EXHIBIT 10.4
SERVICE AGREEMENT
DATED September 24/th/, 1999
PARTIES:
(1) Template Software Inc. of ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America and, jointly and severally, its wholly owned
subsidiary Template Software (UK) Ltd., of ▇▇/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇
("the Company"), and
(2) ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, of ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("the Executive").
OPERATIVE TERMS:
Definitions
In this agreement
"the Board" means the board of directors of the Company from time to time
"Effective Date" means 1st January 1995
"the Employment" means the employment established by this Agreement which
shall be subject to the employment laws of the United Kingdom.
References to clauses and schedules are to clauses of and schedules to this
Agreement.
1. Title; Period of Employment
1.1 The Company shall employ the Executive and the Executive shall serve
the Company as Vice President of European Operations
1.2 The Employment began on the Effective Date and shall continue until
the earlier of (a) December 31, 1999, ("the Initial Expiry Date"), (b) a later
date one or more years later than this if the contract is extended as below
("the Extended Expiry Date") or (c) the date on which the Agreement is
terminated in accordance with its terms.
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1.3 The Executive has been employed by the Company continuously since
January 1, 1995. There is no employment with a previous employer (other than
earlier continuous employment with the Company, subsidiary or associate of the
Company) which counts as part of the Executive's continued period of employment
for the purposes of the UK Employment Protection (Consolidation) Act of 1978.
1.4 If the Agreement is not terminated in accordance with its terms prior
to the Initial Expiry Date or any Extended Expiry Date then the term of this
Agreement shall be automatically extended for an additional 12 month period to
an Extended Expiry Date of December 31st in the year following the immediate
preceding term.
2. Termination by the Company.
2.1 The Company shall have the right to terminate this Agreement with or
without cause at any time during the term of this Agreement by giving written
notice to the Executive. The termination shall become effective on the date
specified in the notice, which termination date shall not be a date prior to
either the legal minimum as provided by the ruling employment law for the United
Kingdom or the date 5 days following the date of the notice of termination
itself, whichever is the greater. In the event that the Executive is terminated
for cause, the Company shall pay the Executive base salary and bonus due through
the day on which such termination is effective. In the event that the Executive
is terminated without cause, the Company shall pay to the Executive base salary
and bonus due through the day on which such termination is effective plus a
compensation for loss of office equal to not less than 12 months salary and
bonus prorated for 12 months. The bonus paid will be for 12 months, paid
monthly at a monthly rate, and calculated by taking the bonus earned for the
prior twelve months, based on the quarterly achievements of the most recent 4
reporting quarters of the Company. Thus, should termination occur in late
February, then the "bonus year" would be the calendar year of the preceding
year. Should termination occur in late May, then the bonuses for the 2nd, 3rd,
and 4th quarter of the preceding year and the bonus for the 1st quarter of the
same year constitute the "prior twelve" months or stated in the prior paragraph.
Benefits (insurance, etc.) that are in force prior to termination will continue
to be carried by the Company for 12 months or until the Executive begins full
time employment with another organization, whichever occurs first.
2.2 For purposes of Section 2.1 and Section 2.3, "cause" shall mean (i) a
material breach by the Executive of any covenant or condition hereunder; (ii) a
material neglect of duty by the Executive amounting to gross misconduct; (iii)
the commission by the Executive of any act or omission constituting gross
negligence, dishonesty, fraud, immoral or disreputable conduct which is, or in
the reasonable opinion of the Company's Board of Directors is likely to be,
harmful to the Company or its reputation; (iv) violation by the Executive of the
Company's material policies as set forth in the Company's personnel handbook, if
one has been adopted in the United Kingdom, which violation remains uncured
thirty (30) days after written notice to the Executive by the Company regarding
such violation has been provided; or (v) the performance by the Executive of any
act or omission demonstrating an intentional or reckless disregard of the
interests of the Company.
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2.3 Change of Control of the Company and Termination. In the event of a
Change of Control (as defined below) of the Company, then following the
consummation of such Change of Control and termination by the Company of the
Executive without cause (as defined in Section 2.2) within 12 months of the date
of consummation of such Change of Control, all unexercisable Incentive and Non-
Qualified Stock Options granted to the Executive prior to such date will become
immediately exercisable in full upon such termination. The Company and the
Executive will promptly enter into amendments to the appropriate stock option
agreements governing the Executive's previously-granted stock options to reflect
these agreements.
For purposes of this Section 2.3, a Change of Control shall mean any
of the following:
(a) the merger or consolidation of the Company with or into another
unaffiliated entity, or the merger of another unaffiliated entity into the
company or any subsidiary thereof with the effect that immediately after such
transaction the stockholders of the Company immediately prior to such
transaction hold less than fifty percent (50%) of the total voting power of all
securities generally entitled to vote in the election of directors, managers or
trustees of the entity surviving such merger or consolidation;
(b) the sale, lease or other transfer of all or substantially all of
the Company's assets to an unaffiliated person or group (as such term is used in
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) or the sale
or transfer of more than fifty-one percent (51%) of the Company's then
outstanding voting stock (other than in a restructuring transaction which
results in the continuation of the Company's business by an affiliated entity)
to such persons or group; or
(c) the adoption by the stockholders of the Company of a plan relating
to the liquidation or dissolution of the Company.
3. Termination by Death or Disability of the Executive.
3.1 In the event of the Executive's death during the term of this
Agreement, all obligations of the parties hereunder shall terminate immediately,
and the Company shall pay to the Executive's beneficiary or estate, the salary
and other compensation due the Executive through the day on which his death
shall have occurred plus one month of salary continuation.
3.2 If the Executive is unable to perform his duties hereunder due to
mental, physical or other disability for a period of 180 consecutive calendar
days, as determined by the Company, or for 180 days in any period of 12
consecutive months, this Agreement may be terminated by the Company, at its
option, by written notice to the Executive, effective on the termination date
specified in such notice, provided such termination date shall not be a date
prior to the date of the notice of termination itself. In this case, the
Company will pay the Executive the salary and other compensation due him through
the day on which such termination is effective.
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4. Termination by the Executive.
4.1 The Executive may voluntarily terminate this Agreement at any time,
with or without cause, by giving 30 days written notice to the Company. Any
such termination, if without cause, shall become effective on the date specified
in such notice, provided that the Company may elect to have such termination
become effective on a date after, but not more than 14 days after, the date of
the notice. If such termination is with cause, it shall become effective on the
30 days after the date of such notice, provided the Company has failed to cure
the cause specified in the notice.
4.2 After the date of any such termination, the Executive shall be
entitled to the salary due him through the day on which such termination becomes
effective, unless such termination was for cause, in which case he shall be
entitled to receive from the Company compensation equal to the compensation the
Executive would have received had the Company terminated this Agreement without
cause pursuant to Section 2.1.
4.3 For purposes of this Section 4, "cause" shall mean a material failure
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by the Company to perform its obligations under this Agreement.
5. Suspension. In the event the Company has reasonable cause to believe that
there exists cause for termination of this Agreement as defined in Section 2,
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immediately upon written notice to the Executive, the Company may but shall not
be obligated to suspend the Executive, with pay, for a period not to exceed four
(4) weeks, either as a disciplinary measure or in order to investigate the
Company's belief that such cause exists. No such suspension shall prevent the
Company from thereafter exercising its rights to terminate this Agreement in
accordance with its terms.
6. Duties:
6.1 The Executive shall:
6.1.1 exercise the powers and functions and perform the duties
reasonably assigned to him from time to time by or under the authority of the
Chief Executive Officer in such manner as shall be specified by the Chief
Executive Officer;
6.1.2 the Executive shall report to the Chief Executive Officer of
the Company as and when required;
6.1.3 Address himself to the Company's business (unless prevented by
illness or other incapacity and except as may from time to time by permitted or
required by the Board) during the Company's normal business hours of 9.00 a.m.
to 5.30 p.m. Monday to Friday inclusive and at such other times as may
reasonably be necessary in the interests of the Company to the performance of
his duties.
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6.1.4 When reasonably requested by the Company undertake duties for
directly associated companies within the same group of companies where such
assignment does not materially affect the Executive's working conditions or if
such effect is present then with the agreement of the Executive.
6.1.5 Well and faithfully serve the Company and use his best
endeavours to promote and protect the interests of the Company.
6.1.6 When requested to do so fully and promptly give the Board such
explanations information and assistance as it may require.
7. Place of Employment
7.1 The Executive's place of employment shall be at the offices of the
Company at Windsor, Berks, United Kingdom or at such other place as the Company
may reasonably require. If the Company requests the Executive to change his
residence and the Executive agrees to such a move then the Company will
reimburse such removal and other expenses relating to such change of residence
as the parties agree are fair and reasonable in the circumstances. In addition,
the Executive shall travel to such parts of the world as the Board shall
reasonably direct or authorize provided that the Executive shall not be required
to spend more than 100 nights per year outside the U.K. on the Company's
business.
8. Remuneration and Benefits
8.1 The Executive shall be paid for the proper performance of his duties:
8.1.1 an annual salary and bonus plan as agreed with the Chief
Execuitve and modified from time to time. This salary shall accrue from day to
day and shall be payable by equal monthly instalments in arrears on the last day
of each month and shall include any sums receivable as director's fees. The
bonus shall be payable as mutually agreed and set out in the ruling Incentive
Plan.
8.1.2 The Executive shall also receive the following benefits:
8.1.2.1 The Executive shall be entitled to be a member of the
Company's BUPA Private Medical Expenses Scheme or such other medical expenses
scheme as the Company may make available from time to time.
8.1.2.2 The Executive shall be entitled to the benefit of life
insurance cover of a sum insured equal to four times the Executive's annual base
salary.
8.1.2.3 The Executive shall be entitled to be a member of the
Company's Permanent Health Insurance Scheme as the Company may make available
from time to time.
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9. Expenses:
9.1 The Executive shall be reimbursed all reasonable hotel, travelling,
entertainment and other expenses properly incurred by him in the course of the
Employment in accordance with the Company's regulations as published from time
to time. The Executive shall produce vouchers or other evidence of expenses in
respect of which he claims reimbursement;
9.1.1 Any credit card supplied to the Executive by the Company shall
be used only for expenses incurred by him in the course of the Employment.
10. Company Car:
10.1 The Executive shall be reimbursed for the use of his private car for
Company business in accordance with the policy and Schedule attached and
modified from time to time.
11. Pension:
11.1 The Executive is entitled to receive payments from the Company into
his Personal Pension scheme in accordance with the details of the relevant
scheme which are given in the Schedule.
12. Holidays:
12.1 The Executive shall in addition to normal statutory and bank holidays
be entitled to five weeks (25 working days) paid holiday during each year
commencing on 1st January and pro rata for any lesser period. The Company will
endeavour to meet the Executive's reasonable requests as to time and duration of
holidays but it reserves the right to fix holidays in its interest. The
Executive's entitlement to holidays and to holiday pay shall be subject to the
rules of the Company from time to time in force relating to holiday entitlement
and holiday pay, an example of which is attached as an appendix.
13. Outside Interests:
13.1 During the Executive's employment he shall not (save with the prior
written consent of the Board):
13.1.1 Directly or indirectly be engaged concerned or interested in
any capacity in any business, trade or occupation whatsoever other than those of
the Company except as (a) a holder of not more than 5% of the issued shares or
securities of any companies which are listed or dealt in on any recognised stock
exchange or market or (b) in a manner which does not hinder or materially
interfere with the Executive's performance of his duties. "Occupation" shall
include any public, private, or charitable work;
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13.1.2 Introduce or transact business of any kind with which the
Company is able to deal to or for the account of himself or any other person
firm or company.
14. Copyright
14.1 The Copyright in any literacy, dramatic or artistic work (which in
this context is intended to include, but is not limited to, computer programs)
made by the Executive at any time while employed by the Company which is of
relevance to the business of the Company (whether or not the work was made by
direction of the Company or was intended to benefit the Company) shall belong to
the Company and to the extent that such Copyright is not otherwise vested in the
Company the Executive hereby assigns the same to the Company.
15. Confidential Information and Trade Secrets:
15.1 The Executive acknowledges that in the ordinary course of the
Employment he will be exposed to information about the Company's business and
that of its suppliers and customers which amounts to a trade secret, is
confidential or is commercially sensitive and which may not be readily available
to others engaged in a similar business to that of the Company or to the
general public.
15.2 The Executive shall keep secret and shall not at any time either
during the Employment, or after its termination, for whatever reason, use
communicate or reveal to any person for the Executive's own or another's
benefit, any secret or confidential information concerning the business,
finances or organisation of the Company, its suppliers or customers which shall
have come to his knowledge during the cause of the Executive's Employment. The
Executive shall also use his best endeavours to prevent the publication or
disclosure of any such information.
15.3 For the purposes of this Clause and by way of illustration and not
limitation information will prima facie be secret and confidential if it is not
in the public domain and relates to:
. research and developments
. formulae, formulations, including details of software products
. methods of treatment, processing, manufacture or production, process
and production controls including quality controls
. suppliers and their production and delivery capabilities
. customers and details of their particular requirements
. costings, profit margins, discounts, rebates and other financial
information
. marketing strategies and tactics
. current activities and current and future plans
15.4 The restrictions contained in this clause shall not apply to:
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15.4.1 any disclosure or case authorised by the Board or required in
the ordinary and proper course of the Employment or as required by the order of
a court of competent jurisdiction or an appropriate regulatory authority; or
15.4.2 any information which the Executive can demonstrate was known
to the Executive prior to the commencement of the Executive's employment by the
Company or is in the public domain otherwise than as a result of a breach of
this clause.
16. Miscellaneous Provisions:
16.1 This Agreement records the entire agreement and understanding between
the parties and supersedes and cancels all previous agreements understandings or
representations reached between or made by the parties or either of them in
connection with the Executive's employment.
16.2 Any notice to be given to the Company shall be delivered or sent by
first class post to its registered office for the time being and any notice to
be given to the Executive shall be delivered to him personally or sent by first
class post to his usual place of abode last known to the Company and any such
notice if posted shall be deemed to have been served on the day following that
on which it was posted.
16.3 The headings in this agreement are inserted for convenience only and
shall not affect its construction.
16.4 This agreement shall be governed by English law and parties submit to
the jurisdiction of the English Courts and Tribunals.
IN WITNESS the Company and the Executive have signed this Agreement
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for Template Software, Inc.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇
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J Fox
Chairman
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇. ▇. ▇▇▇▇▇▇▇
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