AMENDED AND RESTATED
EMPLOYMENT AND SETTLEMENT AGREEMENT
This Amended and Restated Employment and Settlement Agreement ("Agreement")
is made and entered into by and between Electronic Transmission Corporation, a
Delaware corporation ("ETC"), and L. Xxxx Xxxxxx, an individual residing in
Dallas, Dallas County, Texas ("Xx. Xxxxxx") and shall be deemed effective as of
December 17, 1997 (the "Effective Date").
R E C I T A L S
WHEREAS, ETC and Xx. Xxxxxx entered into that certain Employment and
Settlement Agreement dated effective as of April 1, 1997 (the "Original
Agreement") for the purpose of setting forth the terms and conditions pursuant
to which Xx. Xxxxxx would be retained as an employee of ETC;
WHEREAS, the parties hereto desire to amend and restate the Original
Agreement for the purpose of modifying the terms and conditions pursuant to
which Xx. Xxxxxx will serve as an employee of ETC; and
WHEREAS, the parties hereto hereby agree that the below provisions
supercede all rights and obligations of the parties under the Original
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and confessed, the parties hereto
hereby agree that the Original Agreement shall be amended and restated in its
entirety as follows:
A G R E E M E N T
1. EMPLOYMENT. ETC hereby employs Xx. Xxxxxx, and Xx. Xxxxxx hereby
accepts employment by ETC, for the term and compensation and subject to the
terms and conditions hereinafter set forth.
2. DUTIES OF XX. XXXXXX. Xx. Xxxxxx shall serve in the capacity of
President and Chief Executive Officer of ETC, subject at all times to the terms
and conditions hereof and to the ultimate control and direction of the Board of
Directors of ETC. In that capacity, Xx. Xxxxxx shall have responsibility for
assisting in developing and administering the business of ETC for the long-term
benefit of its stockholders, and in accordance with industry standards. During
the term of this Agreement, Xx. Xxxxxx shall devote his entire business time and
efforts to the performance of the duties and responsibilities contained in this
Agreement.
3. COMPENSATION. As compensation for the services to be rendered to ETC
in the capacities set forth above, ETC shall pay to Xx. Xxxxxx a base salary
(the "Base Salary") at a rate of one hundred twenty thousand and no/100 dollars
($120,000.00) per year payable in accordance with ETC's established payroll
procedures. On or before January 31, 1998, Xx. Xxxxxx shall
AMENDED AND RESTATED EMPLOYMENT AND SETTLEMENT AGREEMENT - Page 1
receive a cash payment equal to the entire balance of all deferred
compensation (the "Deferred Compensation") owed to him under this Agreement,
if any, and under the employment agreement, dated January 2, 1995, which
amount will not exceed $67,132.37 as of the Effective Date.
4. BENEFITS. During the term hereof, Xx. Xxxxxx shall be entitled to
participate in all benefit plans, including stock option plans, provided by ETC
on the same basis as other ETC officers and will additionally receive free
medical insurance. ETC reserves the right to unilaterally modify, amend or
terminate any such plans and programs at any time and from time to time during
the term of this Agreement. Xx. Xxxxxx shall be entitled to six weeks of paid
vacation time each year and will be provided with a monthly car allowance of
$750.00. Xx. Xxxxxx may perform all of his duties while living in Dallas, Texas
and may not be relocated against his will.
5. REIMBURSEMENT OF EXPENSES. ETC shall reimburse Xx. Xxxxxx for all
expenses actually incurred by him in connection with ETC business, provided that
such expenses are reasonable and are in accordance with ETC policies. Such
reimbursement shall be made to Xx. Xxxxxx upon appropriate documentation of such
expenditures in accordance with ETC policies.
6. TERM. The term of this Agreement shall be for the period commencing
on the date first above written and terminating three (3) years thereafter,
subject to earlier termination as provided in Section 7. The term of this
Agreement may be extended, by mutual written consent of ETC and Xx. Xxxxxx. Xx.
Xxxxxx may terminate this Agreement at any time without penalty.
7. TERMINATION. This Agreement and Xx. Xxxxxx'x employment hereunder
shall terminate in the event of Xx. Xxxxxx'x death, with Xx. Xxxxxx'x heirs or
estate being solely entitled to any accrued but unpaid salary and bonus
compensation. If ETC should choose to terminate this Agreement without cause or
if this Agreement is terminated due to the permanent disability of Xx. Xxxxxx
(as determined by the ETC Board of Directors), Xx. Xxxxxx shall be entitled to
receive two years Base Salary as full and final satisfaction of ETC's
obligations hereunder. This Agreement and Xx. Xxxxxx'x employment hereunder may
be terminated by ETC "for cause" at any time the ETC Board of Directors
determines, in the exercise of its good faith judgment, that Xx. Xxxxxx has been
convicted of a felony or has engaged in gross malfeasance or willful misconduct
in performing his duties hereunder and that his continued employment by ETC no
longer is in the best interests of ETC, with Xx. Xxxxxx being solely entitled to
receive any accrued but unpaid salary and bonus compensation.
8. NONCOMPETITION FOR EXISTING CLIENTS AFTER TERM. Xx. Xxxxxx agrees,
for a period of two years after the expiration of the term hereof, not to
solicit, on his own behalf or on behalf of any future employer or other entity,
any business of the same or similar nature to any business conducted by ETC or
any subsidiary or affiliate during the term hereof, from any entity with which
ETC did business, during the term hereof. The parties recognize that this
covenant not to compete for specified customers for a limited time period is an
integral part of this Agreement and that ETC would not enter into this
Agreement, or would do so only on the basis of decreased compensation to Xx.
Xxxxxx, without this covenant.
AMENDED AND RESTATED EMPLOYMENT AND SETTLEMENT AGREEMENT - Page 2
9. NONDISCLOSURE OF INFORMATION AND TRADE SECRETS. During his employment
hereunder and thereafter, Xx. Xxxxxx will not disclose to any person or entity
not directly connected with ETC, or use for his own benefit, any of the trade
secrets, financial information, systems, records or business methods
(collectively, the "Confidential Information") of ETC or its subsidiaries or
affiliates, or any of the business relationships between ETC or its subsidiaries
or affiliates and any of their business partners or customers, unless such
disclosure shall be in direct connection with or a part of Xx. Xxxxxx'x
performance of his duties hereunder. For purposes of this Agreement,
Confidential Information shall not include any information known generally to
the public (other than as a result of an unauthorized disclosure by Xx. Xxxxxx)
or any information of a type not otherwise considered confidential by persons
engaged in the same or similar business or businesses to that conducted by ETC
or any subsidiary or affiliate. Xx. Xxxxxx will also execute an Employee
Non-Disclosure Agreement. The provisions of this Section 9 shall survive and
shall be enforceable beyond the term of this Agreement.
10. NOTICES. All notices hereunder shall be in writing and delivered
personally or sent by U.S. Mail or recognized courier service, addressed as
follows or to such other address for itself as any party may specify hereunder:
If to ETC: Electronic Transmission Corporation
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Mr. W. Xxxx Xxxxxxx, Chief Financial
Officer
If to Xx. Xxxxxx: Mr. L. Xxxx Xxxxxx
0000 Xxxxxxxx
Xxxxxx, Xxxxx 00000
11. ENTIRE AGREEMENT, COUNTERPARTS, GOVERNING LAW. This Agreement
expresses the complete understanding of the parties with respect to the subject
matter hereof, superseding all prior or contemporaneous understandings,
arrangements or agreements of the parties, and may be amended, supplemented or
waived in whole or in part only by an instrument in writing executed by the
parties hereto, save and except for any Non-Disclosure, Non-Compete Agreement
which may be in effect between the parties. However, this Agreement and the
provisions hereof are subject to amendment or modification to comply with any
requirements of duly appointed regulatory bodies. No party may assign this
Agreement or its rights or obligations hereunder without the written consent of
all other parties hereto. Subject to the foregoing, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, administrators, successors and assigns. The invalidity or
unenforceability of any provision or provisions in this Agreement shall not
effect the validity or enforceability of any other provisions in this Agreement,
which shall remain in full force and effect. The headings herein are for
convenience of reference only and shall not affect the meaning or interpretation
of this Agreement. This Agreement may be executed in multiple counterparts, and
by the parties in separate counterparts, each of which shall be an original but
all of which together shall constitute one and the same instrument. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Texas.
AMENDED AND RESTATED EMPLOYMENT AND SETTLEMENT AGREEMENT - Page 3
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be duly
executed and delivered by its authorized representatives, on and effective as of
the Effective Date.
ELECTRONIC TRANSMISSION CORPORATION
By: /s/ W. Xxxx Xxxxxxx
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W. Xxxx Xxxxxxx, Chief Financial Officer
XX. XXXXXX
/s/ L. Xxxx Xxxxxx
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L. Xxxx Xxxxxx
AMENDED AND RESTATED EMPLOYMENT AND SETTLEMENT AGREEMENT - Page 4
