Retirement and Post-Employment Agreement - Elite Information Systems Inc. and Alan Rich
RETIREMENT AND POST-EMPLOYMENT AGREEMENT
THIS RETIREMENT AND POST-EMPLOYMENT AGREEMENT (the "Agreement") is made as
of the close of business on the 20th day of May, 1997 (the "Effective Date"),
by and between ALAN RICH, a citizen and resident of California ("Rich"), ELITE
INFORMATION SYSTEMS, INC., a California corporation having its principal of
business in Los Angeles, California ("Elite"), a wholly owned subsidiary of
Broadway & Seymour, Inc., a Delaware corporation ("BSI") with its principal
place of business in Charlotte, North Carolina. The parties hereto acknowledge
as follows:
WITNESSETH:
WHEREAS, Rich has been employed by Elite as its President; and
WHEREAS, Rich intends to retire from employment as of December 31, 1997
(the "Retirement Date"); and
WHEREAS, Elite wishes to retain Rich's services as a consultant commencing
on the Retirement Date; and
WHEREAS, the parties have voluntarily entered into this Agreement for the
purpose of memorializing the parties' agreement concerning Rich's continued
employment in 1997, effecting the termination of Rich's employment, providing
certain specified benefits for Rich, memorializing the parties' agreement
concerning Rich's post-employment consulting relationship with Elite and
finally, fully and completely resolving amicably any and all matters actually
or potentially in controversy between them.
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter made by Rich and Elite, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby expressly
acknowledged by the parties hereto, the parties agree as follows:
ARTICLE I
EMPLOYMENT OBLIGATIONS
Section 1.1 Employment through December 31, 1997. Elite shall continue to
employ Rich as its President through the Retirement Date, and
Rich hereby accepts such employment, upon the terms and
conditions hereinafter set forth. Until the Retirement Date, Rich
shall render services as Elite's President and shall perform such
specific duties in that capacity as Elite's Board of Directors
shall direct. Until the Retirement Date, Rich shall serve Elite
on a full-time basis, devoting his entire time, attention and
energies to the business of Elite during normal business hours.
Section 1.2 Payment through December 31, 1997. Elite shall pay Rich an annual
salary of $275,000, payable in semi-monthly installments, less
required state and federal tax withholding deductions,
retroactively to January 1, 1997 through the Retirement Date.
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Section 1.3 1997 Bonuses. With respect to Rich's employment hereunder
through the Retirement Date, Rich shall be entitled to receive a
bonus of up to $50,000, payable quarterly by Elite, which shall
be determined based on quarterly financial objectives mutually
agreed upon in advance by Rich and Elite's Board of Directors.
Rich shall also be entitled to receive a bonus of up to $50,000,
payable quarterly by Elite, which shall be determined based on
quarterly general management objectives mutually agreed upon in
advance by Rich and Elite's Board of Directors. Rich shall be
entitled to an additional 1997 year-end bonus of 10% of Elite's
1997 net earnings in excess of the 1997 net earnings target of
$2,102,000, up to a maximum of $100,000, payable on or prior to
March 31, 1998 by Elite. For purposes of this Section 1.3,
Elite's 1997 net earnings shall mean earnings of Elite
(including its subsidiary, Elite International, Inc., and The
Minicomputer Company of Maryland, Inc.) before income taxes and
after software capitalization and amortization of acquisition
purchase price, for the year ending December 31, 1997,
calculated in accordance with Elite's current accounting
practices and on the same basis as Elite's 1997 net earnings
target. In addition, Rich shall be entitled to a 1997 "stay"
bonus of $250,000 for the full 1997 year payable on or prior to
January 31, 1998 contingent upon Rich remaining as an employee
of Elite and otherwise complying with this Agreement through and
including the Retirement Date.
Section 1.4 Standard Benefits. Until the Retirement Date, Elite shall
provide Rich with the standard benefits provided to Elite
employees generally as a group.
ARTICLE II
CONSULTING OBLIGATIONS
Section 2.1 Consulting Services. For a period of three years commencing on
the Retirement Date unless earlier terminated as provided below
(the "Consulting Period"), Rich shall provide such consulting
services to Elite as Elite shall request from time to time in an
amount not to exceed 12 weeks per year at such place and time as
mutually agreed. At any time after December 31, 1998, upon 30
days prior written notice, Rich may terminate his consultancy
hereunder. In such event, Elite shall have no further obligation
to pay the consulting fees set forth in Section 2.2 below and
Rich shall return to Elite any fees paid in advance for service
not yet rendered. During the Consulting Period, Rich shall serve
as an officer of Elite in the capacity of Chairman of the Board
and shall perform such duties in such capacity as the Board of
Directors of Elite shall from time to time determine. During the
Consulting Period, Rich shall also serve as a director of Elite.
During the Consulting Period, Rich may engage in any other
employment that is not otherwise prohibited by Section 4.4 below.
Section 2.2 Consulting Fee. During the Consulting Period, Elite will pay
Rich an annual fee of $100,000, payable bi-annually in advance.
Such payments are in addition to the non-compete payments to be
made pursuant to Section 5.5 below. Elite shall reimburse Rich
for reasonable travel and lodging expenses relating to providing
consulting services outside of Elite's premises which are
approved in advance by Elite. Rich's right of reimbursement is
contingent upon the submission of detailed expense reports with
appropriate receipts for travel expenses and compliance with
Elite's guidelines regarding appropriate expenditure levels.
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Section 2.3 Relationship of Parties. While Rich shall serve as an officer
and director of Elite during the Consulting Period and Elite has
the right to specify the objectives of Rich's services during
the Consulting Period, Rich shall be performing such services as
an independent contractor and not as an agent or employee of
Elite. Rich shall not be entitled to any benefits during the
Consulting Period and shall not be covered by Elite's worker's
compensation insurance. This Agreement involves a personal
relationship between Elite and Rich, and Rich may not assign or
delegate all or any part of the obligations hereunder without
written approval of Elite.
Section 2.4 Resignations. Upon the earlier of (i) termination of the
Consulting Period and (ii) the consummation of a Sale
Transaction (as such term is defined in the letter agreement
dated as of the date hereof between Rich and BSI), Rich shall
resign as an officer and director of Elite and any of its
subsidiaries or affiliated companies.
Section 2.5 Indemnification. During such time as Rich shall serve as an
officer and/or director of Elite or any of its subsidiaries or
affiliated companies, Elite shall (or shall cause such
subsidiary or affiliated company to) indemnify Rich in such
capacity in accordance with the applicable by-laws and shall
maintain (or cause BSI to maintain) directors and officers
insurance coverage substantially on the same terms as currently
maintained.
ARTICLE III
TERMINATION OF EMPLOYMENT
Section 3.1 Retirement. Rich shall resign as an employee of Elite and any
of its subsidiaries as of the Retirement Date.
Section 3.2 Unemployment Compensation. Elite shall not contest any
application for unemployment compensation that Rich may elect to
file after the Retirement Date.
Section 3.3 401(k) Profit Sharing. Rich shall receive all sums which he is
entitled to receive under the Broadway & Seymour, Inc. 401(k)
Profit Sharing Plan, if any, in accordance with Sections 5.1(a),
5.1(c), 5.4(a) and 5.4(c) of that Plan consistent with Rich's
employment hereunder until the Retirement Date.
Section 3.4 Employee Stock Purchase Plan. Rich shall receive all sums which
he is entitled to receive under the Broadway & Seymour, Inc.
Employee Stock Purchase Plan, if any, in accordance with Section
7.1(a) of that Plan consistent with Rich's employment hereunder
until the Retirement Date.
Section 3.5 Stock Option Plans. For the purpose of the Broadway & Seymour,
Inc. Restated 1985 Incentive Stock Option Plan and the Broadway
& Seymour, Inc. 1996 Stock Option Plan, pursuant to the terms
hereof Rich shall continue as an employee until the Retirement
Date, and Rich shall continue to vest in options and be
permitted to exercise any vested stock options until the
Retirement Date and thereafter in accordance with, and in the
manner set forth in, such plans. If
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such stock options are not exercised within the period set forth
in such plan, they shall be terminated. Unvested stock options
shall, in any event, lapse as of the Retirement Date to the
extent set forth in such plans.
Section 3.6 Business Expense Reimbursement. Elite shall be responsible for
any business expenses incurred by Rich prior to the Retirement
Date for which properly documented reimbursement requests have
been made prior to the Retirement Date or promptly thereafter.
Elite shall not be responsible for any business expenses
incurred by Rich on or after the Retirement Date except as
specified in this Agreement or as otherwise approved in advance
by Elite.
Section 3.7 No Other Benefits. Other than what may be provided herein, Rich
acknowledges that, as of his Retirement Date, he shall not have
the right to participate in or receive any benefit under any
employee benefit plan, any fringe benefit plan, or any other
plan, policy or arrangement of Elite or any of its affiliated
entities providing benefits or prerequisites to employees of
Elite generally or individually.
Section 3.8 Mutual Release. Except as otherwise specifically provided to the
contrary in this Agreement, Rich, on the one hand, and Elite, on
the other hand, for themselves and for their respective
officers, directors, agents, employees, successors, assigns,
affiliated entities, parents, subsidiaries, legal
representatives, heirs and executors for and in consideration of
the agreements contained in this Agreement, hereby forever
release, acquit, remise, quitclaim, and discharge each other,
and their affiliated entities, parents, subsidiaries,
successors, assigns, legal representatives, heirs, executors and
benefit plans (except with respect to any vested benefit), and
the officers, directors, employees and agents thereof, of and
from any and all actions, causes of action, claims, demands,
damages, costs, expenses, attorney's fees and all other
obligations of any type and nature whatsoever, from, on account
of, or in any way arising out of any claims, matters, contracts,
relationships or employment whether existing now or at any time
in the past, other than (a) claims arising from or relating to
the enforcement of this Agreement, (b) rights of ownership of
any capital stock of BSI now or hereafter held by Rich, (c)
rights under any option agreement between BSI and Rich, (d)
rights with respect to Elite's obligation to defend and
indemnify Rich in accordance with the provisions of Elite's
Articles of Incorporation and by-laws, or any other
indemnification agreement or laws, and (e) rights, if any, as an
insured party under any policy of insurance covering directors
or officers of BSI's subsidiaries.
Except as otherwise specifically provided to the contrary in
this Agreement, it is agreed and covenanted that this Release
covers all claims which the parties may have had, may now have
or could have relating to any matter, cause or thing whatsoever
occurring prior to the Effective Date, specifically including,
but not limited to all claims or demands arising out of or
relating to Rich's relationship with Elite as an employee,
officer and director, including, but not limited to, all claims
which Rich has had or now has and which could have been asserted
under local, state or federal statute or law with respect to all
matters concerning or arising out of Rich's relationships with
Elite as an employee, officer or director, including
specifically, but not limited to, any and all claims under or
for breach of fiduciary duty, breach of contract, fraud,
negligent misrepresentation,
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negligence, breach of criminal law, violation of federal or
state unfair trade practices law, violation of local, state or
federal human rights, equal employment, wage hour, workers
compensation, pension or labor laws, rules or regulations,
including the Fair Labor Standards Act, the Age Discrimination
in Employment Act of 1967, as amended, 29 U.S.C. Section 621 et
seq., Title VII of the Civil Rights Act of 1964, as amended, the
Family and Medical Leave Act, ERISA, and the Americans with
Disabilities Act, and violation of any and all other federal,
state and local laws and regulations.
Each of the parties acknowledges that there is a risk that,
subsequent to the execution of this Agreement, it may incur,
suffer or sustain injury, loss, damage, costs, attorney fees,
expenses, or any of these, which are in some way caused by or
connected with Rich's employment or the termination thereof, the
liability for which is released hereby, or with respect to such
matters, are unknown or unanticipated by the parties at the time
this Agreement is signed, or which are not presently capable of
being ascertained. Nevertheless, the parties acknowledge that
this Agreement has been negotiated and agreed upon and in light
of that acknowledgment, and each of the parties expressly waives
all rights it may have in such unsuspected claims. In doing so,
each party had the opportunity for the benefit of counsel, has
been advised of, understands and knowingly and specifically
waives its rights under California Civil Code Section 1542,
which provides as follows:
A general release does not extend to the claims which
the creditor does not know or suspect to exist in his
favor at the time of executing the release, which if
known by him must have materially affected his
settlement with the debtor.
Section 3.9 Covenant Not To Sue. Rich hereby waives his right to file, and
hereby agrees not to accept any relief or recovery from, any
lawsuit, charge, claim, complaint, or other proceeding, whether
an individual, joint or class action (collectively "Legal
Action") before any federal, state or local administrative
agency, court or other forum against Elite, or any of its
parent, subsidiary or affiliated entities with respect to acts,
events or omissions prior to the Effective Date; provided,
however, that this Agreement shall not apply to preclude Rich's
participation in any legal action relating to any rights or
duties arising under this Agreement or under documents to be
executed or actions to be taken pursuant to this Agreement.
Except as provided above and as prohibited by statute, in the
event that Rich institutes, is a party to, or joins voluntarily
as a member of a class any such Legal Action against Elite or
any of its affiliated entities, he shall join in the dismissal
of the Legal Action or termination of his class membership
immediately upon presentation of this Agreement and Rich shall
reimburse Elite for all legal fees and expenses incurred in
defending Rich's involvement in the Legal Action and obtaining
the dismissal of Rich therefrom except those fees and expenses
incurred by Elite where Rich is not a voluntary party to the
Legal Action.
Section 3.10 Agreement Not to Assist in Litigation. Rich hereby agrees not
to in any way voluntarily assist any individual or entity in
commencing or prosecuting any action or proceeding, including
but not limited to, any administrative agency claims, charges or
complaints and/or any lawsuits against Elite, its officers,
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directors, subsidiaries or affiliated entities, or their officers
or directors, or in any way voluntarily participate or cooperate
in such actions or proceedings, except (a) as this waiver is
prohibited by statue, (b) in accordance with lawful process
issued by a court of competent jurisdiction or other lawful
authority, and (c) upon request of a governmental entity or
agency.
Section 3.11 Agreement to Provide Litigation Assistance. Rich agrees to
cooperate with and provide assistance to Elite and its legal
counsel in connection with any litigation (including arbitration
or administrative hearings) or investigation affecting Elite, in
which--in the reasonable judgment of Elite's counsel--Rich's
assistance or cooperation is needed. Rich shall, when requested
by Elite, provide testimony or other assistance and shall travel
at Elite's request in order to fulfill this obligation;
provided, however, that, in connection with such litigation or
investigation after the Retirement Date, Elite shall attempt to
accommodate Rich's schedule, shall provide him with reasonable
notice in advance of the times in which his cooperation or
assistance is needed, and shall reimburse Rich for any
reasonable expenses incurred in connection with such matters, as
well as for any actual lost wages suffered as a result from
absence from employment, or in the event that Rich is not then
employed, shall compensate Rich for his time at a rate of $200
per hour.
Section 3.12 COBRA Continuation Coverage. Rich acknowledges and agrees that
continuation coverage under 26 U.S.C Section 4980B ("COBRA")
shall begin on the Retirement Date and that thereafter Rich
shall be eligible, upon his timely election and at his own
expense, to obtain health insurance coverage in accordance with
COBRA, provided, however, that Elite shall pay for Rich's health
insurance coverage under COBRA during the period commencing
on the Retirement Date through and ending 18 months later.
Section 3.13 Acknowledgment Concerning Vacation Pay. Rich agrees that he
shall waive all vacation time to which he is entitled under
Elite's policies through the Retirement Date such that Rich
agrees that, upon the Retirement Date, he shall not have accrued
any unused vacation time for which payment is due from Elite.
Section 3.14 Acknowledgment Concerning All Compensation. Rich agrees and
acknowledges that, except as provided in this Agreement and that
certain letter dated as of the date hereof from BSI to Rich,
Rich is not entitled to any compensation or employment benefits
whatsoever, including, but not limited to, any bonus, severance
pay, accrued vacation pay or other compensation under any
incentive plan, employee benefit plan or agreement of Elite or
its affiliated entities.
Section 3.15 Binding Nature. Rich's signature on this Agreement reflects his
willingness to enter into and abide by the terms of this
Agreement. Rich acknowledges that he has been afforded an
opportunity to consider this Agreement and Rich further
acknowledges that he has been advised by Elite of his right to
consult with counsel concerning the effect of this Agreement,
and that he has carefully read the provisions of the Agreement.
Rich further represents that he knows and understands the
contents of this Agreement, that he intends to be legally bound
by this Agreement, and the release contained herein, and that he
is signing this Agreement, including the release, of his own
free will and without coercion.
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Section 3.16 Further Acknowledgements. Rich acknowledges that:
(a) he has received separate consideration under this Agreement
which is in addition to any other compensation or other
thing of value which Rich is otherwise entitled to receive
from Elite or any affiliated entities under any agreement,
policy or practice, or under applicable law;
(b) he was given a period of twenty-one (21) days within which
to consider the terms of this Agreement;
(c) if he has executed this Agreement prior to the expiration
of such 21-day period, then he has done so voluntarily and
that he has waived the remainder of such review period;
(d) he will have a period of seven (7) days following the
execution of this Agreement in which to revoke this
Agreement by giving written notice to Elite's Chief
Financial Officer of such revocation; provided, however,
that if Rich revokes this Agreement within this revocation
period, Rich agrees and acknowledges that he will not have
the right to receive the payments or benefits set forth in
this Agreement;
(e) except as set forth in the immediately preceding clause,
this Agreement shall not become effective or enforceable
until the seven (7) day revocation period described above
has expired; and
(f) he acknowledges and agrees that he does not believe that
Elite has discriminated against him in any manner because
of his race, sex, creed, color, religion, national origin,
age, marital status, sexual preference, physical or mental
disabilities or status as a disabled or Vietnam-era veteran.
Section 3.17 Release as of Retirement Date and end of Consulting Period. Each
of Elite and Rich further agrees that, in consideration for
those payments to be made to Rich hereunder following the
Retirement Date, and such other obligations of Elite and Rich
hereunder which extend beyond the Retirement Date, Elite and
Rich will reexecute this Agreement on both the Retirement Date
and the last day of the Consulting Period thereby renewing and
reaffirming its respective releases, covenants and
acknowledgements contained in this Agreement as of such dates.
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ARTICLE IV
CONFIDENTIALITY AND NONCOMPETITION PROVISIONS
Section 4.1 Non-Disclosure of Confidential Information. Rich agrees that he
will maintain in confidence and will not, directly or
indirectly, use, publish or otherwise disclose to any competitor
or other third party, except as required by law, any trade
secrets, confidential, proprietary, and other non-public
information of a similar nature belonging to Elite or any of its
related or affiliated entities or to which Elite or any of its
related or affiliated entities has any rights, except to the
extent, if any, that such information is or becomes generally
known or readily ascertainable by proper means ("Confidential
Information"), whether or not such Confidential Information is
in written or permanent form. Such Confidential Information
includes, but is not limited to, proprietary technical and
business information relating to any non-public financial
information, business plans or costs, customers or customer
lists, pricing data or other terms of sales, customer
requirements or buying history, customer contacts or prospective
customers, formulas, patterns, compilations, programs, devices,
methods, techniques and processes of Elite, or any of its
related or affiliated entities subject to the same exception
stated in the preceding sentence. Confidential Information shall
extend to information belonging to any client, vendor or
customer of Elite, or any of its related or affiliated entities,
and their agents and employees. Since Elite's business is
national in scope, there is no geographic limitation on Rich's
obligations under this section. All duties and obligations set
forth herein shall be in addition to those which exist by common
law or statute. Rich acknowledges that a remedy at law for any
breach or threatened breach of the provisions of this Section 4.1
would be inadequate and therefore agrees that Elite and its
affiliates shall be entitled to injunctive relief in addition to
any other available rights and remedies in case of any such
breach or threatened breach; provided, however, that nothing
contained herein shall be construed as prohibiting Elite from
pursuing any other remedies available for any such breach or
threatened breach. Without limiting the generality of the
foregoing, Elite acknowledges and agrees that Rich may provide
consulting and other services to law firms and other
professional services firms so long as Rich does not violate the
provisions of this Section 4.1 or Section 4.4 below.
Section 4.2 Return of Property. Rich agrees, upon the Retirement Date, to
the extent Rich has not done so previously, to immediately
return all documents, files, whether or not he was solely
responsible for same, keys, credit cards, keycards, programs,
software and discs, including but not by way of limitation,
those programs, software and discs generated during his
employment with Elite, computers and all other items and
equipment which are the property of Elite, except as otherwise
mutually agreed to for use by Rich during the Consulting Period,
in which case Rich shall return such documents to Elite upon
termination of the consulting Period.
Section 4.3 Inventions. Rich hereby covenants, agrees and acknowledges as
follows:
(a) Any and all inventions, products, discoveries,
improvements, processes, manufacturing methods or
techniques, formulas, designs, styles, specifications, data
bases, computer programs (whether in source code
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or object code), know-how, strategies and data (including, without
limitation, as to data base development, confidential personnel matters,
matters involving existing and prospective clients, pricing matters and
marketing strategies), whether or not patentable or registrable under
copyright or similar statues, made, conceived, developed or created by
Rich (whether at the request or suggestion of Elite, any of its
affiliates or otherwise, whether alone or in conjunction with others, and
whether during regular hours of work or otherwise) during the period of
his employment or consultancy with Elite which pertain to the business,
products, or processes of Elite or any of its affiliates, and relate to
the application of computer systems and services to the legal and
accounting industry (collectively, hereinafter referred to as
"Inventions"), will be promptly and fully disclosed by Rich to an
appropriate executive officer of Elite and shall be Elite's exclusive
property, and Rich will promptly execute and/or deliver to an appropriate
executive officer of Elite, without any additional compensation
therefore, all papers, drawings, models, data, documents and other
material pertaining to or in any way relating to any Inventions made,
developed or created by him as aforesaid. This Agreement does not apply
to any invention for which no equipment, supplies, facility, or trade
secret information of Elite was used and which was developed entirely on
Rich's own time unless (a) the invention relates (i) directly to the
business of Elite or (ii) to Elite's actual or demonstrably anticipated
research or development; or (b) the invention results, either directly or
indirectly, from any work performed by Rich for Elite.
(b) Elite and its assigns shall be the sole owner of all patents,
copyrights, trademarks and other rights issued in connection with any
Invention. Rich shall assist Elite in every proper way as to all such
Inventions (but at Elite's expense) to obtain and from time to time
enforce patents, copyrights, trademarks and other rights and protections
relating to said Inventions in any and all countries, and to that end,
Rich will execute all documents for use in applying for and obtaining
protections on and enforcing such Inventions, as Elite may desire,
together with any assignments thereof to Elite or persons designated by
it. Rich's obligation to assist Elite in obtaining and enforcing
patents, copyrights, trademarks and other rights and protections
relating to such Inventions in any all countries shall continue beyond
the termination of Rich's consultancy hereunder, but Elite shall
compensate Rich at a reasonable rate after Rich's termination for time
actually spent by Rich at Elite's request on such assistance.
(c) Rich acknowledges that a remedy at law for any breach or threatened
breach of the provisions of this Section 4.3 would be inadequate and
therefore agrees that Elite and its affiliates shall be entitled to
injunctive relief in addition to any other available rights and remedies
in case of any such breach or threatened breach; provided, however, that
nothing contained herein shall be construed as prohibiting Elite from
pursuing any other remedies available for any such breach of threatened
breach.
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Section 4.4 Noncompetition Clause. During the three year period following the
Retirement Date, Rich agrees not to, directly or indirectly:
(a) provide or offer to provide the types of products or
services that Elite provides to any client or prospective
client of Elite or otherwise induce such clients or
prospective clients to reduce, terminate, restrict or
otherwise alter their business relationship with Elite in
any fashion;
(b) become associated either as an owner, principal, agent,
manager, employee, partner, shareholder (except for
ownership of less than five percent of the shares of a
publicly traded company), director, officer, consultant, or
representative with any business operation or any enterprise
if such operation competes with Elite, or
(c) induce or attempt to induce any employee of Elite to leave
Elite for the purpose of engaging in a business competitive
with Elite.
Notwithstanding the foregoing, Elite acknowledges and agrees that
Rich may provide consulting services involving general business
operations and procedures to law firms and accounting firms so
long as Rich does not violate the provisions of this Section 4.4
or Section 4.1 above. Rich acknowledges that Elite may have no
adequate means of protecting its rights under this Section 4.4
other than by securing an injunction (a court order prohibiting
Rich from violating this Agreement). Accordingly, Rich agrees
that Elite is entitled to enforce this Agreement by obtaining a
preliminary and permanent inunction and any other appropriate
equitable relief in any court of competent jurisdiction. Rich
acknowledges that Elite's recovery of damages will not be an
adequate means to redress a breach of this Agreement, but nothing
in this Section shall prohibit Elite from pursing any remedies in
addition to injunctive relief, including recovery of damages.
Section 4.5 Noncompetition Payments. In exchange for the noncompetition
covenants given by Rich in Section 4.4 above, Elite shall pay
Rich a total of $300,000 payable in six equal installments
bi-annually, commencing on the Retirement Date. Such payments are
in addition to any payments to be made pursuant to Section 2.2
above. Rich acknowledges and agrees (i) that Elite would not
agree to pay such amounts in the absence of the covenants made by
Rich in Section 4.4 above, and (ii) that such payments by Elite
constitute adequate and sufficient consideration for the
covenants made by Rich therein.
Section 4.6 Confidentiality. As an integral part of this Agreement, Rich
agrees that the terms of this Agreement and the circumstances
surrounding the execution of this Agreement shall be held
absolutely confidential and that he shall not disclose the
substance or terms of this Agreement to anyone other than his
immediate family, his tax adviser, his counsel and employees of
Elite, on a need-to-know basis who agree to maintain the
confidentiality thereof. Notwithstanding the above, Rich may
answer truthfully any inquiry about this Agreement which he is
legally required to answer whether by subpoena, court order or
other lawful process or as mutually agreed upon by the parties.
Rich will directly and fully inform Elite, however, concerning
any disclosures requested under this Agreement, along with the
entity making such request for disclosure, at the time of the
disclosure,
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and Rich shall specifically inform Elite of any subpoena or
other process which may require him to disclose any matters in
contravention of this provision. In addition, notwithstanding
the foregoing, Rich may, in the exercise of reasonably business
judgment, disclose the general terms of this Agreement to
certain customers and vendors on a need-to-know basis who agree
to maintain the confidentiality thereof.
Section 4.7 Non-Disparagement. Elite, on the one hand, and Rich, on the
other hand, agree that any time after the execution of this
Agreement and continuing after the Retirement Date, they shall
not in any way criticize or disparage the performance,
competency or ability of the other or any of its subsidiary,
parent or affiliated entities, or the officers, directors,
employees or agents of any of them to any other person. In
particular, Rich will not criticize or disparage Elite's
financial accounting or reporting policies or practices nor
allege or claim that he was discriminated against or otherwise
mistreated by Elite or any of its subsidiary, parent or
affiliated entities at any time, except to the extent, if at
all, as may be required by legal process.
Section 4.8 No Admission of Liability. Rich understands and agrees that the
entry into this Agreement by Elite is solely for the purpose of
eliminating and resolving all matters arising out of Rich's
employment with Elite, effecting the termination of Rich's
employment, providing certain specified benefits for Rich,
memorializing the parties' agreement concerning Rich's
post-employment consulting relationship with Elite, and finally,
fully and completely resolving amicably any and all matters
actually or potentially in controversy between them and shall
not be construed as an admission by Elite of non-compliance with
any law or any other wrongdoing whatsoever.
ARTICLE V
MISCELLANEOUS
Section 5.1 Binding Effect. This Agreement shall be binding upon, and inure
to the benefit of, the parties and their respective personal
representatives, agents, attorneys, executors, administrators,
heirs, successors and assigns.
Section 5.2 Modification. This Agreement may not be modified or amended
except by an instrument in writing signed by the parties hereto.
Section 5.3 Governing Law. This Agreement has been made and will be at
least partly performed in the State of North Carolina, and its
validity, interpretation, performance and enforcement shall be
governed by the laws and judicial decisions of the State of
North Carolina.
Section 5.4 Entire Agreement. This Agreement contains the entire agreement
between the parties hereto. No representation, agreement,
guaranty, warranty, waiver or change in this Agreement not
included herein shall be binding upon either party unless in
writing and separately signed by both parties.
Section 5.5 Severability. If any provision contained in this Agreement
shall for any reason be held invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability
shall not effect any other provision of this Agreement, but
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this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
Section 5.6 Counterparts. This Agreement may be executed in counterparts,
each of which may be signed separately and may be enforceable as
an original, but all of which together shall constitute but one
agreement.
Section 5.7 Authorization. Each person executing this Agreement in a
representative capacity hereby represents and warrants that he
is fully authorized to do so.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date and year first indicated above.
/s/ ALAN RICH (SEAL)
----------------------
ALAN RICH
Sworn to and subscribed
before me, this 22nd day
of May, 1997. [NOTARY PUBLIC SEAL]
/s/ FRAN LEITNER FRAN LEITNER
----------------------- Commission # 1059924
Notary Public Notary Public - California
LOS ANGELES COUNTY
My commission expires: My Comm. Expires Jun 9, 1999
6/9/99
----------------------
(Official Seal)
ELITE INFORMATION SYSTEMS, INC.
By: /s/ ALAN C. STANFORD
-----------------------------
Title: Executive Vice President
--------------------------
Acknowledged as of the 21 day of
May, 1997 by:
BROADWAY & SEYMOUR, INC.
By: /s/ ALAN C. STANFORD
------------------------------
Alan C. Stanford
Chairman and Chief Executive Officer
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IN WITNESS WHEREOF, this the 31st day of December 1997, each of Alan Rich
and Elite Information systems, Inc. hereby executes this Agreement under Seal
and renews and reaffirms its respective releases, covenants, representations
and acknowledgments as of such date.
/s/ ALAN RICH (SEAL)
-------------------------
ALAN RICH
ELITE INFORMATION SYSTEMS, INC.
By:
--------------------------------------------
Title: Executive Vice President and Treasurer
----------------------------------------
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