registered mail,
three (3) days after the date of mailing.
8. NOTIFICATION OF NEW EMPLOYER.
In the event that I leave the employ of the Company, I hereby consent
to the notification of my new employer of my rights and obligations under this
Agreement.
9. GENERAL PROVISIONS.
9.1 Governing Law; Consent to Personal Jurisdiction. This
Agreement will be governed by and construed according to the laws of the State
of Kansas, as such laws are applied to agreements entered into and to be
performed principally within Kansas. I hereby expressly consent to the personal
jurisdiction of the state and federal courts located in Xxxxxxx County, Kansas,
for any lawsuit filed there against me by Company arising from or related to
this Agreement.
9.2 Severability. In case any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect the other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein so long as the central purpose and
intent of the Agreement can still be achieved. If moreover, any one or more of
the provisions contained in this Agreement shall for any reason be held to be
excessively broad as to duration, geographical scope, activity or subject, it
shall be construed by limiting and reducing it, so as to be enforceable to the
extent compatible with the applicable law as it shall then appear.
9.3 Successors and Assigns. This Agreement will be binding upon my
heirs, executors, administrators and other legal representatives and will be for
the benefit of the Company, its successors, and its assigns.
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9.4 Survival. The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by the Company
to any successor in interest or other assignee.
9.5 Employment. I agree and understand that nothing in this
Agreement shall confer any right with respect to continuation of employment by
the Company, nor shall it interfere in any way with my right or the Company's
right to terminate my employment at any time, with or without cause.
9.6 Waiver. No waiver by the Company of any breach of this
Agreement shall be a waiver of any preceding or succeeding breach. No waiver by
the Company of any right under this Agreement shall be construed as a waiver of
any other right. The Company shall not be required to give notice to enforce
strict adherence to all terms of this Agreement.
9.7 Entire Agreement. The obligations pursuant to Sections 1 and 2
of this Agreement shall apply to any time during which I was previously
employed, or am in the future employed, by the Company as a consultant if no
other agreement governs nondisclosure and assignment of inventions during such
period. This Agreement is the final, complete and exclusive agreement of the
parties with respect to the subject matter hereof and supersedes and merges all
prior discussions between us. No modification of or amendment to this Agreement,
nor any waiver of any rights under this Agreement, will be effective unless in
writing and signed by the party to be charged. Any subsequent change or changes
in my duties, salary or compensation will not affect the validity or scope of
this Agreement.
This Agreement shall be effective as of the first day of my employment
with the Company, namely: April 1, 2001.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE
COMPLETELY FILLED OUT EXHIBIT A TO THIS AGREEMENT.
Dated:
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(Signature)
XXXX BUR
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(Printed Name)
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ACCEPTED AND AGREED TO:
NATIONAL INFORMATION CONSORTIUM, INC.
By:
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Title: EXECUTIVE VICE PRESIDENT
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(Address)
Dated:
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EXHIBIT A
PREVIOUS INVENTIONS
TO: National Information Consortium, Inc.
FROM: XXXX BUR
DATE: April 1, 2001
SUBJECT: Previous Inventions
1. Except as listed in Section 2 below, the following is a complete list
of all inventions or improvements relevant to the subject matter of my
employment by National Information Consortium, Inc. or any of its controlled
subsidiaries (collectively, the "Company"), that have been made or conceived or
first reduced to practice by one alone or jointly with others prior to my
engagement by the Company:
- No inventions or improvements.
- See below:
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- Additional sheets attached.
1. Due to a prior confidentiality agreement, I cannot complete the
disclosure under Section 1 above with respect to inventions or improvements
generally listed below, the proprietary rights and duty of confidentiality with
respect to which I owe to the following party(ies):
Invention or Improvement Party(ies) Relationship
1.
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2.
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3.
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- Additional sheets attached.
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EXHIBIT "B"
NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT (the "Agreement") is being executed and
delivered as of April 1, 2001 by Xxxx Bur (the "Executive") in favor of, and for
the benefit of: NATIONAL INFORMATION CONSORTIUM, INC., a Colorado corporation
("NIC," and together with NIC's subsidiaries, (the "Company"). Certain
capitalized terms used in this Agreement are defined in Section 11.
RECITALS
A. As an employee of the Company, the Executive has obtained
extensive and valuable knowledge and confidential information concerning the
business of the Company.
B. The Company and the Executive are executing a Key Employee
Agreement (the "Employment Agreement") contemporaneously with the execution and
delivery of this Agreement. Pursuant to the Employment Agreement, the Executive
is becoming a key employee of the Company and will accordingly obtain extensive
and valuable knowledge and confidential information concerning the business of
the Company.
C. The Company and the Executive acknowledge that this Agreement
is intended to protect the legitimate business interests of the Company and of
the Executive.
D. The Company has conducted and is conducting its business on a
national basis.
AGREEMENT
For good and valuable consideration, the receipt of which is hereby
acknowledged, the Company and the Executive agree as follows:
1. Restriction On Competition. The Executive agrees that, during the
Noncompetition Period, the Executive shall not, and shall not permit any of his
Affiliates to:
(a) engage directly in Competition in any Restricted Territory; or
(b) directly be or become an officer, director, stockholder,
owner, co-owner, Affiliate, partner, promoter, employee,
agent, representative, designer, consultant, advisor, manager,
licensor, sublicensor, licensee or sublicensee of, for or to,
or otherwise be or become associated with or acquire or hold
(of record, beneficially or otherwise) any direct or indirect
interest in, any Person that engages directly or indirectly in
Competition in any Restricted Territory:
Provided, however, that the Executive may, without violating
this Section 1, own, as a passive investment, shares of
capital stock of a publicly held corporation that
engages in Competition if (i) such shares are actively traded
on an established national securities market in the United
States, (ii) the number of shares of such corporation's
capital stock that are owned beneficially (directly or
indirectly) by the Executive and the number of shares of such
corporation's capital stock that are owned beneficially
(directly or indirectly) by the Executive's Affiliates
collectively represent less than five percent of the total
number of shares of such corporation's capital stock
outstanding, and (iii) neither the Executive nor any Affiliate
of the Executive is otherwise associated directly or
indirectly with such corporation or with any Affiliate of such
corporation.
2. Representations and Warranties. The Executive represents and warrants,
to and for the benefit of the Company, that: (a) they have full power
and capacity to execute and deliver, and to perform all of his
obligations under, this Agreement; and (b) neither the execution and
delivery of this Agreement nor the performance of this Agreement will
result directly or indirectly in a violation or breach of(i) any
agreement or obligation by which the Executive or any of his Affiliates
is or may be bound, or (ii) any law, rule or regulation. The
Executive's representations and warranties shall survive the expiration
of the Noncompetition Period for an unlimited period of time.
3. Specific Performance. The Executive agrees that, in the event of any
breach or threatened breach by the Executive of any covenant or
obligation contained in this Agreement, each of the Company shall be
entitled (in addition to any other remedy that may be available to it,
including monetary damages) to seek and obtain (a) a decree or order of
specific performance to enforce the observance and performance of such
covenant or obligation, and (b) an injunction restraining such breach
or threatened breach.
4. Nonexclusivity. The rights and remedies of the parties hereto under
this Agreement are not exclusive of or limited by any other rights or
remedies which they may have, whether at law, in equity, by contract or
otherwise, all of which shall be cumulative (and not alternative).
Without limiting the generality of the foregoing, the rights and
remedies of the parties hereto under this Agreement, and the
obligations and liabilities of the Executive under this Agreement, are
in addition to his respective rights, remedies, obligations and
liabilities under the law of unfair competition, under laws relating to
misappropriation of trade secrets, under other laws and common law
requirements and under all applicable rules and regulations. Nothing in
this Agreement shall limit any of the obligations, or the rights or
remedies of the parties hereto, under the Employment Agreement; and
nothing in the Employment Agreement shall limit any of the obligations,
or any of the rights or remedies of the parties hereto, under this
Agreement. No breach on the part of the Company or any other party of
any covenant or obligation contained in the Employment Agreement or any
other agreement shall limit or otherwise affect any right or remedy of
the parties hereto under this Agreement.
5. Severability. If any provision of this Agreement or any part of any
such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part
thereof shall, with respect to such circumstances and in such
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jurisdiction, be deemed amended to conform to applicable laws so as to
be valid and enforceable to the fullest possible extent, (b) the
invalidity or unenforceability of such provision or part thereof under
such circumstances and in such jurisdiction shall not affect the
validity or enforceability of such provision or part thereof under any
other circumstances or in any other jurisdiction, and (c) the
invalidity or unenforceability of such provision or part thereof shall
not affect the validity or enforceability of the remainder of such
provision or the validity or enforceability of any other provision of
this Agreement. Each provision of this Agreement is separable from
every other provision of this Agreement, and each part of each
provision of this Agreement is separable from every other part of such
provision so long as to do so does not destroy the central intent and
purpose of the agreement.
6. Governing Law; Venue.
(a) This Agreement shall be construed in accordance with, and
governed in all respects by, the laws of the State of Kansas
(without giving effect to principles of conflicts of laws).
(b) Any legal action or other legal proceeding relating to this
Agreement or the enforcement of any provision of this
Agreement may be brought or otherwise commenced in any state
or federal court located in Xxxxxxx County Kansas. The
Executive:
(i) expressly and irrevocably consents and submits to the
jurisdiction of each state and federal court located
in Xxxxxxx County of Kansas (and each appellate court
located in the State of Kansas), in connection with
any such legal proceeding;
(ii) agrees that service of any process, summons, notice
or document by U.S. mail addressed to them at the
address set forth on the signature page of this
Agreement shall constitute effective service of such
process, summons, notice or document for purposes of
any such legal proceeding;
(iii) agrees that each state and federal court located in
Xxxxxxx County Kansas, shall be deemed to be a
convenient forum; and
(iv) agrees not to assert (by way of motion, as a defense
or otherwise), in any such legal proceeding commenced
in any state or federal court located in Xxxxxxx
County Kansas, any claim that the Executive is not
subject personally to the jurisdiction of such court,
that such legal proceeding has been brought in an
inconvenient forum, that the venue of such proceeding
is improper or that this Agreement or the subject
matter of this Agreement may not be enforced in or by
such court.
7. Waiver. No failure on the part of the Company or any other party to
exercise any power,
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right, privilege or remedy under this Agreement, and no delay on the
part of the Company or any other party in exercising any power, right,
privilege or remedy under this Agreement, shall operate as a waiver of
such power, right, privilege or remedy; and no single or partial
exercise of any such power, right, privilege or remedy shall preclude
any other or further exercise thereof or of any other power, right,
privilege or remedy.
8. Captions. The captions contained in this Agreement are for convenience
of reference only, shall not be deemed to be a part of this Agreement
and shall not be referred to in connection with the construction or
interpretation of this Agreement.
9. Construction. Whenever required by the context, the singular number
shall include the plural, and vice versa; the masculine gender shall
include the feminine and neuter genders; and the neuter gender shall
include the masculine and feminine genders. Any rule of construction to
the effect that ambiguities are to be resolved against the drafting
party shall not be applied in the construction or interpretation of
this Agreement. Neither the drafting history nor the negotiating
history of this Agreement shall be used or referred to in connection
with the construction or interpretation of this Agreement. As used in
this Agreement, the words "include" and "including," and variations
thereof, shall not be deemed to be terms of limitation, and shall be
deemed to be followed by the words "without limitation." Except as
otherwise indicated in this Agreement, all references in this Agreement
to "Sections" are intended to refer to Sections of this Agreement.
10. Amendment. This Agreement may not be amended, modified, altered or
supplemented other than by means of a written instrument duly executed
and delivered on behalf of the Executive and the Company (or any
successor to the Company).
11. Defined Terms. For purposes of this Agreement:
(a) "Affiliate" means, with respect to the Executive, any other
Person that, directly or indirectly, through one or more
intermediaries, is controlled by the Executive.
(b) "Competing Product" means any: (i) application or software
program that provides an electronic gateway to government
services or procurement information; (ii) product, device or
system that is substantially the same as, incorporates, is a
material component or part of, or is based upon or competes
with anything referred to in clause (i) above or any product,
device or system that has been designed, developed, promoted,
sold, resold, installed, supported, maintained, licensed or
sublicensed by or on behalf of Persons who at any time on or
prior to the date of this Agreement were competitors of the
Company (or of any predecessor of the Company) at any time on
or prior to this date of this Agreement until the date of
termination of employment.
(c) "Competing Service" means any: (i) public/private partnership
that provides an electronic gateway to government services or
procurement information; (ii) service that is substantially
the same as, incorporates, is a material component or
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part of, or is based upon or competes with a service that has
been provided, performed or offered by or on behalf the
Company (or of any predecessor of the Company) at any time on
or prior to the date of this Agreement or until the date of
termination of employment; (iii) service that facilitates,
supports or otherwise relates to the any Competing Product.
(d) A Person shall be deemed to be engaged in "Competition" if:
(i) such Person is engaged directly or indirectly in the
design, development, manufacture, assembly, promotion, sale,
supply, distribution, resale, installation, support,
maintenance, repair, refurbishment, licensing, sublicensing,
financing, leasing or subleasing of any Competing Product; or
(ii) such Person is engaged directly or indirectly in
providing, performing or offering any Competing Service.
(e) "Confidential Information" means any non-public information
(whether or not in written form and whether or not expressly
designated as confidential) relating directly or indirectly to
the Company or relating directly or indirectly to the
business, operations, financial affairs, performance, assets,
technology, processes, products, contracts, customers,
licensees, sublicensees, suppliers, personnel, consultants or
plans of the Company (including any such information
consisting of or otherwise relating to trade secrets,
know-how, technology, inventions, prototypes, designs,
drawings, sketches, processes, license or sublicense
arrangements, formulae, proposals, research and development
activities, customer lists or preferences, pricing lists,
referral sources, marketing or sales techniques or plans,
operations manuals, service manuals, financial information,
projections, lists of consultants, lists of suppliers or lists
of distributors); provided, however, that "Confidential
Information" shall not be deemed to include information of the
Company that was already publicly known and in the public
domain prior to the time of its disclosure by the Executive.
(f) "Noncompetition Period" shall mean the period commencing on
the date of this Agreement and ending on the second
anniversary of the date of the termination of the Executive's
employment with the Company.
(g) "Person" means, other than Electric Press, Inc., a Virginia
corporation, any: (i) individual or (ii) corporation, general
partnership, limited partnership, limited liability
partnership, trust, company (including any limited liability
company or joint stock company) or other organization or
entity.
(h) "Restricted Territory" means each county or similar political
subdivision of each State of the United States of America (including each of the
counties in the State of California), and each State, territory or possession of
the United States of America.
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IN WITNESS WHEREOF, the Executive has duly executed and delivered this
Noncompetition Agreement as of the date first above written.
Signature
-------------------------------------
Name: XXXX BUR
Telephone No.: ( )
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Facsimile: ( )
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