Employment Agreement - Carreker Group inc. and Ronald R. Antinori
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "AGREEMENT") shall become effective as of
the Effective Date indicated below between The Carreker Group, Inc., a Texas
corporation ("CARREKER"), and Ronald R. Antinori ("MR. ANTINORI").
RECITALS
A. This Agreement is entered into connection with and is ancillary to an
Agreement and Plan of Merger (the "AGREEMENT") dated as of January 29, 1997
between Carreker and Antinori Software Inc., a Georgia corporation, pursuant to
which a wholly-owned subsidiary of Carreker is to merge with and into Antinori
Software, Inc. (the "MERGER"), such that Antinori Software, Inc. will become a
wholly-owned subsidiary of Carreker. The date on which the Merger becomes
effective will be the effective date of this Agreement (the "EFFECTIVE DATE").
As provided in Section 9(h) below, this Agreement will be void and have no
effect if the Merger does not become effective, i.e., the Effective Date does
not occur, by February 1, 1997.
B. Mr. Antinori is the principal shareholder and the Chairman of the
board of directors of Antinori Software, Inc. and has been and remains actively
involved in the development and marketing of Antinori Software, Inc.'s
products. Carreker intends to continue the business of Antinori Software, Inc.
after the Merger and integrate such business into Carreker's ongoing business.
To preserve and protect the assets of Antinori Software, Inc., including
Antinori Software, Inc.'s goodwill, customers and trade secrets of which Mr.
Antinori has and will have knowledge and to preserve and protect Carreker's
goodwill and business interests going forward, and in consideration for
Carreker's entering into and performing under the Agreement, Mr. Antinori has
agreed to enter into this Agreement.
C. In addition, as contemplated by Section 7 below, Mr. Antinori is
concurrently herewith entering into an Intellectual Property Rights Agreement
and a Confidentiality Agreement in favor of Carreker for the purpose of
protecting Carreker's proprietary rights.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements of the parties contained herein, Carreker and Mr. Antinori hereby
agree as follows:
1. EMPLOYMENT. Carreker will employ Mr. Antinori and Mr. Antinori
accepts employment with Carreker for a period of two years from the Effective
Date; provided, however, that by irrevocable written notice given to the
Company not less than six months prior to the expiration of such two year
period, Mr. Antinori may extend the period by an additional year (such two or
three year period, as applicable, being the "INITIAL PERIOD"). Mr. Antinori's
employment may continue after the Initial Period but will then be terminable by
either party at will, with or without cause (provided that any termination by
Carreker shall occur only pursuant to a determination of its board of directors
(and not a committee thereof)), which determination may be made in its sole
discretion. The obligations of Carreker and Mr. Antinori set forth in the
"Intellectual Property Rights Agreement" and the "Confidentiality Agreement"
(each as defined in Section 7) (referring to intellectual property and
confidentiality, respectively) and in Section
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8 (referring to termination) will survive termination of Mr. Antinori's
employment, regardless of cause.
Mr. Antinori's primary location of employment shall be in Atlanta, Georgia
or its environs, and he shall undertake such business travel as is reasonably
required in the discharge of his duties set forth below.
2. DUTIES. Mr. Antinori will be employed as a full-time employee of
Carreker and will serve as Vice Chairman, Product and Business Development,
reporting directly to the Chairman of the Board. Mr. Antinori agrees that, to
the best of his ability and experience, he will at all times conscientiously
perform all of the duties and obligations assigned to him under this Agreement.
3. FULL-TIME EMPLOYMENT. Mr. Antinori's employment will be on a full-
time basis, in accordance with standard employee policies for Carreker. Mr.
Antinori will not engage in any other business or render any commercial or
professional services, directly or indirectly, to any other person or
organization, whether for compensation or otherwise, provided that Mr. Antinori
may (i) provide incidental assistance to family members on matters of family
business; and (ii) sit on the boards of corporations and other organizations
(including, without limitation, charitable and other nonprofit organizations)
that do not compete with Carreker; provided in each case that such activities
do not conflict with or interfere with Mr. Antinori's normal full-time and
first priority obligations to Carreker. Mr. Antinori may make personal
investments in nonpublicly traded corporations, partnerships or other entities
that, to the knowledge of Carreker, are not at the time of such investment
engaged in any business activities competitive with Carreker. Notwithstanding
anything to the contrary contained in this Agreement, Mr. Antinori may make
personal investments in publicly traded corporations regardless of the business
they are engaged in, provided that Mr. Antinori does not at any time own in
excess of 1% of the issued and outstanding stock of any such corporation.
4. SALARY; POTENTIAL BONUS. Mr. Antinori's salary for the first year of
the Initial Period will be not less than $350,000. If the Company does not
consummate an initial public offering of its equity securities during such
first year and if the Company's financial performance meets or exceeds the
standards for financial performance established in respect of such first year
by the Company's board of directors (i.e., the Company's "board plan"), then
Mr. Antinori's salary for the second year of the Initial Period will be not
less than $400,000. If Mr. Antinori validly exercises his option to extend the
term hereof such that the Initial Period is three years, if the Company does
not consummate an initial public offering of its equity securities during the
second year of the Initial Period and if the Company's financial performance
meets or exceeds the standards for financial performance established in respect
of such second year by the Company's board of directors, then Mr. Antinori's
salary for the third year of the Initial Period will be not less than $450,000.
All salary is payable on Carreker's regular payroll dates, less required
withholdings.
Mr. Antinori acknowledges that the Company's board of directors has
complete and sole discretion to establish and revise the Company's "board
plan."
EMPLOYMENT AGREEMENT - Page 2
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The board of directors of Carreker has the sole discretion whether or not
to establish a bonus pool. If and to the extent the board of directors of
Carreker establishes a bonus pool for 1997 or any subsequent year, then Mr.
Antinori will be entitled to participate in the same at a level consistent with
the participation of that of the Chairman of Carreker.
In further consideration of his execution and delivery of this Agreement,
Mr. Antinori shall receive a cash bonus of $175,000, less required
withholdings, on the Effective Date.
5. BENEFITS. Mr. Antinori will also be entitled to insurance, vacation
and other benefits commensurate with his position (and consistent with the
level of such benefits as are afforded the Chairman of Carreker) in accordance
with Carreker's standard employee policies in effect from time to time. Mr.
Antinori acknowledges receipt of a summary of Carreker's standard employee
benefits policies in effect as of the date hereof.
6. REIMBURSEMENT OF BUSINESS EXPENSES. Carreker will, in accordance
with Carreker's policies in effect from time to time, reimburse Mr. Antinori
for all out-of-pocket reasonable business expenses incurred by Mr. Antinori in
connection with the performance of his duties under this Agreement upon
submission of the required documentation required pursuant to Carreker's
standard policies and record-keeping procedures (and consistent with the
application of such policies to the Chairman of Carreker).
7. INTELLECTUAL PROPERTY AND CONFIDENTIALITY. Simultaneously with the
execution of this Agreement, Mr. Antinori is executing and delivering and
hereby adopts and agrees to be bound by the Intellectual Property Rights
Agreement and the Confidentiality Agreement, a copy of each of which is
attached to this Agreement as ATTACHMENT A and ATTACHMENT B, respectively.
8. TERMINATION.
(a) CARREKER. Notwithstanding Section 1, Carreker, acting by a
determination of its board of directors (and not a committee thereof), may
terminate Mr. Antinori's employment at any time during the Initial Period
(whether two or three years) with or without cause upon written notice to Mr.
Antinori.
(b) BY MR. ANTINORI. During the first two years of the Initial
Period (i.e., determined without regard to an extension of the Initial Period
to three years), Mr. Antinori may terminate Mr. Antinori's employment upon
written notice to Carreker only if Carreker is in material breach of this
Agreement, provided that such termination will become effective only upon the
expiration of 30 days following such notice and then only if the breach
remains uncured. Such termination shall be deemed a termination by Carreker
of Mr. Antinori's employment under Section 8(a) for which Mr. Antinori shall
have the remedy set forth in Section 8(c).
(c) REMEDY. Upon termination of Mr. Antinori's employment pursuant
to Section 8(a) without cause or Section 8(b) only (at which time he shall
cease to be an employee of Carreker for all purposes, including for all
benefit plan, insurance and other purposes), Carreker will pay to Mr.
Antinori, on Carreker's regular payroll dates and less required
EMPLOYMENT AGREEMENT - Page 3
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withholdings, salary at the rate paid to Mr. Antinori immediately prior to
such termination, for the remaining balance (if any) of the first two years
of the Initial Period (i.e., determined without regard to an extension of the
Initial Period to three years) (the "TERMINATION PAYMENTS"). Carreker's
obligation to make the Termination Payments pursuant to this Section 8(c) is
in lieu of any damages or any other payment or benefits, including without
limitation stock benefits, that Carreker might otherwise be obligated to pay
Mr. Antinori as a result of Mr. Antinori's termination of employment;
PROVIDED, HOWEVER, that if at any time Carreker terminates Mr. Antinori's
employment without cause, under circumstances in which Mr. Antinori is not
entitled to Termination Payments, or is entitled to Termination Payments that
in the aggregate are less than a lump-sum severance payment consistent with
Carreker's standard severance payment policy, if any, as may be in effect at
the time of termination, determined with applicable credit for Mr. Antinori's
time of service with Antinori Software, Inc., then Mr. Antinori shall be
entitled to such lump-sum severance payment. (For purposes of reference and
example only, Carreker's standard severance payment policy as of the date of
this Agreement provides for the payment of one week's salary at the time of
termination for each year of service as an employee.) Carreker and Mr.
Antinori agree that, in view of the nature of the issues likely to arise in
the event of such a termination, it would be impracticable or extremely
difficult to fix the actual damages resulting from such termination and
proving actual damages, causation and foreseeability in the case of such
termination would be costly, inconvenient and difficult. In requiring
Carreker to make the Termination Payments as set forth herein, it is the
intent of the parties to provide, as of the date of this Agreement, for a
liquidated amount of damages to be paid by Carreker to Mr. Antinori. Such
liquidated amount shall be deemed full and adequate damages for such
termination and is not intended by either party to be a penalty.
(d) UPON DEATH. If Mr. Antinori dies during the term of this
Agreement, then Carreker will pay his estate an amount equal to all salary
accrued, bonuses (if any) accrued and payable and benefits accrued as of the
date of his death.
(e) SURVIVAL. Mr. Antinori's and Carreker's obligations under
Sections 7, 8 and 9(i) of this Agreement will survive the termination of
Carreker's employment of Mr. Antinori.
(f) CAUSE. As used in this Agreement the term "with cause" shall
mean and be limited to: (i) a material breach of this Agreement by Mr.
Antinori that is not corrected within thirty (30) days after written notice
of same from the board of directors of Carreker to Mr. Antinori; (ii) gross
and willful neglect by Mr. Antinori of his duties and responsibilities
hereunder; (iii) fraud, criminal misconduct, breach of fiduciary duty,
dishonesty, or gross and willful misconduct by Mr. Antinori in connection
with the performance of his duties and responsibilities hereunder; (iv) Mr.
Antinori being under the influence of alcohol or drugs during business hours,
or being habitually drunk or addicted to drugs; (v) the commission by Mr.
Antinori of any crime of moral turpitude; (vi) material breach by Mr.
Antinori of his obligations under any assignment of copyright and other
intellectual property rights, noncompetition agreement, trade secret
agreement or confidentiality agreement, which breach is not cured within
thirty (30) days after written notice of same from the board of directors of
Carreker to Mr. Antinori; or (vii) habitual breach by Mr. Antinori of any of
the material provisions of this Agreement or such other assignment or
agreements (regardless of any prior cure thereof).
EMPLOYMENT AGREEMENT - Page 4
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9. MISCELLANEOUS.
(a) NOTICES. Any and all notice permitted or required to be given
under this Agreement must be in writing. Notices will be deemed given (i)
when personally received or when sent by facsimile transmission (to the
receiving party's facsimile number), (ii) on the first business day after
having been sent by commercial overnight courier with written verification of
receipt, or (iii) on the third business day after having been sent by
registered or certified mail from a location on the United States mainland,
return receipt requested, postage prepaid, whichever occurs first, at the
address set forth below or at any new address, notice of which will have been
given in accordance with this Section 9(a):
(i) If to Carreker: The Carreker Group, Inc.
14001 North Dallas Parkway, Suite 1100
Dallas, Texas 75240
Attention: J. D. Carreker, Chief Executive Officer
Phone: (972) 458-1981
Fax: (972) 458-2567
with a copy to:
Locke Purnell Rain Harrell
(A Professional Corporation)
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201
Attention: Russell F. Coleman
Phone: (214) 740-8686
Fax: (214) 740-8800
(ii) If to Mr. Antinori: Ronald R. Antinori
238 15th Street #12
Atlanta, Georgia 30309
Phone: (404) 876-2762
with a copy to:
Morris, Manning & Martin
A Limited Liability Partnership
3343 Peachtree Road, N.E., Suite 1600
Atlanta, Georgia 30326
Attention: Charles R. Beaudrot, Jr.
Phone: (404) 233-7000
Fax: (404) 365-9532
(b) AMENDMENTS. This Agreement, including the Attachments hereto,
contains the entire agreement and supersedes and replaces all prior agreements
between Carreker and Mr. Antinori, or between Antinori Software, Inc. and Mr.
Antinori, concerning Mr. Antinori's
EMPLOYMENT AGREEMENT - Page 5
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employment and employment benefits. This Agreement may not be changed or
modified in whole or in part except by a writing signed by the party against
whom enforcement of the change or modifications is sought.
(c) SUCCESSORS AND ASSIGNS. This Agreement will not be assignable by
either Mr. Antinori or Carreker, except that the rights and obligations of
Carreker under this Agreement may be assigned to a corporation which succeeds
Carreker as the result of a merger or other corporate reorganization and which
continues the business of Carreker, or a subsidiary of Carreker, provided that
Carreker guarantees the performance by such assignee of Carreker's obligations
hereunder.
(d) GOVERNING LAW. The laws of the State of Texas (without regard
to its choice of law principles that might apply the law of another
jurisdiction) will govern the validity of this Agreement, the construction of
its terms, and the interpretation and enforcement of the rights and duties of
the parties.
(e) NO WAIVER. The failure of any party to enforce any of the
provisions hereof will not be construed to be a waiver of the right of such
party thereafter to enforce such provisions. The waiver by any party of the
right to enforce any of the provisions hereof on any occasion will not be
construed to be a waiver of the right of such party to enforce such
provisions on any other occasion.
(f) SEVERABILITY. Mr. Antinori and Carreker recognize that the
limitations contained in this Agreement are reasonably and properly required
for the adequate protection of the interests of Carreker. If for any reason a
court of competent jurisdiction or an arbitrator in a binding arbitration
proceeding finds any provision of this Agreement, or the application thereof,
to be unenforceable, then the remaining provisions of this Agreement will be
interpreted so as best to reasonably effect the intent of the parties. The
parties further agree that the court or arbitrator shall replace any such
invalid or unenforceable provisions with valid and enforceable provisions
designed to achieve, to the extent possible, the business purposes and intent
of such unenforceable provisions.
(g) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which will be an original as regards any party whose signature
appears thereon and all of which together will constitute one and the same
instrument. This Agreement will become binding when one or more counterparts
hereof, individually or taken together, bear the signatures of both parties
reflected hereon as signatories.
(h) EFFECT OF AGREEMENT. This Agreement will be void and have no
effect if the Effective Date does not occur on or before February 1, 1997.
(i) DISPUTE RESOLUTION.
(i) ARBITRATION OF DISPUTES. Any dispute under this
Agreement shall be resolved by arbitration in Dallas, Texas and, except as
herein specifically stated, in accordance with the commercial arbitration
rules of the American Arbitration Association ("AAA RULES")
EMPLOYMENT AGREEMENT - Page 6
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then in effect. However, in all events, these arbitration provisions shall
govern over any conflicting rules that may now or hereafter be contained in
the AAA Rules. Any judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction over the subject matter thereof.
The arbitrator shall have the authority to grant any equitable and legal
remedies that would be available in any judicial proceeding instituted to
resolve such dispute.
(ii) COMPENSATION OF ARBITRATOR. Any such arbitration will
be conducted before a single arbitrator who will be compensated for his or
her services at a rate to be determined by the parties or by the American
Arbitration Association, but based upon reasonable hourly or daily consulting
rates for the arbitrator if the parties are not able to agree upon his or her
rate of compensation.
(iii) SELECTION OF ARBITRATOR. The American Arbitration
Association will have the authority to select an arbitrator from a list of
arbitrators who are lawyers familiar with Texas contract law; provided,
however, that such lawyers cannot work for a firm then performing services
for either party, that each party will have the opportunity to make such
reasonable objection to any of the arbitrators listed as such party may wish
and that the American Arbitration Association will select the arbitrator from
the list of arbitrators as to whom neither party makes any such objection.
If the foregoing procedure is not followed, then each party will choose one
person from the list of arbitrators provided by the American Arbitration
Association (provided that such person does not have a conflict of interest),
and the two persons so selected will select from the list provided by the
American Arbitration Association the person who will act as the arbitrator.
(iv) PAYMENT OF COSTS. Carreker and Mr. Antinori will each
pay 50% of the initial compensation to be paid to the arbitrator in any such
arbitration and 50% of the costs of transcripts and other normal and regular
expenses of the arbitration proceedings; provided, however, that the
prevailing party in any arbitration will be entitled to an award of
attorneys' fees and costs, and all costs of arbitration, including those
provided for above, will be paid by the non-prevailing party, and the
arbitrator will be authorized to make such determinations.
(v) BURDEN OF PROOF. For any dispute submitted to
arbitration, the burden of proof will be as it would be if the claim were
litigated in a Texas judicial proceeding.
(vi) AWARD. Upon the conclusion of any arbitration
proceedings hereunder, the arbitrator will render findings of fact and
conclusions of law and a written opinion setting forth the basis and reasons
for any decision reached and will deliver such documents to each party to
this Agreement along with a signed copy of the award.
(vii) TERMS OF ARBITRATION. The arbitrator chosen in
accordance with these provisions will not have the power to alter, amend or
otherwise affect the terms of these arbitration provisions or the provisions
of this Agreement.
EMPLOYMENT AGREEMENT - Page 7
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(viii) NATURE OF REMEDY. Except as specifically otherwise
provided in this Agreement, arbitration will be the sole and exclusive remedy
of the parties for any dispute arising out of this Agreement.
(ix) EQUITABLE REMEDY. Notwithstanding the provisions of
this Section 9(i) and the arbitration provided for herein, actions initiated
or maintained by the parties for injunctive or similar equitable relief are
not subject to arbitration and may be brought by the parties in any court
that has jurisdiction, and should the party bringing any such action prevail,
all costs and expenses (including legal fees) shall be borne by the party
against whom such action was brought.
(j) TAX AUDIT AGREEMENT. If, following the Closing, Ronald R.
Antinori receives notice of any audit or examination by any taxing authority
of any tax return for Antinori for any period prior to, or prior to and
including, the Closing, then Ronald R. Antinori shall promptly notify
Carreker of such notice and Carreker at its own expense may participate in
such audit or examination and shall be kept apprised by Ronald R. Antinori of
the progress of such audit or examination. Ronald R. Antinori agrees that he
will not agree to any audit adjustment or revision that would adversely
affect Carreker without Carreker's approval or agreement, which approval or
agreement shall not be unreasonably withheld.
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EMPLOYMENT AGREEMENT - Page 8
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IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the Effective Date.
/s/ Ronald R. Antinori
THE CARREKER GROUP, INC. RONALD R. ANTINORI
By: /s/ J.D.Carreker
J.D. Carreker
Chairman and Chief
Executive Officer
EMPLOYMENT AGREEMENT - Page 9