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EXHIBIT 10f
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made this 30th day of June,
1995, by and between MICROS SYSTEMS, INC., a Maryland corporation with offices
located at 00000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 (hereinafter
referred to as the "Company"), and XXXXX X. XXXXX, XX., whose address is 0000
Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as the
"Consultant").
W I T N E S S E T H:
WHEREAS, the Company and the Consultant desire that Consultant be appointed
and engaged to provide services as described in this Agreement;
WHEREAS, the Consultant possesses skills and experience which the Company
believes are of substantial value and importance to the success of the Company's
business operations;
WHEREAS, the Consultant is willing to make his services available to the
Company on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and the conditions
and agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which hereby is acknowledged, the parties hereto
agree as follows:
1. Consulting Services.
(a) The Company hereby appoints and engages Consultant, and
Consultant hereby accepts this appointment and engagement, to provide services
as described in this Agreement.
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(b) Consultant agrees to provide consultation and advice to the
Company on matters of operations, administration, and other matters important
to the functioning and business of the Company, as requested by the Company's
President and Chief Executive Officer or his designee.
(c) Consultant agrees to provide, on the average, approximately 20
hours per week of consulting services at the Company and/or devoted to Company
business and the Company will exercise its best efforts to ensure that the
services he is asked to provide do not require him to devote more than 20 hours
per week. As set forth in Section 2(b) Consultant will control the manner,
methods and details of performance of his services.
(d) The Company acknowledges that Consultant's availability for
consultation is valuable, even during periods in which Consultant is not
actually called on for such consultation. Accordingly, the amount of
compensation Consultant will receive under Section 4 of this Agreement is
independent of the amount of time Consultant is actually required to devote in
rendering consulting services.
2. Independent Contractor Relationship.
(a) Consultant agrees to provide these consulting services as an
independent contractor to the Company. Consultant will not be, and will not be
deemed to be, an employee of the Company.
(b) Consultant will control the manner, methods and details of
performance of his services.
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(c) Consultant will not be entitled to any benefits the Company may
provide for its employees.
(d) Consultant will not be an agent of the Company for any purpose
and will not have any authority to bind or commit the Company in any way unless
and to the extent expressly authorized in writing by the Company's President
and Chief Executive Officer.
(e) Consultant will be responsible for reporting his income and
paying any applicable taxes (including but not limited to federal, state, and
local income taxes, Social Security and Medicare taxes, and unemployment taxes)
to federal, state, and local taxing agencies, as required by law.
(f) Consultant may perform consulting services for or accept
employment with other persons during the term of this Agreement, provided that
Consultant shall not permit such other services or employment to conflict or
interfere unreasonably with his performance of services under this Agreement.
This provision includes, but is not limited to, any engagement or employment
whose time or effort requirements would interfere unreasonably with
Consultant's performance of services for the Company, and any engagement or
employment that would raise an actual or potential conflict of interest. It is
acknowledged and agreed that simultaneously herewith Consultant is performing
duties for other companies as set forth on page 4 of the Company's Proxy
Statement dated October 24, 1994 and, that such duties will not interfere
unreasonably with Consultant's performance of services for the Company.
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3. Term. The term of this Agreement shall commence on July 1, 1995
("Commencement Date") and shall continue until June 30, 2000, unless sooner
terminated, as provided herein.
4. Compensation. The Consultant's compensation for the term of this
Agreement shall be in the amounts set forth below, payable in bi-weekly
installments:
Period Compensation
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July 1, 1995 through June 30, 1996 $150,000
July 1, 1996 through June 30, 1997 $160,000
July 1, 1997 through June 30, 1998 $170,000
July 1, 1998 through June 30, 1999 $180,000
July 1, 1999 through June 30, 2000 $190,000
5. Bonuses. In addition to the above compensation, the Consultant shall
be entitled to receive a bonus for each fiscal year of the Company (July 1 -
June 30). The Consultant's bonus for each fiscal year, or portion of a fiscal
year, during the term hereof shall be in the amounts set forth below ("Target
Bonus") if the fiscal year bonus objectives of the Consultant ("Objectives"),
as determined by the Board of Directors prior to the commencement of each such
fiscal year, are met; provided, that, consistent with the Company's standard
bonus plan in effect during fiscal 1995, the bonus may be increased for any
fiscal year in which the Company performance exceeds Objectives or decreased
for any fiscal year in which the Company performance falls below Objectives,
and provided further that in no event shall the bonus paid to the Consultant
for any fiscal year of the Company exceed 200% of Target Bonus:
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Fiscal Year Ending Target Bonus
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June 30, 1996 $70,000
June 30, 1997 $80,000
June 30, 1998 $90,000
June 30, 1999 $100,000
June 30, 2000 $110,000
Any bonus required to be paid pursuant to this Section 5 shall be
paid by the Company to the Consultant within ninety (90) days following the
close of the fiscal year of the Company to which such bonus applies.
6. Stock Option. Upon the Commencement Date, the Consultant shall be
granted the unrestricted right to acquire up to fifteen thousand (15,000)
shares of the Company's common stock ("Option"). The Company and the
Consultant shall enter into a stock option agreement evidencing the grant of
said Option, which agreement shall contain such other terms and provisions as
are customarily contained in the Company's executive employee Incentive Stock
Option Agreement ("Company Plan"). Consultant acknowledges receipt of said
Option on June 2, 1995.
In addition to the Option granted above, within ninety (90) days
following the commencement of each fiscal year of the Term, the Company shall
grant to the Consultant the right to purchase additional common stock of the
Company ("Common Stock") for such consideration and in such amounts as is
consistent with the terms of the Company Plan or a successor employee stock
option plan. Notwithstanding the right herein granted, the Consultant
acknowledges that, except for the Common Stock exercisable under
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the Option, no additional Common Stock is currently available to the Company to
issue under the Company Plan. In recognition thereof, the Company's obligation
to grant to the Consultant the right to purchase the additional Common Stock
shall not arise until such time as the shares of Common Stock become available
under the Company Plan or a successor employee stock option plan. The Company
agrees to use its best efforts to take such steps or cause the required steps
to be taken which will enable the Common Stock to become available for option
grants.
7. Expenses. The Company shall reimburse the Consultant for all
expenses incurred in connection with the performance of his duties on behalf of
the Company, provided that the Consultant shall keep, and present to the
Company, records and receipts relating to reimbursable expenses incurred by
him. Such records and receipts shall be maintained and presented in a format,
and with such regularity, as the Company reasonably may require in order to
substantiate the Company's right to claim income tax deductions for such
expenses. Without limiting the generality of the foregoing, the Consultant
shall be entitled to reimbursement for any business-related travel,
business-related entertainment whether at his residence or otherwise, and other
costs and expenses reasonably incident to the performance of his duties on
behalf of the Company.
8. Restrictive Covenant. The Consultant agrees that during the term of
this Agreement, and for a period of one (1) year following the termination of
this Agreement for any reason whatsoever, he shall not (i) engage, directly or
indirectly, in any
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computer hardware or computer software business which is competitive with the
business now, or at any time during the Term of this Agreement, conducted by
the Company; or (ii) solicit (directly or indirectly, for his own account, or
for the account of others) orders for services or products of a kind or nature
like or similar to services performed or products sold by the Company during
the term of this Agreement, from any party that was a client (or customer) of
the Company, or which the Company was soliciting to be its client (or customer)
during the twelve (12) month period preceding the date of the termination of
this Agreement. The Consultant further agrees that he shall not, at any time,
directly or indirectly, urge any client (or customer) of the Company with whom
the Company is desirous of doing business to discontinue business, in whole or
in part, or not to do business, with the Company.
For the purposes of this Section 8, the Consultant will be deemed
directly or indirectly engaged in a business if he participates in such
business as proprietor, partner, joint venturer, stockholder, director,
officer, lender, manager, employee, consultant, advisor or agent or if he
controls such business. The Consultant shall not for purposes of this Section
8 be deemed a stockholder or lender if he holds less than two percent (2%) of
the outstanding equity or debt of any publicly owned corporation engaged in the
same or similar business to that of the Company, provided that the Consultant
shall not be in a control position with regard to such corporation.
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Provided, however, that (a) it is acknowledged and agreed that, in his
various other capacities as referenced in paragraph 2(f) above, Consultant has
directly or indirectly participated in certain transactions as set forth on
page 10 of such Proxy Statement, it being contemplated that any further such
transactions, if entered into, will be pursuant to the law of the State of
Maryland, and will be similarly disclosed in future proxy statements of the
Company; and (b) Consultant may invest in equity securities of any Competitive
Business (but without participating in such Competitive Business) if (i) such
equity securities are listed on any recognized securities exchange or are
registered under Section 12(g) of the Securities Exchange Act of 1934; and (ii)
the total number of such shares owned or controlled, directly or indirectly, by
Consultant, his spouse and his minor children does not exceed in total an
amount equal to 2% of the outstanding shares of such class of equity securities
of any such Competitive Business.
9. Maintaining Confidential Information.
(a) Company Information. The Consultant agrees at all times during
the term of this Agreement and for a period of one (1) year thereafter to hold
in strictest confidence, and not to use, or to disclose to any person, firm or
corporation, without the written authorization of the Board of Directors of the
Company except if such is to be used or disclosed for the benefit of the
Company, any trade secrets, confidential knowledge, data or other proprietary
information of the Company. By way of illustration and not
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limitation, such shall include information relating to products, processes,
know-how, designs, formulas, methods, developmental or experimental work,
improvements, discoveries, plans for research, new products, marketing and
selling, business plans, budgets and unpublished financial statements,
licenses, prices and costs, suppliers and customers, and information regarding
the skills and compensation of other employees of the Company.
(b) Third Party Information. The Consultant recognizes that the
Company has received and in the future will receive from third parties their
confidential or proprietary information subject to a duty on the Company's part
to maintain the confidentiality of such information and, in some cases, to use
it only for certain limited purposes. The Consultant agrees that he owes the
Company and such third parties, both during the term of his employment and
thereafter, a duty to hold all such confidential or proprietary information in
the strictest confidence and not to disclose it to any person, firm or
corporation (except in a manner that is consistent with the Company's agreement
with the third party) or use it for the benefit of anyone other than the
Company or such third party (consistent with the Company's agreement with the
third party).
10. Prior Employees. For a period of one (1) year following the
termination of this Agreement for any reason whatsoever, with or without cause,
the Consultant shall not, whether as an individual or as a proprietor,
stockholder, partner, officer, director, employer, employee, agent, consultant,
independent
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contractor or otherwise, recruit or employ, directly or indirectly, for his own
business or any business in which he has an ownership interest, is employed
with, or is otherwise affiliated with, any individual who was an employee of
the Company within the period of twelve (12) months preceding the termination
of this Agreement.
11. Overbreadth of Restrictive Covenant. It is the intention of the
parties that if any restrictive covenant contained in this Agreement is
determined by a court of competent jurisdiction to be overly broad, then the
court should enforce such restrictive covenant to the maximum extent permitted
under the law as to scope, geographic area and duration.
12. Prior Agreements. The Consultant warrants that he is not prohibited
from performing any of the services required by this Agreement under the terms
of any prior employment agreement or restrictive covenant.
13. Termination Agreement.
(a) Certain Defined Terms.
(1) "Disability" shall mean the continuous and uninterrupted
inability of the Consultant to perform his duties hereunder due to the sickness
or injury of the Consultant which persists for a period of one hundred eighty
(180) days or more.
(2) "Good Cause" shall mean (i) the criminal acts of the
Consultant which result in the Consultant being charged with and convicted of a
felony and which are intended to result directly or indirectly in substantial
gain or personal enhancement of the
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Consultant at the expense of the Company, or (ii) the determination by a court
of competent jurisdiction that there has been a willful or intentional breach
by the Consultant of either Section 8 hereof (restrictive covenant) or Section
9 hereof (maintaining confidential information) in a manner which results in
material and substantial direct economic harm or damage to the Company.
(3) "Good Reason" shall mean:
a) An assignment by the Company to the Consultant, without
his express written consent, of any material duties which are inconsistent with
this Agreement;
b) Any action taken by the Company or its Board of
Directors to reduce the Consultants compensation or Target Bonus (if
inconsistent with the terms of Section 5 above) without the express written
consent of the Consultant;
c) The Company's failure to obtain the agreement of any
successor in interest of the Company to assume the obligations of the Company
under this Agreement.
(b) Termination Events.
(1) Death. This Agreement shall be terminated upon Consultant's
death.
(2) Disability. This Agreement shall be terminated upon
Consultant's Disability.
(3) By the Company for Good Cause or Other Reasons. This
Agreement may be terminated by the Company for (i) Good Cause or (ii) upon
fifteen (15) days written notice, for any other reason.
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(4) By the Consultant for Good Reason or Other Reasons. The
Consultant may terminate this Agreement (i) for Good Reason or (ii) upon
fifteen (15) days prior written notice, for any other reason.
(c) Termination Payments.
(1) Payment Upon Death. Upon the termination of this Agreement
due to Consultant's death, the Company shall cause to be paid over to the
designated beneficiary or to the personal representative of the estate of the
Consultant, all compensation provided hereunder through the date of death, any
Target Bonus payments then due and any Target Bonus, prorated to the date of
death with respect to the period in which the death occurs. All such payments
shall thereupon cease and terminate.
(2) Payment Upon Disability. Upon the termination of this
Agreement due to Consultant's Disability, the Consultant shall be entitled to
all compensation provided hereunder through the date of Disability, any Target
Bonus payments then due and any Target Bonus, prorated to the date of
Disability with respect to the period in which Disability occurs. All such
payments shall thereupon cease and terminate.
(3) Payment Upon Termination By The Company. If the Company
terminates this Agreement for any reason other than Good Cause, the Consultant
shall be entitled to receive from the Company and the Company shall pay to the
Consultant in one lump sum, within fifteen (15) days following the termination
of this Agreement, all of the compensation and Target Bonus payments
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provided for in Sections 4 and 5 of this Agreement for the period beginning on
the date of the termination of the Agreement and ending on June 30, 2000.
If the Company terminates this Agreement for Good Cause, the
Consultant shall be entitled to compensation through the date of termination and
any due, but unpaid, Target Bonus. Any and all compensation and Target Bonus
payments with respect to subsequent periods shall thereupon cease and
terminate.
(4) Payment Upon Termination By The Consultant. If the
Consultant terminates this Agreement for Good Reason, other than Good Reason
described in Section 13(a)(3)a), he shall be entitled to receive from the
Company and the Company shall pay to the Consultant in one lump sum, within
fifteen (15) days following the date of the Consultant's termination of this
Agreement, all of the salary and Target Bonus payments provided for in Sections
4 and 5 of this Agreement for the period beginning on the date of the
Consultant's termination and ending on June 30, 2000. If the Consultant
terminates this Agreement for the Good Reason described in Section 13(a)(3)a),
then and in such event, he shall be entitled to receive from the Company and
the Company shall pay to the Consultant in one lump sum, within fifteen (15)
days following the date of the Consultant's termination of this Agreement, an
amount equal to the lesser of (i) all of the salary and Target Bonus payments
provided for in Sections 4 and 5 of this Agreement for the period beginning on
the date of the Consultant's termination and ending on June 30, 2000, or (ii)
all of the salary and Target Bonus
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payments provided for in Sections 4 and 5 of this Agreement for the period
commencing on the date of the Consultant's termination and ending on the third
anniversary of the date of the Consultant's termination.
If the Consultant terminates this Agreement for any reason
other than Good Reason, he shall be entitled to compensation through the date of
termination and any due, but unpaid, Target Bonus. Any and all compensation and
Target Bonus payments with respect to subsequent periods shall thereupon cease
and terminate.
14. Arbitration. Except as set forth in paragraph 15, any dispute
arising under this Agreement or the termination of this Agreement shall be
resolved by arbitration in the District of Columbia, in accordance with the
then prevailing rules of the American Arbitration Association, before an
arbitrator or arbitrators appointed pursuant to such rules, and the
determination of such arbitrator or arbitrators shall be final, binding and
conclusive on the parties.
15. Remedies. The parties hereto acknowledge that a breach of certain
terms of this Agreement may not be fully or adequately compensable by the award
or payment of monetary damages and may cause immediate, substantial and
irreparable injury to the non-breaching party. The parties therefore agree and
consent that in addition to any award of damages that the non-breaching party
may be entitled to recover, the non-breaching party shall also be entitled to
such ex parte, preliminary, interlocutory, temporary or
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permanent injunctive, or any other equitable relief, including the entry of a
decree of specific performance, or any other applicable order, which shall
require performance and/or limit activities in accordance with the terms of
this Agreement. The Consultant expressly acknowledges and agrees: (a) that the
restrictions set forth in this Agreement are reasonable, in terms of scope,
duration, and otherwise, (b) that the protections afforded to the Company in
this Agreement are necessary to protect its legitimate business interest, (c)
that the restrictions set forth in this Agreement will not adversely affect the
Consultant's ability to obtain gainful employment in his field of expertise or
other related employment comparable to that provided for herein, and (d) that
this agreement to observe such restrictions forms a material part of the
consideration for this Agreement and his services provided to the Company.
16. Notices. Any notice required or permitted to be given hereunder
shall be deemed sufficient if in writing, and if delivered personally or sent by
registered or certified mail, return receipt requested, to the addresses of the
respective parties set forth herein, or such other address as either party so
notifies the other of in writing from time to time.
17. Waiver of Breach. The waiver of any breach of any provision
hereunder by either party shall not be construed or operate as a waiver of any
subsequent breach.
18. Benefits and Burdens. This Agreement shall inure to the benefit of
and be binding upon the Company, its successors and
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assigns, and the Consultant, his heirs, personal representatives, successors
and assigns. Because the duties of the Consultant hereunder are special,
personal and unique in nature, the Consultant may not transfer, sell or
otherwise assign his obligations under this Agreement.
19. Governing Law. This Agreement shall be construed in accordance with
and be governed by the laws of the State of Maryland, excepting the conflict of
law rules of the State of Maryland, as if this contract were made and to be
performed entirely within the State of Maryland.
20. Entire Agreement. This Agreement contains the entire agreement of the
parties and may not be amended, modified or terminated except by a written
instrument executed by both parties hereto.
21. Captions. Paragraph captions shall be used exclusively for purposes
of reference and shall not be considered part of the substantive agreement of
the parties.
22. Severability. The restrictions and the rights and remedies contained
in this Agreement are cumulative and severable. If any term or provision of
this Agreement shall to any extent be invalid or unenforceable, the remainder
of this Agreement shall not be affected thereby, and each term and provision of
this Agreement shall be enforced to the fullest extent permitted by law.
23. Costs of Breach. The parties hereto agree that in the event of any
breach by either the Company or the Consultant of any covenant, agreement, term,
condition or obligation contained in
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this Agreement, the non-breaching party shall be entitled to all attorneys'
fees, court costs and other litigation expenses incurred by the non-breaching
party as a result of such breach.
24. Counterparts. This Agreement may be executed in counterparts, each of
which shall be an original, but all of which shall together constitute but one
document.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the day and year first written above.
COMPANY:
ATTEST: MICROS SYSTEMS, INC.
By (SEAL)
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[Corporate Seal]
WITNESS: CONSULTANT:
/s/ XXXXX X. XXXXX, XX. (SEAL)
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Xxxxx X. Xxxxx, Xx.
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