Employment Agreement - Carreker Corp. and Joseph M. Rowell
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is entered into as of the
6th day of June, 2001, between Carreker Corporation, a Delaware corporation
(the "COMPANY"), and Joseph M. Rowell. ("MR. ROWELL")
RECITALS
Mr. Rowell agreed to commence employment by the Company effective as of
the Closing. This Agreement sets forth in definitive form the terms of Mr.
Rowell's employment by the Company.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements of the parties contained herein, the Company and Mr. Rowell hereby
agree as follows:
1. EMPLOYMENT. The Company will employ Mr. Rowell and Mr. Rowell accepts
employment with the Company for a period of three (3) years (the "Initial
Period") beginning on the date of closing of the acquisition of Check Solutions
Company (a New York General Partnership) by the Company (the "Closing"). This
Agreement shall automatically renew for successive one (1) year terms ("Renewal
Periods") unless either party notifies the other at least six (6) months in
advance of the expiration of the Initial or any Renewal Period. Mr. Rowell's
employment may continue after the Initial or any Renewal Period but he will then
be deemed an employee at will under Texas law. The obligations of the Company
and Mr. Rowell set forth in that certain "Senior Staff Non-Competition
Agreement" and in that certain "Senior Staff Confidentiality and Intellectual
Property Ownership Agreement" (each as defined in Section 7) (referring to
noncompetition, intellectual property rights, trade secrets and confidentiality,
respectively) and in Section 8 (referring to termination) will survive
termination of Mr. Rowell's employment, regardless of reason, as provided in
such agreements. Notwithstanding the foregoing, the Senior Staff Non-Competition
Agreement shall not survive termination of Mr. Rowell's employment where such
termination, pursuant to Section 8(b), is a result of a breach by the Company
for nonpayment of any amounts due hereunder.
2. DUTIES. Mr. Rowell will be employed initially as President of the
Check Solutions group, reporting directly to Michael D. Hansen, head of the
Global Solutions division. Mr. Rowell agrees that, to the best of his ability
and experience, he will at all times perform such duties and obligations as
may be assigned to him, consistent with his position, by Mr. Hansen or his
successor.
Mr. Rowell acknowledges and agrees that the primary location of his
employment will be in Memphis, Tennessee or its environs, that he will spend
substantial time in Memphis, Tennessee and other locations where the Company
transacts (or proposes to transact) business
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and undertake such other business travel as is reasonably required in the
discharge of his duties set forth below and for the successful operation of
the Company.
3. FULL-TIME EMPLOYMENT. Mr. Rowell's employment will be on a full-time
basis, in accordance with standard employee policies of the Company, including
the rules of any employee handbook and all other rules and policies the Company
might announce from time to time. In addition to such restrictions as are set
forth in the Noncompetition, Property Rights and Trade Secrets Agreement
referenced herein, Mr. Rowell 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.
Rowell may (a) provide incidental assistance to family members on matters of
family business; or (b) engage in charitable activities on behalf of civic,
educational or other nonprofit organizations; (c) serve with or without
compensation on advisory boards of directors; and (d) serve with or without
compensation on non-competitor boards of directors; provided in each case that
such activities do not conflict with or interfere with Mr. Rowell's normal
full-time and first priority obligations to the Company, and provided further
that with respect to service on boards of directors of any type, Mr. Rowell
shall obtain prior written consent of the Chairman of the Company, which consent
shall not be unreasonably withheld or delayed. Mr. Rowell may make personal
investments in non-publicly traded corporations, partnerships or other entities
that, to the knowledge of the Mr. Rowell, 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. Rowell may make
personal investments in publicly traded corporations regardless of the business
they are engaged in, provided that Mr. Rowell does not at any time own in excess
of two percent (2%) of the issued and outstanding stock of any such corporation.
4. SALARY; POTENTIAL INCENTIVE COMPENSATION; STOCK OPTIONS.
(a) SALARY. Mr. Rowell's annual base salary for the Initial or any
Renewal Period will be $350,000 unless and until increased as set forth below
("Base Salary"). All Base Salary will be payable on the Company's regular
payroll dates, less required withholdings. At least annually, Mr. Rowell's Base
Salary shall be reviewed by the Board of Directors or a committee thereof, and,
may, in their sole discretion, be increased from time to time during the Initial
or any Renewal Period in light of merit, cost of living changes, and base
compensation levels for similar executive positions in the Company's industry.
In addition, the Company will pay Mr. Rowell his pro-rata share of his planned
2001 annual Operating Profit Incentive Plan (annual plan of $135,000), computed
from January 1, 2001 through the date of Closing. This amount, less required
withholdings, will be paid within thirty (30) days of Closing.
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(b) COMPANY BONUS PLAN. The target bonus for Mr. Rowell's
position for each annual period is set at 70% of Base Salary. For the period
from Closing through January 31, 2002, the target bonus for Mr. Rowell will
be prorated and earned as follows:
- One fourth of the target bonus will be earned (17.5% of Mr. Rowell's actual
Base Salary earned from Closing through January 31, 2002), with such bonus to
be paid concurrently with the Company's payment of bonuses to other Company
executives, or, if no such bonuses are earned by other Company executives,
within thirty (30) days of release of the Company's January 31, 2002 10-K,
if:
- The Company is able to recognize at least $45.0 million in revenues from
Check Solutions heritage products and services during its fiscal year ended
January 31, 2002. This $45.0M revenue objective will be downward adjusted if
Carreker and Joe Rowell mutually conclude that for reasons out of the control
of Check Solutions that Carreker will not be able to carry forward to its
opening balance sheet 100% of Check Solutions Deferred Maintenance balance
and at least $6.5M of Check Solutions Deferred Software balance on the date
of Closing.
- One fourth of the target bonus will be earned (17.5% of Mr. Rowell's actual
Base Salary earned from Closing through January 31, 2002), with such bonus to
be paid concurrently with the Company's payment of bonuses to other Company
executives, or, if no such bonuses are earned by other Company executives,
within thirty (30) days of release of the Company's January 31, 2002 10-K,
if:
- The Company is able to recognize at year to date revenues from Check
Solutions heritage products and services during the fiscal year ended January
31, 2002 as follows:
- $ 9,477,000 through July 31, 2001;
- $25,053,000 through October 31, 2001; and
- $45,083,000 through January 31, 2002
These year to date revenue objectives will be downward adjusted if
Carreker and Joe Rowell mutually conclude that for reasons out of the
control of Check Solutions that Carreker will not be able to carry
forward to its opening balance sheet 100% of Check Solutions Deferred
Maintenance balance and at least $6.5M of Check Solutions Deferred
Software balance on the date of Closing.
- One fourth of the target bonus (17.5% of Mr. Rowell's actual Base Salary
earned from Closing through January 31, 2002) will be earned, with such bonus
to be paid concurrently with the Company's payment of bonuses to other
Company executives, or, if no such bonuses are earned by other Company
executives, within thirty (30) days of release of the Company's January 31,
2002 10-K, if:
- The company is able to recognize a mutually agreed upon gross contribution
margin for the new Check Solutions group for the period from the date of
Closing through January 31, 2002.
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This gross contribution margin will be computed by adding (i) the forecasts
of the Carreker core competencies joining CSG (such forecasts to be realistic
expectations for the remainder of the fiscal year, as mutually agreed to by
Carreker and Joe Rowell); and (ii) the Check Solutions 2001 financial
projections provided to the Carreker Board as attached as Exhibit 1 This
gross contribution margin will be adjusted downwardif Carreker and Joe Rowell
conclude that for reasons out of the control of Check Solutions, Carreker is
not able to carry forward to its opening balance sheet 100% of Check
Solutions Deferred Maintenance balance and at least $6.5M of Check Solutions
Deferred Software balance on the date of Closing.
- One fourth of the target bonus (17.5% of Mr. Rowell's actual Base Salary
earned from Closing through January 31, 2002) will be earned, with such bonus
to be paid concurrently with the Company's payment of bonuses to other
Company executives, or, if no such bonuses are earned by other Company
executives, within thirty (30) days of release of the Company's January 31,
2002 10-K, if:
- The company is able to achieve certain integration objectives, which
objectives are to be mutually agreed upon by Carreker and Joe Rowell within
thirty (30) days from the date of Closing. Carreker and Joe Rowell will also
agree upon the allocation of this portion of the target bonus among such
integration objectives.
The Company bonus plan operates on a February 1 through January 31
timeframe. Beginning February 1, 2002, Mr. Rowell will be eligible to
participate in this plan and will have the opportunity to earn a bonus when the
Company meets certain profitability goals. The target bonus for Mr. Rowell's
position for each annual period is set at 70% of Base Salary. Such bonus shall
be paid concurrently with the Company's payment of bonuses to other Company
executives.
The Chairman and Chief Executive Officer, with concurrence from the
Company's Board of Directors, will determine the actual amount of the target
bonus to be received. It is possible to receive more than the target percentage
based on the Company exceeding the Incentive Plan and at the discretion of the
Chairman and Chief Executive Officer. Mr. Rowell acknowledges that the Company's
Board of Directors has complete and sole discretion (exercisable in good faith)
to establish and revise any and all of the Company's bonus plans and payout
levels; provided, however, that no such action may retroactively alter or limit
the amount of any incentive compensation actually received and/or previously
earned by Mr. Rowell.
(c) STOCK OPTIONS. At Closing, Mr. Rowell will receive a
non-qualified stock option of 100,000 shares of common stock. The vesting will
be a three (3) year schedule, i.e., 1/3rd vesting for each year of continuous
employment. The per share option price will be determined as market value
(closing price) on the day of grant. If Mr. Rowell should receive stock options
on a vesting schedule, all unvested options shall vest immediately upon the
occurrence of any of the following: a Change of Control (as defined below), the
termination by the Company of Mr. Rowell's employment without Cause, Mr.
Rowell's resignation pursuant to Section 8(b) of this Agreement, Mr. Rowell's
permanent disability, or Mr. Rowell's death. Each such option shall be issued
under and pursuant to the Company's Amended and Restated 1994
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Long-Term Incentive Plan, with terms and conditions as provided therein
except as expressly provided herein. Mr. Rowell will 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 all or substantially all of the Company's assets, acquisition of shares
or contested election, or any combination of the foregoing transactions, (a) any
person, together with its affiliates and related parties, 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 (2)
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, or (c) a merger or consolidation of the Company
with any other corporation or entity, other than a merger or consolidation which
would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) more than fifty
percent (50%) of the combined voting power of the voting securities of the
Company or such surviving entity outstanding immediately after such merger or
consolidation; provided, however, that a merger or consolidation in which the
Company is the surviving entity (other than as a subsidiary or affiliate of
another entity) and in which the Board of the Company after giving effect to the
merger or consolidation is comprised of a majority of members who are either (i)
directors of the Company immediately preceding the merger or consolidation, or
(ii) appointed to the Board of the Company by the Company (or its Board) as an
integral part of such merger or consolidation, shall not constitute a Change in
Control of the Company; or (d) the stockholders of the Company approve a plan of
complete liquidation of the Company or the sale or disposition by the Company of
all or substantially all of the Company's assets other than (x) the sale or
disposition of all or substantially all of the assets of the Company to a person
or persons who beneficially own, directly or indirectly, at least fifty percent
(50%) or more of the combined voting power of the outstanding voting securities
of the Company at the time of the sale or (y) pursuant to a dividend in kind or
spin-off type transaction, directly or indirectly, of such assets to the
stockholders of the Company.
(d) ADDITIONAL STOCK OPTION GRANT. On Closing, Mr. Rowell will
receive a non-qualified stock option for 66,000 shares of common stock. All
shares issued under this option grant will vest in their entirety on the third
anniversary of the Closing. The per share option price will be determined as
market value (closing price) on the day of grant. All unvested options shall
vest immediately upon the occurrence of any of the following: a Change of
Control (as defined above), the termination by the Company of Mr. Rowell's
employment without cause, Mr. Rowell's resignation pursuant to Section 8(b) of
this Agreement, Mr. Rowell's permanent disability, or Mr. Rowell's death. Each
such option shall be issued under and pursuant to the
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Company's Amended and Restated 1994 Long-Term Incentive Plan, with terms and
conditions as provided therein except as expressly provided herein.
5. BENEFITS. Mr. Rowell will also be entitled to insurance,
vacation and other employee benefits commensurate with his position (and
reasonably consistent with the benefits afforded other executive officers of
the Company) in accordance with the Company's standard employee policies in
effect from time to time. Mr. Rowell acknowledges receipt of a summary of
the Company's standard employee benefits policies in effect as of the date of
this Agreement.
6. REIMBURSEMENT OF NORMAL BUSINESS EXPENSES. The Company will, in
accordance with the Company's policies and practices in effect from time to
time, reimburse Mr. Rowell for all other out-of-pocket reasonable business
expenses incurred by Mr. Rowell in connection with the performance of his duties
under this Agreement, upon submission of the documentation required pursuant to
the Company's standard policies and record-keeping procedures. The Company will
reimburse Mr. Rowell's out-of-pocket expenses for monthly dues to Southwind or
such other country club as may be mutually agreed upon for entertainment and
networking. In addition, upon Mr. Rowell's submission of expense documentation
in accordance with the Company's standard policies and record-keeping
procedures, the Company shall reimburse Mr. Rowell for automobile lease payments
for the remainder of the current term of his existing automobile lease.
7. INTELLECTUAL PROPERTY. Simultaneously with the execution of this
Agreement and as a condition of his employment, Mr. Rowell agrees to execute and
deliver (if he has not done so already) that certain Senior Staff
Non-Competition Agreement between him and the Company, a copy of which is
attached to this Agreement as Attachment A, and that certain Senior Staff
Confidentiality and Intellectual Property Ownership Agreement between him and
the Company, a copy of which is attached to this Agreement as Attachment B.
8. TERMINATION.
(a) BY THE COMPANY. Notwithstanding Section 1, the Company may terminate
Mr. Rowell's employment at any time during the Initial or any Renewal Period
with or without Cause (as defined below), provided that the Company shall
provide Mr. Rowell six months written notice for termination without Cause. The
Company shall not be required to provide notice for a termination with Cause,
except as set forth herein.
(b) BY MR. ROWELL. During the Initial or any Renewal Period, Mr. Rowell
may terminate his employment upon fifteen (15) days written notice to the
Company if he has "Good Reason" (as defined herein) or if the Company is 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 15 days' prior notice and opportunity to cure such material breach. A
failure by the Company to pay to Mr. Rowell any amounts due under this Agreement
in
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accordance with the terms hereof shall be deemed a material breach. Any such
termination for Good Reason or material breach shall have the remedy set
forth in Section 8(c). As used herein, "Good Reason" means the occurrence,
without Mr. Rowell's prior consent, of any of the following: (i) the
assignment to Mr. Rowell of any duties inconsistent in any material respect
with a President of the Check Solutions group or similar position; or (ii)
the Company's or any subsidiary's requiring Mr. Rowell to perform services at
any location outside the Memphis, Tennessee metropolitan area, other than
reasonable business travel contemplated by Section 2 hereof.
(c) REMEDY. Upon termination of Mr. Rowell's employment by the Company
during the Initial or any Renewal Period without Cause pursuant to Section 8(a)
or by Mr. Rowell pursuant to Section 8(b) only (at which time he shall cease to
be an employee of the Company for all purposes), the Company will (i) pay to Mr.
Rowell, on the Company's regular payroll dates and less required withholdings,
the Base Salary at the rate paid to Mr. Rowell immediately prior to such
termination, for the remainder of the Initial Period or for 12 months, whichever
is longer; (ii) pay to Mr. Rowell annual bonuses for the remainder of the
Initial Period or 12 months, whichever is longer, at such time as the Company
pays bonuses, equal to the bonus to which he would have been entitled under
Section 4(b) had (x) he not been terminated and (y) the Company's profitability
through the fiscal quarter ended immediately prior to the effective date of
termination continued at the same rate throughout the applicable bonus period;
and (iii) provide Mr. Rowell with the opportunity to purchase major medical
health and dental insurance reasonably comparable to employee benefits then
provided to the Company's senior officers in accordance with "COBRA". Further,
to the extent Mr. Rowell would otherwise be entitled to a bonus under Section
4(b), the Company will pay Mr. Rowell a prorated bonus, for that portion of the
relevant fiscal year during which he worked, at such time as the Company pays
bonuses, or portions thereof, to other senior executives of the Company. The
Company's obligation to reimburse Mr. Rowell's monthly country club dues and
related fees and business expenses (to the extent incurred following the
effective date of his termination) as provided in Section 6 shall not survive
termination. Other than as expressly stated in this Section 8(c), the Company
shall have no other obligation to Mr. Rowell in the event of a termination by
the Company without cause in accordance with Section 8(a) or by Mr. Rowell in
accordance with Section 8(b).
If the Company terminates Mr. Rowell's employment with Cause, 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. Rowell.
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 and good faith discretion: (i) the substantial, material and
continuing failure of Mr. Rowell, after written notice thereof and fifteen (15)
day opportunity to cure, to render services to the Company or any subsidiary in
accordance with the terms or requirements of this Agreement other than as a
result of death or disability; (ii) any material act of: disloyalty, gross
negligence, willful misconduct, insubordination, misrepresentation, dishonesty
or breach of fiduciary duty to the Company or any
EMPLOYMENT AGREEEMENT - Page 7
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subsidiary; (iii) the commission of an act of embezzlement or fraud; (iv)
deliberate disregard of the published corporate rules or policies of the
Company or any subsidiary that results or could reasonably be expected to
result in direct material loss, damage or injury to the Company or any
subsidiary; (vi) material breach of the Company's or any subsidiary's
published corporate policies concerning harassment, discrimination, and
offensive or disruptive behavior; (vii) the unauthorized and intentional
disclosure of any trade secret or confidential information of the Company or
any subsidiary; (viii) knowingly committing 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, or
that otherwise results in direct material loss, damage or injury to the
Company or any subsidiary (unless Mr. Rowell reasonably believed in good
faith that such conduct was not opposed to the best interest of the Company);
(ix) habitual drunkenness or an addiction to drugs; or (x) commission of a
crime of moral turpitude.
The Company's obligation to make payments (and provide COBRA benefits), if
any, pursuant to Section 8(c) is in lieu of any damages and any other payment or
other benefits that the Company might otherwise be obligated to pay Mr. Rowell
as a result of the termination of Mr. Rowell's employment with the Company
(including for claims of employment discrimination, wrongful termination or
breach of this Section 8). The Company and Mr. Rowell agree that, in view of the
nature of the issues likely to arise in the event of such 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 COBRA benefits) 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. Rowell. 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.
Rowell dies during the term of this Agreement or any renewal, then the Company
will pay his estate an amount equal to all earned and unpaid salary, prorated
bonuses (if any) for that portion of the year of his death during which he
worked, other bonuses (if any) accrued and payable, and accrued benefits, all as
of the date of his death.
(e) SURVIVAL. Mr. Rowell's and the Company's obligations under Sections 7,
8 and 9(h) of this Agreement and, to the extent that any allowable expenses have
not been reimbursed as of the effective date of such termination, under Section
6 of this Agreement, will survive the termination of Mr. Rowell's employment
with the Company.
9. MISCELLANEOUS.
(a) NOTICES. Any and all notices permitted or required to be given under
this Agreement must be in writing. Notices will be deemed given (i) when
personally received or
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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: Carreker Corporation
4055 Valley View Lane, Suite 1000
Dallas, Texas 75244
Attention: Chief Executive Officer
Phone: (972) 458-1981
Fax: (972) 661-5158
(ii) If to Mr. Rowell: Joseph M. Rowell
3496 Windgarden Cove
Memphis, TN 38125
(b) AMENDMENTS. This Agreement, including the Attachments hereto, contains
the entire agreement and supersedes and replaces all prior agreements between
the Company or Check Solutions and Mr. Rowell concerning Mr. Rowell'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 modification is sought.
(c) SUCCESSORS AND ASSIGNS. This Agreement will not be assignable by
either Mr. Rowell 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, the
interpretation and enforcement of the rights and duties of the parties, and any
other issues that might arise with respect to hereto.
(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.
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(f) SEVERABILITY. Mr. Rowell 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 parties. 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) INFORMAL DISPUTE RESOLUTION. Any controversy or claim arising
out of or relating to this Agreement, the breach thereof or the relationship
of the parties ("Dispute") under this Agreement shall initially be resolved
as follows:
Upon written request of either party, both parties shall appoint a
designated representative whose task it will be to meet for the purpose
of endeavoring to resolve such Dispute.
The designated representatives shall meet as often as the parties
reasonably deem necessary to discuss the problem in an effort to
resolve the Dispute without the necessity of any formal proceeding.
Formal proceedings for the resolution of a Dispute may not be commenced
until the earlier of:
- The designated representatives concluding in good faith that
amicable resolution through continued negotiation of the
matter does not appear likely; or
- The expiration of the 30 day period immediately following the
initial request to negotiate the Dispute.
(ii) ARBITRATION OF DISPUTES. If the parties are unable to resolve
the Dispute utilizing the procedure set forth in (i) above, The Dispute 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, except
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that depositions and documentary discovery shall be freely permitted.
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.
(iii) 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.
(iv) 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.
(v) PAYMENT OF COSTS. Unless otherwise allocated pursuant to
Section 9(h)(ii), the Company and Mr. Rowell 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.
(vi) 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.
(vii) 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.
(viii) 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 AGREEEMENT - Page 11
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(ix) 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.
(x) EQUITABLE REMEDY. Notwithstanding the provisions of this
Section 9(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.
(xi) CONSTRUCTION. This Agreement is a result of arms length
negotiation between the parties during which each has been represented by
counsel of its choice. Its terms shall not be construed for or against either
party.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first set forth above.
CARREKER CORPORATION EMPLOYEE
By: John D. Carreker, Jr. Joseph M. Rowell
--------------------- ----------------
John D. Carreker, Jr. Joseph M. Rowell
Chairman of the Board and
Chief Executive Officer
EMPLOYMENT AGREEEMENT - Page 12