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EXHIBIT 10j.
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is effective the 1st day of
July, 1997, by and between MICROS Systems, Inc. ("MICROS"), a Maryland
corporation, with offices located at 12000 Baltimore Avenue, Beltsville,
Maryland, and Daniel Cohen, a French citizen, whose current address is
_______________ (the "Consultant").
W I T N E S S E T H:
WHEREAS, pursuant to the terms of the Management Agreement dated
August 25, 1995 (the "Management Agreement") between MICROS and the Consultant,
the Consultant currently serves as: (i) President-Directeur General (Chairman
and Chief Executive Officer) of Fidelio-MICROS France S.A. ("FMF"), a French
corporation; and (ii) Gerant (Managing Director) of AD-Maintenance Informatique
("ADMI"), a French corporation; and
WHEREAS, pursuant to the terms of the Consulting Agreement dated July
1, 1995 (the Consulting Agreement") between MICROS and the Consultant, the
Consultant currently provides to MICROS certain advice and assistance; and
WHEREAS, the Consultant has elected to resign from his positions as
Chairman and Chief Executive Officer of FMF and Managing Director of ADMI,
pursuant to Section 3.2 of the Management Agreement, effective close of
business June 30, 1997; and
WHEREAS, after the Consultant's resignation, MICROS desires to retain
the Consultant and the Consultant desires to accept such retention; and
WHEREAS, the Consultant is willing to make his consulting services
available to MICROS on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and the
conditions and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which hereby is acknowledged, the
parties hereto agree as follows:
1. Consultancy. MICROS hereby retains the Consultant and the Consultant
hereby accepts the consulting position with MICROS upon the terms and
conditions hereinafter set forth. The Consultant shall perform his activities
hereunder as an independent professional. For the avoidance of doubt, the
Consultant shall not be regarded as an employee of MICROS, FMF or ADMI.
2. Duties. During the term of this Agreement, the Consultant shall provide
consulting services to MICROS as follows: (i) for the month of July 1997, full
time consulting services; (ii) for the months of August 1997 through December
1997, 5 full days of consulting services per month; and (iii) for the months of
January 1998 through
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December 1998, 3 full days of consulting services per month. The Consultant
shall perform any and all reasonable duties as the President and CEO of MICROS
may assign from time to time.
3. Term. The term of this Agreement shall commence upon July 1, 1997, and
shall terminate on December 31, 1998, unless sooner terminated, as provided
herein.
4. Fees.
A. Monthly Retainer for July 1997. The Consultant shall be entitled to
receive a fee of 50,000 FF for the month of July 1997.
B. Monthly Retainer for August 1997 through December 1997. The
Consultant shall be entitled to receive a fee of 11,000 FF per month for the
months of August 1997 through December 1997.
C. Monthly Retainer for January 1998 through December 1998. The
Consultant shall be entitled to receive a fee of 7,000 FF per month for the
months of January 1998 through December 1998.
D. Taxes. The Consultant acknowledges that any income and other taxes,
if any, to be paid in connection with monies received hereunder, shall be paid
solely by Consultant.
5. Expenses. MICROS shall reimburse the Consultant for all reasonable and
necessary business expenses incurred in connection with the performance of his
duties on behalf of MICROS; provided, however, that the expenses have been
approved in writing and further provided that the Consultant shall keep and
present to MICROS no less frequently than monthly, records and receipts
relating to reimbursable expenses incurred by him. Such records and receipts
shall be maintained and presented in a format as MICROS reasonably may require.
6. No Fringe Benefits; Relinquishment of Benefits.
A. No Fringe Benefits. Consultant further recognizes and acknowledges that
neither he nor any member of his family shall be entitled to participate in any
fringe benefit, health, welfare or insurance plans, programs or practices
sponsored by MICROS, FMF or ADMI. Additionally, the Consultant shall not be
entitled to receive vacation or sick benefits while retained hereunder.
Notwithstanding the above, Consultant shall not be required to perform services
hereunder on those national holidays recognized by the French government.
B. Relinquishment of Benefits. Consultant shall return to FMF, and
relinquish any rights therein, any property in which MICROS, FMF or ADMI has an
interest. By way
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of illustration and not limitation, Consultant shall return to FMF any
vehicles, computer equipment or cellular telephones currently in Consultant's
possession.
7. Termination of Former Agreements; General Release.
A. Management Agreement. Pursuant to Section 3.2 thereof, the Management
Agreement shall terminate in full as of close of business on June 30, 1997.
Notwithstanding the above, Article 5 of the Management Agreement shall survive
in full force and effect.
B. Consulting Agreement. The Consulting Agreement shall terminate in full
as of close of business on June 30, 1997.
C. Share Purchase Agreement. The Share Purchase Agreement dated August 25,
1995 between Consultant and MICROS, shall survive in full force and effect, and
the parties hereunder ratify and confirm their respective rights and
obligations thereunder.
D. General Release. As a material inducement to MICROS to enter into this
Agreement, Consultant discharges, waives and releases MICROS, FMF and ADMI, and
all persons or entities acting by or through any of them, from any and all
complaints, claims, liabilities, obligations, or compensation as of the date
hereof, whether arising in connection with the Management Agreement, the
Consulting Agreement or otherwise.
8. Confidential Information.
A. Company Information. The Consultant agrees at all times during the
term of his consultancy and for a period of three (3) years thereafter to hold
in strictest confidence, and not to use, or to disclose to any person, firm or
corporation, without the written authorization of an elected officer of MICROS,
any trade secrets, confidential knowledge, data or other proprietary
information of MICROS. By way of illustration and not limitation, such shall
include information relating to products, processes, know-how, designs,
formulas, methods, developmental or experimental work, improvements,
discoveries, plans for research, new products, marketing and selling, business
plans, budgets and unpublished financial statements, licenses, prices and
costs, suppliers and customers, and information regarding the skills and
compensation of other employees of MICROS or its affiliates
B. Third Party Information. The Consultant recognizes that MICROS
and its affiliates have received and in the future will receive from third
parties their confidential or proprietary information subject to a duty on the
part of MICROS or its affiliates to maintain the confidentiality of such
information and, in some cases, to use it only for certain limited purposes.
The Consultant agrees that he owes MICROS and such third parties, both during
the term of his consultancy and thereafter, a duty to hold all such
confidential or proprietary information in the strictest confidence and not to
disclose it to any person, firm or corporation (except in a manner that is
consistent with MICROS'
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agreement with the third party) or use it for the benefit of anyone other than
MICROS or such third party (consistent with MICROS' agreement with the third
party).
C. MICROS Intellectual Property. All works, whether or not protected
by intellectual property rights, and all know-how which may be created by the
Consultant in the course of his activities for MICROS shall be deemed to be the
property of MICROS and fully compensated by the compensation due to the
Consultant hereunder.
9. Prior Employees. For a period of two (2) years following the termination
of this Agreement for any reason whatsoever, the Consultant shall not, whether
as an individual or as a proprietor, stockholder, partner, officer, director,
employer, employee, agent, consultant, independent contractor or otherwise,
recruit or employ, directly or indirectly, for his own business or any business
in which he has an ownership interest, is employed with, or is otherwise
affiliated with, any individual who was an employee of MICROS or any of its
affiliates within the two (2) year period immediately preceding the termination
of this Agreement.
10. Overbreadth of Restrictive Covenant. It is the intention of the parties
that if any restrictive covenant contained in this Agreement is determined by a
court of competent jurisdiction to be overly broad, then the court should
enforce such restrictive covenant to the maximum extent permitted under the law
as to scope, geographic area and duration.
11. Termination of Consultancy. This Agreement shall terminate upon the
earliest to occur of the following events:
(a) Death. The Agreement shall be terminated upon the Consultant's death.
(b) Disability. The Agreement shall be terminated due to the continuous
and uninterrupted inability of the Consultant to perform his duties hereunder
due to sickness or injury which persists for a period of ninety (90) days.
(c) By the Company for Cause. The Agreement may be terminated by MICROS
upon: (i) the Consultant being charged with a criminal felony; or (ii) the
Consultant's refusal to perform hereunder.
(d) By the Consultant. The Consultant may terminate this Agreement at any
time upon sixty (60) days written notice to MICROS.
(e) December 31, 1998.
12. Notices. Any notice required or permitted to be given hereunder shall
be deemed sufficient if in writing, and if delivered personally or sent by
registered or certified mail, return receipt requested, to the addresses of the
respective parties set forth herein, or such other address as either party so
notifies the other of in writing from time to time.
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13. Waiver of Breach. The waiver of any breach of any provision hereunder
by either party shall not be construed or operate as a waiver of any subsequent
breach.
14. Governing Law/Arbitration.
A. This Agreement shall be construed in accordance with and be governed by
the laws of the State of Maryland, United States, excepting the conflict of law
rules of the State of Maryland, as if this contract were made and to be
performed entirely within the State of Maryland.
B. Final and binding arbitration shall be the Consultant's sole and
exclusive remedy for any claim that MICROS breached this Agreement. All
demands for arbitration must be submitted in writing and received by MICROS and
the American Arbitration Association ("AAA") within sixty (60) days after the
effective date of this Agreement's termination or expiration. All arbitration
proceedings shall be held in Beltsville, Maryland and shall be governed by the
UNCITRAL Arbitration Rules as at present in force. Only one arbitrator shall
be selected to resolve disputes hereunder.
C. All fees, costs and expenses incurred in connection with the arbitration
proceedings, including, but not limited to, the administrative fees of the AAA,
shall be shared jointly by the parties hereto. Each party shall be solely
responsible for its own attorneys' fees.
15. Entire Agreement. This Agreement contains the entire agreement and
understandings of the parties, and supersedes any and all other prior
agreements, understandings or arrangements between the parties hereto,
including without limitation the Management Agreement and the Consulting
Agreement. Notwithstanding the above, the Share Purchase Agreement dated
August 25, 1995 between Consultant and MICROS, shall survive in full force and
effect. This Agreement may not be amended, modified or terminated except by a
written instrument executed by both parties hereto.
16. Captions. Paragraph captions shall be used exclusively for purposes of
reference and shall not be considered part of the substantive agreement of the
parties.
17. Severability. The restrictions and the rights and remedies contained in
this Agreement are cumulative and severable. If any term or provision of this
Agreement shall to any extent be invalid or unenforceable, the remainder of
this Agreement shall not be affected thereby, and each term and provision of
this Agreement shall be enforced to the fullest extent permitted by law.
18. Counterparts. This Agreement may be executed in counterparts, each of
which shall be an original, but all of which shall together constitute but one
document.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the ____ day of ____________, 1997.
COMPANY:
ATTEST: MICROS SYSTEMS, INC.
(SEAL)
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By:
Its:
[Corporate Seal]
CONSULTANT:
WITNESS: DANIEL COHEN
(SEAL)
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