EXHIBIT 99(e)(9)
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the nineteenth day of April, 2001,
(hereinafter called the "Commencement Date"), by and between DATA RESEARCH
ASSOCIATES, INC., a Missouri corporation (hereinafter called the "Employer")
and, ______________ an individual presently residing at ______________
(hereinafter called the "Employee").
WHEREAS, Employee is presently the Vice President and has made significant
contributions to Employer during the term of Employee's employment; and
WHEREAS, Employer wishes to assure itself both of the continued
availability of the services of Employee in the event of a "Change of Control,"
(as defined in Schedule I) and to assure itself of the availability of
Employee's services in the absence of a Change of Control; and
WHEREAS, Employee wishes to continue to be employed subsequent to any
Change of Control and is agreeable to the terms of continued employment set
forth herein; and
WHEREAS, the parties believe that it is to their mutual benefit to enter
into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, the parties hereto mutually agree as follows:
FIRST: EMPLOYMENT OF THE EMPLOYEE. Employer, subject to the terms and
provisions and for the term hereinafter set forth, hereby employs Employee to
perform the duties of the Vice President. Employer hereby represents and
warrants to Employee that the Board of Directors of Employer (hereinafter called
the "Board"), at a meeting duly held or by unanimous written consent, has
authorized and approved this Agreement. Employee hereby agrees to perform the
duties described herein faithfully and to the best of Employee's ability.
SECOND: DUTIES. Employee, as the Vice President of Employer, shall perform
those duties and responsibilities required by law and as set forth in the
Articles of Incorporation and Bylaws of Employer and as may from time to time be
assigned to Employee by the Board in its reasonable discretion, and in such
capacity agrees that during the term of employment hereunder, Employee will
devote substantially all of Employee's working time and attention to the
business and affairs of Employer. Notwithstanding the foregoing, Employer shall
not, without the prior written consent of Employee, directly or indirectly
require Employee to be based at any office or location outside of, or to
relocate or move from, the St. Louis metropolitan area.
THIRD: SALARY AND BENEFITS.
(a) Employer will pay Employee for Employee's services during the
term of employment hereunder an annual base rate of compensation
(hereinafter called the "Base Compensation") of ___________ dollars
($ ), which Base Compensation shall be payable at such intervals as
the Employer pays its other senior executive employees, but in any event,
not less frequently than monthly. Each fiscal year (commencing with fiscal
year 2001), the Compensation Committee of the Board (the "Compensation
Committee") will set Employee's Base Compensation for that fiscal year,
taking into account the performance of Employee, the total compensation
paid to senior executive officers of similar companies of comparable size
to that of Employer and such other factors deemed relevant by the Board,
but in no event shall such Base Compensation for any annual period be less
than the Base Compensation set for the immediately preceding annual
period.
(b) Employer may also pay Employee a bonus for each fiscal year
during the term hereof, which will be determined at the sole discretion of
the Board.
(c) Employer agrees to reimburse Employee for all reasonable
business expenses incurred by Employee in the performance of Employee's
duties hereunder for Employer, which expenses shall be substantiated in
accordance with the procedures of Employer.
(d) Employer shall provide Employee, at Employer's expense, with
health, accident, long-term disability, major medical and such other
insurance coverages as are generally available to the senior executive
officers of Employer.
(e) During each fiscal year of Employer, Employee shall be entitled
to ( ) weeks of paid vacation.
(f) Employee shall also be entitled to participate in all other
insurance and retirement plans, retirement benefits, death benefits,
salary continuation benefits, stock option plans and other fringe benefits
and other plans generally available for the senior executive officers of
Employer, but in no event shall such fringe benefits be less than the
benefits provided to Employee for the immediately preceding annual period.
(g) Employer shall, at Employer's expense, furnish such other
executive prerequisites at least equal in value to those furnished to the
senior executive officers of Employer.
FOURTH: TERM OF EMPLOYMENT. The initial term of Employee's employment
under this Agreement (hereinafter called the "Initial Term") shall be for a
period commencing on the Commencement Date and continuing until a date two years
from commencement date, unless sooner terminated as hereinafter provided.
Following the Initial Term, this Agreement shall automatically continue in
effect for an additional term of one (_1__) year (hereinafter called the
"Additional Term") unless either party, by written notice delivered to the other
not less than ninety (90) days prior to the termination of the Initial Term,
indicates the intention not to enter into the Additional Term. At the
termination of the Initial Term or the Additional Term, as the case may be, the
obligation of Employer to pay further compensation or expenses to Employee shall
cease, provided, however, that any obligations hereunder of either party to the
other party at the time of such termination shall not be affected thereby.
FIFTH: TERMINATION. Employer shall have the right to terminate this
Agreement if any of the following events shall occur during the Initial or
Additional Term hereof:
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(a) Employee's willful failure or refusal to render services as
required hereunder after written notice from Employer and a reasonable
opportunity on the part of Employee to correct any deficiency in
performance specified in such written notice from Employer, to the
satisfaction of the Board or as otherwise required by applicable law; or
(b) Acts of fraud, dishonesty or breach of fiduciary duty involving
personal profit (in each instance as determined by the Board in its sole
discretion) or the conviction of a felony committed in connection with the
business of Employer shall be grounds for termination of this Agreement
upon at least two (2) days' prior written notice but without the
opportunity to cure; or
(c) The permanent disability of Employee, which, for the purposes
hereof, shall be deemed to have occurred upon the commencement of benefits
under any policy maintained by the Company providing for long-term
disability coverage; or
(d) The death of Employee. Except as expressly set forth herein, the
obligation of Employer to pay further compensation or expenses of Employee
shall cease as of the day on which termination under this Article FIFTH
shall occur.
SIXTH: CHANGE OF CONTROL. Employer and Employee agree that the following
provisions shall immediately and automatically become operational upon the
occurrence of a Change of Control (as defined in Schedule I hereof), without
further action on the part of either Employer or Employee:
(a) In the event of the involuntary termination or significant reduction
in the position, duties or responsibilities of Employee, for reasons other than
those defined in paragraphs (a), (b), (c) and (d) of Article FIFTH hereof
(herein collectively referred to as a "Termination") Employee shall be entitled
to an amount, payable within sixty (60) days of the occurrence of the
Termination, equal to a percentage of the greater of the Base Compensation in
effect as of the date of such Change of Control or such Termination as follows:
(i)one hundred and fifty percent (150%) if the Termination occurs within the
first year following a Change of Control; (ii) seventy-five percent (75%) if the
Termination occurs within the second year following a Change of Control.
(b) All options to purchase shares of the common stock of Employer held by
Employee pursuant to a stock option plan of Employer (the "Stock Options") shall
be fully vested and exercisable.
(c) At the sole discretion of the Board, Employee may be awarded a bonus
(the "Special Executive Bonus") on a "grossed up" basis (to take into account
the taxability for federal income purposes of the Special Executive Bonus to the
Employee) equal to the amount of federal income tax payable by the Employee
arising from the vesting of Employee's interests in the Stock Options, assuming
the maximum statutory rate of federal income tax then applicable to an
individual taxpayer.
SEVENTH: INDEMNIFICATION. Employer shall indemnify, defend and hold
harmless Employee for any and all acts or decisions made by Employee, in good
faith, in connection with the performance by Employee of services for Employer,
which indemnification
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shall be to the fullest extent permitted by law. Employer shall use its best
efforts to insure its obligations under this paragraph SEVENTH which insurance
coverage shall expressly include all expenses (including, without limitation,
attorneys' fees) actually and necessarily incurred by or on behalf of the
Employee in connection with the defense of any suit or proceeding (including
appeals therefrom), which coverage shall, to the fullest extent permitted by
law, include the cost of out-of-court settlements.
EIGHTH: GOVERNING LAW. This Agreement is executed and delivered in the
State of Missouri and shall be construed and enforced in accordance with, and
shall be governed by, the laws of such State.
NINTH: NOTICE. All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed sufficient if delivered by certified or registered mail, return receipt
requested, postage paid, in the case of Employee to Employee's last known
address on file with Employer, and, in the case of Employer, to its principal
office. Such notice shall be effective upon deposit in the United States mail or
actual delivery, as the case may be.
TENTH: SUMS DUE TO EMPLOYEE. If any amount payable to Employee or vesting
of Stock Options pursuant to Article SIXTH, or portion thereof, constitutes a
"parachute payment" within the meaning of Section 280G of the Internal Revenue
Code of 1986, as amended (the "Code") (determined without regard to this Article
TENTH), then such payment shall be reduced and such Stock Options shall not vest
pursuant to Article SIXTH, as determined by Employer in its sole discretion, to
the extent, and only to the extent, necessary to prevent any such payment or
vesting of Stock Options, or portion thereof, from constituting a "parachute
payment"; provided, however, that any such reduction in payments otherwise
payable pursuant to Article SIXTH or nonvesting of Stock Options that would
otherwise vest pursuant to Article SIXTH shall occur if and only if, after
taking into account the twenty percent (20%) tax set forth in Section 4999 of
the Code, such reduction and/or nonvesting causes Employee to realize a greater
after-tax benefit than Employee would realize if such reduction and/or
nonvesting pursuant to this Article TENTH had not occurred. Employee shall be
entitled to "rollover" any sums payable hereunder into individual retirement
accounts or similar entities to the fullest extent provided by law.
ELEVENTH: SEVERABILITY AND INTERPRETATION. Whenever possible, each
provision of this Agreement and any portion thereof shall be interpreted in such
a manner as to be effective and valid under applicable law, rules and
regulations. If any covenant or other provision of this Agreement (or portion
thereof) is invalid, illegal, or incapable of being enforced, by reason of any
rule of law rule, regulation, administrative order, judicial decision or public
policy, all other conditions and provisions of this Agreement shall,
nevertheless, remain in full force and effect, and no covenant or provision
shall be deemed dependent upon any other covenant or provision (or portion)
unless so expressed herein. The parties hereto desire and consent that the court
or other body making such determination shall, to the extent necessary to avoid
any unenforceability, so reform such covenant, term, condition or other
provision or portion of this Agreement to the minimum extent necessary so as to
render the same enforceable in accordance with the intent herein expressed.
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TWELFTH: ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties relative to the employment by Employer of Employee and any
and all prior representations, agreements, correspondence or memoranda with
respect thereto are superseded hereby. Notwithstanding the foregoing this
agreement does not affect the obligation of employee under that certain
Non-Solicitation and Non-Competition Agreement dated the twenty-second of
October, 1999. No promises, covenants or representations of any character or
nature other than those expressly stated herein have been made to induce either
party to enter into this Agreement. This Agreement shall not be modified, waived
or discharged except in a writing duly signed by each of the parties or their
permitted assignees, and shall be binding upon, and inure to the benefit of, the
successors of the parties hereto.
THIRTEENTH: ASSIGNABILITY. The services to be performed by Employee
hereunder are personal in nature and therefore Employee shall not assign all or
any portion of Employee's right, or delegate all or any portion of Employee's
obligations, under this Agreement, and any attempted or purported assignment or
delegation not expressly permitted by Employer in writing shall be null and
void, ab initio.
FOURTEENTH: SUCCESSORS. Subject to the provisions of paragraph THIRTEENTH
hereof, this Agreement shall be binding upon and shall inure to the benefit of
Employer and Employee and their respective heirs, executors, administrators,
legal administrators, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
DATA RESEARCH ASSOCIATES, INC.
EMPLOYER
By:
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Michael J. Mellinger, President and CEO
EMPLOYEE
_________________________________________
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SCHEDULE I
Definition of Change of Control
A Change of Control shall be deemed to have occurred upon the happening of
any of the following events:
(a) the acquisition by any person of more than 50% of the Employer's
outstanding common stock or any other class of stock representing more than 50%
of the aggregate voting power of all classes of stock as a whole; or
(b) a merger or consolidation of the Employer with any other corporation
pursuant to which the resulting aggregate ownership of Employer (or the parent
or surviving corporation resulting from such merger or consolidation) held by or
attributable to those persons who were stockholders of Employer immediately
prior to such merger or consolidation is less than 50% of the aggregate common
stock of Employer (or the parent or surviving corporation resulting from such
merger or consolidation) outstanding as a result of such merger or
consolidation; the term "merger" shall include a reorganization effected by
means of a sale of Employer's assets or any other substantial portion of the
assets of the Employer; or
(c) election to the Board of Directors of the Employer at any stockholders
meeting of any nominee other than a nominee on whose behalf proxies were
solicited by or on behalf of the incumbent management or directors of the
Employer; or
(d) removal by the stockholders of all or any of the incumbent directors
of the Employer other than a removal for cause.