BETWEEN THE UNDERSIGNED:
(1) MICROS SYSTEMS, INC., a Maryland corporation having its principal office
at 12000 Baltimore Avenue, Beltsville, MD 20705, U.S.A. (hereinafter
referred to as "Micros"),
(2) MR. DANIEL COHEN, a French citizen having his business address c/o DAC
SYSTEMES Micros FRANCE, 18/20, rue des Bas Rogers, 92800 Puteaux, France
(hereinafter referred to as the "Manager").
Subject to the terms and conditions of the Share Purchase Agreement of even
date between the Manager and Micros, Micros has agreed to acquire from the
Manager 77% of the issued and outstanding shares of DAC SYSTEMES Micros FRANCE
("DSMF") and of AD-Maintenance Informatique ("ADMI"), French corporations
controlled by the Manager (the "Change of Control"). DSMF in turn owns 725 out
of 2,500 shares of Fidelio France, a French corporation ("Fidelio France").
DSMF, ADMI and Fidelio France are hereinafter collectively referred to as the
The Manager currently serves as the President-Directeur General (Chairman and
Chief Executive Officer) of DSMF and Fidelio France, and the Gerant (Managing
Director) of ADMI.
Micros and the Manager wish to define the terms of the Manager's continued
participation in the management of the Companies, which shall be subject to the
terms and conditions of this Agreement.
NOW THEREFORE, IT HAS BEEN AGREED AS FOLLOWS:
ARTICLE 1 - MANAGEMENT
1.1 Following the Change of Control, the Manager shall continue to serve as
the President-Directeur General (Chairman and Chief Executive Officer) of
DSMF and Fidelio France, and the Gerant (Managing Director) of ADMI.
1.2 Subject to Articles 3 and 4 herein, Micros shall cause the Manager to be
re-elected annually to the positions referred to in Article 1.1 above.
ARTICLE 2 - COMPENSATION AND EXPENSES
2.1 Micros shall cause the Manager to be compensated as Chairman and Chief
Executive Officer of DSMF and Fidelio France and Managing Director of ADMI
an aggregate amount equal to 7% of the Companies' Net Income Before Taxes
(as hereinafter defined), plus six hundred thousand French francs (600,000
FF) per year.
2.2 For purposes of this Agreement, the term "Net Income Before Taxes" means
the accounting post "Resultat Courant Avant Impots", as set forth in the
audited accounts of each of the Companies (or their respective successors)
for the fiscal years most recently concluded at the time that each of such
additional payments is to be made, and as determined in accordance with
generally accepted accounting principles in effect in the French Republic
applied on a consistent basis.
2.3 The Manager is authorized to incur reasonable expenses in performing
services under this Agreement and for promoting the business of Micros,
including expenses for entertainment, travel and similar items, consistent
with such policies as may from time to time be established by Micros.
ARTICLE 3 - TERMINATION INDEMNITIES
3.1 Micros is free at any time in its sole discretion to cause the Manager to
be dismissed from or not be re-elected to one or more of his posts as
Chairman and Chief Executive Officer / Managing Director of the Companies.
In such event, except for termination for the reasons provided in Article
3.3 below, Micros shall pay the Manager liquidated damages equivalent to
one million French francs (1,000,000 FF) per year, pro rata temporis from
the date such dismissal or non re-election occurs to the fifth anniversary
of the Closing Date (as defined in Article 4.1 below). Thereafter, any
dismissal or failure to re-elect shall continue to be at Micros' sole
discretion without indemnities or any damages, liquidated or others, to
3.2 The Manager is free at any time in his sole discretion to resign from his
post as Chairman and Chief Executive Officer / General Manager of the
Companies. In such event, no indemnities shall be due by either of the
Parties hereto to the other. In such case, the obligations under Article
5 of this Agreement shall remain in effect as provided therein.
3.3 If Micros decides to terminate the Manager's employment for cause, this
Agreement shall terminate and the Manager shall no longer be employed by
Micros effective on the date Micros notifies the Manager of such
termination. For purposes of this Agreement, the term "cause" shall mean
any of the following:
(i) the Manager has been convicted or pleaded guilty or no contest to
any felony involving monies, securities or any other property;
(ii) Micros proves that the Manager has committed a willful or grossly
negligent act which causes material harm to Micros or any of its
affiliates or subsidiaries;
(iii) Micros proves that the Manager has committed fraud or
embezzlement affecting Micros or any of its property.
Upon any termination pursuant to this Section 3.3, all rights of the Manager
under this Agreement shall cease to be effective as the date of the
termination, the Manager shall no longer be manager of Micros, and, to the
extent permitted by law, the Manager shall have no right to receive any
payments or benefits hereunder, including under Section 3.1 above.
ARTICLE 4 - TERM
4.1 Subject to Article 4.2 below, this Agreement shall enter into effect upon
the occurrence of the Change of Control (such date being hereinafter
referred to as the "Closing Date"), and shall continue until the fifth
anniversary of the Closing Date.
4.2 This Agreement shall automatically terminate upon the occurrence of either
of the events referred to in Articles 3.1 and 3.2 above. The payment
obligations of Micros pursuant to Article 3.1 shall survive such
termination and remain subject to the terms of Article 5 as provided
ARTICLE 5 - NON-COMPETITION / CONFIDENTIALITY
5.1 The Manager agrees and undertakes not to, either directly or indirectly,
as an individual or under the veil of a company, manage or carry or
otherwise conduct any business in competition with the business of DSMF
and/or Fidelio France and/or ADMI during the term of this Agreement and
for a period of two years from the moment at which he ceases to serve as
the Chairman and Chief Executive Officer of DSMF and/or Fidelio France
and/or the Gerant (Managing Director) of ADMI.
5.2 The Manager acknowledges that the services to be rendered by him are of a
special, unique and extraordinary character and, in connection with such
services, the Manager will have access to confidential information vital
to Micros' and DSMF's and Fidelio France's businesses. By reason of this,
the Manager consents and agrees that if the Manager breaches any of the
provisions of this Section 5.2, Micros would sustain irreparable harm and,
therefore, in addition to any other right or remedy available to Micros,
Micros shall be entitled to an injunction restraining the Manager from
committing or continuing any such breach. The Manager acknowledges that a
violation of this Section 5.2 could not adequately be compensated by
money, damages, and the Manager therefore agrees that the provisions of
this Section 5.2 may be specifically enforced against the Manager in any
court of competent jurisdiction, irrespective of the arbitration
provisions contained herein. No bond or other security shall be required
of Micros. Nothing herein shall be construed as prohibiting Micros from
pursuing any other remedies available to Micros for such breach, including
the recovery of damages from the Manager in accordance with Article 6
hereof. The provisions of this Section 5.2 shall survive the termination
of this Agreement, irrespective of the reason therefor, for a period of
five (5) years.
ARTICLE 6 - APPLICABLE LAW; ARBITRATION
6.1 This Agreement shall be governed by, and construed in accordance with, the
laws of the state of New York, U.S.A., without giving effect to the
conflict of laws principles thereof, and in accordance with the United
States Arbitration Act, 9 U.S.C. Sections 1 et seq.
6.2 Any dispute, controversy or claim arising out of or relating to this
contract, or the breach, termination or invalidity thereof, shall be
finally settled by arbitration in accordance with the UNCITRAL Arbitration
Rules as at present in force. The number of arbitrators shall be three.
One arbitrator shall be appointed by each of the Parties hereto and the
third by agreement of the aforesaid two arbitrators or, failing such
agreement, the president of the arbitration tribunal shall be designated
by the International Chamber of Commerce as appointing authority.
ARTICLE 7 - RESIDENCY / LEAVE OF ABSENCE
7.1 Manager agrees to remain a legal resident of France during the term of this
7.2 Micros agrees to allow Manager a period of up to three (3) consecutive
months leave without pay during the term of this Agreement to attend a
college or university level course of his choosing.
ARTICLE 8 - MISCELLANEOUS
8.1 Any notices under this Agreement shall be deemed to be sufficiently given
if hand-delivered in person and/or sent by telefax followed by certified
airmail with return receipt requested addressed to the Parties at their
respective addresses set forth at the head of this Agreement. Either
Party may change its address for receipt of notices by notice duly given
to the other Party.
8.2 Except as otherwise expressly provided herein, each of the Parties shall
pay its own expenses resulting herefrom.
8.3 This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors and assigns, and all successors to
Micros shall be jointly and severally liable for the obligations
8.4 No change in, addition to, or waiver of the terms and provisions of this
Agreement shall be binding unless approved in writing by the Parties.
8.5 If at any time any part, any article, or any part of such article of this
Agreement is adjudged invalid, unenforceable or illegal by any court,
public authority, governmental department or agency, or other forum, such
adjudication shall not effect the remaining portions of this Agreement,
and the Agreement shall be construed as if such invalid, enforceable or
illegal provision had never been contained herein.
8.6 The descriptive words or phrases at the head of the various Articles of
this Agreement are inserted only as a convenience and for reference and
are in no way intended to be a part or this Agreement, or in any way
define, limit or describe the scope or intent of the particular Article to
which they refer.
8.7 Except as otherwise required by law, this Agreement shall be held in
confidentiality by the Parties hereto. The nature and timing of any
public announcements concerning the transactions contemplated in this
Agreement shall be subject to prior agreement between the Parties.
IN WITNESS WHEREOF, the Parties have signed this Agreement in 2 originals in the
place and on the date set out below.
Beltsville, Maryland, U.S.A.
Date: August 25, 1995
DANIEL COHEN MICROS SYSTEMS, INC.
/s/ Daniel Cohen By: /s/ Ronald J. Kolson
Name: Ronald J. Kolson
Title: Executive Vice President
Witnessed by: Witnessed by:
/s/ A. L. Giannopoulos /s/ Deana Angelastro
Name: A. L. Giannopoulos Name: Deana Angelastro
Title: President & CEO Title: Executive Assistant