<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 6, 1998
ENTERPRISE SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-18034 68-0158367
(State or other (Commission File No.) (IRS Employer
jurisdiction of Identification No.)
incorporation)
38705 Seven Mile Road, Suite 435, Livonia, Michigan 48152
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (248) 380-6070
Not Applicable
(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS
In connection with Registrant's acquisition of REVIVE Technologies
Incorporated ("REVIVE") on September 1, 1998, Registrant assumed the obligations
of Business Information Systems, Inc. (a predecessor of REVIVE) under an
employment agreement between Business Information Systems, Inc. and Joseph J.
Porfeli. Mr. Porfeli is the President and Chief Operating Officer of REVIVE, has
been nominated for election to Registrant's Board of Directors, and recently was
determined by the Board to be an executive officer of Registrant. Each of
Registrant's other executive officers, Messrs. Andre A. Blay, David W. Martin,
Richard L. Schleufer, and Robert A. Blay, also has entered into an employment
agreement with Registrant or a subsidiary during the course of calendar year
1998. Although those agreements were executed at various times from February
through November 1998, all of them are effective as of February 6, 1998.
Copies of all of the contracts referenced above are filed as exhibits
to this Form 8-K, and the terms of such contracts are incorporated herein by
reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
Financial Statements - None
Exhibits -
<TABLE>
<CAPTION>
Exhibit Reference
Number Exhibit Description*
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<S> <C>
10(A) Employment Agreement, dated as of February 6, 1998, by and between Registrant
(under its former name, IndeNet, Inc.) and Andre A. Blay
10(B) Employment Agreement, dated as of February 6, 1998, by and between Enterprise Systems Group, Ltd.
and David W. Martin and related letter from Mr. Martin
10(C) Employment Agreement, dated as of February 6, 1998, by and between Enterprise Systems Group, Inc.
and Richard M. Schleufer
10(D) Employment Agreement, dated as of February 6, 1998, by and between Registrant
(under its former name, IndeNet, Inc.) and Robert A. Blay
10(E) Form of Employment Agreement, dated as of May 1, 1997, between Business Information
Systems, Inc. (a predecessor of REVIVE Technologies Incorporated) and Joseph J.
Porfeli
</TABLE>
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* Each described exhibit is a contract with an executive officer of Registrant.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Enterprise Software, Inc.
January 4, 1999 By: /s/ Andre A. Blay
--------------------------
Andre A. Blay
Chairman of the Board and
Chief Executive Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Reference
Number Exhibit Description*
----------------- --------------------
<S> <C>
10(A) Employment Agreement, dated as of February 6, 1998, by and between Registrant
(under its former name, IndeNet, Inc.) and Andre A. Blay
10(B) Employment Agreement, dated as of February 6, 1998, by and between Enterprise Systems Group, Ltd.
and David W. Martin and related letter from Mr. Martin
10(C) Employment Agreement, dated as of February 6, 1998, by and between Enterprise Systems Group, Inc.
and Richard M. Schleufer
10(D) Employment Agreement, dated as of February 6, 1998, by and between Registrant
(under its former name, IndeNet, Inc.) and Robert A. Blay
10(E) Form of Employment Agreement, dated as of May 1, 1997, between Business Information
Systems, Inc. (a predecessor of REVIVE Technologies Incorporated) and Joseph J.
Porfeli
</TABLE>
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* Each described exhibit is a contract with an executive officer of Registrant.
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EXHIBIT 10(A)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the 6th day of
February, 1998 (the "Effective Date") by and between IndeNet, Inc., a Delaware
corporation ("Employer"), and Andre A. Blay, an individual domiciled in the
State of Michigan ("Employee").
W I T N E S S E T H
WHEREAS, Employer is a provider of computer software and services; and
WHEREAS, Employer believes that it would benefit from the application
of Employee's particular and unique skill, experience, and background to the
Employer's business and business concept; and
WHEREAS, Employee wishes to commit to serve Employer in the position
set forth herein on the terms herein provided;
NOW, THEREFORE, in consideration of the premises and mutual covenants,
terms and conditions set forth in this Agreement, and for other good and
valuable consideration, Employer and Employee hereby agree, effective as of the
Effective Date, as follows:
1. Employment and Duties. During the Employment Term (as defined in
Section 2 hereof), Employer agrees to employ Employee, and Employee agrees to be
employed by Employer, as the Chief Executive Officer. Employee agrees to devote
Employee's full time, attention, energy, skill, loyalty and best efforts to
perform Employee's duties as the Chief Executive Officer. The Chief Executive
Officer and/or the Board of Directors of Employer (the "Board") may time to time
further define and clarify Employee's duties and services hereunder, and
Employee also hereby agrees to perform such redefined and/or clarified duties in
accordance with the provisions of this Agreement.
2. Term. The term of this Agreement shall commence on the Effective
Date and shall expire on: August 31, 2002 (the "Employment Term") .
3. Compensation and Related Matters.
(a) Base Salary. As compensation for performing the services
required by this Agreement during the Employment Term, Employer shall pay to
Employee an annual salary of no less than (i) Two Hundred Forty Thousand Dollars
($240,000) from April 1, 1998 until August 31, 1998; (ii) Three Hundred Thousand
Dollars ($300,000) from September 1, 1998 through August 31, 1999; and (iii)
Three Hundred Sixty Thousand Dollars from September 1, 1999
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thereafter ("Base Compensation") , payable in accordance with the general
policies and procedures for payment of salaries to its Employee personnel
maintained, from time to time, by Employer (but no less frequently than
monthly), subject to withholding for applicable federal, state, and local taxes.
Increases in Base Compensation, if any, shall be determined by the Compensation
Committee (the "Committee") of the Board, based on periodic reviews of
Employee's performance conducted on at least an annual basis.
(b) Bonus. In addition to Base Compensation, the Employee
shall be entitled to receive a cash bonus (a "Performance Bonus Distribution")
in an amount to be determined by the Board and the Committee in their sole and
absolute discretion based upon achievement of both corporate and individual
performance goals and objectives. Such goals and objectives shall be established
by the Board or the Committee in writing on an annual basis. Each fiscal year,
upon establishment of the goals and objectives by the Board and the Committee,
the actual amount of the potential bonus to be earned and the criteria for
earning it will be set forth in writing. The achievement of such goals and
objectives and the payment of any bonus shall be determined by the Board and the
Committee, provided, however, that if it is determined by the Board and the
Committee that the employee attained the required goals and objectives, the
bonus shall be paid.
(c) Benefits. During the Employment Term and subject to the
limitations and alternative rights set forth in this Section 3(c), Employee and
Employee's eligible dependents shall have the right to participate in the
medical and dental benefit plan to be established by Employer (which may include
contributions by Employee) and in any other retirement, pension, insurance,
health or other benefit plan or program that has been or is hereafter adopted by
Employer (or in which Employer participates), as such plans and programs may be
amended or modified from time to time by Employer, according to the terms of
such plan or program with all the benefits, rights and privileges as are enjoyed
by any other Employee officers of Employer. If the participation of Employee
would adversely affect the qualification of a plan intended to be qualified
under Section 401(a) of the Internal Revenue Code as the same may be amended
from time to time (the "Code"), Employer shall have the right to exclude
Employee from that plan in return for Employee's participation in (i) a
nonqualified deferred compensation plan or (ii) an arrangement providing
substantially comparable benefits under a plan that is either a qualified or
nonqualified under the Code, at Employer's option.
(d) Vacations. During the Employment Term, Employee shall be
entitled to vacation in accordance with Employer's practices, as such practices
may be amended or modified from time to time by Employer, provided that Employee
shall be entitled to four (4) weeks paid vacation in each full fiscal year.
Employee may not accrue unused vacation time and shall not be entitled to
payment for vacation time not used in any fiscal year.
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Notwithstanding the foregoing, Employee shall be permitted to use, during the
term of this Agreement, any vacation time accrued prior to the Effective Date.
Employee shall be entitled to a payment for any vacation time which has accrued
in a fiscal year but has not been used as of the date of the termination of
Employee's employment with Employer, unless Employee's employment is terminated
pursuant to Section 5(a)(ii) hereof.
(e) Business Expenses. Employer shall reimburse Employee for
reasonable and necessary business expenses, in accordance with Employer's
policies and upon presentation of appropriate documentation.
4. Stock Options. IndeNet, Inc. has established a stock option plan
(the "Stock Option Plan") which provides, among other things, for the issuance
of options to purchase stock of IndeNet, Inc. from time to time to certain
officers, directors and other employees of IndeNet, Inc. and its subsidiaries,
including Employee. On the Effective Date, pursuant to the Stock Option Plan,
IndeNet, Inc. shall grant to Employee the option to purchase Six Hundred
Thousand (600,000) shares of IndeNet, Inc. stock ("Options") according to such
terms and conditions as are set forth in the Stock Option Plan and the Option
Agreement to be entered into between IndeNet, Inc. and Employee in connection
with the award of such options in accord with paragraph 7 of the Stock Option
Plan. Such Options granted to Employee shall vest immediately upon (i) the death
or disability of Employee, (ii) upon termination of this Agreement and
Employee's employment by Employer for any reason other than a termination for
cause or (iii) in the event of a Change in Control (as defined in Section 5 (a)
(iv) herein) . In the case of termination of this Agreement and Employee' s
employment (x) by Employee or (y) for cause (as defined in Section 5(a)(ii)
herein), all unvested Options shall be forfeited by Employee, but Employee shall
have the right to exercise within the time period provided for in the Stock
Option Plan all Options vested prior to such termination for cause.
5. Termination and Termination Benefits.
(a) Termination by Employer.
(i) Without Cause. Employer may terminate this Agreement and
Employee's employment at any time for any reason or for no reason at
all upon thirty (30) days, prior written notice to Employee following
notice of termination. In connection with the termination of Employee's
employment pursuant to this Section 5(a)(i), Employee (A) shall be paid
Employee's Base Compensation in accordance with Section 3(a) for a
period of one year from the effective date of such termination, (B)
may, in accordance with Section 3(b) hereof, be paid a pro rata portion
of any bonus for which Employee may be eligible with respect to the
fiscal year in which such termination occurs up to the effective date
of such termination, (C) to the extent not previously paid,
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shall be entitled to all bonuses payable to Employee in accordance with Section
3 (b) hereof for or with respect to any fiscal years prior to the fiscal year in
which such termination occurs, (D) shall be entitled to the benefits set forth
in Section 3(c) hereof for a period of six (6) months from the effective date of
such termination and, as appropriate, shall be paid amounts accrued and owing
pursuant to Sections 3(d) and 3(e) hereof. For purposes of this Agreement, the
"effective date of termination" shall mean the last day on which Employee is
employed with Employer which may be later than the date of the delivery of any
applicable notice of termination.
(ii) With Cause. Employer may terminate this Agreement with cause
immediately upon written notice to Employee. Employer may elect to require
Employee to continue to perform Employee's duties under this Agreement for an
additional thirty (30) days following notice of termination. In connection with
the termination of Employee's employment pursuant to this Section 5(a) (ii),
Employee shall (A) be paid Employee's Base Compensation in accordance with
Section 3(a) hereof up to the effective date of such termination, (B) to the
extent not previously paid, Employee shall be entitled to any bonuses payable to
Employee in accordance with Section 3(b) hereof and for any fiscal years prior
to the fiscal year in which such termination occurs, (C) be entitled to the
benefits set forth in Section 3(c) hereof up to the effective date of such
termination and, as appropriate, shall be paid amounts accrued and owing
pursuant to Sections 3(d) and 3(e) hereof. For purposes of this Section 5(a)
(ii), "cause" shall mean (1) a finding by the Board that Employee has
materially harmed Employer, its business, assets or employees through an act of
dishonesty, material conflict of interest, gross misconduct or willful
malfeasance, (2) Employee's conviction of (or pleading nolo contendere to) a
felony, (3) Employee's failure to perform (which shall not include inability to
perform due to disability) in any material respects employee's material duties
under this agreement after written notice specifying the failure and a
reasonable opportunity to cure (it being understood that if Employee's failure
to perform is not of a type requiring a single action to fully cure, then
Employee may commence the cure promptly after such written notice and thereafter
diligently prosecute such cure to completion), (4) the breach by Employee of any
of Employee's material obligations hereunder (other than those covered by clause
(3) above) and the failure of Employee to cure such breach within thirty (30)
days after receipt by Employee of a written notice of Employer specifying in
reasonable detail the nature of the breach, or (5) Employee's sanction
(including
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restrictions, prohibitions and limitations agreed to under a consent decree or
agreed order) under, or conviction for violation of, any federal or state
securities law, rule or regulation (provided that in the case of a sanction,
such sanction materially impedes or impairs the ability of Employee to perform
Employee's duties and exercise Employee's responsibilities hereunder in a
satisfactory manner).
(iii) Disability. If due to illness, physical or mental
disability, or other incapacity, Employee shall fail during any four (4)
consecutive months to perform the duties required by this Agreement, Employer
may, upon thirty (30) days' written notice to Employee, either terminate this
Agreement or suspend Employee's right to any Base Compensation or Performance
Bonus Distributions without terminating this Agreement. In any such event,
Employee shall (A) be paid Employee's Base Compensation in accordance with
Section 3(a) hereof up to the effective date of such termination, (B) be paid a
pro rata portion of any bonus otherwise payable to Employee for or with respect
to the fiscal year in which such termination occurs in accordance with Section 3
(b) hereof up to the first day of such four (4) month period and, to the extent
not previously paid, Employee shall be entitled to all bonuses payable to
Employee in accordance with Section 3(b) hereof and for any fiscal years prior
to the fiscal year in which such termination occurs and (C) be entitled to the
benefits set forth in Section 3(c) hereof (or the after-tax cash equivalent) for
a period of six (6) months from the effective date of such termination and, as
appropriate, shall be paid amounts accrued and owing pursuant to Sections 3(d)
and 3(e) hereof. In the event Employer elects to suspend Employee's right to
Base Compensation and Performance Bonus Distributions, at such time as Employee
is able to resume the duties required under this Agreement, Employee shall be
entitled to receive Base Compensation and Performance Bonus Distributions from
the date Employee commences the performance of such duties following the
disability in accordance with the terms and provisions of this agreement. this
section 5(a) (iii) shall not limit the entitlement of Employee, Employee's
estate or beneficiaries to any disability or other benefits available to
Employee under any disability insurance or other benefits plan or policy which
is maintained by Employer for Employee's benefit. For purposes of this
Agreement, the "date of disability" shall mean the first day of the consecutive
period during which Employee fails to perform the duties required by this
Agreement due to illness, physical or mental disability or other incapacity.
(iv) After Change of Control. If, within a two
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(2) year period following a "change in control" as defined below, Employer
terminates this Agreement for any reason other than as provided in Section 5(a)
(ii) , , Employer shall pay to Employee, within thirty (30) days of termination,
the greater of (i) two (2) times Employee's Base Compensation as provided in
Section 3(a) hereof, or (ii) Employee's Base Compensation provided in Section 3
(a) hereof times the number of years and/or fraction thereof remaining under
this Agreement. In addition, Employee shall (A) be paid Employee's Base
Compensation up to the effective date of such termination, (B) be paid a pro
rata portion of any bonus otherwise payable to Employee for or with respect to
the fiscal year in which such termination occurs in accordance with Section 3(b)
hereof up to the effective date of such termination, (C) to the extent not
previously paid, shall be entitled to all bonuses payable to Employee in
accordance with Section 3(b) hereof for or with respect to any fiscal years
prior to the fiscal year in which such termination occurs, (D) be entitled to
the benefits set forth in Section 3(c) hereof for a period of six (6) months
from the effective date of such termination, and, as appropriate, be paid
amounts accrued and owing pursuant to Sections 3(d) and 3(e) hereof. For
purposes of this Agreement, in the event Employer defaults in its obligation
under Section 9 hereof and, as a consequence thereof, Employee's employment with
Employer (or Employer's successor or assign) terminates, such termination shall
be deemed to be a termination under this Section 5(a)(iv).
For purposes of this Section 5(a)(iv), (A) a "change of control" of
Employer shall be deemed to have occurred if: (1) any person (as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), including a "group" as defined in Section 13(d)
(3) of the Exchange Act (but excluding (aa) IndeNet, Inc. or any of its
affiliates or any group in which IndeNet, Inc. or any of its affiliates has a
significant interest, a trustee or other fiduciary holding securities under an
employee benefit plan of Employer), becomes the beneficial owner of the
outstanding common stock, of Employer (the "Common Stock") having at least forty
percent (40%) of the total number of votes that may be cast for the election of
directors of Employer (but not including any acquisition that complies with the
provisions described in clauses (x), (y) and (z) of subsection (3) of this
paragraph); (2) within any twenty-four (24) month period beginning on or after
the date hereof, the persons who were directors of Employer immediately before
the beginning of such period (the "Incumbent Directors") shall cease to
constitute at least a majority of the Board or a majority of the board of
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directors of any successor to Employer, provided that, any director who
was not a director as of the date hereof shall be deemed to be an
Incumbent Director if such director was elected to the Board by, or on
the recommendation of or with the approval of, at least two-thirds of
the directors who then qualified as Incumbent Directors either actually
or by prior operation of this provision, unless such election,
recommendation or approval was the result of an actual or threatened
election contest of the type contemplated by Regulation 14a-11
promulgated under the Exchange Act or any successor provision; (3) a
reorganization, merger, share exchange, consolidation, sale, business
combination or other disposition of all or substantially all of the
assets of Employer, or combination of the foregoing transactions (any
of the foregoing, a "Transaction") is consummated, unless, immediately
following such Transaction (x) the shareholders of Employer immediately
prior to the Transaction continue to have a majority of the voting
power in the resulting entity, (y) no person owns forty percent (40%)
or more of the voting power of the resulting entity (except to the
extent that such ownership existed before the Transaction) and (z) a
change in the majority of the membership of the Board has not occurred
as described in subsection (2) of this paragraph; or (4) the
shareholders approve a complete liquidation or dissolution of the
Employer.
(b) Termination by Employee.
(i) Without Good Reason. Employee may terminate this Agreement
and Employee's employment at any time for any reason or for no reason
at all upon thirty (30) days' written notice to Employer, during which
period Employee shall continue to perform Employee's duties under this
Agreement if Employer so elects. In connection with the termination of
Employee's employment pursuant to this Section 5(b) (i) , Employee
(A) shall be paid Employee's Base Compensation in accordance with
Section 3(a) hereof up to the effective date of such termination, (B)
to the extent not previously paid, shall be entitled to all bonuses
payable to Employee in accordance with Section 3(b) hereof and for
fiscal years prior to the fiscal year in which such termination occurs
and (C) shall be entitled to the benefits set forth in Section 3(c)
hereof up to the effective date of such termination, and, as
appropriate, shall be paid amounts accrued and owing pursuant to
Sections 3(d) and 3(e) hereof.
(c) Death. Notwithstanding any other provision of this Agreement, this
Agreement shall terminate on the date of Employee's death. In such event,
Employee shall (A) be paid Employee's Base Compensation in accordance with
Section 3(a)
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hereof up to the date of such death, (B) be paid a pro rata portion of any bonus
otherwise payable to Employee for or with respect to the fiscal year in which
such death occurs in accordance with Section 3(b) hereof up to the effective
date of such death and, to the extent not previously paid, Employee shall be
entitled to all bonuses payable to Employee in accordance with Section 3(b)
hereof for or with respect to any fiscal years prior to the fiscal year in which
such death occurs and (C) be entitled to the benefits set forth in Sections 3(c)
hereof (or the aftertax cash equivalent) for a period of six (6) months from the
date of death and, as appropriate shall be paid amounts accrued and owing
pursuant to Sections 3(d) and 3(e) hereof. This Section 5(c) shall not limit the
entitlement of Employee, Employee's estate or beneficiaries under any insurance
or other benefits plan or policy which is maintained by Employer for Employee's
benefit.
6. Covenants of Employee.
(a) No Conflicts. Employee represents and warrants that Employee is
not personally subject to any agreement, order or decree which restricts
Employee's acceptance of this Agreement and the performance of Employee's duties
with Employer hereunder.
(b) Non-Competition. In return for employment in the capacity set
forth under this Agreement, during the Employment Term and, in the event of the
termination of this Agreement pursuant to the provisions of Section 5(a)(ii)
hereof, for a period of twelve (12 months) thereafter, Employee shall not,
directly or indirectly, (i) in any capacity whatsoever, either on Employee's own
behalf or on behalf of any other person or entity with whom Employee may be
employed or associated, be employed by, be a consultant to, be an officer or
director of, or be connected in any manner with, a person or agency engaged in
the electronic media computer software and servicing business (notwithstanding
the immediately preceding clause, nothing herein shall prohibit Employee from
owning 5% or less of any securities of a competitor engaged in the electronic
media computer software and servicing business if such securities are listed on
a nationally recognized securities exchange or traded over-the-counter on the
National Association of Securities Dealers Automated Quotation System or
otherwise); (ii) interfere with the employment relationship between Employer and
its employees by directly or indirectly soliciting any such individual to
participate in, or be employed by, any business venture other than the Employer;
(iii) solicit any business related to the business of Employer from any client
or prospective client of Employer at or before the termination date of the
Employee's employment with Employer for himself or for any entity in which the
Employee has an interest or by which Employee is employed or engaged; or (iv)
seek to divert or dissuade from continuing to do business with or entering into
business with Employer or any of its affiliates or related entities, any
supplier, customer or other person or entity that had a business relationship
with or with which Employer, its subsidiaries or any of its affiliates or
related entities was
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actively planning or pursuing a business relationship at or before the
termination of Employee.
(c) Confidentiality. Employee hereby acknowledges that during the
course of his employment with Employer, Employee has been and will be granted
access to certain information which Employer insists be kept confidential. In
consideration of this Agreement, any compensation and other benefits of
Employee's employment and Employee's continued employment by Employer, Employee
hereby agrees:
(i) to use his best efforts and diligence both during and after
his employment with Employer to protect the confidential, trade secret
and/or proprietary character of all Confidential Information, as
defined herein, including but not limited to, avoiding the direct or
indirect use (for Employee or for another) or direct or indirect
disclosure of any Confidential Information, for so long as it shall
remain proprietary or protectible as confidential or trade secret
information, except as may be necessary for the performance of
Employee's duties for Employer.
(ii) to deliver promptly to Employer, at the termination of
Employee's employment, or at any other time at Employer's request,
without retaining any copies, all documents and other material in
Employee's possession relating, directly or indirectly, to any
Confidential Information, including, but not limited to, all memoranda,
notes, records, reports, audio and video tapes, computer disks and
other storage devices, and other documents or other repositories of
information containing any information concerning confidential or trade
secret information, whether prepared by the Employee, the Employer or
anyone else.
As used herein, "Confidential Information" means any of the following:
(x) all technical and business information of Employer, its subsidiaries or
affiliates, whether patentable or not, which is of a confidential, trade secret
and/or proprietary character, whether or not developed by Employee (alone or
with others); (y) confidential evaluations of, and the confidential use or
non-use by Employer, its subsidiaries or affiliates of technical or business
information in the public domain or (z) the confidential, trade secret and whom
Employer, its subsidiaries or affiliates has a business relationship.
(d) Return of Documents. In addition to Employee's duties under
Section 6(c) hereof, upon termination of Employee's services with Employer,
Employee shall return all originals and copies of books, records, documents,
customer lists, sales materials, tapes, keys, credit cards and other tangible
property of Employer within Employee's possession or under Employee's control.
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(e) Equitable Relief. In the event of any breach by Employee of any of
the covenants contained in this Section 6, it is specifically understood and
agreed that Employer shall be entitled, in addition to any other remedy which it
may have, to equitable relief by way of injunction, an accounting or otherwise
and to notify any employer or prospective employer of Employee as to the terms
and conditions hereof.
(f) Acknowledgement. Employee acknowledges that Employee will be
directly and materially involved in certain business operations and decisions of
Employer. Employee further acknowledges that the scope of the foregoing
restrictions has been specifically bargained between Employer and Employee, each
being fully informed of all relevant facts. Accordingly, Employee acknowledges
that the foregoing restrictions of Section 6 are fair and reasonable, are
minimally necessary to protect Employer and the public from the unfair
competition of Employee who, as a result of Employee's performance of services
on behalf of Employer, will have had unlimited access to the most confidential
and important information of Employer, its business and future plans. Employee
furthermore acknowledges that no unreasonable harm or injury will be suffered by
him from enforcement of the covenants contained herein and that Employee will be
able to earn a reasonable livelihood following termination of Employee's
services notwithstanding enforcement of the covenants contained herein.
7. Prior Agreements. This Agreement, together with the Stock Option Plan
and any Option Agreements thereunder, supersedes and is in lieu of any and all
other employment arrangements between Employee and Employer or its predecessor
or any subsidiary and any and all such employment agreements and arrangements
are hereby terminated and deemed of no further force or effect.
8. Assignment. Neither this Agreement nor any rights or duties of Employee
hereunder shall be assignable by Employee and any such purported assignment by
him shall be void. Employer may assign all or any of its rights hereunder
provided that substantially all of the assets of Employer are also transferred
to the same party.
9. Successor to Employer. Employer will require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all the business and/or assets of Employer, as the case may
be, by agreement in form and substance reasonably satisfactory to Employee,
expressly, absolutely and unconditionally to assume and agree to perform this
Agreement in the same manner and to the same extent that Employer would be
required to perform it if no such succession or assignment had taken place. Any
failure of Employer to obtain such agreement prior to the effectiveness of any
such succession or assignment shall be a material breach of this Agreement
giving Employee the right to terminate this Agreement, in which case Employee
shall be entitled to receive the compensation specified in Section 5(a)(iv)
hereof. This Agreement
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shall inure to the benefit of and be enforceable by Employee's personal and
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If Employee should die while any amounts
are still payable to Employee hereunder, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
Employee's devisee, legatee or other designee or, if there be no such designee,
to Employee's estate.
10. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if personally delivered, sent by
courier or by certified mail, postage or delivery charges prepaid, to the
following addresses:
(a) if to Employee, to:
Andre A. Blay
40240 Fairway III
Northville, Michigan 48167
(b) if to Employer, to:
IndeNet, Inc.
38705 Seven Mile Road, Ste. 435
Livonia, Michigan 481522-1056
Attn: Vice President, Business Development
With a copy to:
Miller, Canfield, Paddock and Stone, P.L.C.
150 W. Jefferson, Suite 2500
Detroit, MI 48226
Attn: Bruce D. Birgbauer, Esq.
Any notice, claim, demand, request or other communication given as provided in
this Section 10, if delivered personally, shall be effective upon delivery; and
if given by courier, shall be effective one (1) business day after deposit with
the courier if next day delivery is guaranteed; and if given by certified mail,
shall be effective three (3) business days after deposit in the mail. Either
party may change the address at which it is to be given notice by giving written
notice to the other party as provided in this Section 10.
11. Amendment. This Agreement may not be changed, modified or amended
except in writing signed by both parties hereto.
12. Waiver of Breach. The waiver by either party of the breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by either party.
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<PAGE> 12
13. Severability. Employer and Employee each expressly agree and contract
that it is not the intention of either party to violate any public policy,
statutory or common law, and that if any covenant, sentence, paragraph, clause
or combination of the same of this Agreement (a "Contractual Provision") is in
violation of the law of any state where applicable, such Contractual Provision
shall be void in the jurisdictions where it is unlawful, and the remainder of
such Contractual Provision, if any, and the remainder of this Agreement shall
remain binding on the parties such that such Contractual Provision shall be
binding only to the extent that such Contractual Provision is lawful or may be
lawfully performed under then applicable laws. In the event that any part of any
Contractual Provision of this Agreement is determined by a court of competent
jurisdiction to be overly broad thereby making the Contractual Provision
unenforceable, the parties hereto agree, and it is their desire, that such court
shall substitute a judicially enforceable limitation in its place, and that the
Contractual Provision, as so modified, shall be binding upon the parties as if
originally set forth herein.
14. Indemnification by Employee. Employee shall indemnify Employer for any
and all damages, costs and expenses (including reasonable attorney fees)
resulting from any material harm to Employer, its business, assets or employees
through an act of dishonesty, material conflict of interest, gross misconduct or
willful malfeasance by Employee. Employee also shall indemnify Employer for any
and all damages, costs and expenses (including reasonable attorney fees)
resulting from Employee's acts of omission constituting reckless disregard of
Employee's duties to Employer following notice thereof by Employer after it
becomes aware of such conduct and Employee's failure to so cure within thirty
(30) days.
15. Indemnification by Employer. Employer shall indemnify Employee to the
fullest extent permitted under the laws of the jurisdiction in which Employer
has its principal place of business, in connection with any proceeding which may
give rise to Employer's obligation to indemnify Employee pursuant to such laws.
16. Governing Law. This Agreement shall be governed by, and construed,
interpreted and enforced in accordance with the laws of the State of Michigan,
exclusive of the conflict of laws provisions thereof.
[signature page follows]
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<PAGE> 13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
EMPLOYER:
INDENET, INC.
By: /s/ Robert G. Beauregard
--------------------------------------
Print Name: Robert G. Beauregard
-----------------------------
Title: Chairman - Compensation Committee
----------------------------------
Employee:
/s/ Andre A. Blay
-----------------------------------------
Andre A. Blay
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<PAGE> 1
EXHIBIT 10(B)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the 6th day of
February, 1998 (the "Effective Date") by and between Enterprise Systems Group,
Ltd., a United Kingdom corporation ("Employer"), and David W. Martin, an
individual domiciled in Richmond, England ("Employee").
W I T N E S S E T H
WHEREAS, Employer provides software and services to the electronic
media industry, primarily in the United Kingdom, Europe and Africa; and
WHEREAS, Employer believes that it would benefit from the application
of Employee's particular and unique skill, experience, and background to the
Employer's business and business concept; and
WHEREAS, Employee wishes to commit to serve Employer in the position
set forth herein on the terms herein provided;
NOW, THEREFORE, in consideration of the premises and mutual covenants,
terms and conditions set forth in this Agreement, and for other good and
valuable consideration, Employer and Employee hereby agree, effective as of the
Effective Date, as follows:
1. Employment and Duties. During the Employment Term (as defined in
Section 2 hereof), Employer agrees to employ Employee, and Employee agrees to be
employed by Employer, as the Group Financial Director. Employee agrees to devote
Employee's full time, attention, energy, skill, loyalty and best efforts to
perform Employee's duties as the Group Financial Director. The Chief Executive
Officer and/or the Board of Directors of Employer (the "Board") may time to time
further define and clarify Employee's duties and services hereunder, and
Employee also hereby agrees to perform such redefined and/or clarified duties in
accordance with the provisions of this Agreement. Employee shall perform such
duties and services in the United Kingdom or such other place as may otherwise
be directed by the Board. Employee shall work approximately 40 hours per week,
provided that Employee shall work such additional hours as are necessary or
required to properly carry out his duties.
2. Term. The term of this Agreement shall commence on the Effective
Date and shall expire on February 5, 2003 (the "Employment Term").
3. Compensation and Related Matters.
(a) Base Salary As compensation for performing the
<PAGE> 2
services required by this Agreement during the Employment Term, Employer shall
pay to Employee beginning April 1, 1998 an annual salary of no less than Ninety
Thousand Pounds Sterling (90,000) ("Base Compensation"), payable in accordance
with the general policies and procedures for payment of salaries to its Employee
personnel maintained, from time to time, by Employer (but no less frequently
than monthly), subject to withholding for applicable United Kingdom income tax
and national insurance contributions. Increases in Base Compensation, if any,
shall be determined by the Compensation Committee (the "Committee") of the
Board, based on periodic reviews of Employee's performance conducted on at least
an annual basis.
(b) Bonus. In addition to Base Compensation, the Employee shall be
entitled to receive a cash bonus (a "Performance Bonus Distribution") in an
amount to be determined by the Board and the Committee in their sole and
absolute discretion based upon achievement of both corporate and individual
performance goals and objectives. Such goals and objectives shall be established
by the Board or the Committee in writing on an annual basis. Each fiscal year,
upon establishment of the goals and objectives by the Board and the Committee,
the actual amount of the potential bonus to be earned and the criteria for
earning it will be set forth in writing. The achievement of such goals and
objectives and the payment of any bonus shall be determined by the Board and the
Committee, provided, however, that if it is determined by the Board and the
Committee that the employee attained the required goals and objectives, the
bonus shall be paid.
(c) Benefits. During the Employment Term and subject to the
limitations and alternative rights set forth in this Section 3(c), Employee and
Employee's eligible dependents shall have the right to participate in the
medical and dental benefit plan to be established by Employer (which may include
contributions by Employee) and in any other retirement, pension, insurance,
health or other benefit plan or program that has been or is hereafter adopted by
Employer (or in which Employer participates), as such plans and programs may be
amended or modified from time to time by Employer, according to the terms of
such plan or program with all the benefits, rights and privileges as are enjoyed
by any other Employee officers of Employer. As of the Effective Date, Employee
participates in the benefit arrangements described in Exhibit A hereto as such
benefits may be amended or modified by the Board from time to time.
(d) Vacations. During the Employment Term, Employee shall be
entitled to vacation in accordance with Employer's practices, as such practices
may be amended or modified from time to time by Employer, provided that Employee
shall be entitled to four (4) weeks paid vacation in each full fiscal year.
Employee may not accrue unused vacation time and shall not be entitled to
payment for vacation time not used in any fiscal year. Notwithstanding the
foregoing, Employee shall be entitled to use during the term of this Agreement
any vacation time accrued prior
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<PAGE> 3
to the Effective Date. Employee shall be entitled to a payment for any vacation
time which has accrued in a fiscal year but has not been used as of the date of
the termination of Employee's employment with Employer, unless Employee's
employment is terminated pursuant to Section 5(a)(ii) hereof.
(e) Business Expenses. Employer shall reimburse Employee for
reasonable and necessary business expenses, in accordance with Employer's
policies and upon presentation of appropriate documentation.
4. Stock Options. IndeNet, Inc. has established a stock option plan (the
"Stock Option Plan") which provides, among other things, for the issuance of
options to purchase stock of IndeNet, Inc. from time to time to certain
officers, directors and other employees of IndeNet, Inc. and its subsidiaries,
including Employee. On the Effective Date, pursuant to the Stock Option Plan,
IndeNet, Inc. shall grant to Employee the option to purchase Sixty Thousand
(60,000) shares of IndeNet, Inc. stock ("Options") according to such terms and
conditions as are set forth in the Stock Option Plan and the Option Agreement to
be entered into between IndeNet, Inc. and Employee in connection with the award
of such Options in accord with paragraph 7 of the Stock Option Plan. Such
Options granted to Employee shall vest immediately upon (i) the death or
disability of Employee, (ii) upon termination of this Agreement and Employee's
employment by Employer for any reason other than a termination for cause or
(iii) in the event of a Change in Control (as defined in Section 5(a)(iv)
herein). In the case of termination of this Agreement and Employee's employment
(x) by Employee or (y) for cause (as defined in Section 5(a) (ii) herein), all
unvested Options shall be forfeited by Employee, but Employee shall have the
right to exercise within the time period provided for in the Stock Option Plan
all options vested prior to such termination for cause.
5. Termination and Termination Benefits.
(a) Termination by Employer.
(i) Without Cause. Employer may terminate this Agreement and
Employee's employment at any time for any reason or for no reason at
all upon one (1) year's prior written notice to Employee. In connection
with the termination of Employee's employment pursuant to this Section
5(a)(i), if Employer shall not wish Employee to continue to work during
this period of notice, then, without prejudice to any claim Employee
may have for Employee's Base Compensation, Employee (A) may, in
accordance with Section 3 (b) hereof, be paid a pro rata portion of any
bonus for which Employee may be eligible with respect to the fiscal
year in which such termination occurs up to the effective date of such
termination, (B) to the extent not previously paid, shall be entitled
to all bonuses payable to Employee in accordance with Section 3 (b)
hereof for or with respect
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<PAGE> 4
to any fiscal years prior to the fiscal year in which such termination
occurs, (C) shall be entitled to the benefits set forth in Section 3(c)
hereof for a period of six (6) months from the effective date of such
termination and, as appropriate, shall be paid amounts accrued and
owing pursuant to Sections 3(d) and 3(e) hereof. For purposes of this
Agreement, the "effective date of termination" shall mean the last day
on which Employee is employed with Employer which may be later than the
date of the delivery of any applicable notice of termination.
(ii) With Cause. Employer may terminate this Agreement with cause
immediately upon written notice to Employee. Employer may elect to
require Employee to continue to perform Employee's duties under this
Agreement for an additional thirty (30) days following notice of
termination. In connection with the termination of Employee's
employment pursuant to this Section 5 (a) (ii) , Employee shall (A) be
paid Employee's Base Compensation in accordance with Section 3(a)
hereof up to the effective date of such termination, (B) to the extent
not previously paid, Employee shall be entitled to any bonuses payable
to Employee in accordance with Section 3(b) hereof and for any fiscal
years prior to the fiscal year in which such termination occurs, (C) be
entitled to the benefits set forth in Section 3(c) hereof up to the
effective date of such termination and, as appropriate, shall be paid
amounts accrued and owing pursuant to Sections 3(d) and 3 (e) hereof.
For purposes of this Section 5(a)(ii), "cause" shall mean (1) a finding
by the Board that Employee has materially harmed Employer, its
business, assets or employees through an act of dishonesty, material
conflict of interest, gross misconduct or willful malfeasance, (2)
Employee's conviction of (or pleading nolo contendere to) a felony, (3)
Employee's failure to perform (which shall not include inability to
perform due to disability) in any material respects Employee's material
duties under this Agreement after written notice specifying the failure
and a reasonable opportunity to cure (it being understood that if
Employee's failure to perform is not of a type requiring a single
action to fully cure, then Employee may commence the cure promptly
after such written notice and thereafter diligently prosecute such cure
to completion), (4) the breach by Employee of any of Employee's
material obligations hereunder (other than those covered by clause (3)
above) and the failure of Employee to cure such breach within thirty
(30) days after receipt by Employee of a written notice of Employer
specifying in reasonable detail the nature of the breach, or (5)
Employee's sanction (including restrictions, prohibitions and
limitations agreed to under a consent decree or agreed order) under, or
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<PAGE> 5
conviction for violation of, any federal or state securities law, rule
or regulation (provided that in the case of a sanction, such sanction
materially impedes or impairs the ability of Employee to perform
Employee's duties and exercise Employee's responsibilities hereunder in
a satisfactory manner).
(iii) Disability. If due to illness, physical or mental
disability, or other incapacity, Employee shall fail during any four
(4) consecutive months to perform the duties required by this
Agreement, Employer may, upon sixty (60) days' written notice to
Employee, either terminate this Agreement or suspend Employee's right
to any Base Compensation or Performance Bonus Distributions without
terminating this Agreement. In any such event, Employee shall (A) be
paid Employee's Base Compensation in accordance with Section 3(a)
hereof up to the effective date of such termination, (B) be paid a pro
rata portion of any bonus otherwise payable to Employee for or with
respect to the fiscal year in which such termination occurs in
accordance with Section 3(b) hereof up to the first day of such four
(4) month period and, to the extent not previously paid, Employee shall
be entitled to all bonuses payable to Employee in accordance with
Section 3(b) hereof and for any fiscal years prior to the fiscal year
in which such termination occurs and (C) be entitled to the benefits
set forth in Section 3(c) hereof (or the after-tax cash equivalent) for
a period of six (6) months from the effective date of such termination
and, as appropriate, shall be paid amounts accrued and owing pursuant
to Sections 3(d) and 3(e) hereof. In the event Employer elects to
suspend Employee's right to Base Compensation and Performance Bonus
Distributions, at such time as Employee is able to resume the duties
required under this Agreement, Employee shall be entitled to receive
Base Compensation and Performance Bonus Distributions from the date
Employee commences the performance of such duties following the
disability in accordance with the terms and provisions of this
Agreement. This Section 5(a) (iii) shall not limit the entitlement of
Employee, Employee's estate or beneficiaries to any disability or other
benefits available to Employee under any disability insurance or other
benefits plan or policy, which is maintained by Employer for Employee's
benefit. For purposes of this Agreement, the "date of disability" shall
mean the first day of the consecutive period during which Employee
fails to perform the duties required by this Agreement due to illness,
physical or mental disability or other incapacity.
(iv) After Change of Control. If, within a two (2) year period
following a "change in control" as defined below, Employer terminates
this Agreement for
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<PAGE> 6
any reason other than as provided in Section 5 (a) (ii) , , Employer
shall pay to Employee, within thirty (30) days of termination, the
greater of (i) two (2) times Employee's Base Compensation as provided
in Section 3(a) hereof, or (ii) Employee's Base Compensation provided
in Section 3 (a) hereof times the number of years and/or fraction
thereof remaining under this Agreement. In addition, Employee shall (A)
be paid Employee's Base Compensation up to the effective date of such
termination, (B) be paid a pro rata portion of any bonus otherwise
payable to Employee for or with respect to the fiscal year in which
such termination occurs in accordance with Section 3(b) hereof up to
the effective date of such termination, (C) to the extent not
previously paid, shall be entitled to all bonuses payable to Employee
in accordance with Section 3(b) hereof for or with respect to any
fiscal years prior to the fiscal year in which such termination occurs,
(D) be entitled to the benefits set forth in Section 3(c) hereof for a
period of six (6) months from the effective date of such termination,
and, as appropriate, be paid amounts accrued and owing pursuant to
Sections 3(d) and 3(e) hereof. For purposes of this Agreement, in the
event Employer defaults in its obligation under Section 9 hereof and,
as a consequence thereof, Employee's employment with Employer (or
Employer's successor or assign) terminates, such termination shall be
deemed to be a termination under this Section 5(a)(iv).
For purposes of this Section 5(a)(iv), (A) a "change of control"
of Employer shall be deemed to have occurred if: (1) any person (as
such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) , including a
"group" as defined in Section 13(d)(3) of the Exchange, Act (but
excluding IndeNet, Inc. or any of its affiliates or any group in which
IndeNet, Inc. or any of its affiliates has a significant interest, a
trustee or other fiduciary holding securities under an employee benefit
plan of Employer), becomes the beneficial owner of the outstanding
common stock, of IndeNet, Inc. (the "Common Stock") having at least
forty percent (40%) of the total number of votes that may be cast for
the election of directors of IndeNet, Inc., or any such person becomes
the beneficial owner of all of the outstanding common stock of
Employer; (2) within any twenty-four (24) month period beginning on or
after the date hereof, the persons who were directors of IndeNet, Inc.
immediately before the beginning of such period (the "Incumbent
Directors") shall cease to constitute at least a majority of the Board
or a majority of the board of directors of any successor to Employer,
provided that, any director who was not a director as of the date
hereof shall be deemed to be an Incumbent
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<PAGE> 7
Director if such director was elected to the Board by, or on the
recommendation of or with the approval of, at least two-thirds of the
directors who then qualified as Incumbent Directors either actually or
by prior operation of this provision, unless such election,
recommendation or approval was the result of an actual or threatened
election contest of the type contemplated by Regulation 14a-11
promulgated under the Exchange Act or any successor provision; (3) a
reorganization, merger, share exchange, consolidation, sale, business
combination or other disposition of all or substantially all of the
assets of IndeNet, Inc. or Employer, or combination of the foregoing
transactions (any of the foregoing, a "Transaction") is
consummated,unless, immediately following such Transaction the
shareholders of Employer immediately prior to the Transaction continue
to have a majority of the voting power in the resulting entity; or (4)
the shareholders approve a complete liquidation or dissolution of
IndeNet, Inc. or the Employer.
(b) Termination by Employee.
(i) Without Good Reason. Employee may terminate this Agreement
and Employee's employment at any time for any reason or for no reason
at all upon thirty (30) days' written notice to Employer, during which
period Employee shall continue to perform Employee's duties under this
Agreement if Employer so elects. In connection with the termination of
Employee's employment pursuant to this Section 5 (b) (i) , Employee (A)
shall be paid Employee's Base Compensation in accordance with Section 3
(a) hereof up to the effective date of such termination, (B) to the
extent not previously paid, shall be entitled to all bonuses payable to
Employee in accordance with Section 3 (b) hereof and for any fiscal
years prior to the fiscal year in which such termination occurs and (C)
shall be entitled to the benefits set forth in Section 3(c) hereof up
to the effective date of such termination, and, as appropriate, shall
be paid amounts accrued and owing pursuant to Sections 3(d) and 3(e)
hereof.
(c) Death. Notwithstanding any other provision of this Agreement, this
Agreement shall terminate on the date of Employee's death. In such event,
Employee shall (A) be paid Employee's Base Compensation in accordance with
Section 3(a) hereof up to the date of such death, (B) be paid a pro rata portion
of any bonus otherwise payable to Employee for or with respect to the fiscal
year in which such death occurs in accordance with Section 3(b) hereof up to the
effective date of such death and, to the extent not previously paid, Employee
shall be entitled to all bonuses payable to Employee in accordance with Section
3 (b) hereof for or with respect to any fiscal years prior to the fiscal year in
which such death occurs and (C) be entitled
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<PAGE> 8
to the benefits set forth in Sections 3(C) hereof (or the aftertax cash
equivalent) for a period of six (6) months from the date of death and, as
appropriate shall be paid amounts accrued and owing pursuant to Sections 3(d)
and 3(e) hereof. This Section 5(c) shall not limit the entitlement of Employee,
Employee's estate or beneficiaries under any insurance or other benefits plan or
policy which is maintained by Employer for Employee's benefit.
6. Covenants of Employee.
(a) No Conflicts. Employee represents and warrants that Employee is
not personally subject to any agreement, order or decree which restricts
Employee's acceptance of this Agreement and the performance of Employee's duties
with Employer hereunder.
(b) Non-Competition. In return for employment in the capacity set
forth under this Agreement, during the Employment Term and, in the event of the
termination of this Agreement pursuant to the provisions of Section 5(a) (ii)
hereof, for a period of twelve (12 months) thereafter, Employee shall not,
directly or indirectly, (i) in any capacity whatsoever, either on Employee's own
behalf or on behalf of any other person or entity with whom Employee may be
employed or associated, be employed by, be a consultant to, be an officer or
director of, or be connected in any manner with, a person or agency engaged in
the electronic media computer software or servicing business (notwithstanding
the immediately preceding clause, nothing herein shall prohibit Employee from
owning 5% or less of any securities of a competitor engaged in the electronic
media computer software or servicing business if such securities are listed on a
nationally recognized securities exchange or traded over-the-counter on the
National Association of Securities Dealers Automated Quotation System or
otherwise); (ii) interfere with the employment relationship between Employer and
its employees by directly or indirectly soliciting any such individual to
participate in, or be employed by, any business venture other than the Employer;
(iii) solicit any business related to the business of Employer from any client
or prospective client of Employer at or before the termination date of the
Employee's employment with Employer for himself or for any entity in which the
Employee has an interest or by which Employee is employed or engaged; or (iv)
seek to divert or dissuade from continuing to do business with or entering into
business with Employer or any of its affiliates or related entities, any
supplier, customer or other person or entity that had a business relationship
with or with which Employer, its subsidiaries or any of its affiliates or
related entities was actively planning or pursuing a business relationship at or
before the termination of Employee.
(c) Confidentiality. Employee hereby acknowledges that during the
course of his employment with Employer, Employee has been and will be granted
access to certain information which Employer insists be kept confidential. In
consideration of this Agreement, any compensation and other benefits of
Employee's
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<PAGE> 9
employment and Employee's continued employment by Employer, Employee hereby
agrees:
(i) to use his best efforts and diligence both during and after
his employment with Employer to protect the confidential, trade secret
and/or proprietary character of all Confidential Information, as
defined herein, including but not limited to, avoiding the direct or
indirect use (for Employee or for another) or direct or indirect
disclosure of any Confidential Information, for so long as it shall
remain proprietary or protectible as confidential or trade secret
information, except as may be necessary for the performance of
Employee's duties for Employer.
(ii) to deliver promptly to Employer, at the termination of
Employee's employment, or at any other time at Employer's request,
without retaining any copies, all documents and other material in
Employee's possession relating, directly or indirectly, to any
Confidential Information, including, but not limited to, all memoranda,
notes, records, reports, audio and video tapes, computer disks and
other storage devices, and other documents or other repositories of
information containing any information concerning confidential or trade
secret information, whether prepared by the Employee, the Employer or
anyone else.
As used herein, "Confidential Information" means any of the following:
(x) all technical and business information of Employer, its subsidiaries or
affiliates, whether patentable or not, which is of a confidential, trade secret
and/or proprietary character, whether or not developed by Employee (alone or
with others); (y) confidential evaluations of, and the confidential use or
non-use by Employer, its subsidiaries or affiliates of technical or business
information in the public domain or (z) the confidential, trade secret and whom
Employer, its subsidiaries or affiliates has a business relationship.
(d) Return of Documents. In addition to Employee's duties under
Section 6(c) hereof, upon termination of Employee's services with Employer,
Employee shall return all originals and copies of books, records, documents,
customer lists, sales materials, tapes, keys, credit cards and other tangible
property of Employer within Employee's possession or under Employee's control.
(e) Equitable Relief. In the event of any breach by Employee of any of
the covenants contained in this Section 6, it is specifically understood and
agreed that Employer shall be entitled, in addition to any other remedy which it
may have, to equitable relief by way of injunction, an accounting or otherwise
and to notify any employer or prospective employer of Employee as to the terms
and conditions hereof.
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<PAGE> 10
(f) Acknowledgment. Employee Acknowledges that Employee will be
directly and materially involved in certain business operations and decisions of
Employer. Employee further acknowledges that the scope of the foregoing
restrictions has been specifically bargained between Employer and Employee, each
being fully informed of all relevant facts. Accordingly, Employee acknowledges
that the foregoing restrictions of Section 6 are fair and reasonable, are
minimally necessary to protect Employer and the public from the unfair
competition of Employee who, as a result of Employee's performance of services
on behalf of Employer, will have had unlimited access to the most confidential
and important information of Employer, its business and future plans. Employee
furthermore acknowledges that no unreasonable harm or injury will be suffered by
him from enforcement of the covenants contained herein and that Employee will be
able to earn a reasonable livelihood following termination of Employee's
services notwithstanding enforcement of the covenants contained herein.
7. Prior Agreements. This Agreement, together with the Stock Option Plan
and any Option Agreements thereunder, supersedes and is in lieu of any and all
other employment arrangements between Employee and Employer or its predecessor
or any subsidiary and any and all such employment agreements and arrangements
are hereby terminated and deemed of no further force or effect.
8. Assignment. Neither this Agreement nor any rights or duties of Employee
hereunder shall be assignable by Employee and any such purported assignment by
him shall be void. Employer may assign all or any of its rights hereunder
provided that substantially all of the assets of Employer are also transferred
to the same party.
9. Successor to Employer. Employer will require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all the business and/or assets of Employer, as the case may
be, by agreement in form and substance reasonably satisfactory to Employee,
expressly, absolutely and unconditionally to assume and agree to perform this
Agreement in the same manner and to the same extent that Employer would be
required to perform it if no such succession or assignment had taken place. Any
failure of Employer to obtain such agreement prior to the effectiveness of any
such succession or assignment shall be a material breach of this Agreement
giving Employee the right to terminate this Agreement, in which case Employee
shall be entitled to receive the compensation specified in Section 5(a)(iv)
hereof. This Agreement shall inure to the benefit of and be enforceable by
Employee's personal and legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. if Employee should die
while any amounts are still payable to Employee hereunder, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to Employee's devisee, legatee or other designee or, if there be
no such designee, to Employee's estate.
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<PAGE> 11
10. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if personally delivered, sent by
courier or by certified mail, postage or delivery charges prepaid, to the
following addresses:
(a) if to Employee, to:
David W. Martin
118 Kew Road
Richmond,
Surrey TW9 2AU
England
(b) if to Employer, to:
Enterprise Systems Group, Ltd.
Ferry Works
Summer Road
Thames Ditton
Surrey KT7 0QJ U.K.
Attn: Chairman or Chief Executive officer
With a copy to:
Miller, Canfield, Paddock and Stone, P.L.C.
150 W. Jefferson, Suite 2500
Detroit, MI 48226
Attn: Bruce D. Birgbauer, Esq.
Any notice, claim, demand, request or other communication given as provided in
this Section 10, if delivered personally, shall be effective upon delivery; and
if given by courier, shall be effective one (1) business day after deposit with
the courier if next day delivery is guaranteed; and if given by certified mail,
shall be effective three (3) business days after deposit in the mail. Either
party may change the address at which it is to be given notice by giving written
notice to the other party as provided in this Section 10.
11. Amendment. This Agreement may not be changed, modified or amended
except in writing signed by both parties hereto.
12. Waiver of Breach. The waiver by either party of the breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by either party.
13. Severability. Employer and Employee each expressly agree and contract
that it is not the intention of either party to violate any public policy,
statutory or common law, and that if any covenant, sentence, paragraph, clause
or combination of the same of this Agreement (a "Contractual Provision") is in
violation
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<PAGE> 12
of the law of any state where applicable, such Contractual Provision shall be
void in the jurisdictions where it is unlawful, and the remainder of such
Contractual Provision, if any, and the remainder of this Agreement shall remain
binding on the parties such that such Contractual Provision shall be binding
only to the extent that such Contractual Provision is lawful or may be lawfully
performed under then applicable laws. In the event that any part of any
Contractual Provision of this Agreement is determined by a court of competent
jurisdiction to be overly broad thereby making the Contractual Provision
unenforceable, the parties hereto agree, and it is their desire, that such court
shall substitute a judicially enforceable limitation in its place, and that the
Contractual Provision, as so modified, shall be binding upon the parties as if
originally set forth herein.
14. Indemnification by Employee. Employee shall indemnify Employer for any
and all damages, costs and expenses (including reasonable attorney fees)
resulting from any material harm to Employer, its business, assets or employees
through an act of dishonesty, material conflict of interest, gross misconduct or
willful malfeasance by Employee. Employee also shall indemnify Employer for any
and all damages, costs and expenses (including reasonable attorney fees)
resulting from Employee's acts of omission constituting reckless disregard of
Employee's duties to Employer following notice thereof by Employer after it
becomes aware of such conduct and Employee's failure to so cure within thirty
(30) days.
15. Indemnification by Employer. Employer shall indemnify Employee to the
fullest extent permitted under the laws of the jurisdiction in which Employer
has its principal place of business, in connection with any proceeding which may
give rise to Employer's obligation to indemnify Employee pursuant to such laws.
16. Governing Law. This Agreement shall be governed by the laws of the
United Kingdom. The parties agree that both the courts of the State of Michigan,
United States, and the English Courts shall have non-exclusive jurisdiction with
respect to this Agreement.
17. Miscellaneous. The Employer and Employee acknowledge that Employee
has been employed by Employer continuously since January 4, 1982. In the event
of a grievance relating to his employment, Employee shall follow the grievance
procedure set forth in the Employer's Staff Handbook, as it may be amended from
time to time.
[signature page follows]
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<PAGE> 13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
EMPLOYER:
ENTERPRISE SYSTEMS GROUP, LTD.
By: /s/ Rick Schleufler
-------------------------------------------
Print Name: Rick Schleufler
-----------------------------------
Title: Group CEO
----------------------------------------
Employee:
/s/ David W. Martin
----------------------------------------------
David W. Martin
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<PAGE> 14
"EXHIBIT A" - DAVID MARTIN BENEFITS
1. Life assurance benefit Lump sum payment = 4 times annual salary
plus one times salary for the purchase
of an annuity for a widows pension
2. Permanent Health Insurance as policy documents
3. Pension contribution 10% per annum of basic salary
4. Medical insurance Private Patients Plan subscription paid
5. Company car Jaguar XJ6 (or equivalent) renewed 3
yearly all running costs including
repairs, tax, insurance and petrol for
private use paid by the Company
<PAGE> 15
[DAVID W. MARTIN, F.C.A. LETTERHEAD]
The Directors
Enterprise Systems Group Limited
C/o Bruce D. Birgbauer, Esq.
Miller, Canfield, Paddock and Stone, P.L.C.
150 W. Jefferson, Suite 2500
Detroit, MI 48226 U.S.A.
27th October 1998
Dear Sirs,
EMPLOYMENT AGREEMENT
I write further to the Employment Agreement between us made as of the 6th
February 1998 ("the Agreement").
Section 4 of the Agreement refers to the grant of Stock Options. In view of the
recent decision of the shareholders of Enterprise Software, Inc. (formerly
IndeNet, Inc.) not to approve the proposed Stock Option Plan, I acknowledge that
for the time being such options will not be granted notwithstanding the terms of
Section 4 of the Agreement. However, I am relying on Enterprise Software, Inc.
and/or Enterprise Systems Group Limited to put in place suitable alternative
arrangements should the Stock Option Plan not ultimately be approved.
I confirm that this acknowledgement has no effect on the existing share options
that have been granted to me under previous arrangements.
Yours sincerely
/s/ David W. Martin
David W. Martin
<PAGE> 1
EXHIBIT 10(C)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the 6th day of
February, 1998 (the "Effective Date") by and between Enterprise Systems Group,
Inc., a New York corporation ("Employer"), and Richard L. Schleufer, an
individual domiciled in the State of Colorado ("Employee").
W I T N E S S E T H
WHEREAS, Employer is a provider of computer software and services to
the electronic media industry, primarily in North and South America; and
WHEREAS, Employer believes that it would benefit from the application
of Employee's particular and unique skill, experience, and background to the
Employer's business and business concept; and
WHEREAS, Employee wishes to commit to serve Employer in the position
set forth herein on the terms herein provided;
NOW, THEREFORE, in consideration of the premises and mutual covenants,
terms and conditions set forth in this Agreement, and for other good and
valuable consideration, Employer and Employee hereby agree, effective as of the
Effective Date (as defined below), as follows:
1. Employment and Duties. During the Employment Term (as defined in
Section 2 hereof), Employer agrees to employ Employee, and Employee agrees to be
employed by Employer, as the Group Chief Executive Officer. Employee agrees to
devote Employee's full time, attention, energy, skill, loyalty and best efforts
to perform Employee's duties as the Group Chief Executive Officer. The Chief
Executive Officer and/or the Board of Directors of Employer (the "Board") may
time to time further define and clarify Employee's duties and services
hereunder, and Employee also hereby agrees to perform such redefined and/or
clarified duties in accordance with the provisions of this Agreement.
2. Term. The term of this Agreement shall commence on the Effective Date
and shall expire on May 23, 2003 (the "Employment Term").
<PAGE> 2
3. Compensation and Related Matters.
(a) Base Salary. As compensation for performing the services required
by this Agreement during the Employment Term, and beginning April 1, 1998,
Employer shall pay to Employee an annual salary of no less than Two Hundred
Fifty Thousand Dollars ($250,000) ("Base Compensation") , payable in accordance
with the general policies and procedures for payment of salaries to its Employee
personnel maintained, from time to time, by Employer (but no less frequently
than monthly), subject to withholding for applicable federal, state, and local
taxes. Increases in Base Compensation, if any, shall be determined by the
Compensation Committee (the "Committee") of the Board, based on periodic reviews
of Employee's performance conducted on at least an annual basis.
(b) Bonus. In addition to Base Compensation, the Employee shall be
entitled to receive a cash bonus (a "Performance Bonus Distribution") in an
amount to be determined by the Board and the Committee in their sole and
absolute discretion based upon achievement of both corporate and individual
performance goals and objectives. Such goals and objectives shall be established
by the Board or the Committee in writing on an annual basis. Each fiscal year,
upon establishment of the goals and objectives by the Board and the Committee,
the actual amount of the potential bonus to be earned and the criteria for
earning it will be set forth in writing. The achievement of such goals and
objectives and the payment of any bonus shall be determined by the Board and the
Committee, provided, however, that if it is determined by the Board and the
Committee that the employee attained the required goals and objectives, the
bonus shall be paid.
(c) Benefits. During the Employment Term and subject to the
limitations and alternative rights set forth in this Section 3(c), Employee and
Employee's eligible dependents shall have the right to participate in the
medical and dental benefit plan to be established by Employer (which may include
contributions by Employee) and in any other retirement, pension, insurance,
health or other benefit plan or program that has been or is hereafter adopted by
Employer (or in which Employer participates), as such plans and programs may be
amended or modified from time to time by Employer, according to the terms of
such plan or program with all the benefits, rights and privileges as are enjoyed
by any other Employee officers of Employer. If the participation of Employee
would adversely affect the qualification of a plan intended to be qualified
under Section 401(a) of the Internal Revenue Code as the same may be amended
from time to time (the "Code"), Employer shall have the right to exclude
Employee from that plan in return for Employee's participation in (i) a
nonqualified deferred compensation plan or (ii) an arrangement providing
substantially comparable benefits under a plan that is either a qualified or
nonqualified under the Code, at Employer's option.
(d) Vacations. During the Employment Term, Employee
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<PAGE> 3
shall be entitled to vacation in accordance with Employer's practices, as such
practices may be amended or modified from time to time by Employer, provided
that Employee shall be entitled to four (4) weeks paid vacation in each full
fiscal year. Employee may not accrue unused vacation time and shall not be
entitled to payment for vacation time not used in any fiscal year.
Notwithstanding the foregoing, Employee shall be entitled to use during the term
of this Agreement any vacation time accrued prior to the Effective Date.
Employee shall be entitled to a payment for any vacation time which has accrued
in a fiscal year but has not been used as of the date of the termination of
Employee's employment with Employer, unless Employee's employment is terminated
pursuant to Section 5(a)(ii) hereof.
(e) Business Expenses. Employer shall reimburse Employee for
reasonable and necessary business expenses, in accordance with Employer's
policies and upon presentation of appropriate documentation.
4. Stock Options. IndeNet, Inc. has established a stock option plan (the
"Stock Option Plan") which provides, among other things, for the issuance of
options to purchase stock of IndeNet, Inc. from time to time to certain
officers, directors and other employees of IndeNet, Inc. and its subsidiaries,
including Employee. On the Effective Date, pursuant to the Stock Option Plan,
IndeNet, Inc. shall grant to Employee the option to purchase Three Hundred
Thousand (300,000) shares of IndeNet, Inc. stock ("Options") according to such
terms and conditions as are set forth in the Stock Option Plan and the Option
Agreement to be entered into between IndeNet, Inc. and Employee in connection
with the award of such Options in accord with paragraph 7 of the Stock Option
Plan. Such Options granted to Employee shall vest immediately upon (i) the death
or disability of Employee, (ii) upon termination of this Agreement and
Employee's employment by Employer for any reason other than a termination for
cause or (iii) in the event of a Change in Control (as defined in Section
5(a)(iv)herein). In the case of termination of this Agreement and Employee's
employment (x) by Employee or (y) for cause (as defined in Section 5(a)(ii)
herein), all unvested Options shall be forfeited by Employee, but Employee shall
have the right to exercise within the time period provided for in the Stock
Option Plan all Options vested prior to such termination for cause.
5. Termination and Termination Benefits.
(a) Termination by Employer.
(i) Without Cause. Employer may terminate this Agreement and
Employee's employment at any time for any reason or for no reason at
all upon thirty (30) days, prior written notice to Employee following
notice of termination. In connection with the termination of Employee's
employment pursuant to this Section 5(a)(i), Employee (A) shall be paid
Employee's Base Compensation in accordance with Section 3(a) for a
period of one
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<PAGE> 4
year from the effective date of such termination, (B) may, in
accordance with section 3(b) hereof, be paid a pro rata portion of any
bonus for which Employee may be eligible with respect to the fiscal
year in which such termination occurs up to the effective date of such
termination, (C) to the extent not previously paid, shall be entitled
to all bonuses payable to Employee in accordance with Section 3(b)
hereof for or with respect to any fiscal years prior to the fiscal year
in which such termination occurs, (D) shall be entitled to the benefits
set forth in Section 3(c) hereof for a period of six (6) months from
the effective date of such termination and, as appropriate, shall be
paid amounts accrued and owing pursuant to Sections 3(d) and 3(e)
hereof. For purposes of this Agreement, the "effective date of
termination" shall mean the last day on which Employee is employed with
Employer which may be later than the date of the delivery of any
applicable notice of termination.
(ii) With Cause. Employer may terminate this Agreement with cause
immediately upon written notice to Employee. Employer may elect to
require Employee to continue to perform Employee's duties under this
Agreement for an additional thirty (30) days following notice of
termination. In connection with the termination of Employee's
employment pursuant to this Section 5(a)(ii), Employee shall (A) be
paid Employee's Base Compensation in accordance with Section 3(a)
hereof up to the effective date of such termination, (B) to the extent
not previously paid, Employee shall be entitled to any bonuses payable
to Employee in accordance with Section 3(b) hereof and for any fiscal
years prior to the fiscal year in which such termination occurs, (C) be
entitled to the benefits set forth in Section 3(c) hereof up to the
effective date of such termination and, as appropriate, shall be paid
amounts accrued and owing pursuant to Sections 3(d) and 3 (e) hereof.
For purposes of this Section 5 (a) (ii) , "cause" shall mean (1) a
finding by the Board that Employee has materially harmed Employer, its
business, assets or employees through an act of dishonesty, material
conflict of interest, gross misconduct or willful malfeasance, (2)
Employee's conviction of (or pleading nolo contendere to) a felony,
(3) Employee's failure to perform (which shall not include inability to
perform due to disability) in any material respects Employee's material
duties under this Agreement after written notice specifying the failure
and a reasonable opportunity to cure (it being understood that if
Employee's failure to perform is not of a type requiring a single
action to fully cure, then Employee may commence the cure promptly
after such written notice and thereafter diligently prosecute such cure
to completion), (4) the breach by Employee of any of
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<PAGE> 5
Employee's material obligations hereunder (other than those covered by
clause (3) above) and the failure of Employee to cure such breach
within thirty (30) days after receipt by Employee of a written notice
of Employer specifying in reasonable detail the nature of the breach,
or (5) Employee's sanction (including restrictions, prohibitions and
limitations agreed to under a consent decree or agreed order) under, or
conviction for violation of, any federal or state securities law, rule
or regulation (provided that in the case of a sanction, such sanction
materially impedes or. impairs the ability of Employee to perform
Employee's duties and exercise Employee's responsibilities hereunder in
a satisfactory manner).
(iii) Disability. If due to illness, physical or mental
disability, or other incapacity, Employee shall fail during any four
(4) consecutive months to perform the duties required by this
Agreement, Employer may, upon thirty (30) days' written notice to
Employee, either terminate this Agreement or suspend Employee's right
to any Base Compensation or Performance Bonus Distributions without
terminating this Agreement. In any such event, Employee shall (A) be
paid Employee's Base Compensation in accordance with Section 3(a)
hereof up to the effective date of such termination, (B) be paid a pro
rata portion of any bonus otherwise payable to Employee for or with
respect to the fiscal year in which such termination occurs in
accordance with Section 3 (b) hereof up to the first day of such four
(4) month period and, to the extent not previously paid, Employee shall
be entitled to all bonuses payable to Employee in accordance with
Section 3(b) hereof and for any fiscal years prior to the fiscal year
in which such termination occurs and (C) be entitled to the benefits
set forth in Section 3(c) hereof (or the after-tax cash equivalent) for
a period of six (6) months from the effective date of such termination
and, as appropriate, shall be paid amounts accrued and owing pursuant
to Sections 3(d) and 3(e) hereof. In the event Employer elects to
suspend Employee's right to Base Compensation and Performance Bonus
Distributions, at such time as Employee is able to resume the duties
required under this Agreement, Employee shall be entitled to receive
Base Compensation and Performance Bonus Distributions from the date
Employee commences the performance of such duties following the
disability in accordance with the terms and provisions of this
Agreement. This Section 5(a) (iii) shall not limit the entitlement of
Employee, Employee's estate or beneficiaries to any disability or other
benefits available to Employee under any disability insurance or other
benefits plan or policy which is maintained by Employer for Employee's
benefit. For purposes of this Agreement, the "date of disability" shall
mean the
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<PAGE> 6
first day of the consecutive period during which Employee fails to
perform the duties required by this Agreement due to illness, physical
or mental disability or other incapacity.
(iv) After Change of Control. If, within a two (2) year period
following a "change in control" as defined below, Employer terminates
this Agreement for any reason other than as provided in Section
5(a)(ii),, Employer shall pay to Employee, within thirty (30) days of
termination, the greater of (i) two (2) times Employee's Base
Compensation as provided in Section 3(a) hereof, or (ii) Employee's
Base Compensation provided in Section 3(a) hereof times the number of
years and/or fraction thereof remaining under this Agreement. In
addition, Employee shall (A) be paid Employee's Base Compensation up to
the effective date of such termination, (B) be paid a pro rata portion
of any bonus otherwise payable to Employee for or with respect to the
fiscal year in which such termination occurs in accordance with Section
3(b) hereof up to the effective date of such termination, (C) to the
extent not previously paid, shall be entitled to all bonuses payable to
Employee in accordance with Section 3(b) hereof for or with respect to
any fiscal years prior to the fiscal year in which such termination
occurs, (D) be entitled to the benefits set forth in Section 3(c)
hereof for a period of six (6) months from the effective date of such
termination, and, as appropriate, be paid amounts accrued and owing
pursuant to Sections 3(d) and 3(e) hereof. For purposes of this
Agreement, in the event Employer defaults in its obligation under
Section 9 hereof and, as a consequence thereof, Employee's employment
with Employer (or Employer's successor or assign) terminates, such
termination shall be deemed to be a termination under this Section
5(a)(iv).
For purposes of this Section 5(a)(iv), (A) a "change of control"
of Employer shall be deemed to have occurred if: (1) any person (as
such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) , including a
"group" as defined in Section 13(d)(3) of the Exchange Act (but
excluding IndeNet, Inc. or any of its affiliates or any group in which
IndeNet, Inc. or any of its affiliates has a significant interest, a
trustee or other fiduciary holding securities under an employee benefit
plan of Employer), becomes the beneficial owner of the outstanding
common stock, of IndeNet, Inc. (the "Common Stock") having at least
forty percent (40%) of the total number of votes that may be cast for
the election of directors of IndeNet, Inc., or any such person becomes
the beneficial owner of all of the outstanding common stock of
Employer; (2) within any
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<PAGE> 7
twenty-four (24) month period beginning on or after the date hereof,
the persons who were directors of IndeNet, Inc. immediately before the
beginning of such period (the "Incumbent Directors") shall cease to
constitute at least a majority of the Board or a majority of the board
of directors of any successor to Employer, provided that, any director
who was not a director as of the date hereof shall be deemed to be an
Incumbent Director if such director was elected to the Board by, or on
the recommendation of or with the approval of, at least two-thirds of
the directors who then qualified as Incumbent Directors either actually
or by prior operation of this provision, unless such election,
recommendation or approval was the result of an actual or threatened
election contest of the type contemplated by Regulation 14a-11
promulgated under the Exchange Act or any successor provision; (3) a
reorganization, merger, share exchange, consolidation, sale, business
combination or other disposition of all or substantially all of the
assets of IndeNet, Inc. or Employer, or combination of the foregoing
transactions (any of the foregoing, a "Transaction") is
consummated, unless, immediately following such Transaction the
shareholders of Employer immediately prior to the Transaction continue
to have a majority of the voting power in the resulting entity; or (4)
the shareholders approve a complete liquidation or dissolution of
IndeNet, Inc. or the Employer.
(b) Termination by Employee.
(i) Without Good Reason. Employee may terminate this Agreement
and Employee's employment at any time for any reason or for no reason
at all upon thirty (30) days' written notice to Employer, during which
period Employee shall continue to perform Employee's duties under this
Agreement if Employer so elects. In connection with the termination of
Employees employment pursuant to this Section 5 (b)(i), Employee (A)
shall be paid Employee's Base Compensation in accordance with Section
3(a) hereof up to the effective date of such termination, (B) to the
extent not previously paid, shall be entitled to all bonuses payable to
Employee in accordance with Section 3(b) hereof and for any fiscal
years prior to the fiscal year in which such termination occurs and (C)
shall be entitled to the benefits set forth in Section 3(c) hereof up
to the effective date of such termination, and, as appropriate, shall
be paid amounts accrued and owing pursuant to Sections 3(d) and 3(e)
hereof.
(c) Death. Notwithstanding any other provision of this
Agreement, this Agreement shall terminate on the date of Employee's death. In
such event, Employee shall (A) be paid Employee's Base Compensation in
accordance with Section 3(a)
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<PAGE> 8
hereof up to the date of such death, (B) be paid a pro rata portion of any bonus
otherwise payable to Employee for or with respect to the fiscal year in which
such death occurs in accordance with Section 3(b) hereof up to the effective
date of such death and, to the extent not previously paid, Employee shall be
entitled to all bonuses payable to Employee in accordance with Section 3(b)
hereof for or with respect to any fiscal years prior to the fiscal year in which
such death occurs and (C) be entitled to the benefits set forth in Sections 3(c)
hereof (or the aftertax cash equivalent) for a period of six (6) months from the
date of death and, as appropriate shall be paid amounts accrued and owing
pursuant to Sections 3(d) and 3(e) hereof. This Section 5(c) shall not limit the
entitlement of Employee, Employee's estate or beneficiaries under any insurance
or other benefits plan or policy which is maintained by Employer for Employee's
benefit.
6. Covenants of Employee.
(a) No Conflicts. Employee represents and warrants that Employee is
not personally subject to any agreement, order or decree which restricts
Employee's acceptance of this Agreement and the performance of Employee's duties
with Employer hereunder.
(b) Non-Competition. In return for employment in the capacity set
forth under this Agreement, during the Employment Term and, in the event of the
termination of this Agreement pursuant to the provisions of Section 5(a)(ii)
hereof, for a period of twelve (12 months) thereafter, Employee shall not,
directly or indirectly, (i) in any capacity whatsoever, either on Employee's own
behalf or on behalf of any other person or entity with whom Employee may be
employed or associated, be employed by, be a consultant to, be an officer or
director of, or be connected in any manner with, a person or agency engaged in
the electronic media computer software or servicing business (notwithstanding
the immediately preceding clause, nothing herein shall prohibit Employee from
owning 5% or less of any securities of a competitor engaged in the electronic
media computer software or servicing business if such securities are listed on a
nationally recognized securities exchange or traded over-the-counter on the
National Association of Securities Dealers Automated Quotation System or
otherwise); (ii) interfere with the employment relationship between Employer and
its employees by directly or indirectly soliciting any such individual to
participate in, or be employed by, any business venture other than the
Employer; (iii) solicit any business related to the business of Employer from
any client or prospective client of Employer at or before the termination date
of the Employee's employment with Employer for himself or for any entity in
which the Employee has an interest or by which Employee is employed or engaged;
or (iv) seek to divert or dissuade from continuing to do business with or
entering into business with Employer or any of its affiliates or related
entities, any supplier, customer or other person or entity that had a business
relationship with or with which Employer, its subsidiaries or any of its
affiliates or related entities was
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<PAGE> 9
actively planning or pursuing a business relationship at or before the
termination of Employee.
(c) Confidentiality. Employee hereby acknowledges that during the
course of his employment with Employer, Employee has been and will be granted
access to certain information which Employer insists be kept confidential. In
consideration of this Agreement, any compensation and other benefits of
Employee's employment and Employee's continued employment by Employer, Employee
hereby agrees:
(i) to use his best efforts and diligence both during and after
his employment with Employer to protect the confidential, trade secret
and/or proprietary character of all Confidential Information, as
defined herein, including but not limited to, avoiding the direct or
indirect use (for Employee or for another) or direct or indirect
disclosure of any Confidential Information, for so long as it shall
remain proprietary or protectible as confidential or trade secret
information, except as may be necessary for the performance of
Employee's duties for Employer.
(ii) to deliver promptly to Employer, at the termination of
Employee's employment, or at any other time at Employer's request,
without retaining any copies, all documents and other material in
Employee's possession relating, directly or indirectly, to any
Confidential Information, including, but not limited to, all memoranda,
notes, records, reports, audio and video tapes, computer disks and
other storage devices, and other documents or other repositories of
information containing any information concerning confidential or trade
secret information, whether prepared by the Employee, the Employer or
anyone else.
As used herein, "Confidential Information" means any of the following:
(x) all technical and business information of Employer, its subsidiaries or
affiliates, whether patentable or not, which is of a confidential, trade secret
and/or proprietary character, whether or not developed by Employee (alone or
with others); (y) confidential evaluations of, and the confidential use or
non-use by Employer, its subsidiaries or affiliates of technical or business
information in the public domain or (z) the confidential, trade secret and whom
Employer, its subsidiaries or affiliates has a business relationship.
(d) Return of Documents. In addition to Employee's duties under
Section 6(c) hereof, upon termination of Employee's services with Employer,
Employee shall return all originals and copies of books, records, documents,
customer lists, sales materials, tapes, keys, credit cards and other tangible
property of Employer within Employee's possession or under Employee's control.
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<PAGE> 10
(e) Equitable Relief. In the event of any breach by Employee of any of
the covenants contained in this Section 6, it is specifically understood and
agreed that Employer shall be entitled, in addition to any other remedy which it
may have, to equitable relief by way of injunction, an accounting or otherwise
and to notify any employer or prospective employer of Employee as to the terms
and conditions hereof.
(f) Acknowledgment. Employee acknowledges that Employee will be
directly and materially involved in certain business operations and decisions of
Employer. Employee further acknowledges that the scope of the foregoing
restrictions has been specifically bargained between Employer and Employee, each
being fully informed of all relevant facts. Accordingly, Employee acknowledges
that the foregoing restrictions of Section 6 are fair and reasonable, are
minimally necessary to protect Employer and the public from the unfair
competition of Employee who, as a result of Employee's performance of services
on behalf of Employer, will have had unlimited access to the most confidential
and important information of Employer, its business and future plans. Employee
furthermore acknowledges that no unreasonable harm or injury will be suffered by
him from enforcement of the covenants contained herein and that Employee will be
able to earn a reasonable livelihood following termination of Employee's
services notwithstanding enforcement of the covenants contained herein.
7. Prior Agreements. This Agreement, together with the Stock Option Plan
and any Option Agreements thereunder, supersedes and is in lieu of any and all
other employment arrangements between Employee and Employer or its predecessor
or any subsidiary and any and all such employment agreements and arrangements
are hereby terminated and deemed of no further force or effect.
8. Assignment. Neither this Agreement nor any rights or duties of Employee
hereunder shall be assignable by Employee and any such purported assignment by
him shall be void. Employer may assign all or any of its rights hereunder
provided that substantially all of the assets of Employer are also transferred
to the same party.
9. Successor to Employer. Employer will require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all the business and/or assets of Employer, as the case may
be, by agreement in form and substance reasonably satisfactory to Employee,
expressly, absolutely and unconditionally to assume and agree to perform this
Agreement in the same manner and to the same extent that Employer would be
required to perform it if no such succession or assignment had taken place. Any
failure of Employer to obtain such agreement prior to the effectiveness of any
such succession or assignment shall be a material breach of this Agreement
giving Employee the right to terminate this Agreement, in which case Employee
shall be entitled to receive the compensation specified in Section 5(a)(iv)
hereof. This Agreement
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shall inure to the benefit of and be enforceable by Employee's personal and
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If Employee should die while any amounts
are still payable to Employee hereunder, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
Employee's devisee, legatee or other designee or, if there be no such designee,
to Employee's estate.
10. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if personally delivered, sent by
courier or by certified mail, postage or delivery charges prepaid, to the
following addresses:
(a) if to Employee, to:
Richard Schleufer
1125 Cambrook Ct.
Monument, Colorado 80132
(b) if to Employer, to:
Enterprise Systems Group, Inc.
5475 Tech Center Dr., Ste. 300
Colorado Springs, Colorado
Attn: President
With a copy to:
Miller, Canfield, Paddock and Stone, P.L.C.
150 W. Jefferson, Suite 2500
Detroit, MI 48226
Attn: Bruce D. Birgbauer, Esq.
Any notice, claim, demand, request or other communication given as provided in
this Section 10, if delivered personally, shall be effective upon delivery; and
if given by courier, shall be effective one (1) business day after deposit with
the courier if next day delivery is guaranteed; and if given by certified mail,
shall be effective three (3) business days after deposit in the mail. Either
party may change the address at which it is to be given notice by giving written
notice to the other party as provided in this Section 10.
11. Amendment. This Agreement may not be changed, modified or amended
except in writing signed by both parties hereto.
12. Waiver of Breach. The waiver by either party of the breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by either party.
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<PAGE> 12
13. Severability. Employer and Employee each expressly agree and contract
that it is not the intention of either party to violate any public policy,
statutory or common law, and that if any covenant, sentence, paragraph, clause
or combination of the same of this Agreement (a "Contractual Provision") is in
violation of the law of any state where applicable, such Contractual Provision
shall be void in the jurisdictions where it is unlawful, and the remainder of
such Contractual Provision, if any, and the remainder of this Agreement shall
remain binding on the parties such that such Contractual Provision shall be
binding only to the extent that such Contractual Provision is lawful or may be
lawfully performed under then applicable laws. In the event that any part of any
Contractual Provision of this Agreement is determined by a court of competent
jurisdiction to be overly broad thereby making the Contractual Provision
unenforceable, the parties hereto agree, and it is their desire, that such court
shall substitute a judicially enforceable limitation in its place, and that the
Contractual Provision, as so modified, shall be binding upon the parties as if
originally set forth herein.
14. Indemnification by Employee. Employee shall indemnify Employer for any
and all damages, costs and expenses (including reasonable attorney fees)
resulting from any material harm to Employer, its business, assets or employees
through an act of dishonesty, material conflict of interest, gross misconduct or
willful malfeasance by Employee. Employee also shall indemnify Employer for any
and all damages, costs and expenses (including reasonable attorney fees)
resulting from Employee's acts of omission constituting reckless disregard of
Employee's duties to Employer following notice thereof by Employer after it
becomes aware of such conduct and Employee's failure to so cure within thirty
(30) days.
15. Indemnification by Employer. Employer shall indemnify Employee to the
fullest extent permitted under the laws of the jurisdiction in which Employer
has its principal place of business, in connection with any proceeding which may
give rise to Employer's obligation to indemnify Employee pursuant to such laws.
16. Governing Law. This Agreement shall be governed by, and construed,
interpreted and enforced in accordance with the laws of the State of Michigan,
exclusive of the conflict of laws provisions thereof.
[signature page follows]
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<PAGE> 13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
EMPLOYER:
ENTERPRISE SYSTEMS GROUP, INC.
By: /s/ Andre A. Blay
-------------------------------------------
Print Name: Andre A. Blay
-----------------------------------
Title: CEO
----------------------------------------
Employee:
/s/ Richard Schleufer
----------------------------------------------
Richard Schleufer
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<PAGE> 1
EXHIBIT 10(D)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the 6th day of
February, 1998 (the "Effective Date") by and between IndeNet, Inc, a Delaware
corporation ("Employer"), and Robert A. Blay, an individual domiciled in the
State of Illinois ("Employee").
W I T N E S S E T H
WHEREAS, Employer is a provider of computer software and services,
and;
WHEREAS, Employer believes that it would benefit from the application
of Employee's particular and unique skill, experience, and background to the
Employer's business and business concept; and
WHEREAS, Employee wishes to commit to serve Employer in the position
set forth herein on the terms herein provided;
NOW, THEREFORE, in consideration of the premises and mutual covenants,
terms and conditions set forth in this Agreement, and for other good and
valuable consideration, Employer and Employee hereby agree, effective as of the
Effective Date, as follows:
1. Employment and Duties. During the Employment Term (as defined in
Section 2 hereof), Employer agrees to employ Employee, and Employee agrees to be
employed by Employer, as the Vice President, Business Development. Employee
agrees to devote Employee's full time, attention, energy, skill, loyalty and
best efforts to perform Employee's duties as the Vice President, Business
Development. The Chief Executive Officer and/or the Board of Directors of
Employer (the "Board") may from time to time further define and clarify
Employee's duties and services hereunder, and Employee also hereby agrees to
perform such redefined and/or clarified duties in accordance with the provisions
of this Agreement.
2. Term. The term of this Agreement shall commence on the Effective Date
and shall expire on October 31, 2003 (the "Employment Term").
3. Compensation and Related Matters.
(a) Base Salary. As compensation for performing the services required
by this Agreement during the Employment Term, and beginning April 1, 1998,
Employer shall pay to Employee an annual salary of no less than One Hundred
Twenty Thousand Dollars ($120,000) ("Base Compensation"), payable in accordance
with the general policies and procedures for payment of salaries to its
<PAGE> 2
Employee personnel maintained, from time to time, by Employer (but no less
frequently than monthly), subject to withholding for applicable federal, state,
and local taxes. Increases in Base Compensation, if any, shall be determined by
the Compensation Committee (the "Committee") of the Board, based on periodic
reviews of Employee's performance conducted on at least an annual basis.
(b) Bonus. In addition to Base Compensation, the Employee shall be
entitled to receive a cash bonus (a "Performance Bonus Distribution") in an
amount to be determined by the Board and the Committee in their sole and
absolute discretion based upon achievement of both corporate and individual
performance goals and objectives. Such goals and objectives shall be established
by the Board or the Committee in writing on an annual basis. Each fiscal year,
upon establishment of the goals and objectives by the Board and the Committee,
the actual amount of the potential bonus to be earned and the criteria for
earning it will be set forth in writing. The achievement of such goals and
objectives and the payment of any bonus shall be determined by the Board and the
Committee, provided, however, that if it is determined by the Board and the
Committee that the employee attained the required goals and objectives, the
bonus shall be paid.
(c) Benefits. During the Employment Term and subject to the
limitations and alternative rights set forth in this Section 3(c), Employee and
Employee's eligible dependents shall have the right to participate in the
medical and dental benefit plan to be established by Employer (which may include
contributions by Employee) and in any other retirement, pension, insurance,
health or other benefit plan or program that has been or is hereafter adopted by
Employer (or in which Employer participates), as such plans and programs may be
amended or modified from time to time by Employer, according to the terms of
such plan or program with all the benefits, rights and privileges as are enjoyed
by any other Employee officers of Employer. If the participation of Employee
would adversely affect the qualification of a plan intended to be qualified
under Section 401(a) of the Internal Revenue Code as the same may be amended
from time to time (the "Code"), Employer shall have the right to exclude
Employee from that plan in return for Employee's participation in (i) a
nonqualified deferred compensation plan or (ii) an arrangement providing
substantially comparable benefits under a plan that is either a qualified or
nonqualified under the Code, at Employer's option.
(d) Vacations. During the Employment Term, Employee shall be entitled
to vacation in accordance with Employer's practices, as such practices may be
amended or modified from time to time by Employer, provided that Employee shall
be entitled to four (4) weeks paid vacation in each full fiscal year. Employee
may not accrue unused vacation time and shall not be entitled to payment for
vacation time not used in any fiscal year. Notwithstanding the foregoing,
Employee shall be entitled to use during the term of this Agreement any vacation
time accrued before
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<PAGE> 3
the Effective Date. Employee shall be entitled to a payment for any vacation
time which has accrued in a fiscal year but has not been used as of the date of
the termination of Employee's employment with Employer, unless Employee's
employment is terminated pursuant to Section 5(a)(ii) hereof.
(e) Business Expenses. Employer shall reimburse Employee for
reasonable and necessary business expenses, in accordance with Employer's
policies and upon presentation of appropriate documentation.
4. Stock Options. IndeNet, Inc. has established a stock option plan (the
"Stock Option Plan") which provides, among other things, for the issuance of
options to purchase stock of IndeNet, Inc. from time to time to certain
officers, directors and other employees of IndeNet, Inc. and its subsidiaries,
including Employee. On the Effective Date, pursuant to the Stock Option Plan,
IndeNet, Inc. shall grant to Employee the option to purchase One Hundred Twenty
Thousand (120,000) shares of IndeNet, Inc. stock ("Options") according to such
terms and conditions as are set forth in the Stock Option Plan and the Option
Agreement to be entered into between IndeNet, Inc. and Employee in connection
with the award of such Options in accord with paragraph 7 of the Stock Option
Plan. Such Options granted to Employee shall vest immediately upon (i) the death
or disability of Employee, (ii) upon termination of this Agreement and
Employee's employment by Employer for any reason other than a termination for
cause or (iii) in the event of a Change in Control (as defined in Section 5(b)
herein). In the case of termination of this Agreement and Employees employment
(x) by Employee or (y) for cause (as defined in Section 5(a)(ii) herein), all
unvested Options shall be forfeited by Employee, but Employee shall have the
right to exercise within the time period provided for in the Stock Option Plan
all options vested prior to such termination for cause.
5. Termination and Termination Benefits.
(a) Termination by Employer.
(i) Without Cause. Employer may terminate this Agreement and
Employee's employment at any time for any reason or for no reason at
all upon thirty (30) days prior written notice to Employee following
notice of termination. In connection with the termination of Employee's
employment pursuant to this Section 5(a)(i), Employee (A) shall be paid
Employee's Base Compensation in accordance with Section 3(a) for a
period of one year from the effective date of such termination, (B)
may, in accordance with Section 3(b) hereof, be paid a pro rata portion
of any bonus for which Employee may be eligible with respect to the
fiscal year in which such termination occurs up to the effective date
of such termination, (C) to the extent not previously paid, shall be
entitled to all bonuses payable to Employee in accordance with Section
3(b) hereof for or with respect
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<PAGE> 4
to any fiscal years prior to the fiscal year in which such termination
occurs, (D) shall be entitled to the benefits set forth in Section 3(c)
hereof for a period of six (6) months from the effective date of such
termination and, as appropriate, shall be paid amounts accrued and
owing pursuant to Sections 3(d) and 3(e) hereof. For purposes of this
Agreement, the "effective date of termination" shall mean the last day
on which Employee is employed with Employer which may be later than the
date of the delivery of any applicable notice of termination.
(ii) With Cause. Employer may terminate this Agreement with cause
immediately upon written notice to Employee. Employer may elect to
require Employee to continue to perform Employee's duties under this
Agreement for an additional thirty (30) days following notice of
termination. In connection with the termination of Employee's
employment pursuant to this Section 5(a)(ii), Employee shall (A) be
paid Employee's Base Compensation in accordance with Section 3(a)
hereof up to the effective date of such termination, (B) to the extent
not previously paid, Employee shall be entitled to any bonuses payable
to Employee in accordance with Section 3(b) hereof and for any fiscal
years prior to the fiscal year in which such termination occurs, (C) be
entitled to the benefits set forth in Section 3(c) hereof up to the
effective date of such termination and, as appropriate, shall be paid
amounts accrued and owing pursuant to Sections 3(d) and 3(e) hereof.
For purposes of this Section 5(a)(ii), "cause" shall mean (1) a finding
by the Board that Employee has materially harmed Employer, its
business, assets or employees through an act of dishonesty, material
conflict of interest, gross misconduct or willful malfeasance, (2)
Employee's conviction of (or pleading nolo contendere to) a felony, (3)
Employee's failure to perform (which shall not include inability to
perform due to disability) in any material respects Employee's material
duties under this Agreement after written notice specifying the failure
and a reasonable opportunity to cure (it being understood that if
Employee's failure to perform is not of a type requiring a single
action to fully cure, then Employee may commence the cure promptly
after such written notice and thereafter diligently prosecute such cure
to completion), (4) the breach by Employee of any of Employee's
material obligations hereunder (other than those covered by clause (3)
above) and the failure of Employee to cure such breach within thirty
(30) days after receipt by Employee of a written notice of Employer
specifying in reasonable detail the nature of the breach, or (5)
Employee's sanction (including restrictions, prohibitions and
limitations agreed to under a consent decree or agreed order) under, or
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<PAGE> 5
conviction for violation of, any federal or state securities law, rule
or regulation (provided that in the case of a sanction, such sanction
materially impedes or impairs the ability of Employee to perform
Employee's duties and exercise Employee's responsibilities hereunder in
a satisfactory manner).
(iii) Disability. If due to illness, physical or mental
disability, or other incapacity, Employee shall fail during any four
(4) consecutive months to perform the duties required by this
Agreement, Employer may, upon thirty (30) days' written notice to
Employee, either terminate this Agreement or suspend Employee's right
to any Base Compensation or Performance Bonus Distributions without
terminating this Agreement. In any such event, Employee shall (A) be
paid Employee's Base Compensation in accordance with Section 3(a)
hereof up to the effective date of such termination, (B) be paid a pro
rata portion of any bonus otherwise payable to Employee for or with
respect to the fiscal year in which such termination occurs in
accordance with Section 3(b) hereof up to the first day of such four
(4) month period and, to the extent not previously paid, Employee shall
be entitled to all bonuses payable to Employee in accordance with
Section 3(b) hereof and for any fiscal years prior to the fiscal year
in which such termination occurs and (C) be entitled to the benefits
set forth in Section 3(c) hereof (or the after-tax cash equivalent) for
a period of six (6) months from the effective date of such termination
and, as appropriate, shall be paid amounts accrued and owing pursuant
to Sections 3(d) and 3(c) hereof. In the event Employer elects to
suspend Employee's right to Base Compensation and Performance Bonus
Distributions, at such time as Employee is able to resume the duties
required under this Agreement, Employee shall be entitled to receive
Base Compensation and Performance Bonus Distributions from the date
Employee commences the performance of such duties following the
disability in accordance with the terms and provisions of this
Agreement. This Section 5(a) (iii) shall not limit the entitlement of
Employee, Employee's estate or beneficiaries to any disability or other
benefits available to Employee under any disability insurance or other
benefits plan or policy, which is maintained by Employer for Employee's
benefit. For purposes of this Agreement, the "date of disability" shall
mean the first day of the consecutive period during which Employee
fails to perform the duties required by this Agreement due to illness,
physical or mental disability or other incapacity.
(iv) After Change of Control. If, within a two (2) year period
following a "change in control" as defined below, Employer terminates
this Agreement for
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<PAGE> 6
any reason other than as provided in Section 5(a)(ii),, Employer
shall pay to Employee, within thirty (30) days of termination, the
greater of (i) two (2) times Employee's Base Compensation as provided
in Section 3(a) hereof, or (ii) Employee's Base Compensation provided
in Section 3(a) hereof times the number of years and/or fraction
thereof remaining under this Agreement. In addition, Employee shall
(A) be paid Employee's Base Compensation up to the effective date of
such termination, (B) be paid a pro rata portion of any bonus otherwise
payable to Employee for or with respect to the fiscal year in which
such termination occurs in accordance with Section 3(b) hereof up to
the effective date of such termination, (C) to the extent not
previously paid, shall be entitled to all bonuses payable to Employee
in accordance with Section 3(b) hereof for or with respect to any
fiscal years prior to the fiscal year in which such termination occurs,
(D) be entitled to the benefits set forth in Section 3(c) hereof for a
period of six (6) months from the effective date of such termination,
and, as appropriate, be paid amounts accrued and owing pursuant to
Sections 3(d) and 3(e) hereof. For purposes of this Agreement, in the
event Employer defaults in its obligation under Section 9 hereof and,
as a consequence thereof, Employee's employment with Employer (or
Employer's successor or assign) terminates, such termination shall be
deemed to be a termination under this Section 5(a)(iv).
For purposes of this Section 5(a)(iv), (A) a "change of control"
of Employer shall be deemed to have occurred if: (1) any person (as
such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), including a
"group" as defined in Section 13(d)(3) of the Exchange Act (but
excluding (aa) IndeNet, Inc. or any of its affiliates or any group in
which IndeNet, Inc. or any of its affiliates has a significant
interest, a trustee or other fiduciary holding securities under an
employee benefit plan of Employer), becomes the beneficial owner of the
outstanding common stock, of Employer (the "Common Stock") having at
least forty percent (40%) of the total number of votes that may be cast
for the election of directors of Employer (but not including any
acquisition that complies with the provisions described in clauses (x),
(y) and (z) of subsection (3) of this paragraph); (2) within any
twenty-four (24) month period beginning on or after the date hereof,
the persons who were directors of Employer immediately before the
beginning of such period (the "Incumbent Directors") shall cease to
constitute at least a majority of the Board or a majority of the board
of directors of any successor to Employer, provided that, any director
who was not a director as of the date
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<PAGE> 7
hereof shall be deemed to be an Incumbent Director if such director was
elected to the Board by, or on the recommendation of or with the
approval of, at least two-thirds of the directors who then qualified as
Incumbent Directors either actually or by prior operation of this
provision, unless such election, recommendation or approval was the
result of an actual or threatened election contest of the type
contemplated by Regulation 14a-11 promulgated under the Exchange Act or
any successor provision; (3) a reorganization, merger, share exchange,
consolidation, sale, business combination or other disposition of all
or substantially all of the assets of Employer, or combination of the
foregoing transactions (any of the foregoing, a "Transaction") is
consummated, unless, immediately following such Transaction (x) the
shareholders of Employer immediately prior to the Transaction continue
to have a majority of the voting power in the resulting entity, (y) no
person owns forty percent (40%) or more of the voting power of the
resulting entity (except to the extent that such ownership existed
before the Transaction) and (z) a change in the majority of the
membership of the Board has not occurred as described in subsection (2)
of this paragraph; or (4) the shareholders approve a complete
liquidation or dissolution of the Employer.
(b) Termination by Employee.
(i) Without Good Reason. Employee may terminate this Agreement
and Employee's employment at any time for any reason or for no reason
at all upon thirty (30) days' written notice to Employer, during which
period Employee shall continue to perform Employee's duties under this
Agreement if Employer so elects. In connection with the termination of
Employee's employment pursuant to this Section 5(b)(i), Employee
(A) shall be paid Employee's Base Compensation in accordance with
Section 3(a) hereof up to the effective date of such termination, (B)
to the extent not previously paid, shall be entitled to all bonuses
payable to Employee in accordance with Section 3(b) hereof and for any
fiscal years prior to the fiscal year in which such termination occurs
and (C) shall be entitled to the benefits set forth in Section 3(c)
hereof up to the effective date of such termination, and, as
appropriate, shall be paid amounts accrued and owing pursuant to
Sections 3(d) and 3(e) hereof.
(c) Death. Notwithstanding any other provision of this Agreement, this
Agreement shall terminate on the date of Employee's death. In such event,
Employee shall (A) be paid Employee's Base Compensation in accordance with
Section 3(a) hereof up to the date of such death, (B) be paid a pro rata portion
of any bonus otherwise payable to Employee for or with
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<PAGE> 8
respect to the fiscal year in which such death occurs in accordance with Section
3(b) hereof up to the effective date of such death and, to the extent not
previously paid, Employee shall be entitled to all bonuses payable to Employee
in accordance with Section 3(b) hereof for or with respect to any fiscal years
prior to the fiscal year in which such death occurs and (C) be entitled to the
benefits set forth in Sections 3(c) hereof (or the aftertax cash equivalent)
for a period of six (6) months from the date of death and, as appropriate shall
be paid amounts accrued and owing pursuant to Sections 3(d) and 3(e) hereof.
This Section 5(c) shall not limit the entitlement of Employee, Employee's estate
or beneficiaries under any insurance or other benefits plan or policy which is
maintained by Employer for Employee's benefit.
6. Covenants of Employee.
(a) No Conflicts. Employee represents and warrants that Employee is
not personally subject to any agreement, order or decree which restricts
Employee's acceptance of this Agreement and the performance of Employee's duties
with Employer hereunder.
(b) Non-Competition. In return for employment in the capacity set
forth under this Agreement, during the Employment Term and, in the event of the
termination of this Agreement pursuant to the provisions of Section 5(a)(ii)
hereof, for a period of twelve (12 months) thereafter, Employee shall not,
directly or indirectly, (i) in any capacity whatsoever, either on Employee's own
behalf or on behalf of any other person or entity with whom Employee may be
employed or associated, be employed by, be a consultant to, be an officer or
director of, or be connected in any manner with, a person or agency engaged in
the electronic media computer software or servicing business (notwithstanding
the immediately preceding clause, nothing herein shall prohibit Employee from
owning 5% or less of any securities of a competitor engaged in the electronic
media computer software or servicing business if such securities are listed on a
nationally recognized securities exchange or traded over-the-counter on the
National Association of Securities Dealers Automated Quotation System or
otherwise); (ii) interfere with the employment relationship between Employer and
its employees by directly or indirectly soliciting any such individual to
participate in, or be employed by, any business venture other than the Employer;
(iii) solicit any business related to the business of Employer from any client
or prospective client of Employer at or before the termination date of the
Employee's employment with Employer for himself or for any entity in which the
Employee has an interest or by which Employee is employed or engaged; or (iv)
seek to divert or dissuade from continuing to do business with or entering into
business with Employer or any of its affiliates or related entities, any
supplier, customer or other person or entity that had a business relationship
with or with which Employer, its subsidiaries or any of its affiliates or
related entities was actively planning or pursuing a business relationship at or
before the termination of Employee.
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<PAGE> 9
(c) Confidentiality. Employee hereby acknowledges that during the
course of his employment with Employer, Employee has been and will be granted
access to certain information which Employer insists be kept confidential. In
consideration of this Agreement, any compensation and other benefits of
Employee's employment and Employee's continued employment by Employer, Employee
hereby agrees:
(i) to use his best efforts and diligence both during and after
his employment with Employer to protect the confidential, trade secret
and/or proprietary character of all Confidential Information, as
defined herein, including but not limited to, avoiding the direct or
indirect use (for Employee or for another) or direct or indirect
disclosure of any Confidential Information, for so long as it shall
remain proprietary or protectible as confidential or trade secret
information, except as may be necessary for the performance of
Employee's duties for Employer.
(ii) to deliver promptly to Employer, at the termination of
Employee's employment, or at any other time at Employer's request,
without retaining any copies, all documents and other material in
Employee's possession relating, directly or indirectly, to any
Confidential Information, including, but not limited to, all memoranda,
notes, records, reports, audio and video tapes, computer disks and
other storage devices, and other documents or other repositories of
information containing any information concerning confidential or trade
secret information, whether prepared by the Employee, the Employer or
anyone else.
As used herein, "Confidential Information" means any of the following:
(x) all technical and business information of Employer, its subsidiaries or
affiliates, whether patentable or not, which is of a confidential, trade secret
and/or proprietary character, whether or not developed by Employee (alone or
with others); (y) confidential evaluations of, and the confidential use or
non-use by Employer, its subsidiaries or affiliates of technical or business
information in the public domain or (z) the confidential, trade secret and
whom employer, its subsidiaries or affiliates has a business relationship.
(d) Return of Documents. In addition to Employee's duties under
Section 6(c) hereof, upon termination of Employee's services with Employer,
Employee shall return all originals and copies of books, records, documents,
customer lists, sales materials, tapes, keys, credit cards and other tangible
property of Employer within Employee's possession or under Employee's control.
(e) Equitable Relief. In the event of any breach by Employee of any of
the covenants contained in this Section 6, it
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is specifically understood and agreed that Employer shall be entitled, in
addition to any other remedy which it may have, to equitable relief by way of
injunction, an accounting or otherwise and to notify any employer or prospective
employer of Employee as to the terms and conditions hereof.
(f) Acknowledgment. Employee acknowledges that Employee will be
directly and materially involved in certain business operations and decisions of
Employer. Employee further acknowledges that the scope of the foregoing
restrictions has been specifically bargained between Employer and Employee, each
being fully informed of all relevant facts. Accordingly, Employee acknowledges
that the foregoing restrictions of Section 6 are fair and reasonable, are
minimally necessary to protect Employer and the public from the unfair
competition of Employee who, as a result of Employee's performance of services
on behalf of Employer, will have had unlimited access to the most confidential
and important information of Employer, its business and future plans. Employee
furthermore acknowledges that no unreasonable harm or injury will be suffered by
him from enforcement of the covenants contained herein and that Employee will be
able to earn a reasonable livelihood following termination of Employee's
services notwithstanding enforcement of the covenants contained herein.
7. Prior Agreements. This Agreement, together with the Stock Option Plan
and any Option Agreements thereunder, supersedes and is in lieu of any and all
other employment arrangements between Employee and Employer or its predecessor
or any subsidiary and any and all such employment agreements and arrangements
are hereby terminated and deemed of no further force or effect.
8. Assignment. Neither this Agreement nor any rights or duties of Employee
hereunder shall be assignable by Employee and any such purported assignment by
him shall be void. Employer may assign all or any of its rights hereunder
provided that substantially all of the assets of Employer are also transferred
to the same party.
9. Successor to Employer. Employer will require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all the business and/or assets of Employer, as the case may
be, by agreement in form and substance reasonably satisfactory to Employee,
expressly, absolutely and unconditionally to assume and agree to perform this
Agreement in the same manner and to the same extent that Employer would be
required to perform it if no such succession or assignment had taken place. Any
failure of Employer to obtain such agreement prior to the effectiveness of any
such succession or assignment shall be a material breach of this Agreement
giving Employee the right to terminate this Agreement, in which case Employee
shall be entitled to receive the compensation specified in Section 5(a)(iv)
hereof. This Agreement shall inure to the benefit of and be enforceable by
Employee's personal and legal representatives, executors, administrators,
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successors, heirs, distributees, devisees and legatees. If Employee should die
while any amounts are still payable to Employee hereunder, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to Employee's devisee, legatee or other designee or, if there be
no such designee, to Employee's estate.
10. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if personally delivered, sent by
courier or by certified mail, postage or delivery charges prepaid, to the
following addresses:
(a) if to Employee, to:
Robert A. Blay
217 S. Bruner
Hinsdale, IL 60521
(b) if to Employer, to:
IndeNet, Inc.
38705 Seven Mile Road, Ste. 435
Livonia, MI 48152-1056
Attn: Chairman
With a copy to:
Miller, Canfield, Paddock and Stone, P.L.C.
150 W. Jefferson, Suite 2500
Detroit, MI 48226
Attn: Bruce D. Birgbauer, Esq.
Any notice, claim, demand, request or other communication given as provided in
this Section 10, if delivered personally, shall be effective upon delivery; and
if given by courier, shall be effective one (1) business day after deposit with
the courier if next day delivery is guaranteed; and if given by certified mail,
shall be effective three (3) business days after deposit in the mail. Either
party may change the address at which it is to be given notice by giving written
notice to the other party as provided in this Section 10.
11. Amendment. This Agreement may not be changed, modified or amended
except in writing signed by both parties hereto.
12. Waiver of Breach. The waiver by either party of the breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by either party.
13. Severability. Employer and Employee each expressly agree and contract
that it is not the intention of either party to
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violate any public policy, statutory or common law, and that if any covenant,
sentence, paragraph, clause or combination of the same of this Agreement (a
"Contractual Provision") is in violation of the law of any state where
applicable, such Contractual Provision shall be void in the jurisdictions where
it is unlawful, and the remainder of such Contractual Provision, if any, and the
remainder of this Agreement shall remain binding on the parties such that such
Contractual Provision shall be binding only to the extent that such Contractual
Provision is lawful or may be lawfully performed under then applicable laws. In
the event that any part of any Contractual Provision of this Agreement is
determined by a court of competent jurisdiction to be overly broad thereby
making the Contractual Provision unenforceable, the parties hereto agree, and it
is their desire, that such court shall substitute a judicially enforceable
limitation in its place, and that the Contractual Provision, as so modified,
shall be binding upon the parties as if originally set forth herein.
14. Indemnification by Employee. Employee shall indemnify Employer for any
and all damages, costs and expenses (including reasonable attorney fees)
resulting from any material harm to Employer, its business, assets or employees
through an act of dishonesty, material conflict of interest, gross misconduct or
willful malfeasance by Employee. Employee also shall indemnify Employer for any
and all damages, costs and expenses (including reasonable attorney fees)
resulting from Employee's acts of omission constituting reckless disregard of
Employee's duties to Employer following notice thereof by Employer after it
becomes aware of such conduct and Employee's failure to so cure within thirty
(30) days.
15. Indemnification by Employer. Employer shall indemnify Employee to the
fullest extent permitted under the laws of the jurisdiction in which Employer
has its principal place of business, in connection with any proceeding which may
give rise to Employer's obligation to indemnify Employee pursuant to such laws.
16. Governing Law. This Agreement shall be governed by, and construed,
interpreted and enforced in accordance with the laws of the State of Michigan,
exclusive of the conflict of laws provisions thereof.
[signature page follows]
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<PAGE> 13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
EMPLOYER:
INDENET, INC.
By: /s/ Robert G. Beauregard
--------------------------------
Print Name: Robert G. Beauregard
---------------------------
Title: Chairman-Compensation Committee
-----------------------------------
Employee:
/s/ Robert A. Blay
-------------------------------------
Robert A. Blay
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<PAGE> 1
EXHIBIT 10(E)
FORM OF
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of May 1, 1997, between Business Information
Systems, Inc., an Indiana corporation with offices at 137 Chambeau Road, Suite
1, Fort Wayne, IN 46805 (the "Company"), and Joseph J. Porfeli, an individual
residing at 109 Bremen Lane, McMurray, PA, ("Employee").
The company desires to engage Employee to perform services for the Company
and Employee desires to perform such services, on the terms and conditions
hereinafter set forth.
1. Term. The Company agrees to employ Employee, and Employee agrees to
serve, on the terms and conditions of this Agreement for a period commencing on
May 1, 1997 and ending May 1, 2000, or such shorter period as may be provided
for herein. The period beginning on May 1, 1997 and ending on May 1, 2000 is
referred to as the "Initial Term". This Agreement shall automatically renew at
the end of the Initial Term, and on each successive anniversary of the end of
the Initial Term, in each case if the Agreement has not previously expired or
been terminated, for successive additional one year terms (each, a "Renewal
Term"), provided, that either the Company or Employee may cause such automatic
renewal not to occur by giving notice to the other party not less than six
months prior to the end of the Initial Term or Renewal Term, as applicable. The
period during which Employee is employed hereunder is hereinafter referred to as
the "Employment Period".
2. Duties and Services. During the Employment Period, Employee shall be
employed in the business of the Company as its CEO. In performance of his
duties, Employee shall be subject to the direction of the Board of Directors of
the Company or its designee. Employee agrees to his employment as described in
this Section 2 and agrees to devote a minimum of 40 hours per week of his
working time and efforts to the performance of his duties under this Agreement,
excepting disabilities, illness, and vacation time as provided by Section 3(d).
In performing his duties hereunder, Employee shall be available for reasonable
travel as the needs of the business require.
3. Compensation and Other Benefits.
(a) As compensation for his services hereunder, the Company shall pay
Employee, during the Employment Period, a salary payable in equal semi-monthly
installments at the annual rate of $175,000.
<PAGE> 2
(b) Employee's salary rate shall be reviewed annually by the Board of
Directors. Upon such review, Employee's salary may be adjusted upwards to such
rate as shall be considered appropriate and fixed by the Board of Directors,
taking into account economic conditions, competitive conditions within the
industry, the financial condition, operations, and prospects of the Company, and
Employee's performance and salary. In addition, Employee shall be entitled to
receive such bonuses as the Board of Directors of the Company may, in its sole
discretion, award from time to time.
(c) Employee shall to entitled to participate in all group health
Insurance programs and all other fringe benefit or retirement plans or
additional compensation which the Company may hereafter, in its sole and
absolute discretion, elect to make available to its employees generally,
provided Employee meets the qualifications therefor, but the Company shall not
be required to establish any such program or plan or otherwise to pay any such
additional compensation.
(d) Employee shall be entitled to three weeks of vacation per year of
the Employment Period. Each year's vacation allowance shall vest in full at the
beginning of that year.
4. Expenses. Employee shall be entitled to reimbursement for all
reasonable travel and other out-of-pocket expenses necessarily incurred in the
performance of his duties hereunder, upon submission and approval of written
statements and bills in accordance with the then regular procedures of the
Company.
5. Representations and Warranties of Employee. Employee represents and
warrants to the Company that (a) Employee is under to contractual or other
restriction or obligation which is inconsistent with the execution of this
Agreement the performance of his duties hereunder, or the other rights of the
Company hereunder and (b) Employee is under no physical or mental disability
that would hinder his performance of duties under this Agreement.
6. Non-Competition.
(a) In view of the unique and valuable services it is expected
Employee will render to the Company, Employee's knowledge of the customer, trade
secrets, and other proprietary information relating to the business of the
Company and its customers and suppliers and similar knowledge regarding the
Company it is expected Employee will obtain, and in consideration of the
compensation to be received hereunder, Employee agrees that he will not during
the Employment Period and for two years thereafter Participate In (hereinafter
defined in this Section 6) any other business or organization, which is or shall
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then be competing with or of a nature similar to the business of the Company;
provided, however, that the provisions of this Section 6 will not be deemed
breached merely because Employee owns not more than 5% of the outstanding common
stock or other equity or debt securities of a corporation, if, at the time of
its acquisition by Employee, such securities are listed on a national securities
exchange, reported on NASDAQ, or regularly traded in the over-the-counter market
by a member of a national securities exchange. The term "Participate In" shall
mean "engage in as a principal, partner, director, officer, agent, employee,
consultant or otherwise, or be financially interested in".
(b) During the Employment Period and for one year thereafter, Employee
will not directly or indirectly reveal the name of, solicit or interfere with,
or endeavor to entice away from the Company any of its suppliers, customers, or
employees.
(c) Since a breach of the provisions of this Section 6 could not
adequately be compensated by money damages, the Company shall be entitled, in
addition to any other right and remedy available to it, to an injunction
restraining such breach or a threatened breach, and in either case no bond or
other security shall be required in connection therewith. Employee agrees that
the provisions of this Section 6 are necessary and reasonable to protect the
Company in the conduct of its business. If any restriction contained in this
Section 6 shall be deemed to be invalid, illegal, or unenforceable by reason of
the extent, duration, or geographical scope hereof, or otherwise, then the court
making such determination shall have the right to reduce such extent, duration,
geographical scope, or other provisions hereof, and in its reduced from such
restriction shall then be enforceable in the manner contemplated hereby.
7. Patents, etc. Any interest in patents, patent applications, inventions,
technological innovations, copyrights, copyrightable works, developments,
discoveries, designs, and processes which Employee now or hereafter during the
Employment Period may own, conceive of, or develop and either relating to the
fields in which the Company may then be engaged or contemplates (as demonstrated
by the records of the Company) being engaged or conceived of or developed
utilizing the time, material, facilities, or proprietary information of the
Company ("Such Inventions") shall belong to the Company; as soon as Employee
owns, conceives of, or develops any such Invention, he agrees immediately to
communicate such fact in writing to the Secretary of the Company, and without
further compensation, but at the Company's expense, forthwith upon request of
the Company, Employee shall execute all such assignments and other documents
(including applications for patents, copyrights, trademarks, and assignments
thereof) and take all such other action as the Company may reasonably request in
order (a) to vest in the Company all Employee's right, title, and interest in
and to Such Inventions, free and clear of liens, mortgages, security interests,
pledges, charges, and encumbrances
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arising from the acts of Employee ("Liens") (Employee to take such action, at
his expense, as is necessary to remove all such Liens) and (b) if patentable or
copyrightable, to obtain patents or copyrights (including extensions and
renewals) therefor in any and all countries in such name as the company shall
determine.
8. Confidential Information. All Confidential Information which Employee
may now possess, may obtain during of after the Employment Period, or may create
prior to the end of the period he is employed by the Company under this
Agreement or otherwise relating to the business of the Company or of any
customer or supplier of the Company shall not be published, disclosed, or made
accessible by him to any other person, firm, or corporation either during or
after the termination of his employment or used by him except during the
Employment Period in the business and for the benefit of the Company, in each
case without the prior written permission of the Company. Employee shall return
all physical evidence of such confidential information to the Company prior to
or at the termination of his employment. As used in this Section 8,
"Confidential Information" means confidential or other proprietary information
that is received or produced or developed by employee (including, without
limitation, software designs and code, product specifications and documentation,
business and product plans, customer lists and other confidential business
information) and that is generated by or utilized in the operations of the
Company. Confidential Information does not include information which becomes
public knowledge without any action by employee or without employee involvement.
9. Life Insurance. If requested by the Company, Employee shall submit to
such physical examinations and otherwise take such actions and execute and
deliver such documents as may be reasonably necessary to enable the Company, at
its expense and for its own benefit to obtain life insurance on the life of the
Employee. Employee has no reason to believe that his life is not insurable with
a reputable insurance company at rates now prevailing in the City of Pittsburgh.
10. Termination. Notwithstanding anything herein contained, if on or after
the date hereof and prior to the end of the Employment Period:
(a) either (i) Employee shall be physically or mentally incapacitated
or disabled or otherwise unable fully to discharge his duties hereunder for a
period of three months, as determined by the Board of Directors, (ii) Employee
shall be convicted of a crime of moral turpitude or a felony, (iii) Employee
shall breach any fiduciary duty to the Company, or (iv) Employee shall breach
any material term of this Agreement and fail to correct such breach within 10
days after notice by the Company to Employee of his commission of the same,
then, and in each such case, the Company shall have the right to give notice of
termination of Employee's services hereunder as of a date (not earlier
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than 10 days from such notice) to be specified in such notice and this Agreement
shall terminate on the date so specified, or
(b) If the Employee shall die, then this Agreement shall terminate on
the date of Employee's death, whereupon Employee or his estate, as the case may
be, shall be entitled to receive only his compensation at the rate then provided
pursuant to Sections 3(a) and 3(b) to the date on which termination shall take
effect; provided, however, that if this Agreement is terminated as a result of
Employee's death, and if the Company shall not at the date of such death be
providing life insurance coverage for the benefit of Employee's estate,
Employee's estate shall be entitled to receive a payment in the amount of Three
months' compensation at the rate then provided pursuant to Section 3(a) and
3(b).
Nothing contained in this Section 10 shall be deemed to limit any other right
the Company may have to terminate Employee's employment hereunder upon any
ground permitted by law.
11. Survival. The covenants, agreements, representations, and warranties
contained in or made pursuant to this Agreement shall survive Employee's
termination of employment as provided herein.
12. Entire Agreement; Modification. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof,
supersedes all existing agreements between them concerning such subject matter,
and may be modified only by a written instrument duly executed by each party.
13. Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be mailed by certified mail,
return receipt requested; or delivered against receipt to the party to whom it
is to be given at the address of such party set forth in the preamble to this
Agreement (or to such other address as the party shall have furnished in writing
in accordance with the provisions of this Section 14). Notice to the estate of
Employee shall be sufficient if addressed to Employee as provided in this
Section 14. Any notice or other communication given by certified mail shall be
deemed given three days after the time of certification thereof, except for a
notice changing a party's address which shall be deemed given at the time of
receipt thereof.
14. Waiver. Any waiver by either party of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
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deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing,
signed by the party giving such waiver.
15. Binding Effect. Employee's rights and obligations under this Agreement
shall not be transferable by assignment or otherwise, such rights shall not be
subject to commutation, encumbrance, or the claims of Employee's creditors, and
any attempt to do any of the foregoing shall be void. The provisions of this
Agreement shall be binding upon and inure to the benefit of Employee and his
heirs and personal representatives, and shall be binding upon and inure to the
benefit of the company and its successors and those who are its assigns under
Section 11.
16. No Third Party Beneficiaries. This Agreement does not create, and shall
not be construed as creating, any rights enforceable by any person not a party
to this Agreement (except as provided in Section 16).
17. Headings. The headings in this Agreement are solely for the convenience
of reference and shall be given no effect in the construction or interpretation
of this Agreement.
18. Counterparts; Governing Law. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. It shall be
governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania, without giving effect to the conflict of laws.
IN WITNESS WHEREOF, the parties have duly executed this agreement as of
the date first above written.
Employee Company
By:
- ------------------------ ----------------------------
Name:
----------------------------
Title: President
----------------------------
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