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EXHIBIT 10.11.1
EXECUTIVE EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made as of October 1, 1999 by and between Exult,
Inc. (the "Company"), and Xxxxx X. Xxxxxx, V ("Executive").
1. DUTIES AND RESPONSIBILITIES.
A. Executive shall serve as the Company's Chief Executive Officer and
shall report to and perform the duties and responsibilities assigned to you by
the Company's Board of Directors.
B. Executive agrees to devote his full time and attention to the
Company, to use his best efforts to advance the business and welfare of the
Company, to render his services under this Agreement fully, faithfully,
diligently, competently and to the best of his ability, and not to engage in any
other employment activities.
C. Executive shall be based at the Company's office located at the
Corporate Headquarters at 0 Xxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx, but
Executive shall be required to travel to other geographic locations in
connection with the performance of his executive duties.
2. PERIOD OF EMPLOYMENT. Executive's employment with the Company shall
be governed by the provisions of this Agreement for the period commencing
October 1, 1999 and continuing until this Agreement terminates pursuant to
written notice by either the Company or Executive. The period during which
Executive's employment continues in effect shall be hereafter referred to as the
"Employment Period."
3. CASH COMPENSATION.
A. Effective January 1, 2000, Executive's initial base salary shall be
$366,000 per year payable in accordance with the Company's standard payroll
schedule. Executive's base salary shall be subject to annual review by the
Company, and may be increased or decreased in the Company's discretion. Prior to
January 1, 2000, Executive's base salary shall remain at its current level of
$500,000 per year, and Executive shall not be eligible for additional bonus
payment.
B. For each fiscal year during the Employment Period, Executive shall
be eligible for a bonus. Your annual bonus target will be 50% of your base
salary, prorated for the portion of the fiscal year worked. The bonus amount
will be based on the financial performance of the Company as determined and
measured by the Company's Board of Directors. The bonus amount is intended to
reward contribution to the Company's performance over an entire fiscal year, and
consequently will be paid only if Executive is employed and in good standing at
the time of bonus payments, which generally occurs within 45 days after the
close of the Company's fiscal year. Bonus determinations will be made in the
Company's sole discretion.
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C. The Company shall deduct and withhold from the compensation payable
to Executive hereunder any and all applicable Federal, State and local income
and employment withholding taxes and any other amounts required to be deducted
or withheld by the Company under applicable statutes, regulations, ordinances or
orders governing or requiring the withholding or deduction of amounts otherwise
payable as compensation or wages to employees.
4. EQUITY COMPENSATION. Pursuant and subject to the terms and
conditions of the Company's stock option plan, the Company will grant Executive
options which will vest over time. The option price will be established as of
the date the Company's Board of Directors grants such options pursuant to the
Company's stock option plan and in an amount determined by the Company's Board
of Directors in its sole discretion.
5. EXPENSE REIMBURSEMENT. In addition to the compensation specified in
Paragraph 3, Executive shall be entitled, in accordance with the reimbursement
policies in effect from time to time, to receive reimbursement from the Company
for reasonable business expenses incurred by Executive in the performance of his
duties hereunder, provided Executive furnishes the Company with vouchers,
receipts and other details of such expenses in the form required by the Company
sufficient to substantiate a deduction for such business expenses under all
applicable rules and regulations of federal and state taxing authorities.
6. FRINGE BENEFITS.
A. Executive shall, throughout the Employment Period, be eligible to
participate in all executive life and disability insurance plans, group term
life insurance plans, group health plans, accidental death and dismemberment
plans and disability programs and other executive perquisites which are made
available to the Company's executives and for which Executive qualifies.
B. Executive shall earn vacation time during the Employment Period at
the rate of four (4) weeks per year. Vacation shall accrue and be taken pursuant
to the Company's vacation benefit policy set forth in the Company's Employee
Handbook.
7. MOVING EXPENSES. It is the understanding of both the Company and the
Executive that the Executive will not be expected to relocate outside of the
Newport Beach, CA metropolitan area without the written, mutual consent of both
the Company and the Executive. The Executive understands that from time to time
the Executive will be required to attend a reasonable number of meetings at GAP
LLC's offices in Greenwich, CT and New York, NY. Notwithstanding the
aforementioned, should the Company and the Executive mutually agree in writing
to relocate the Executive, the Company will advance Executive up to the maximum
as specified in the Company's relocation policy for reasonable expenses incurred
by Executive in a relocation requested by the Company. The Company's complete
policy on moving expenses can be obtained from the Company's Human Resources
Department. The moving expense advance will be forgiven by the Company at the
rate of one-eighteenth (1/18) of the advanced amount each month Executive
remains employed by the Company. Should Executive terminate his employment prior
to full repayment of the advanced amount, amounts which remain outstanding will
be deducted from Executives final paychecks for unpaid wages and accrued but
unused vacation.
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8. EMPLOYMENT AT WILL. Executive's employment with the Company is at
will and not for a specific term and may be terminated by either the Company or
Executive at any time, for any reason without notice. Similarly the Company may
change the terms and conditions of Executives employment at any time for any
reason. Should the Company terminate Executive's employment, the Company shall
have no obligation to Executive under this Agreement other than for payment of
accrued but unpaid wages and accrued but unused vacation. Executive may,
however, be entitled to severance benefits in accordance with the Company's
Executive Severance Plan. A summary of the Company's Executive Severance Plan
will be provided to Executive.
Should the Company terminate Executive's employment for cause, as
defined in the following paragraph, the Company shall have no further obligation
to Executive under this Agreement other than for accrued but unpaid salary and
vacation as of the date of termination. For purposes of this Agreement, "cause"
shall mean a reasonable belief that Executive has engaged in any one of the
following: (i) financial dishonesty, including, without limitation,
misappropriation of funds or property, or any attempt by Executive to secure any
personal profit related to the business or business opportunities of the Company
without the informed, written approval of the Company's Board of Directors; (ii)
a repeated refusal to comply with reasonable directives of the Company's Board
of Directors, which has not been cured as determined by the Board within two (2)
days receipt of written notice thereof given by the Board; (iii) gross
negligence or reckless or willful misconduct in the performance of Executive's
duties, which has not been cured as determined by the Board within two (2) days
receipt of written notice thereof given by the Board; (iv) failure to perform,
or continuing neglect in the performance of, duties assigned to Executive, which
has not been cured as determined by the Board within two (2) days receipt of
written notice thereof given by the Board ; (v) intentional, gross misconduct
which has a materially adverse effect upon the Company's business or reputation;
(vi) the conviction of, or plea of nolo contendre to, or an misdemeanor
involving moral turpitude or fraud; (vii) the material breach of any provision
of this agreement; of (viii) violation of Company policies including, without
limitation, the Company's policies on equal employment opportunity and
prohibition of unlawful harassment.
Notwithstanding the aforementioned paragraphs in section 8, should the
Company terminate the Executive's employment for reasons other then cause, the
Executive will be entitled to severance in the greater amount of the Company's
current Executive Severance Policy or as specified below:
(a) In the event the Company terminates your employment other than for
Cause, the Executive will be entitled to receive one year's annual
salary and bonus.
(b) Within 18 months of a change in control of the Company, if the
Executive is assigned a level of responsibility or duties not
commensurate with your current level and duties; or your salary or
bonus target is reduced; or your primary location of work is
greater then 50 miles from Newport Beach, CA, you will be entitled
to one year's salary and bonus in the event you terminate your
employment with the Company.
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(c) In the event of your death, this letter agreement will terminate
and the Company shall have no obligations hereunder, except that
your legal representatives shall be entitled to receive six months
of your annual salary, payable in equal installments in accordance
with Company's standard payroll schedule (subject to all applicable
withholdings required by law).
(d) If during the Term you become physically or mentally disabled,
whether totally or partially, as evidenced by a written statement
of a competent physician licensed to practice medicine in the
United States who is mutually acceptable to Company and you (or
your legal representative if you are not then able to make such a
choice), so that you are unable substantially to perform your
obligations under this letter agreement for (i) a period of two
consecutive months or (ii) for shorter periods aggregating to two
months during any one year, the Company may, without any liability
under this letter agreement and by written notice to you, at any
time after the last day of the consecutive two months of disability
or the day on which the shorter periods of disability equal an
aggregate of two months, suspend the Term provided that you shall
be entitled to receive your annual salary, paid in accordance with
the Company's regular payroll schedule for a period six months. The
company may then discontinue payments of your annual salary for the
duration of the disability, provided that you will be entitled to
your annual salary in accordance with Section 2 above for periods
of disability shorter than the periods specified in clauses (i) and
(ii) above.
(e) Notwithstanding anything to the contrary set forth in this letter
agreement, (i) in the event that you terminate your employment with
Company or Company terminates your employment with Company, in each
case for any reason or no reason, or (ii) upon the expiration of
the Term, your obligations under Section 9 below shall continue and
survive such termination or expiration.
9. RESTRICTIVE COVENANTS. During the Employment Period:
(i) Executive shall devote Executive's full time and energy
solely and exclusively to the performance of Executive's
duties described herein, except during periods of illness or
vacation periods.
(ii) Executive shall not directly or indirectly provide services
to or through any person, firm or other entity except the
Company, unless otherwise authorized by the Board in writing.
(iii) Executive shall not render any services of any kind or
character for Executive's own account or for any other
person, firm or entity without first obtaining the Company's
written consent.
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Executive, however, shall have the right to perform such incidental services as
are necessary in connection with (a) Executive's private passive investments,
but only if Executive is not obligated or required to (and shall not in fact)
devote any managerial efforts which interfere with the services required to be
performed by him, or (b) Executive's charitable or community activities, or
participation in trade or professional organizations, but only if such
incidental services do not interfere with the performance of Executive's
services to the company.
10. NON-COMPETITION. Executive acknowledges and agrees that given the
extent and nature of the confidential and proprietary information he will obtain
during the course of his employment with the Company, it would be inevitable
that such confidential information would be disclosed or utilized by the
Executive should he obtain employment from, or otherwise become associated with,
an entity or person that is engaged in a business or enterprise that directly
competes with the Company. Consequently, during any period for which Executive
is receiving payments from the Company, either as wages or as a severance
Executive shall not, without prior written consent of the Company's Board of
Directors, directly or indirectly own, manage, operate, join, control or
participate in the ownership, management, operation or control of, or be
employed by or connected in any manner with, any enterprise which is engaged in
any business competitive with or similar to that of the Company; provided,
however, that such restriction shall not apply to any passive investment
representing an interest of less than two percent (2%) of an outstanding class
of publicly-traded securities of any company or other enterprise which is not,
at the time of such investment, engaged in a business competitive with the
Company's business.
11. NON-SOLICITATION. During the Employment Period and for one (1) year
following termination of Executive's employment, Executive shall not encourage
or solicit any of the Company's employees to leave the Company's employ for any
reason or interfere in any other manner with employment relationships at the
time existing between the Company and its employees; or solicit any client of
the Company, induce any of the Company's clients to terminate its existing
business relationship with the Company or interfere in any other manner with any
existing business relationship between the Company and any client or other third
party.
Executive hereby acknowledges that monetary damages may not be
sufficient to compensate the Company for any economic loss which may be incurred
by reason of her breach of the foregoing restrictive covenants. Accordingly, in
the event of any such breach, the Company shall, in addition to the termination
of this Agreement and any remedies available to the Company at law, be entitled
to obtain equitable relief in the form of an injunction precluding Executive
from continuing such breach.
12. PROPRIETARY INFORMATION. As a condition precedent to Executive's
employment with the Company, Executive will execute the Company's standard
Confidential Information and Assignment of Inventions Agreement. Executive's
obligations pursuant to the Confidential Information and Assignment of
Inventions Agreement will survive termination of Executive's employment with the
Company.
13. SUCCESSORS AND ASSIGNS. This Agreement is personal in its nature
and the Executive shall not assign or transfer his rights under this Agreement.
The provisions of this Agreement shall inure to the benefit of, and be binding
on each successor of the Company whether by merger, consolidation, transfer of
all or substantially all assets, or otherwise and the heirs and legal
representatives of Executive.
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14. NOTICES. Any notices, demands or other communications required or
desired to be given by any party shall be in writing and shall be validly given
to another party if served either personally or if deposited in the United
States mail, certified or registered, postage prepaid, return receipt requested.
If such notice, demand or other communication shall be served personally,
service shall be conclusively deemed made at the time of such personal service.
If such notice, demand or other communication is given by mail, such notice
shall be conclusively deemed given forty-eight (48) hours after the deposit
thereof in the United States mail addressed to the party to whom such notice,
demand or other communication is to be given as hereinafter set forth:
To the Company: Exult, Inc.
0 Xxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
To Executive: Xxxxx X. Xxxxxx, V
10 Hillsborough
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Any party may change its address for the purpose of receiving notices, demands
and other communications by providing written notice to the other party in the
manner described in this paragraph.
15. GOVERNING DOCUMENTS. This Agreement along with the Company's
Proprietary Information and Assignment of Inventions Agreement constitute the
entire agreement and understanding of the Company and Executive with respect to
the terms and conditions of Executive's employment with the Company and the
payment of severance benefits and supersedes all prior and contemporaneous
written or verbal agreements and understandings between Executive and the
Company relating to such subject matter. This Agreement may only be amended by
written instrument signed by Executive and an authorized officer of the Company.
Any and all prior agreements, understandings or representations relating to the
Executive's employment with the Company are terminated and cancelled in their
entirety and are of no further force or effect.
16. GOVERNING LAW. The provisions of this letter agreement will be
construed and interpreted under the laws of the State of California applicable
to agreements executed and to be wholly performed within the State of
California. If any provision of this Agreement as applied to any party or to any
circumstance should be adjudged by a court of competent jurisdiction to be void
or unenforceable for any reason, the invalidity of that provision shall in no
way affect (to the maximum extent permissible by law) the application of such
provision under circumstances different from those adjudicated by the court, the
application of any other provision of this Agreement, or the enforceability or
invalidity of this Agreement as a whole. Should any provision of this Agreement
become or be deemed invalid, illegal or unenforceable in any jurisdiction by
reason of the scope, extent or duration of its coverage, then
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such provision shall be deemed amended to the extent necessary to conform to
applicable law so as to be valid and enforceable or, if such provision cannot be
so amended without materially altering the intention of the parties, then such
provision will be stricken and the remainder of this Agreement shall continue in
full force and effect.
17. REMEDIES. All rights and remedies provided pursuant to this
Agreement or by law shall be cumulative, and no such right or remedy shall be
exclusive of any other. A party may pursue any one or more rights or remedies
hereunder or may seek damages or specific performance in the event of another
party's breach hereunder or may pursue any other remedy by law or equity,
whether or not stated in this Agreement.
18. ARBITRATION. Any and all disputes between Executive and the Company
which arise out of Executive's employment under the terms of this Agreement
shall be resolved through final and binding arbitration. This shall include,
without limitation, disputes relating to this Agreement, Executive's employment
by the Company or the termination thereof, claims for breach of contract or
breach of the covenant of good faith and fair dealing, and any claims of
discrimination or other claims under Title VII of the Civil Rights Act of 1964,
the Age Discrimination in Employment Act, the Americans With Disabilities Act,
the California Fair Employment and Housing Act, or any other federal, state or
local law or regulation now in existence or hereinafter enacted and as amended
from time to time concerning in any way the subject of Executive's employment
with the Company or its termination. The only claims not covered by this
Agreement are claims for benefits under the workers' compensation or
unemployment insurance laws, which will be resolved pursuant to those laws.
Binding arbitration will be conducted in Orange County, California in accordance
with the rules and regulations of the American Arbitration Association. Each
party will split the cost of the arbitration filing and hearing fees, and the
cost of the arbitrator; each side will bear its own attorneys' fees, that is,
the arbitrator will not have authority to award attorneys' fees unless a
statutory section at issue in the dispute authorizes the award of attorneys'
fees to the prevailing party, in which case the arbitrator has authority to make
such award as permitted by the statute in question. Executive understands and
agrees that the arbitration shall be instead of any civil litigation and that
this means that she is waiving her right to a jury trial as to such claims. The
parties further understand and agree that the arbitrator's decision shall be
final and binding to the fullest extent permitted by law and enforceable by any
court having jurisdiction.
19. NO WAIVER. The waiver by either party of a breach of any provision
of this Agreement shall not operate as or be construed as a waiver of any later
breach of that provision.
20. COUNTERPARTS. This Agreement may be executed in more than one
counterpart, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
EXULT, INC.
By: /s/ XXX X. XXXXXXXXX
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Name: Xxx X. XxXxxxxxx
Title: Vice President, Human Resources
EXECUTIVE
/s/ XXXXX X. XXXXXX, V
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Xxxxx X. Xxxxxx, V
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