Employment Agreement - Carreker-Antinori Inc. and Richard L. Linting
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "AGREEMENT") is entered into on this 10th
day of March 1998, to be effective for all purposes as of December 15, 1996,
between Carreker-Antinori, Inc., a Texas corporation formerly named The Carreker
Group, Inc. (the "COMPANY"), and Richard L. Linting ("MR. LINTING").
RECITALS
Mr. Linting commenced employment by the Company effective December 15,
1996, pursuant to a letter agreement between Mr. Linting and the Company dated
December 18, 1996.
This Agreement sets forth in definitive form the terms of Mr. Linting's
employment by the Company. As such, this Agreement supersedes the letter
agreement in its entirety.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
of the parties contained herein, the Company and Mr. Linting hereby agree as
follows:
1. EMPLOYMENT. The Company will employ Mr. Linting and Mr. Linting
accepts employment with the Company for a period of three years beginning
December 15, 1996 (the "INITIAL PERIOD"). Mr. Linting's employment may continue
after the Initial Period but will then be terminable by either party at will,
with or without cause; PROVIDED, HOWEVER, that during such "at will" period, the
Company may terminate Mr. Linting's employment only after providing Mr. Linting
not less than two weeks prior notice of such termination; PROVIDED FURTHER,
HOWEVER, that during such "at will" period the Company need not provide such two
weeks prior notice if such termination is for cause. The obligations of the
Company and Mr. Linting set forth in that certain "Noncompetition, Property
Rights and Trade Secrets Agreement" and in that certain "Confidentiality
Agreement" (each as defined in Section 8) (referring to noncompetition,
intellectual property rights and confidentiality, respectively) and in Section 9
(referring to termination) will survive termination of Mr. Linting's employment,
regardless of reason.
During the period of the Company's employment of Mr. Linting, the Company
shall use its reasonable best efforts to nominate and secure the election of Mr.
Linting to the Company's Board of Directors and any executive or similar
committee of the Company's Board of Directors. Mr. Linting acknowledges that
the Company does not have the right, by itself, to secure such election, and
also that a director's fiduciary duty, and possibly in certain cases a
shareholder's fiduciary duty, in either case exercised in good faith, may in
remote circumstances preclude such election, in which event the Company's
obligations set forth in the foregoing sentence shall not be deemed breached.
2. RESIDENCE AND BUSINESS TRAVEL. The Company acknowledges that Mr.
Linting intends to maintain his principal residence in Bozeman, Montana during
the Initial Period. Mr. Linting acknowledges and agrees that the primary
location of his employment will be in Dallas, Texas or its environs, that he
will spend substantial time in Dallas, Texas and other locations where the
Company transacts (or proposes to transact) business and undertake such business
travel
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as is reasonably required in the discharge of his duties set forth below and
for the successful operation of the Company.
3. DUTIES. Mr. Linting was employed initially as the President and Chief
Operating Officer of the Company's consulting and management services group.
The parties acknowledge that, subsequent to the effective date of this
Agreement, Mr. Linting was elected to serve as the President and Chief Operating
Officer of the Company. With the exception of certain administrative
responsibilities currently handled by Mr. Terry Gage, Mr. Linting shall be
responsible for the operation of the Company's consulting and management
services group and software group, and shall have such authority as is
reasonably necessary to perform his duties.
Mr. Linting agrees that, to the best of his ability and experience, he will
at all times conscientiously perform such duties and obligations as may be
assigned to him, consistent with his position, by the Company's Chief Executive
Officer or the Company's Board of Directors.
4. FULL-TIME EMPLOYMENT. Mr. Linting's employment will be on a full-time
basis, in accordance with standard employee policies of the Company. In
addition to such restrictions as are set forth in the Noncompetition, Property
Rights and Trade Secrets Agreement referenced herein, Mr. Linting 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. Linting may (a) provide incidental
assistance to family members on matters of family business; (b) engage in
charitable activities on behalf of civic, educational or other nonprofit
organizations; and (c) subject to the approval of the Company's Chief Executive
Officer, sit on the board of directors of corporations and other business
organizations that, in any and all cases, do not compete with the Company;
provided in each case that such activities do not conflict with or interfere
with Mr. Linting's normal full-time and first priority obligations to the
Company. Mr. Linting may make personal investments in non-publicly 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. Linting may make personal investments
in publicly traded corporations regardless of the business they are engaged in,
provided that Mr. Linting does not at any time own in excess of two percent (2%)
of the issued and outstanding stock of any such corporation.
5. SALARY; POTENTIAL INCENTIVE COMPENSATION; STOCK OPTIONS.
(a) SALARY AND POTENTIAL INCENTIVE COMPENSATION. Mr. Linting's
annual base salary for the Initial Period will be not less than $350,000. All
base salary will be payable on the Company's regular payroll dates, less
required withholdings.
If the Company's financial performance meets or exceeds the standards for
financial performance established for a fiscal year by the Company's Board of
Directors (i.e., the Company's "board plan"), then Mr. Linting will be eligible
to receive, subject to such reasonably achievable incentive compensation
criteria as the Company's Board of Directors establishes from time to time
(which criteria shall take into consideration that Mr. Linting's
responsibilities
EMPLOYMENT AGREEMENT - Page 2
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increased during the fiscal year ending January 31, 1998), incentive
compensation equal to seventy percent (70%) of Mr. Linting's annual base
salary on terms no less favorable than those applicable to other high level
officers of the Company (e.g., its Chairman, Vice-Chairman, Chief Executive
Officer and Chief Financial Officer). Mr. Linting acknowledges that the
Company's Board of Directors has complete and sole discretion (exercisable in
good faith) to establish and revise the Company's "board plan" and such
reasonably achievable criteria; PROVIDED, HOWEVER, that no such action may
retroactively alter or limit the amount of any incentive compensation
actually and previously earned by Mr. Linting.
(b) STOCK OPTIONS. The Company has heretofore granted, effective as
of December 15, 1996, Mr. Linting options to purchase up to 40,000 shares of the
Company's Class B Non-Voting Common Stock at an exercise price of $19.87 per
share. Such options, which are incentive stock options with respect to 15,000
shares and non-qualified options with respect to 25,000 shares, shall each vest
one-third as of the effective day of the grant, one-third on December 15, 1997
and the remaining one-third on December 15, 1998. The Company has also
heretofore granted, effective as of August 1, 1997, Mr. Linting options to
purchase up to 20,000 shares of the Company's Class B Non-Voting Common Stock at
an exercise price of $28.26 per share. Such options, which are non-qualified
options, shall each vest one-third as of the effective day of the grant,
one-third on August 1, 1998, and the remaining one-third on August 1, 1999. All
unvested options shall vest immediately, however, upon the occurrence of any of
the following: a Change of Control (as defined below), the termination by the
Company of Mr. Linting's employment without cause, Mr. Linting's resignation
pursuant to Section 9(b) of this Agreement, Mr. Linting's permanent disability,
or Mr. Linting's death. Each such option shall be issued under and pursuant to
the Company's 1994 Amended and Restated Long Term Incentive Plan, with terms and
conditions as provided therein except as expressly provided herein. In addition
to the above stock options, Mr. Linting may also be eligible to receive such
other options that the Company's Board of Directors shall, in its sole
discretion, hereafter determine to grant to him.
For purposes of this Agreement, a Change of Control shall have occurred if,
as the result of a completed tender offer, merger, consolidation, sale of
assets, acquisition of shares or contested election, or any combination of the
foregoing transactions, (a) any person (other than J.D. Carreker, his heirs,
Crow Family Partnership, L.P., Science Applications International Corporation or
affiliates of any of them) shall become the owner, beneficially or of record, of
more than fifty percent (50%) of the aggregate voting power of the Company, or
(b) during any period of two consecutive years, individuals who at the beginning
of such period constituted the Board of Directors of the Company (together with
any new directors whose election to such board or whose nomination for election
by the shareholders of the Company was approved by the directors then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease to
constitute a majority of the Board of Directors of the Company.
6. BENEFITS. Mr. Linting will also be entitled to insurance, vacation
and other employee benefits commensurate with his position (and reasonably
consistent with the level of such benefits as are afforded the Chairman of the
Company) in accordance with the Company's standard employee policies in effect
from time to time. Mr. Linting acknowledges receipt of a
EMPLOYMENT AGREEMENT - Page 3
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summary of the Company's standard employee benefits policies in effect as of
the date of this Agreement.
7. REIMBURSEMENT OF SPECIAL EXPENSES AND NORMAL BUSINESS EXPENSES. The
Company agrees to reimburse Mr. Linting in an aggregate amount of up to $48,000
per year (with each such year commencing on December 15th) for his out-of-pocket
expenses incurred in connection with an apartment in Dallas, Texas with health
club facilities, an automobile and furnishings.
Mr. Linting's expenses incurred in travelling to and from Bozeman, Montana,
Laguna Beach, California or any other primary or secondary residences of Mr.
Linting (each, a "residence") shall be reimbursed to Mr. Linting only to the
extent that, in connection with travel on Company business, airfare expenses
incurred by Mr. Linting in (a) such travel that includes making an intermediate
stop (i.e., a "layover") in such residence do not exceed the comparable airfare
expenses that would have been incurred BUT FOR the intermediate stop and (b)
round-trip travel from a residence to a location other than Dallas, Texas do not
exceed comparable airfare expenses of round-trip travel to such location from
Dallas, Texas.
The Company will, but in accordance with the Company's policies in effect
from time to time, reimburse Mr. Linting for all other out-of-pocket reasonable
business expenses incurred by Mr. Linting 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.
8. INTELLECTUAL PROPERTY. Simultaneously with the execution of this
Agreement, Mr. Linting agrees to execute and deliver that certain
Noncompetition, Property Rights and Trade Secrets Agreement between him and the
Company, a copy of which is attached to this Agreement as ATTACHMENT A, and that
certain Confidentiality Agreement between him and the Company, a copy of which
is attached to this Agreement as ATTACHMENT B.
9. TERMINATION.
(a) THE COMPANY. Notwithstanding Section 1, the Company may
terminate Mr. Linting's employment at any time during the Initial Period with or
without cause upon written notice to Mr. Linting.
(b) BY MR. LINTING. During the Initial Period, Mr. Linting may
terminate his employment upon written notice to the Company if the Company is
then in material breach of this Agreement; provided, however, that such material
breach shall permit such termination only if the Company shall have been
provided at least 30 days' prior notice and opportunity to cure such material
breach. Any such termination shall be deemed a termination by the Company of
Mr. Linting's employment under Section 9(a) for which Mr. Linting shall have the
remedy set forth in Section 9(c).
(c) REMEDY. Upon termination of Mr. Linting's employment during the
Initial Period without cause pursuant to Section 9(a) or pursuant to Section
9(b) only (at which time he
EMPLOYMENT AGREEMENT - Page 4
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shall cease to be an employee of the Company for all purposes), the Company
will (i) pay to Mr. Linting, for two years, on the Company's regular payroll
dates and less required withholdings, base salary at the rate paid to Mr.
Linting immediately prior to such termination; (ii) provide Mr. Linting, for
a period coterminous with such payments, with major medical health and dental
insurance reasonably comparable to employee benefits then provided to the
Company's senior officers in accordance with the Company's standard employee
benefits policies; and (iii) pay to Mr. Linting, as and when the same would
be otherwise payable, any incentive compensation for the balance of the
Initial Period based on incentive compensation criteria that, prior to or on
the date of termination, have been established by the Company's Board of
Directors, determined as to amount as if Mr. Linting had remained an employee
of the Company hereunder. Without limiting the foregoing sentence, the
$48,000 per year reimbursement allowance provided for above shall not survive
termination. In addition to the benefits described above, all stock options
granted to Mr. Linting in accordance with Section 5(b) shall become fully
vested and, subject to their stated term, exercisable on and after such date
of termination of employment (whether or not previously vested or
exercisable).
If the Company terminates Mr. Linting's employment with cause, then none of
the foregoing post-termination payments or benefits, or any other
post-termination or severance payments or benefits, shall be made or provided
to Mr. Linting.
For purposes of this Agreement, the term "cause" shall mean conduct
involving one or more of the following as determined by the Company in its
reasonable discretion: (i) the substantial, material and continuing failure of
Mr. Linting, after reasonable notice thereof, to render services to the Company
or any subsidiary in accordance with the terms or requirements of this
Agreement; (ii) disloyalty, gross negligence, willful misconduct, dishonesty or
breach of fiduciary duty to the Company or any subsidiary that results in direct
or indirect material loss, damage or injury to the Company or any subsidiary;
(iii) the commission of an act of embezzlement or fraud; (iv) deliberate
disregard of the rules or policies of the Company that results in direct or
indirect material loss, damage or injury to the Company or any subsidiary; (v)
the unauthorized and intentional disclosure of any trade secret or confidential
information of the Company or any subsidiary; (vi) the commission of an act that
constitutes unfair competition with the Company or any subsidiary or which
induces any customer or supplier to terminate a contract with the Company or any
subsidiary, that results in direct or indirect material loss, damage or injury
to the Company or any subsidiary; (vii) habitual drunkenness or an addiction to
drugs; or (viii) commission of a crime of moral turpitude.
The Company's obligation to make payments (and provide benefits), if any,
pursuant to this Section 9(c) is in lieu of any damages and any other payment or
other benefits that the Company might otherwise be obligated to pay Mr. Linting
as a result of the termination of Mr. Linting's employment with the Company
(including for claims of employment discrimination, wrongful termination or
breach of this Section 9). The Company and Mr. Linting 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 payments (and provide the
benefits) as set forth herein, it is the intent of the parties to provide, as of
the date of this
EMPLOYMENT AGREEMENT - Page 5
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Agreement, for a liquidated amount of damages to be paid by the Company to
Mr. Linting. 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. Except as otherwise provided for in this Agreement,
if Mr. Linting dies during the term of this Agreement, then the Company will pay
his estate an amount equal to all earned and unpaid salary, bonuses (if any)
accrued and payable and accrued benefits, all as of the date of his death.
(e) RESIGNATION AS DIRECTOR. If Mr. Linting ceases to be a full-time
employee of the Company when he is serving as a director of the Company, then
Mr. Linting agrees to promptly resign as a director of the Company.
(f) SURVIVAL. Mr. Linting's and the Company's obligations under
Sections 8, 9 and 12(h) of this Agreement and, to the extent that any
reimbursable expenses have not been reimbursed as of the time of such
termination, under Section 7 of this Agreement, will survive the termination of
Mr. Linting's employment with the Company.
10. OTHER PAYMENTS. The Company will reimburse Mr. Linting for reasonable
out-of-pocket expenses incurred in moving his furnishings from his residence in
Montana or California to the Dallas, Texas area. In addition, the Company will
reimburse Mr. Linting for up to $5,000 in legal fees in connection with (a) the
review of the letter agreement referenced in the recitals to this Agreement, the
Company's benefits and compensation plans and the documentation relating to the
merger between the Company and Antinori Software, Inc. and (b) the review and
negotiation of this Agreement.
11. FUTURE SHARE SALES. The Company agrees to take into consideration in
any sale of the Company's capital stock the valuations and projections reviewed
prior to December 18, 1996 by Mr. Linting and Mr. J.D. Carreker; PROVIDED,
HOWEVER, that Mr. Linting acknowledges that (a) such valuations and projections,
although prepared in good faith, were based on reasonable assumptions in light
of conditions in effect on the date prepared and (b) that such valuations and
projections and this Section 11 do not constitute a representation, warranty or
create any obligation of the Company with respect to the value or future value
of shares of the Company's capital stock.
12. 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
12(a):
EMPLOYMENT AGREEMENT - Page 6
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(i) If to the Company: Carreker-Antinori, Inc.
14001 North Dallas Parkway, Suite 1100
Dallas, Texas 75240
Attention: 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. Linting: Richard L. Linting
4567 Star Ridge Road
Bozeman, MT 59715
Phone: (406) 587-4281
Fax: (406) 586-1869
with a copy to:
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Attention: Thomas R. Roberts, Larry A. Barden
Phone: (312) 853-7069
Fax: (312) 853-7036
(b) AMENDMENTS. This Agreement, including the Attachments hereto,
contains the entire agreement and supersedes and replaces all prior agreements
between the Company and Mr. Linting concerning Mr. Linting's employment and
employment benefits (including, without limitation, the letter agreement
referenced in the recitals to this Agreement). 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. Linting 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.
EMPLOYMENT AGREEMENT - Page 7
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(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 of this Agreement 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 of this Agreement 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. Linting 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 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) 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, and may, in his or
her discretion, award attorneys' fees, expenses and costs.
(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.
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(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. Linting 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.
(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.
(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 12(h) 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 9
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IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of December 15, 1996.
CARREKER-ANTINORI, INC. EMPLOYEE
By: /s/ J.D. Carreker /s/ Richard L. Linting
---------------------------- -----------------------------------
J.D. Carreker Richard L. Linting
Chairman of the Board and
Chief Executive Officer
EMPLOYMENT AGREEMENT - Page 10