Employment Agreement - DMJK Business Services Inc. and Terrence E. Putney
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the
15th day of May, 1998, by and between DMJK BUSINESS SERVICES, INC., a Missouri
Corporation ("Old DMJK"), and TERRENCE E. PUTNEY (the "Employee").
RECITALS
WHEREAS, Old DMJK is a wholly owned subsidiary of HRB BUSINESS
SERVICES, INC. ("HRB Business Services"), which is in turn a wholly owned
subsidiary of H&R BLOCK GROUP, INC. ("Group"); and Old DMJK is engaged in the
provision of business services to the general public;
WHEREAS, Employee is a Certified Public Accountant ("CPA") who
desires employment by Old DMJK to provide certain business services to clients
or customers of Old DMJK;
WHEREAS, Employee is also employed by and is a shareholder of
Donnelly Meiners Jordan Kline, P.C. (Employee and such other shareholders of
Donnelly Meiners Jordan Kline, P.C. who are also employees of Old DMJK being
sometimes herein referred to as "Shareholder CPAs") an accounting firm licensed
as a CPA firm by the Board of Accountancy of the State of Missouri ("New DMJK");
and
WHEREAS, Old DMJK and Employee desire to evidence the terms
and conditions of their relationship.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the parties hereto agree as follows:
1. EMPLOYMENT. Old DMJK and Employee confirm that Employee is
an Employee of Old DMJK pursuant to all the terms and conditions of this
Agreement.
2. TERM. The term of the Employee's employment and of this
Agreement shall commence on the date hereof and, if not sooner terminated
pursuant to the terms hereof, shall expire on that date which is five years
after the date hereof (the "Initial Term"). Thereafter, such employment and this
Agreement shall continue pursuant to the terms hereof from year to year, subject
to termination, with or without cause, upon ninety (90) days prior written
notice by either party or as otherwise set forth in Section 9 herein. The term
of this Agreement, including references to the Initial Term, will be hereafter
referred to as the "Term."
3. DUTIES.
3.1 DUTIES OF EMPLOYEE. Employee shall render such lawful
services for Old DMJK and its customers or clients as are from time to time
reasonably requested of Employee and assigned to Employee by Old DMJK (the
"Services"). The duties of the
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Employee may be changed from time to time by Old DMJK after consultation
with Employee. Old DMJK and Employee intend that Employee shall perform for Old
DMJK only those Services which do not constitute the performance of attestations
and services related thereto or any other services for which a Certified Public
Accountant ("CPA") certificate and license (for either Employee or Old DMJK) are
required by either the laws of the State of Missouri or Kansas, whichever
state's law is applicable ("Public Accounting Services"). Also, Old DMJK and
Employee intend that Employee shall only be required to perform for Old DMJK
services of a type reasonably consistent with those traditionally performed by
CPAs (other than those services required to be performed by New DMJK pursuant to
law or rules of the State Board of Accounting) generally, including, without
limitation, accounting, bookkeeping, write up, tax preparation, administration,
supervision, marketing, promotion and training. Old DMJK shall not require
Employee to relocate outside the Kansas City metropolitan area. All fees for
provision of the Services by Employee pursuant to this Agreement shall belong
and be payable to Old DMJK; provided, however, that if Employee provides
services to or is employed by New DMJK whether or not pursuant to a management
or similar agreement between Old DMJK and New DMJK, fees earned from providing
services as an employee of New DMJK shall be retained by New DMJK or forwarded
to Old DMJK as the management or other agreement may provide. However, no fees
paid for Public Accounting Services shall be paid directly to Old DMJK. Old DMJK
specifically approves employment of Employee by New DMJK provided that the only
services which Employee provides for New DMJK shall be those services which both
Employee and New DMJK must have licenses from the State of Missouri Board of
Accountancy to provide. Employee shall, in addition to the duties described
above:
(a) Keep or cause to be kept, appropriate records,
reports, claims and correspondence ("Records") necessary and
appropriate in connection with the Services provided by Employee
hereunder. All such Records shall belong to Old DMJK;
(b) Promote, to the extent permitted by law, the
business of Old DMJK;
(c) Perform all acts necessary to maintain all of
Employee's skills at an appropriate level; and
(d) Maintain all licenses or certifications
necessary for Employee to hold Employee out as a CPA and to
perform attestations in Missouri and/or Kansas.
3.2 PERFORMANCE IN GOOD FAITH. The Employee will, to the
best of the Employee's abilities, competently, with diligence, in good faith and
with integrity, devote Employee's business time, attention, energy and skill
necessary to the fulfillment of Employee's duties hereunder.
3.3 POLICIES AND PROCEDURES. The Employee will be subject
to such policies and procedures as are from time to time established by Old DMJK
or its direct or indirect parent companies for employees of Old DMJK generally.
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3.4 CHARITABLE AND COMMUNITY ACTIVITIES. It is hereby
acknowledged that, subject to Section 7 hereof, the Employee may either
presently, or in the future, be involved in charitable or community activities
so long as such other activities do not interfere with the performance by the
Employee of Employee's duties hereunder and such involvement is in conformity
with the Code of Business Ethics and Conduct of H&R Block, Inc., as the same may
be amended from time to time.
4. EMPLOYEE COMPENSATION. Employee shall receive that portion
of the consideration identified in this Article 4 as is allocated to Employee
pursuant to subsections 4.1.(b), 4.2(e), 4.3(d) and 4.4(e) below.
4.1 ANNUAL AGGREGATE COMPENSATION. Old DMJK shall annually
pay an aggregate amount to the Shareholder CPAs identified in Schedule 4.1
(which may be amended from time to time by New DMJK subject to prior approval by
Old DMJK) (the "Annual Aggregate Compensation"), as set forth in Schedule
4.1(a):
4.1(a) PAYMENT OF ANNUAL AGGREGATE COMPENSATION. The Annual
Aggregate Compensation payable under subsection 4.1(a) for each fiscal
year in question shall be paid in equal semi-monthly installments with
each such installment equal to 1/24 of the amount set forth in Section
1 of Schedule 4.1(a) and subsection (ii) of Sections 2-5 of Schedule
4.1(a). The Annual Aggregate Compensation payable for the fiscal year
ended April 30, 1999 shall be prorated so that the amount of Annual
Aggregate Compensation payable under Section 1 of Schedule 4.1(a) shall
be the percentage of fiscal year 1999 (in days) that this Agreement is
in effect multiplied by One Million Two Hundred Twenty-Seven Thousand
Four Hundred Thirty-Two Dollars ($1,227,432), and the payment thereof
shall be made in semi-monthly payments over the remaining term of such
year. Promptly after the conclusion of each of the fiscal years set
forth on the attached Schedule 4.1(a), an annual reconciliation shall
be performed, and if the amount payable to the Employee, together with
the amounts payable to all other Shareholder CPAs (the "Actual
Compensation Paid"), exceeds the amount which should have been paid
pursuant to Schedule 4.1(a) (as reduced, if at all, by the provisions
of subsection 4.1(c) below), then the Shareholder CPAs, including
Employee, shall pay the excess to Old DMJK within 30 days after demand
or the Annual Aggregate Compensation for the next year shall be reduced
accordingly, at the option of Old DMJK. Alternatively, if the Actual
Compensation paid is less than the amount which should have been paid
pursuant to Schedule 4.1(a) (as reduced, if at all, by the provisions
of subsection 4.1(c)) then Old DMJK shall pay the Shareholder CPAs,
including Employee, such deficit within thirty (30) days after the
reconciliation is completed.
4.1(b) ALLOCATION OF ANNUAL AGGREGATE COMPENSATION. The
amounts payable pursuant to this subsection 4.1 shall be paid and
allocated by Old DMJK to Employee in such amount as may be established
by the Old DMJK Compensation Committee (the "Compensation Committee"),
the members of which for the fiscal year ended April 30, 1999, are
identified on Schedule 4.1(b) attached hereto. The Annual Aggregate
Compensation for the fiscal year ended April 30, 1999 shall be
allocated in the amount agreed upon and set forth on Schedule 4.1(b)
hereto (the "Allocated Amount"). Other than for the fiscal year ended
April 30, 1999, such allocation is subject to approval
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by the Old DMJK Board of Directors, such approval not to be
unreasonably withheld. The Shareholder CPAs shall select the members of
such Compensation Committee on May 1 to serve for the fiscal year
beginning on that date and shall notify Old DMJK of the identity of the
Compensation Committee on such May 1. The Compensation Committee so
identified shall establish that percentage of the Annual Aggregate
Compensation to be received by each Employee for the succeeding fiscal
year, and such base compensation shall not change without the prior
written consent of Old DMJK, which consent shall not unreasonably be
withheld.
4.1(c) REDUCTION OF ANNUAL AGGREGATE COMPENSATION. The
Annual Aggregate Compensation payable as set forth in this subsection
4.1 shall be reduced, if at all, as follows: (i) if the operations of
Old DMJK and New DMJK (treated for this purpose as if such operations
were consolidated for purposes of financial statements and reporting)
result in a net loss (as determined in accordance with generally
accepted accounting principles ("GAAP") and including Annual Aggregate
Compensation prior to any adjustment pursuant to this subsection
4.1(c)) in any year during the Term, then the Annual Aggregate
Compensation for that year shall be reduced by the amount of such net
loss. In determining whether there is a net loss for any year for
purposes of this subsection 4.1(c), (x) Old DMJK and New DMJK will be
charged a cost of capital (for funds advanced to Old DMJK by HRB
Business Services or any affiliate or to New DMJK by HRB Business
Services or any affiliate or by Old DMJK for purposes other than
acquiring accounting practices) at a variable rate of interest equal to
the prime rate announced by Commerce Bank, N.A. of Kansas City plus one
percent (1%), adjusted monthly on the first day of each month (the
"Intercompany Interest") and (y) goodwill shall not be included in
determining net loss; and (ii) the Annual Aggregate Compensation shall
be reduced, dollar for dollar by the amounts, if any, payable to the
Shareholder CPAs by New DMJK, which are in excess of $135,000. In the
event of reduction under either subsection 4.1(c)(i) or 4.1(c)(ii)
above, the amount of the reduction shall be paid to Old DMJK by the
Shareholder CPA's within 30 days from written notice to such effect, or
shall be deducted from the Annual Aggregate Compensation payable for
the next succeeding fiscal year, at the option of Old DMJK.
4.2 REGIONAL AND MARKET BONUSES. For the Initial Term, New
DMJK shall be designated the "Market Firm" and the "Regional Firm" in a market
or region encompassing Old DMJK's Kansas City office, which determination of
such market (the "Market") or region (the "Region") is in the reasonable
discretion of HRB Business Services and may be amended during each of the fiscal
years ended April 30, 1999 through 2003. Pursuant to such designation as a
Market Firm and a Regional Firm, Old DMJK shall pay the Shareholder CPAs, the
following amounts, if any are earned, as set forth herein.
4.2(a) REGIONAL BONUS. An aggregate amount equal to five
percent (5%) of the aggregate Earnings (defined below) (after Market
Bonuses similar to the Market Bonus described in subsection 4.2(b)
below paid or payable to "market level" firms within the designated
region and after Local Incentive Bonuses paid or payable as described
in subsection 4.4 below) of any accounting firm operations of those
subsidiaries or affiliates of HRB Business Services in the Region (the
"Regional Bonus").
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4.2(b) MARKET BONUS. An aggregate amount equal to five
percent (5%) of the aggregate Earnings (after Local Incentive Bonuses
paid or payable as described in subsection 4.4 below) of the accounting
firm operations of those subsidiaries or affiliates of HRB Business
Services in the Market (the "Market Bonus").
4.2(c) LIMITATION ON REGIONAL BONUS. The Regional Bonus
payable for any particular fiscal year shall only be payable if the
aggregate Earnings of the Region (after bonuses otherwise payable under
subsections 4.2(a) and 4.2(b) and after "market level" bonuses paid or
payable to other firms within such Region for the applicable fiscal
year) exceed ten percent (10%) of the Gross Revenues (defined below) of
the Region for such fiscal year. The maximum aggregate Regional Bonus
payable to all firms in any region shall not exceed five percent (5%)
of the aggregate Earnings of the region determined as set forth in this
subsection 4.2.
4.2(d) LIMITATION ON MARKET BONUS. The Market Bonus payable
for any particular fiscal year shall only be payable if the aggregate
Earnings of the Market after the Market Bonus otherwise payable under
subsection 4.2(b)) exceeds ten percent (10%) of the Gross Revenues of
the Market for such fiscal year. The maximum aggregate Market Bonus
payable to all firms in any market shall not exceed five percent (5%)
of the aggregate Earnings of the market determined as set forth in this
subsection 4.2.
4.2(e) ALLOCATION OF REGIONAL AND MARKET BONUSES. Any
amounts payable pursuant to this subsection 4.2 shall be allocated
among the Shareholder CPAs by the Compensation Committee, subject to
approval by Old DMJK, which approval shall not be unreasonably
withheld. Employee has no right to receive a portion of the Market
Bonus or Regional Bonus, and Employee may be allocated a portion of the
Regional Bonus and Market Bonus only if the Compensation Committee,
subject to Old DMJK's approval as described in this subsection 4.2(e),
so determines. Employee shall have no claim against Old DMJK for any
such allocation (or the failure to allocate any such amount to
Employee). Employee shall forfeit any amount allocated to Employee for
a Regional Bonus or a Market Bonus in the event that Employee is not
employed by Old DMJK (other than due to retirement from practice,
disability or death) on the date of payment of such allocated amounts.
Amounts payable under this subsection 4.2 shall be paid within sixty
(60) days following the end of each fiscal year for which such Market
Bonuses and Regional Bonuses are payable.
4.3 NATIONAL BONUS. Subject to the conditions set forth
herein, Old DMJK shall pay to the Shareholder CPAs the following aggregate
amounts, if any are earned, as set forth herein (the "National Bonus").
4.3(a) FISCAL YEAR ENDED APRIL 30, 2000. Five Hundred
Thousand Dollars ($500,000) if the aggregate Earnings of all United
States accounting firm operations affiliated with HRB Business Services
(the "HRB Business Services Accounting Operations") equal or exceed
Eight Million Dollars ($8,000,000) for the fiscal year ended April 30,
2000.
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4.3(b) FISCAL YEAR ENDED APRIL 30, 2001. Five Hundred
Thousand Dollars ($500,000) if the aggregate Earnings of the HRB
Business Services Accounting Operations equal or exceed Sixteen Million
Dollars ($16,000,000) for the fiscal year ended April 30, 2001.
4.3(c) FISCAL YEAR ENDED APRIL 30, 2002. Five Hundred
Thousand Dollars ($500,000) if the aggregate Earnings of the HRB
Business Services Accounting Operations affiliated with HRB Business
Services equal or exceed twenty-four Million Dollars ($24,000,000) for
the fiscal year ended April 30, 2002.
4.3(d) ALLOCATION OF NATIONAL BONUS. Any amounts payable for
any fiscal year pursuant to this subsection 4.3 shall be allocated
among the Shareholder CPAs by the Compensation Committee, subject to
approval by Old DMJK, which approval shall not be unreasonably
withheld. Employee has no right to receive a portion of the National
Bonus, and Employee will be allocated a portion of the National Bonus
only if the Compensation Committee, subject to Old DMJK's approval as
described in this subsection 4.3(d), so determines. Employee shall have
no claim against Old DMJK for any such allocation (or the failure to
allocate any such amount to Employee). Employee shall forfeit any
amount allocated to Employee in the event that Employee is not employed
by Old DMJK (other than due to retirement from practice, disability or
death) on the date of payments of any amounts allocated to Employee.
Amounts payable under this subsection 4.3 shall be paid within sixty
(60) days following the end of each fiscal year for which such National
Bonus is payable.
4.4 LOCAL INCENTIVE BONUS. Subject to the conditions set
forth herein, Old DMJK shall pay the Shareholder CPAs the amounts, if any,
determined as follows.
4.4(a) ELIGIBILITY FOR LOCAL INCENTIVE BONUS. Each fiscal
year (May-April) during the Term and for the fiscal year ended April
30, 2004 in the event the Term is extended through such year (a "Plan
Year"), the Shareholder CPAs who are employed by Old DMJK or New DMJK
shall be entitled to receive a bonus, if earned, determined in the
aggregate as follows in this subsection 4.4 (the "Local Incentive
Bonus").
4.4(b) DEFINITIONS. For purposes of this subsection 4.4
only, the following terms shall have the meanings set forth. "Excess
Profit" means the amount by which the Net Margin for the applicable
fiscal year exceeds the Profit Threshold for the Plan Year. "Net
Margin" means the amount by which Adjusted Earnings Before Shareholder
Compensation for the applicable Plan Year exceeds Shareholder
Compensation for such Plan Year. "Profit Threshold" means the following
amounts for the Plan Years shown:
1999 $1,295,000
2000 $1,372,700
2001 $1,455,062
2002 $1,542,366
2003 $1,634,908
2004 $1,733,002
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If Old DMJK or New DMJK acquires accounting practice(s), firms or fees
which are consolidated with such office's operations and financial
statements, the Profit Threshold shall be adjusted as is necessary so
that same reflects an internal rate of return on the additional capital
outlays for such acquisitions equal to fifteen percent (15%). The
calculation of such rate of return shall be the same method as was used
for the calculation of the above Profit Threshold(s). "Adjusted
Earnings Before Shareholder Compensation" means the consolidated net
income of New DMJK and Old DMJK determined in accordance with GAAP,
provided that such consolidated net income shall be before (i) income
taxes (ii) amortization of goodwill, (iii) Shareholder Compensation
(whether such compensation is Annual Aggregate Compensation, Regional
Bonus, Market Bonus, National Bonus or Local Incentive Bonus) and the
national director's compensation. "Shareholder Compensation" means
compensation payable pursuant to subsections 4.1, 4.2 and 4.3 of this
Agreement.
4.4(c) CALCULATION OF LOCAL INCENTIVE BONUS. Each Plan Year
during the Term, the Shareholder CPAs shall be entitled to a bonus, if
earned, equal in the aggregate to fifty percent of the Excess Profit.
4.4(d) PAYMENT OF LOCAL INCENTIVE BONUS. Any Local Incentive
Bonus earned by the Shareholder CPAs shall be payable, if at all, on
the first June 15 which is at least one year following the conclusion
of the Plan Year for which the Local Incentive Bonus was earned;
provided, however, that the Local Incentive Bonus shall only be payable
on such June 15 if the aggregate Net Margin for all Plan Years ending
before such June 15 equal or exceed the sum of the Profit Thresholds
for such Plan Years.
4.4(e) ALLOCATION OF LOCAL INCENTIVE BONUS. Any amounts
payable pursuant to this subsection 4.4 shall be allocated among the
Shareholder CPAs by the Compensation Committee, subject to approval by
Old DMJK, which approval shall not be unreasonably withheld. Employee
has no right to receive a portion of the Local Incentive Bonus, and
Employee will be allocated a portion of the Local Incentive Bonus only
if the Compensation Committee, subject to Old DMJK's approval as
described in this subsection 4.4(e), so determines. Employee shall have
no claim against Old DMJK for any such allocation (or the failure to
allocate any such amount to Employee). Employee shall forfeit any
amount allocated to Employee in the event that Employee is not employed
by Old DMJK (other than due to retirement from practice, disability or
death) on the date of the payment of such allocated amount.
4.5 DEFINITION OF EARNINGS. For purposes of subsections 4.2
and 4.3 above, except as otherwise set forth, the aggregate "Earnings" of HRB
Business Services accounting firm operations shall be net income as determined
for the applicable market, region or nationality in accordance with GAAP;
provided that such net income shall not include (a) Intercompany Interest; (b)
provision for income taxes; or (c) indirect overhead costs not directly incurred
by Old DMJK or New DMJK. Goodwill shall be amortized over a fifteen (15) year
period and shall reduce net income for the purposes of computing Earnings under
subsection 4.2, but shall not be deducted from net income for purposes of
computing Earnings under subsection 4.3.
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4.6 DEFINITION OF "LOCAL" OR "GROSS" REVENUES. As used
herein, the term "Local Revenues" or "Gross Revenues" shall mean the total gross
revenues of Old DMJK from the provision of accounting and other services to
clients plus the total gross revenues of New DMJK from provision of accounting
and other services each as determined in accordance with GAAP (less intercompany
revenues payable by Old DMJK or New DMJK to the other which would be eliminated
if Old DMJK and New DMJK were consolidated) and less returns, credits and
allowances).
4.7 AUTOMOBILE ALLOWANCE. Employee shall receive on the first
day of each month during the Term hereof, an automobile allowance in the amount
set forth on Schedule 4.7 hereto.
5. VACATION. The Employee shall be entitled to four (4) weeks
of paid vacation during each year of the Term hereunder in conformance with the
H&R Block, Inc. Company Paid Time Off Policy. Vacation shall be taken at times
mutually agreed upon by the Employee and Old DMJK.
6. BENEFITS.
6.1 BENEFITS. During the Term, the Employee shall be eligible
to participate in those pension, profit-sharing, stock option or similar plan(s)
or program(s) of Old DMJK, if any, established hereafter for the benefit of
employees of Old DMJK, subject to all eligibility requirements applicable to
employees covered thereby. The Employee shall be entitled to participate in any
group insurance, hospitalization, medical, health and accident, disability or
similar or non-similar plan or program of Old DMJK established hereafter for the
benefit of employees of Old DMJK, subject to all eligibility requirements
applicable to employees covered thereby. Set forth on Schedule 6.1 to this
Agreement are the benefits which Old DMJK shall provide to Employee.
6.2 PROFESSIONAL LIABILITY INSURANCE. During the Term, Old
DMJK shall maintain, at its expense, professional liability insurance of at
least One Million Dollars ($1,000,000) per occurrence and One Million Dollars
($1,000,000) annual aggregate, covering Employee for Employee's acts and
omissions in the performance of Employee's duties hereunder. Old DMJK may
provide all or any portion of the insurance required hereby under a program of
self-insurance.
7. NON-COMPETITION.
7.1 SCOPE. Until the later to occur of April 30, 2003 or that
date which is (3) years after the expiration or termination of this Agreement,
for any reason or for no reason, Employee shall not directly or indirectly:
7.1(a) Own, have any interest in or be, serve or act as an
individual proprietor, employee, agent, stockholder, officer, employee,
consultant, director, joint-venturer, investor, lender, or in any other
capacity whatsoever (other than as the holder of not more than five
percent (5%) of the total outstanding stock of Old DMJK if Old DMJK
becomes a publicly-held entity) of or with, or assist in any way, any
corporation, employee, firm or business enterprise (other than New
DMJK) which does business
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anywhere in the United States and which is engaged or to Employee's
knowledge after due inquiry intends to engage in the provision of
financial or accounting services or tax return preparation services of
a type which are provided by H&R Block, Inc. or any of its affiliates
(or which H&R Block, Inc. or any of its affiliates are planning to
offer, but as to planned activities only if Employee is or was engaged
in such planning) at the time of such expiration or termination.
7.1(b) Solicit or induce, or attempt to solicit or induce,
any Employee or independent contractor of Old DMJK, their respective
parents or affiliates or any other person who shall otherwise be in the
service of Old DMJK, their respective parents or affiliates to
terminate his or her employment with or otherwise cease his or her
relationship with Old DMJK, their respective parents or affiliates; or
7.1(c) Solicit, divert or take away, or attempt to solicit,
divert or take away, the business or patronage of any of the clients,
customers (whether any such customer has done business with Old DMJK
once or more than once), suppliers or accounts, or prospective clients,
customers, suppliers or accounts, of Old DMJK, their respective parents
or affiliates.
Notwithstanding the foregoing, any Employee may own less than two percent (2%)
of the outstanding voting stock of a corporation coming within the restrictions
of this Section 7, the securities of which are listed on a national securities
exchange or are traded in the national over-the-counter market as quoted by the
National Association of Securities Dealers to The Wall Street Journal, if the
Employee does not participate in the management of, perform services for, or
have any other beneficial interest in, such corporation.
7.2 LIMITATIONS ON ENFORCEMENT. If any restriction set forth
in this Section 7 is found by any court of competent jurisdiction to be
unenforceable because it extends for too long a period of time, over too great a
range of activities or in too broad a geographic area, it shall be interpreted
to extend only over the maximum period of time, range of activities or
geographic area as to which such court shall consider enforceable.
7.3 EXTENSION OF PERIOD OF NON-COMPETITION. If Employee
violates any of the provisions of this Section 7 after the date hereof, the
computation of the time period provided in subsection 7.1 shall be extended for
a period equal to the period of any such violation.
8. CONFIDENTIALITY.
8.1 CONFIDENTIAL INFORMATION. Employee agrees that Employee
shall not use, or disclose to any person, either during the Term or after the
termination of this Agreement for any reason, any confidential or proprietary
information (herein collectively referred to as "Confidential Information")
furnished or provided by Old DMJK or HRB Business Services, its parents or
affiliates to Employee hereunder or otherwise, whether such information is
conveyed directly or on Old DMJK's behalf, except for purposes consistent with
the administration and performance of Employee's obligations hereunder, or as
required by law, provided that written notice of any legally required disclosure
shall be given to Old DMJK promptly prior to any such
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disclosure and the Employee shall reasonably cooperate with Old DMJK to protect
the confidentiality thereof pursuant to applicable law or regulation. For
purposes of this Agreement, the term "Confidential Information" includes
(without limitation) information in any format, including without limitation,
written, graphic or electromagnetic information and including but not limited
to, technical, financial and business information and models, designs,
manufacturing and test processes, procedures, names of customers or suppliers,
plans, data, specifications or any other confidential and proprietary
information. The term "Confidential Information," as used herein, does not
include information (a) which was already in the public domain, or (b) which was
in the rightful possession of Employee, at the time of its disclosure, or (c)
which is disclosed as a matter of right by a third party source after the
execution of this Agreement provided such third party source is not bound by a
confidentiality agreement with Old DMJK or (d) which passes into the public
domain by acts other than the unauthorized acts of the Employee.
8.2 USE OF CONFIDENTIAL INFORMATION. It is hereby agreed that
Employee will not use the Confidential Information in any way detrimental to Old
DMJK or HRB Business Services, and that the Confidential Information will be
kept confidential by Employee; provided, however, that any disclosure of such
Confidential Information may be made to any party to which Old DMJK or HRB
Business Services consent in writing prior to such disclosure.
8.3 PROTECTION OF CONFIDENTIAL INFORMATION. For the purpose
of complying with the confidentiality obligations set forth herein, the Employee
shall, at a minimum, use efforts commensurate with those that Employee uses for
protecting the confidentiality of corresponding information of Employee.
8.4 PRIOR CONFIDENTIAL INFORMATION. Any Confidential
Information supplied to Employee by Old DMJK or HRB Business Services prior to
the execution of this Agreement shall be considered in the same manner and be
subject to the same treatment as the Confidential Information made available
after the execution of this Agreement, and it is understood that this Agreement
is not intended to, and does not, obligate either Employee or Old DMJK to enter
into any further agreements or to proceed with any possible relationship or
other transaction.
9. TERMINATION. In addition to termination pursuant to the
provisions of Section 2, the Employment of the Employee may be terminated (the
"Termination Date") as follows:
9.1 BY OLD DMJK FOR CAUSE. During the Term, effective upon
notice of termination given to the Employee by Old DMJK if Old DMJK determines
that "cause" for such termination exists. "Cause" shall be deemed to exist if
the Employee:
(a) engages in unethical or unprofessional conduct or
commits an act of dishonesty, including, but not limited to,
misappropriation of funds or any property of Old DMJK, its
parent or affiliates;
(b) engages in activities or conduct injurious to the
reputation of Old DMJK, its parent or affiliates;
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(c) demonstrates gross insubordination in connection
with Employee's services to Old DMJK under this Agreement;
(d) commits a felony;
(e) fails to maintain in good standing
(without any limitations or restrictions) Employee's
certification and license as a CPA in all states where
Employee's activities require such certification and license;
(f) ceases to be a Shareholder CPA;
(g) enters into an arrangement and/or agreement or
becomes a member, shareholder, employee, officer or director of
any entity that provides services substantially similar to those
provided by New DMJK or Old DMJK in violation of Section 7 of
this Agreement;
(h) otherwise breaches Section 7 or 8 hereof; or
(i) violates any term or condition of this Agreement not
covered by items (a) - (h) above and does not cure such
violation within fifteen (15) days after notice of same by Old
DMJK;
9.2 DEATH OR DISABILITY. In addition to termination for the
reasons otherwise set forth herein, this Agreement and Employee's employment
shall also terminate upon the Employee's death or "Disability." "Disability"
means the inability of the Employee to perform Employee's duties or services as
provided in this Agreement because of mental, physical or other illness, disease
or injury, where such disability (a) shall have existed for an aggregate of
twelve months in any 24-month period and Old DMJK shall have so notified the
Employee thereof, or (b) has prevented Employee from performing substantially
all of his or her duties hereunder for a period of twelve (12) consecutive
months.
9.3 BY OLD DMJK WITHOUT CAUSE. After the Initial Term, Old
DMJK may terminate this Agreement and Employee's employment, without cause, upon
not less than ninety (90) days prior written notice to the Employee as set forth
in Section 2 above.
9.4 BY EMPLOYEE. During the Term, Employee may terminate this
Agreement for "cause" which shall mean breach of any material provision hereof
by Old DMJK if Old DMJK does not either commence cure thereof within 15 days
after written notice from Employee, or, having commenced cure, does not
thereafter promptly and diligently prosecute cure to completion. In addition to
termination for the reasons otherwise stated herein, this Agreement and
Employee's employment with Old DMJK may be terminated during the Initial Term by
Employee on not less than 30 days prior written notice, without cause. After the
Initial Term, Employee may terminate this Agreement and Employee's Employment
upon ninety (90) days prior written notice to Old DMJK as set forth in Section 2
herein, with or without cause.
9.5 TERMINATION BY OLD DMJK. In addition to the termination
for the reasons otherwise stated herein, this Agreement and Employee's
employment with Old
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DMJK shall be terminated automatically, without any action by Old DMJK, upon the
effective date of any termination of Employee's employment by New DMJK, for
whatever reason.
9.6 TERMINATION OF MANAGEMENT SERVICES AGREEMENT. In addition
to the termination for the reasons otherwise stated herein, this Agreement and
Employee's employment with Old DMJK shall be terminated at Old DMJK's option
upon termination of the Management Services Agreement. Such termination shall be
effective on the date of any termination of the Management Services Agreement.
9.7 EFFECT OF TERMINATION. Upon any termination of the
Employee's employment and this Agreement, Old DMJK and the Employee shall have
no further obligations under this Agreement to the other except:
(a) If the termination is pursuant to subsections 9.1,
9.2 if Employee is suffering a Disability, or subsection 9.4 if
termination is without cause, Employee's obligations under Section 7
shall continue for the period set forth therein, and the Employee's
obligations under Section 8 shall continue in full force and effect
indefinitely;
(b) If the termination is pursuant to subsection 9.3
without cause or subsection 9.4 with cause, Employee's obligations
under subsection 7.1(a) shall cease on the Termination Date, but
Employee's obligations under Section 8 and subsections 7.1(b) and
7.1(c) shall continue in full force and effect indefinitely;
(c) If the Management Services Agreement is terminated by
Old DMJK because HRB Business Services determines to cease providing
accounting services, and if Employee's employment hereunder is
terminated as a result thereof, then Employee's obligations under
subsection 7.1(a) shall cease on the Termination Date and Employee's
obligations under Section 8 and subsections 7.1(b) and 7.1(c) shall
continue in full force and effect indefinitely;
(d) If the Management Services Agreement is terminated by
Old DMJK because (1) New DMJK loses or has suspended any license or
certification to practice public accounting and/or to hold itself out
as a firm engaged in public accounting; (2) New DMJK is dissolved or
liquidated or files a voluntary petition in bankruptcy or other action
is taken voluntarily or involuntarily under any statute for the
protection of creditors; or (3) New DMJK beaches a material provision
of the Management Services Agreement and fails either to commence a
cure of the breach within fifteen (15) days after the delivery of
notice of such breach by Old DMJK or having so commenced cure, fails
thereafter to prosecute cure promptly to completion within thirty (30)
days after receipt of such initial notices, and if Employee's
employment hereunder is terminated as a result thereof, then Employee's
obligations under Section 7 shall continue for the term set forth
therein, and Employee's obligations under Section 8 shall continue
indefinitely.
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<PAGE> 13
(e) If the Management Services Agreement is terminated by
New DMJK because Old DMJK breaches a material provision of the
Management Services Agreement and fails either to commence cure of the
breach within fifteen (15) days after the receipt of notice of such
breach by New DMJK, or having so commenced cure, fails thereafter to
prosecute cure promptly to completion within thirty (30) days after
receipt of such written notice, and if Employee's employment hereunder
is terminated as a result thereof, then Employee's obligations under
subsection 7.1(a) shall cease on the Termination Date, and Employee's
obligations under Section 8 and subsections 7.1(b) and 7.1(c) shall
continue indefinitely.
(f) In the event this Agreement is terminated after a change
in any applicable statutes, regulations or interpretations thereof, the
adoption of any new regulations or legislation (collectively, the
"Laws"), or an enforcement of Laws that would materially affect the
operation or compensation under the Management Services Agreement, or
which would make the Management Services Agreement unlawful, and the
parties fail to negotiate a new Management Services Agreement, and if
Employee's employment hereunder is terminated as a result thereof,
Employee's obligations shall continue under Section 7 as set forth
therein and Employee's obligations under Section 8 shall continue
indefinitely. However, this Agreement shall remain in effect during any
negotiation period described in the preceding sentence.
(g) Old DMJK's obligation to pay Employee compensation shall
continue for any periods up and through the Termination Date worked by
the Employee for which Employee has not been paid; however, Employee
will be paid for any Market Bonus, Regional Bonus, or National Bonus
unless Employee is not employed by Old DMJK (other than due to
retirement from practice, disability or death) on the date that such
Market Bonus, Regional Bonus or National Bonus is paid.
9.8 AVAILABILITY OF INJUNCTIVE RELIEF. In the event of a
breach or threatened breach by Employee of any provision of Sections 7 or 8
hereof, Old DMJK shall be entitled to seek an injunction restraining such
breach, but nothing herein shall be construed as prohibiting Old DMJK from
pursuing any additional remedy available to Old DMJK for such breach or
threatened breach.
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<PAGE> 14
10. MISCELLANEOUS.
10.1 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding among Old DMJK and the Employee concerning the
subject matter hereof. No modification, amendment, termination or waiver of this
Agreement shall be binding unless in writing and signed by the Employee and a
duly authorized officer of Old DMJK. Failure of Old DMJK or the Employee to
insist upon strict compliance with any of the terms, covenants or conditions
hereof shall not be deemed a waiver of such terms, covenants and conditions.
10.2 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon the Employee and the heirs, executors and administrators of the Employee or
of his or her estate and property, and shall inure to the benefit of Old DMJK
and its successors and assigns. Being a contract for personal services, the
Employee may not assign or transfer to others (a) the right to receive payments
hereunder or (b) the obligation to perform his duties and services hereunder.
Old DMJK may assign or transfer this Agreement (provided the Employee is given
notice thereof) to any subsidiary, parent or affiliate of Old DMJK.
10.3 TAXES. From any payments due hereunder to the Employee
from Old DMJK, there shall be withheld amounts reasonably believed by Old DMJK
to be sufficient to satisfy liabilities for federal, state and local income and
related taxes and other charges.
10.4 NOTICES. Any notices required or permitted by this
Agreement must be in writing to be effective, and shall be deemed made or given,
if by mail, three days after depositing such notice in the United States mails,
postage prepaid, addressed to the parties, or by facsimile (if receipt is
confirmed) as follows:
If to the Employee:
To: Terrence E. Putney
________________________
________________________
If to Old DMJK:
To: HRB Business Services, Inc.
4400 Main Street
Kansas City, Missouri 64111
Attn: Bret G. Wilson
with a copy to John R. Cox at the same address.
or, if by delivery, when delivered personally to the Employee or to the
above-named representative of Old DMJK, as the case may be. A copy of each
notice forwarded by Employee to Old DMJK or by Old DMJK to Employee shall be
forwarded at the time of first mailing or delivery, to Old DMJK.
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<PAGE> 15
10.5 RIGHT TO OFFSET. Subject to subsection 10.6, Old DMJK
shall have the right but not the obligation to offset any amounts due Old DMJK
by Shareholder CPAs or New DMJK against amounts that Old DMJK owes to the
Shareholder CPAs or New DMJK under this Agreement, the Management Services
Agreement (but only with respect to amounts payable by New DMJK to any
Shareholder CPA) or that certain Agreement for Purchase and Sale of Stock of
Donnelly Meiners Jordan Kline P.C or any agreement referred to therein. Offsets
for damages incurred by Old DMJK resulting from a breach of Sections 7 or 8
herein shall be applied only against amounts due the breaching Shareholder CPAs.
Otherwise, all offsets involving amounts owed to the Shareholder CPAs shall be
taken against amounts due all Shareholder CPAs.
10.6 ARBITRATION. The parties hereto agree that any such
dispute relating to or in respect of this Agreement, its negotiation, execution,
performance, subject matter, or any course of conduct or dealing or actions
under or in respect of this agreement, shall be submitted to, and resolved
exclusively pursuant to arbitration in accordance with the commercial
arbitration rules of the American Arbitration Association. Such arbitration
shall take place in Kansas City, Missouri, and decisions pursuant to such
arbitration shall be final, conclusive and binding on the parties. Upon the
conclusion of arbitration, the parties may apply to any court of competent
jurisdiction to enforce the decision pursuant to such arbitration. The
arbitration proceeding shall be subject to the laws of the State of Missouri.
Each party will bear its own costs. The parties hereto hereby waive and shall
not seek a jury trial in any lawsuit, proceeding, claim, counterclaim, defense
or other litigation or dispute under or in respect of this Agreement. The
parties will use their best efforts to complete any arbitration within ninety
(90) days from the date the arbitration is initiated by a party.
10.7 HEADINGS. All headings in this Agreement are for
convenience only and are not intended to affect the meaning of any provision
hereof.
10.8 COUNTERPARTS. This Agreement may be executed in two or
more counterparts with the same effect as if the signatures to all such
counterparts were upon the same instrument, and all such counterparts shall
constitute but one instrument.
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IN WITNESS WHEREOF, the Employee has executed this Agreement
and Old DMJK has caused this Agreement to be executed by its duly authorized
officer as of the day and year first above written.
DONNELLY MEINERS JORDAN KLINE,
INC.
By: /s/ Bret G. Wilson
------------------------------------
Name: Bret G. Wilson
------------------------------------
Title: Vice President
------------------------------------
/s/ Terrence E. Putney
---------------------------------------------
Terrence E. Putney
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<PAGE> 17
SCHEDULE 4.1
SHAREHOLDER CPAS
1. David E. Enenbach
2. Daniel J. Haake
3. Edwin C. Hoguland
4. Terrence E. Putney
5. Harry E. Jordan
6. James R. Kline Jr.
7. Gerard J. Meiners
8. Robert A. Thomas, Jr.
<PAGE> 18
SCHEDULE 4.1(a)
ANNUAL AGGREGATE CONSIDERATION
1. FISCAL YEAR ENDED APRIL 30, 1999. For the fiscal year ended April 30, 1999,
the Shareholder CPAs shall receive Annual Aggregate Compensation equal to One
Million Two Hundred Twenty-Seven Thousand Four Hundred Thirty-Two Dollars
($1,227,432). Such Aggregate Annual Compensation shall be prorated and only paid
for the portion of the fiscal year ended April 30, 1999 in which this Agreement
is in effect.
2. FISCAL YEAR ENDED APRIL 30, 2000. For the fiscal year ended April 30, 2000,
the Shareholder CPAs shall receive Annual Aggregate Compensation equal to (i)
Twenty-Three and 49/100 percent (23.49%) of Local Revenues for fiscal year (as
defined below) of Old DMJK or (ii) One Million Two Hundred Ninety-Five Thousand
Five Hundred Fifty-Four Dollars ($1,295,554), whichever is less.
3. FISCAL YEAR ENDED APRIL 30, 2001. For the fiscal year ended April 30, 2001,
the Shareholder CPAs shall receive Annual Aggregate Compensation equal to the
lesser of (i) Twenty-Three and 49/100 percent (23.49%) of Local Revenues for
such year, or (ii) One Million Three Hundred Sixty-Seven Thousand Eighty-One
Dollars ($1,367,081).
4. FISCAL YEAR ENDED APRIL 30, 2002. For the fiscal year ended April 30, 2002,
the Shareholder CPAs shall receive Annual Aggregate Compensation equal to the
lesser of (i) Twenty-Three and 49/100 (23.49%) of Local Revenues for such year
or (ii) One Million Four Hundred Forty-Two, One Hundred Eighty-Five Dollars
($1,442,185).
5. FISCAL YEAR ENDED APRIL 30, 2003. For the fiscal year ended April 30, 2003,
the Shareholder CPAs shall receive Annual Aggregate Compensation equal to the
lesser of (i) Twenty-Three and 49/100 percent (23.49%) of Local Revenues for
such year or (ii) One Million Five Hundred Twenty-One and Forty-Four Dollars
($1,521,044).
6. DEFINITION OF "LOCAL" OR "GROSS" REVENUES. As used herein, the term "Local
Revenues" or "Gross Revenues" shall mean the total gross revenues of Old DMJK
from the provision of accounting and other services to clients plus the total
gross revenues of New DMJK from provision of accounting and other services each
as determined in accordance with GAAP (less intercompany revenues payable by Old
DMJK or New DMJK to the other which would be eliminated if Old DMJK and New DMJK
were consolidated) and less returns, credits and allowances).
<PAGE> 19
SCHEDULE 4.1(b)
COMPENSATION COMMITTEE FOR FISCAL YEAR ENDED APRIL 30, 1999
David E. Enenbach
Gerard J. Meiners
James R. Kline, Jr.
ALLOCATED AMOUNT FOR FISCAL YEAR ENDED APRIL 30, 1999
Enenbach, David E. 176,066
Haake, Daniel J. 120,731
Hogueland, Edwin C. 120,731
Jordan, Harry E. 181,097
Kline, James R., Jr. 125,761
Meiners, Gerard J. 186,127
Putney, Terrence E. 191,157
Thomas, Robert, Jr. 125,761
---------
1,227,432
<PAGE> 20
SCHEDULE 4.7
AUTOMOBILE ALLOWANCE
$500 per month for each Shareholder CPA
<PAGE> 21
SCHEDULE 6.1
COMPENSATION PLANS AND BENEFITS
DEFERRED COMPENSATION
STOCK OPTIONS
401(k) PLAN
HEALTH INSURANCE
CONTINUING PROFESSIONAL EDUCATION