Employment Agreement - Carreker Group Inc. and J.D. Carreker
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 (the "COMPANY"), and J.D. Carreker ("MR. CARREKER").
RECITAL
Mr. Carreker is the Chief Executive Officer and Chairman of the board of
directors of the Company. In consideration for the Company's entering into and
performing under this Agreement, Mr. Carreker has also agreed to enter into
this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements of the parties contained herein, the Company and Mr. Carreker hereby
agree as follows:
1. EMPLOYMENT. The Company will employ Mr. Carreker and Mr. Carreker
accepts employment with the Company 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. Carreker may extend the period by an additional year (such two or
three year period, as applicable, being the "INITIAL PERIOD"). Mr. Carreker'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
the Company 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 the Company and Mr. Carreker 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 8 (referring to termination)
will survive termination of Mr. Carreker's employment, regardless of cause.
Mr. Carreker's primary location of employment shall be in Dallas,
Texas 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. Carreker will be employed as a full-time employee of the
Company and initially will serve as its Chief Executive Officer and as a
director. Mr. Carreker 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. Carreker's employment will be on a full-
time basis, in accordance with standard employee policies for the Company. Mr.
Carreker 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. Carreker
may (i) provide incidental assistance to family members on matters of family
business; and (ii) sit on the board of directors of corporations and other
organizations (including, without limitation, charitable and other nonprofit
organizations) that do not compete with the Company; provided in each case that
such activities do not conflict with or interfere with Mr. Carreker's
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normal full-time and first priority obligations to the Company. Mr. Carreker
may make personal investments in nonpublicly traded corporations,
partnerships or other entities that, to the knowledge of the Company, are not
at the time of such investment engaged in any business activities competitive
with the Company. Notwithstanding anything to the contrary contained in this
Agreement, Mr. Carreker may make personal investments in publicly traded
corporations regardless of the business they are engaged in, provided that
Mr. Carreker 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. Carreker's salary for the first year of
the Initial Period will be not less than $450,000. 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. Carreker's salary for the second year of the Initial Period will be not
less than $500,000. If Mr. Carreker 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. Carreker's
salary for the third year of the Initial Period will be not less than $550,000.
All salary is payable on the Company's regular payroll dates, less required
withholdings.
Mr. Carreker acknowledges that the Company's board of directors has
complete and sole discretion to establish and revise the Company's "board
plan."
The board of directors of the Company has the sole discretion whether or
not to establish a bonus pool. If and to the extent the board of directors of
the Company establishes a bonus pool for 1997 or any subsequent year, then Mr.
Carreker will be entitled to participate in the same.
5. BENEFITS. Mr. Carreker will also be entitled to insurance, vacation
and other benefits commensurate with his position in accordance with the
Company's standard employee policies in effect from time to time. Mr. Carreker
acknowledges receipt of a summary of the Company's standard employee benefits
policies in effect as of the date hereof.
6. REIMBURSEMENT OF BUSINESS EXPENSES. The Company will, in accordance
with the Company's policies in effect from time to time, reimburse Mr. Carreker
for all out-of-pocket reasonable business expenses incurred by Mr. Carreker in
connection with the performance of his duties under this Agreement upon
submission of the required documentation required pursuant to the Company's
standard policies and record-keeping procedures.
7. INTELLECTUAL PROPERTY. Simultaneously with the execution of this
Agreement, Mr. Carreker is executing and delivering and hereby adopts and
agrees to be bound by the Intellectual Property Rights Agreement, a copy of
which is attached to this Agreement as ATTACHMENT A, and by the Confidentiality
Agreement, a copy of which is attached to this Agreement as ATTACHMENT B.
EMPLOYMENT AGREEMENT - Page 2
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8. TERMINATION.
(a) THE COMPANY. Notwithstanding Section 1, the Company, acting by a
determination of its board of directors (and not a committee thereof), may
terminate Mr. Carreker's employment at any time during the Initial Period
(whether two or three years) with or without cause upon written notice to Mr.
Carreker.
(b) BY MR. CARREKER. 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. Carreker may terminate Mr. Carreker's employment upon
written notice to the Company only if the Company 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
the Company of Mr. Carreker's employment under Section 8(a) for which Mr.
Carreker shall have the remedy set forth in Section 8(c).
(c) REMEDY. Upon termination of Mr. Carreker'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 the Company for all purposes, including for all benefit
plan, insurance and other purposes), the Company will pay to Mr. Carreker, on
the Company's regular payroll dates and less required withholdings (if any),
salary at the rate paid to Mr. Carreker 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"). The Company'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 the Company might otherwise be obligated to pay Mr. Carreker as a result
of Mr. Carreker's termination of employment; PROVIDED, HOWEVER, that if at any
time the Company terminates Mr. Carreker's employment without cause under
circumstances in which Mr. Carreker 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 the Company's standard severance payment
policy, if any, as may be in effect at the time of termination, then Mr.
Carreker shall be entitled to such lump-sum severance payment. (For purposes
of reference and example only, the Company'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.) The
Company and Mr. Carreker 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 the
Company 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 the Company to Mr. Carreker. Such liquidated
amount shall be deemed full and adequate damages for such termination and is
not intended by either party to be a penalty.
EMPLOYMENT AGREEMENT - Page 3
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(d) UPON DEATH. If Mr. Carreker dies during the term of this
Agreement, then the Company 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. Carreker's and the Company's obligations under
Sections 7, 8 and 9(i) of this Agreement will survive the termination of
Carreker's employment of Mr. Carreker.
(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.
Carreker that is not corrected within thirty (30) days after written notice
of same from the board of directors of the Company to Mr. Carreker; (ii)
gross and willful neglect by Mr. Carreker of his duties and responsibilities
hereunder; (iii) fraud, criminal misconduct, breach of fiduciary duty,
dishonesty, or gross and willful misconduct by Mr. Carreker in connection
with the performance of his duties and responsibilities hereunder; (iv) Mr.
Carreker being under the influence of alcohol or drugs during business hours,
or being habitually drunk or addicted to drugs; (v) the commission by Mr.
Carreker of any crime of moral turpitude; (vi) material breach by Mr.
Carreker 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
the Company to Mr. Carreker; or (vii) habitual breach by Mr. Carreker of any
of the material provisions of this Agreement or such other assignment or
agreements (regardless of any prior cure thereof).
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 the Company: The Carreker Group, Inc.
14001 North Dallas Parkway, Suite 1100
Dallas, Texas 75240
Attention: President
Phone: (972) 458-1981
Fax: (972) 458-2567
with a copy to:
Locke Purnell Rain Harrell
(A Professional Corporation)
2200 Ross Avenue, Suite 2200
EMPLOYMENT AGREEMENT - Page 4
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Dallas, Texas 75201
Attention: Russell F. Coleman
Phone: (214) 740-8686
Fax: (214) 740-8800
(ii) If to Mr. Carreker: J.D. Carreker
4321 Overhill
Dallas, Texas 75205
Phone: (214) 528-8303
(b) AMENDMENTS. This Agreement, including the Attachments hereto,
contains the entire agreement and supersedes and replaces all prior agreements
between the Company and Mr. Carreker concerning Mr. Carreker's 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. Carreker or the Company, except that the rights and obligations of
the Company under this Agreement may be assigned to a corporation which
succeeds the Company as the result of a merger or other corporate
reorganization and which continues the business of the Company, or a subsidiary
of the Company, provided that the Company guarantees the performance by such
assignee of the Company'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. Carreker and the Company recognize that the
limitations contained in this Agreement are reasonably and properly required
for the adequate protection of the interests of the Company. 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
EMPLOYMENT AGREEMENT - Page 5
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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") 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. The Company and Mr. Carreker 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.
EMPLOYMENT AGREEMENT - Page 6
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(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.
(viii) NATURE OF REMEDY. Except as specifically otherwise
provided below, 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.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
EMPLOYMENT AGREEMENT - Page 7
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IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the Effective Date.
THE CARREKER GROUP, INC. /s/ J.D. CARREKER
J.D. CARREKER
By: /s/ Terry Gage
Terry Gage
Senior Vice President
EMPLOYMENT AGREEMENT - Page 8