Exhibit 10.23
EXECUTIVE RETENTION AGREEMENT
THIS EXECUTIVE RETENTION AGREEMENT (the "Agreement") is made
and entered into effective as of the 11th day of May, 2001 (the
"Effective Date"), by and between XXXXX X. XXXX, an individual
("Executive"), and ASCENDANT SOLUTIONS, INC., a Delaware
corporation (the "Company").
RECITALS
WHEREAS, Executive is now employed by the Company as its
President and Chief Executive Officer under the terms of an
employment agreement between Executive and the Company dated as
of August 8, 2000 (the "Prior Employment Agreement");
WHEREAS, the parties have certain disputes arising under the
Prior Employment Agreement, and desire to compromise and settle
any differences, disputes, claims and potential claims between
them, rather than engage in the protracted, expensive and time
consuming efforts of litigation with the concomitant expenses of
attorneys fees, disbursements and loss of time by the parties,
and have mutually agreed to terminate the Prior Employment
Agreement without continuing liability thereunder for either
party;
WHEREAS, the Board of Directors of the Company ("Board")
recognizes that the Executive has contributed significantly to
the Company and desires to retain the services of Executive and
motivate him to continue to serve as the Company's President and
Chief Executive Officer until December 31, 2001, and in such
capacity, to inform and advise the Board during the Company's
financial restructuring, without Executive being influenced by
uncertainties of his own situation; and
WHEREAS, the Executive is willing to continue serving the
Company on the terms and conditions provided herein.
NOW, THEREFORE, in consideration of the premises and
covenants herein contained, the Company and Executive agree as
follows:
AGREEMENT
1. Prior Employment Agreement.
This Agreement shall become effective immediately upon
its execution by both parties, and subject to the terms and
conditions stated in this Agreement, supersedes and terminates
the Prior Employment Agreement in its entirety. As such, the
parties hereto agree that, upon the execution hereof, the Prior
Employment Agreement shall be deemed cancelled by the parties
thereto, without further force or effect of any kind.
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2. Mutual Release and Settlement.
For and in consideration of the execution of this
Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged and
confessed, Executive and the Company hereby release, acquit and
forever discharge each other, from any and all claims, actions,
demands, rights, damages, costs, loss of profits, expenses,
compensation, complaints, allegations, or causes of action of any
kind whatsoever, at common law, by statute or otherwise which
they now have or might have, known or unknown, now existing,
directly or indirectly attributable to or arising out of any of
the transactions, dealings, or occurrences between Executive and
the Company, prior to the date of this Agreement, including
without limitation, the Prior Employment Agreement, it being the
intention of both the Executive and of the Company to release all
claims of any kind which he or it may now have against the other,
whether direct claims, indirect claims, or any other claims,
whether known or unknown.
3. Duties of Executive.
(a) Executive agrees to remain employed by the Company
through December 31, 2001 (the "Term") in his capacity as
President and Chief Executive Officer of the Company, to perform
customary functions and duties with respect to such position, and
to devote all of his working time and attention to the management
of the business affairs of the Company and take all actions and
do all things necessary or required to effectively implement the
Company's Plan of Asset Preservation as adopted by the Board on
May 10, 2001, as such Plan of Asset Preservation may be amended,
terminated or modified after the date hereof.
(b) Executive shall perform his duties under this
Agreement within the Dallas, Texas metropolitan area. Executive
acknowledges and agrees that the performance of his duties may
entail travel and other promotional activities on behalf of the
Company.
(c) Executive acknowledges and agrees that the conduct
of the business of the Company shall, at all times, be within the
exclusive control of the Board.
4. Compensation.
In consideration of the execution hereof, and the
Executive's covenants, promises and performance in and under this
Agreement:
(a) The Company shall pay to Executive an initial retention
bonus in the amount of $125,000.00 (the "Initial Retention
Bonus"), upon Executive's execution of this Agreement.
(b) During the Term hereof, the Company shall pay Executive
an aggregate, monthly base salary (the "Base Salary"), at the
rate of $16,666.00 per month, commencing as of the Effective
Date. Such Base Salary shall be paid in accordance with the
Company's customary payroll practices from time to time in effect
but no less frequently than in equal monthly payments.
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(c) In addition to the Initial Retention Bonus and the Base
Salary, the Company shall pay to Executive a monthly retention
bonus in the amount of $20,715.00 per month (the "Monthly
Retention Bonus"), commencing June 1, 2001, and payable on the
first payroll pay date in June 2001, and continuing monthly
thereafter during the Term hereof.
5. Termination of Agreement.
(a) This Agreement shall terminate:
(i) effective immediately upon the Executive's
death ("Death");
(ii) effective immediately upon the Executive
becoming permanently disabled (a "Disability"). For purposes of
this Agreement, Disability means that the Executive becomes
mentally or physically incapacitated to such extent that he is
unable for a period of more than 180 consecutive days to perform
the essential functions of his job or position with the Company,
even with reasonable accommodation;
(iii) effective upon written notice from the
Company to Executive, whether such termination is for Cause (as
hereinafter defined) or otherwise, immediately unless another
date is specified in such written notice;
(iv) upon written notice from Executive to the
Company only if such termination is for Good Reason (as
hereinafter defined), effective immediately unless another date
is specified in such written notice; or
(v) automatically on the expiration of the Term.
(b) As used in this Agreement, the term "Termination
Date" means the effective date on which the Executive's
employment is terminated as set forth in Paragraph 5(a) above.
(c) As used in this Agreement, the term "Cause" means:
(i) gross negligence or willful misconduct or
malfeasance or the commission of an act constituting dishonesty
or other act of material misconduct by Executive that affects the
Company, its business, Executive's employment or Executive's
business reputation;
(ii) any violation of the covenants set forth in
Paragraphs 6 or 7 of this Agreement, or any covenants of the Non-
Disclosure and Invention Agreement between Executive and the
Company, a copy of which is attached as Exhibit A hereto,
provided that the Company acts in a bona fide manner; or
(iii) any other intentional and material
breach of this Agreement by Executive (which would include, but
is not limited to, the material failure of Executive to perform
the duties reasonably assigned to him hereunder by the Board),
which is not cured within thirty (30) days after written notice
from the Company.
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(d) As used in this Agreement, the term "Good Reason"
means:
(i) a Change of Control as defined in paragraph
5(e) hereof;
(ii) the Company's material breach of this
Agreement, which is not cured within thirty (30) days after
written notice from Executive;
(iii) the Company requests that Executive
move, or Executive is required in performing his duties hereunder
to move, his principal place of residence outside of the
metropolitan Dallas, Texas area, or the Company relocates its
principal place of business outside the metropolitan, Dallas,
Texas area. For purposes hereof, a requirement that an Executive
spend a majority of his business time for a period of three
months or more in a particular metropolitan area other than
outside of the metropolitan Dallas area shall be deemed a request
that Executive move. The Company agrees that, if it requests the
Executive to make such a move and Executive declines the request,
such declination will not, in and of itself, constitute any basis
for a determination of termination by the Company for Cause; or
(iv) any demotion or material adverse reduction in
Executive's title, authority or duties.
(e) As used in this Agreement, the term "Change of
Control" shall have occurred if (i) a "Change in Control" as
defined in the Company's 1999 Long Term Incentive Plan as amended
through the date hereof, occurs or (ii) to the extent Executive
has not agreed in writing, as a result of a transaction or a
series of related transactions, the Company's shareholders or its
affiliates' shareholders immediately prior to such
transaction(s), own in the aggregate, directly or indirectly,
securities representing less than 30% of the combined voting
power of the Company's then outstanding securities.
(f) If the Executive's employment is terminated in any
of the ways provided in Paragraph 5(a), then:
(i) this Agreement and all Executive's and the Company's
rights and obligations under this Agreement will terminate
immediately, except those set forth in Paragraphs 6, 7, 8 and 11
hereof, and Exhibit A hereto, and
(ii) if Executive's employment is terminated
by the Company prior to the expiration of the Term without Cause,
or by the Executive for Good Reason, then the Executive or his
estate, as the case may be, will be entitled to the following:
(A) a cash lump sum payable within 15 days
after the Termination Date equal to all then unpaid Base Salary
and Monthly Retention Bonus otherwise due hereunder, through
December 31, 2001; and
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(B) each of the stock options potentially
exercisable for shares of common stock of the Company
(collectively, "Options") then held by Executive, whether
heretofore or hereafter granted, and whether granted under the
Company's 1999 Incentive Stock Option Plan (the "Plan") or not,
which have not lapsed shall become immediately and fully vested
and exercisable (if not already vested and exercisable) by
Executive for the remainder of the exercise period established
under the Plan or other operative document(s), as the case may
be, notwithstanding any provisions to the contrary contained in
resolutions granting, or agreements governing, the Options; or
(iii) if Executive's employment is terminated
(1) because of Death pursuant to Paragraph 5(a)(i), (2) because
of Disability pursuant to Paragraph 5(a)(ii), (3) by the Company
with Cause, (4) by the Executive without Good Reason or (5)
automatically at the expiration of the Term, then Executive or
his estate, as the case may be, will be entitled to the
following, without more:
(A) all Base Salary and Monthly Retention
Bonuses earned or accrued by Executive through the Termination
Date but unpaid (with any accrued portion to be prorated); and
(B) all other rights and benefits Executive
or his estate may have under any of the Company's employee, group
or senior executive plans, including the right to exercise vested
stock options. These rights and benefits will be determined
according to such plan's and program's terms and conditions, with
any outstanding vacation rights to be prorated and compensated to
the date of termination.
(g) Notwithstanding anything in this Section 5 or
elsewhere in this Agreement to the contrary, nothing in this
Agreement shall be construed to limit the Company's rights or
remedies in the event Executive shall breach this Agreement by
terminating his employment with the Company without Good Reason
prior to the expiration of the Term.
6. Nondisclosure and Invention Covenants, and Intellectual
Property.
Executive acknowledges that he may have access to
certain confidential information of the Company and agrees to the
continuing effect of the Non-Disclosure and Invention Agreement
attached hereto as Exhibit A, the terms of which are deemed
incorporated herein.
7. Inducement of Clients.
During the term hereof, and during the Restricted
Period (as defined below) if upon termination of employment,
Executive receives the payments and rights set forth in Paragraph
5(f)(ii) hereof or is otherwise compensated on a comparable
economic basis following such termination, Executive hereby
agrees that he shall not, directly or indirectly, solicit or
interfere, for the benefit of any Competing Business (as defined
below) or in any manner materially detrimental to the Company,
with the Clients (as defined below), employees and business
relationships of the Company. Executive agrees that the
restrictions set forth herein with respect to solicitation of
Clients shall apply to entities listed on Exhibit B hereto for a
period of
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six months after the Termination Date without any requirement
that Executive receive any payments attributable to any post-
termination period under Section 5(f)(ii) if Executive's
termination is by the Company for Cause or by Executive without
Good Reason. The term "Restricted Period" shall mean the period
beginning on the Termination Date and ending twelve months
thereafter. The term "Competing Business" shall mean any
business enterprise which is engaged in the Business of the
Company (as defined below) in any area of the world in which the
Company or any of its affiliates are conducting business on the
date of Executive's termination. The term "Clients" shall mean
any individual, proprietorship, partnership, corporation,
association, or other entity that is served by the Company or its
affiliates during the term hereof or during the Executive's
employment with the Company under the Prior Employment Agreement,
or with whom the Company entered or enters into meaningful
discussions with the view to securing business from such
individual or entity during either such time period. The term
"Business of the Company" shall mean the type of business engaged
in by the Company at the time of Executive's termination,
including, without limitation, the software and systems
development and operations related to the telemarketing or
fulfillment business for the foregoing provisions. If Executive
engages in any of the following acts he shall be considered to
have violated this covenant:
(a) solicits or attempts to induce any Client or
prospective Client to withdraw, curtail, divert, or cancel its
business or any agreements with the Company or its affiliates;
(b) solicits or attempts to induce any employee of the
Company or its affiliates to terminate his or her employment
therewith;
(c) solicits or attempts to induce any independent
contractor providing services on behalf of the Company or its
affiliates to terminate his or her business relationship
therewith;
(d) develops any materials utilizing the confidential
information of the Company or its affiliates, except for the
benefit of the Company or its affiliates, but only if such
information is not a matter of public knowledge; or
(e) intentionally or knowingly disrupts the Company's
or its affiliates' existing business relationships.
8. Remedies.
Without limiting any other rights of the Company, in
the event of a breach or threatened breach by Executive of any
provision in Paragraphs 6 or 7 hereof (including Exhibit A), the
Company shall be entitled to (i) relief by temporary restraining
order, temporary injunction, permanent injunction or otherwise,
as issued by a court of law or equity, (ii) recovery of all
reasonable attorneys' fees and costs incurred by the Company in
obtaining such relief, and (iii) any other legal and equitable
relief to which it may be entitled, including any and all
monetary damages which the Company may incur as a result of said
breach or threatened breach or violation. Subject to applicable
rules prohibiting the splitting of claims, and requiring the
aggregation of known causes of action, (a) the Company may pursue
any remedy available to it, including declaratory relief,
concurrently or consecutively in any order as to any breach,
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violation, or threatened breach or violation, and the pursuit of
one such remedy at any time will not be deemed an election of
remedies or waiver of the right to pursue any other remedy, and
(b) the Company has the right to pursue partial enforcement
and/or to seek declaratory relief regarding the enforceable scope
of this Agreement without penalty and without waiving the
Company's right to pursue any other available remedy subsequent
to or concurrently with declaratory relief. The provisions of
this Paragraph 8 shall not in any manner limit the rights and
remedies available to the Company for any breach of the terms of
this Agreement.
9. Successors; Binding Agreement.
(a) The Company shall require any successor
(whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company, by agreement in form
and substance satisfactory to the Executive, to expressly assume
and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to
perform this Agreement if no such succession had taken place.
Failure of the Company to obtain such agreement prior to a date
that is on or before the date of the Change of Control shall be a
breach of this Agreement and shall entitle the Executive to
compensation from the Company in the same amount and on the same
terms as he would receive hereunder if he were to terminate
his employment for Good Reason, except that for purposes of
implementing the foregoing, the date on which such Change of
Control becomes effective shall be deemed the Termination
Date. As used in this Agreement, "Company" shall mean the
Company as previously defined and any successor to its business
and/or assets as aforesaid, which successor executes and
delivers the agreement provided for in this Section 9 or which
otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
(b) This Agreement and all rights of the Executive
hereunder shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributes, devisees and
legatees. If the Executive should die after his termination
while any amounts would still be payable to him hereunder
if he had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms
of this Agreement to the Executive's devisee, legatee, or
other designee or, if there be no designee, to the
Executive's estate.
10. Nonalienation of Benefits. Except as may be contrary
to applicable law, no sale, transfer, alienation, assignment,
pledge, collateralization or attachment of any benefits under
this Agreement shall be valid or recognized by the Company.
11. Jurisdiction; Arbitration
(a) EVERY DISPUTE ARISING BETWEEN THE PARTIES PURSUANT TO
THIS AGREEMENT, THE NON-DISCLOSURE AND INVENTION AGREEMENT OR THE
PRIOR EMPLOYMENT AGREEMENT (OTHER THAN ONE IN WHICH A PARTY IS
SEEKING INJUNCTIVE RELIEF THEREUNDER, INCLUDING ALL CLAIMS AND
MATTERS ANCILLARY THERETO, WHICH SHALL BE HEARD BY A COURT OF
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XXXXXXXXX XXXXXXXXXXXX XX XXXXXX, XXXXX) SHALL BE SOLELY AND
FINALLY SETTLED BY ARBITRATION CONDUCTED IN DALLAS, TEXAS IN
ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES (THE "RULES") OF
THE AMERICAN ARBITRATION ASSOCIATION (THE "AAA"). THE PARTY
REQUESTING ARBITRATION (THE "PETITIONER") SHALL SERVE UP THE
OTHER PARTY (THE "RESPONDENT") A WRITTEN DEMAND FOR ARBITRATION
STATING WHAT THE PETITIONER CONTENDS IS THE SUBSTANCE OF THE
CONTROVERSY, DISPUTE OR CLAIM; THE DEMAND MADE BY THE PETITIONER;
AND THE NAME AND ADDRESS OF THE ARBITRATOR APPOINTED BY IT. THE
RESPONDENT SHALL, WITHIN FIFTEEN (15) DAYS AFTER RECEIPT OF SUCH
DEMAND, APPOINT AN ARBITRATOR AND NOTIFY THE PETITIONER OF HIS
APPOINTMENT, AND THE TWO ARBITRATORS SHALL APPOINT A THIRD
ARBITRATOR. IF THE ARBITRATORS APPOINTED BY THE PARTIES FAIL TO
APPOINT A THIRD ARBITRATOR WITHIN FIVE (5) DAYS OF THE
APPOINTMENT OF THE SECOND ARBITRATOR, EITHER ARBITRATOR OR ANY
PARTY, MAY APPLY TO THE AAA FOR APPOINTMENT OF THE THIRD
ARBITRATOR IN ACCORDANCE WITH THE RULES. SHOULD THE RESPONDENT
FAIL OR REFUSE TO APPOINT AN ARBITRATOR WITHIN FIFTEEN (15) DAYS,
THE SINGLE ARBITRATOR SHALL APPLY TO THE AAA FOR APPOINTMENT OF
TWO ARBITRATORS IN ACCORDANCE WITH THE PROVISIONS OF THE RULES.
THE PARTIES SHALL ABIDE BY ALL AWARDS AND DECISIONS MADE BY ANY
TWO OF THE THREE ARBITRATORS AND SAID DECISIONS MAY BE ENFORCED
AND EXECUTED UPON IN ANY COURT HAVING JURISDICTION OVER THE
PARTIES AGAINST WHOM ENFORCEMENT OF SUCH AWARD IS SOUGHT. THE
DECISION OR AWARD AGREED TO BY ANY TWO OF THE THREE ARBITRATORS
SHALL INCLUDE, AS PART OF THEIR AWARD, (I) WHAT AMOUNT OF
ADMINISTRATIVE CHARGES, ARBITRATORS' FEES, AND RELATED EXPENSES
OF SUCH ARBITRATION EACH OF THE PARTIES SHALL PAY, (II) WHETHER
AND TO WHAT EXTENT ANY PARTY SHALL BE RESPONSIBLE FOR THE LEGAL
FEES INCURRED BY ANOTHER PARTY INVOLVED IN AN ARBITRATION
HEREUNDER AND (III) WHETHER INTEREST OR SIMILAR CHARGES ARE
EQUITABLE UNDER THE CIRCUMSTANCES AND SHOULD BE ADDED TO THE
AMOUNT OF ANY DAMAGES AWARDED BY THE ARBITRATORS TO A PARTY
INVOLVED IN THE ARBITRATION.
(b) THE ARBITRATOR OR ARBITRATORS SHALL NOT BE EMPOWERED TO
AWARD DAMAGES IN EXCESS OF COMPENSATORY DAMAGES (WHICH
COMPENSATORY DAMAGES INCLUDE REASONABLE ATTORNEYS FEES AND EXPERT
WITNESS FEES), AND EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT
TO RECOVER SUCH DAMAGES (INCLUDING, WITHOUT LIMITATION, PUNITIVE
DAMAGES) IN ANY FORUM.
12. Modification. No modification or amendment of this
Agreement shall be valid unless in writing and signed by or
on behalf of the parties hereto.
13. Withholding. The compensation provided to the
Executive pursuant to this Agreement shall be subject to any
withholdings and deductions required by any applicable income
and employment federal, state and local tax laws. In the event
the Company fails to
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withhold such sums for any reason, it may require the Executive
to promptly remit to the Company sufficient cash to satisfy
applicable income and employment withholding taxes.
14. Notices. Any notice or request herein required or
permitted to be given to either party hereunder shall be given in
writing and shall be personally delivered or sent to such party
by prepaid mail at the address of such party set forth below or
at such other address as such party may designate by written
communication to the other parties to this Agreement:
If to Executive: Xxxxx X. Xxxx
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Telefax: (000) 000-0000
If to the Company: Ascendant Solutions, Inc.
Galleria North, Tower II
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Chairman
Telefax: (469) -374-6295
Each notice given in accordance with this paragraph shall be
deemed to have been given, if personally delivered, on the date
personally delivered or, if mailed, on the fifth day following
the day on which it is deposited in the United States mail,
certified mail, return receipt requested, with postage prepaid.
15. Headings. The headings of the paragraphs of this
Agreement have been inserted for convenience of reference only
and shall in no way restrict or modify any of the terms of
provisions hereof.
16. Severability. If any provision of this Agreement is
held to be illegal, invalid, or unenforceable under present or
future laws effective during the term hereof, such provision
shall be fully severable and this Agreement shall be construed
and enforced as if such illegal, invalid, or unenforceable
provision had never comprised a part of this Agreement; and the
remaining provisions of this Agreement shall remain in full force
and effect and shall not be affected by the illegal, invalid, or
unenforceable provision or by its severance from this Agreement.
Furthermore, in lieu of each such illegal, invalid, or
unenforceable provision, there shall be added automatically as a
part of this Agreement a provision as similar in effect thereto
as may be possible and yet be legal, valid, and enforceable.
17. Entire Agreement; Survival. Except for the Non-
Disclosure and Invention Agreement attached hereto as Exhibit A,
the terms of which shall continue in full force and effect, this
Agreement embodies the entire agreement and understanding between
the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, if any,
relating to the subject matter hereof. The covenants,
agreements, representations and warranties contained in or made
pursuant to this Agreement shall survive Executive's termination
of employment and the termination of this Agreement.
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18. Attorneys' Fees. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, or
to resolve any dispute hereunder, the prevailing party shall be
entitled to reasonable attorneys' fees, costs, and necessary
disbursements in addition to any other relief to which he or it
may be entitled.
19. Waivers. One or more waivers of any covenant, term, or
provision of this Agreement by either party hereto shall not be
construed as a waiver of the breach of any other covenant, term,
or provision. The consent or approval of either party hereto
with respect to the act of the other party hereto shall not be
deemed to waive or render unnecessary consent to or approval of
any subsequent waiver of either party's rights to insist upon
strict compliance with the terms hereof.
20. Governing Law. This Agreement shall be governed in all
respects, including validity, interpretation and effect by the
laws of the State of Texas.
21. Attorney Consultation; Fees. The Executive has had an
opportunity to consult independently with an attorney of his
choosing prior to executing this Agreement, and the Company
agrees to pay up to $5,000.00 of the reasonable and necessary
attorneys' fees actually incurred by Executive in connection with
the negotiation and preparation of this Agreement.
[Signature page follows]
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EXECUTED to be effective as of the date first above written.
ASCENDANT SOLUTIONS, INC.
By: /s/ Xxxxxxxx Xxxxx
-----------------------------
Xxxxxxxx Xxxxx, Chairman
EXECUTIVE:
/s/ Xxxxx X. Xxxx
----------------------------------
Xxxxx X. Xxxx
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