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EXHIBIT 10.2
AGREEMENT
WHEREAS, Xxxx X. XxXxxxx, Xx. (the "Executive") and ENTEX Information
Services, Inc. ("ENTEX") have entered into a Severance Agreement dated as of
August 7, 1994 (the "Severance Agreement"); and
WHEREAS, the Executive has purchased shares of Common Stock of ENTEX
Holdings, Inc. ("Holdings"), the parent of ENTEX, pursuant to a Securities
Purchase Agreement dated as of December 10, 1993 among Holdings and the
individuals listed on Schedule I thereto, including the Executive ("Executive's
Shares"); and
WHEREAS, certain terms of ownership of the Executive's Shares are set
forth in the Stockholders' Agreement dated as of December 10, 1993 (the
"Stockholders' Agreement") and the Amendment to Stockholders' Agreement dated
as of December 1, 1994 (the "1994 Amendment"), both of which agreements are by
and among Dort X. Xxxxxxx III, ENTEX Associates L.P. and the individuals listed
on Schedule A to such agreements, including the Executive; and
WHEREAS, the parties desire to amend the Severance Agreement for the
purpose of providing further financial incentive for the Executive to continue
his employment with ENTEX.
NOW THEREFORE, in consideration of the mutual promises contained herein
the parties agree as follows:
1. If a Severance Event occurs or the Executive's employment by ENTEX is
terminated as a result of his death or Disability prior to a Public Offering or
Change of Control, and Holdings elects, pursuant to the 1994 Amendment, to
repurchase the Executive's Shares, the Executive shall be entitled to receive:
(a) an amount equal to the different between the current Book Value
and current Share Value for such shares as such terms are defined in the
Stockholders' Agreement and 1994 Amendment, and
(b) a tax gross-up for the different between ordinary income tax
treatment and capital gains tax treatment resulting from such repurchase,
computed to put the Executive in the same position he would have been in had he
made a timely IRC Section 83(b) election when he originally purchased the
Executive's Shares.
Such amounts shall be in addition to the Termination Payment.
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2. The terms Severance Event and Termination Payment shall have the
meanings ascribed to them in the Severance Agreement.
3. The terms Public Offering, Change of Control and Disability shall
have the meanings ascribed to them in the Stockholders' Agreement.
4. Except as expressly set forth herein, the Severance Agreement remains
unmodified and in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement this __ day
of April 1996.
ENTEX Information Services, Inc.
By: /s/
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Chairman
ENTEX Holdings, Inc.
By: /s/
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Chairman
/s/ Xxxx X. XxXxxxx, Xx.
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Xxxx X. XxXxxxx, Xx.
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AGREEMENT
This Agreement is entered into as of August 7, 1994 by and between ENTEX
Information Services, inc. ("Entex") and Xxxx X. XxXxxxx, Xx. (the "Executive"),
a key employee of Entex, for the purpose of providing a financial incentive for
the Executive to continue his employment with Entex. To encourage the Executive
to provide continuing services to Entex and to provide for reasonable
compensation in the event the Executive's employment is terminated as a result
of certain circumstances specified herein, the parties agree as follows:
1. TERM OF AGREEMENT
This Agreement shall be in effect from August 7, 1994 until August 6,
2000.
2. TERMINATION PAYMENT
If, during the term of this Agreement, a "Severance Event", as defined
in Paragraph 3, occurs with respect to the Executive, then the Executive
shall be entitled to receive a termination payment from Entex (the
"Termination Payment"). The amount of the Termination Payment shall be
equal to the product of 12 times the Executive's "Target Total Monthly
Compensation." The Target Total Monthly Compensation shall mean the sum of
(i) the Executive's base salary as of date of termination, and (ii) a
monthly pro-rata share of any bonus or variable compensation due to the
Executive from any plan in which the Executive participates. The
Termination Payment shall be made in a lump sum not more than five days
following the effective date of a Severance Event. The Executive shall also
receive the full base salary for the month in which the Severance Event
occurs.
In addition to the Termination Payment, the Executive will be entitled
to continue participation in the Entex health and life insurance plans
subject to the plan provisions in effect at the time of termination. Entex
agrees to pay the COBRA (Consolidated Omnibus Budget Reconciliation Act of
1986) cost for health benefits, and to continue Basic Life Insurance
coverage for 12 months beginning the first of the month following the
effective date of the Severance Event.
3. SEVERANCE EVENTS
The following shall constitute Severance Events:
(a) The termination of the Executive's employment by Entex other
than for "Cause" or as a result of the Executive's death, disability
or voluntary resignation; or
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(b) A "Change in Control" of Entex, the result of which is (i) a
reduction of the Executive's base compensation below the base
compensation in effect immediately preceding the Change of Control; or
(ii) a reduction to a level not materially consistent with that
existing immediately preceding the Change of Control in the level of
authority or scope of the responsibilities of the Executive; or (iii)
a relocation of the office at which the Executive is expected to
perform his responsibilities greater than 35 miles from the location
of the office immediately preceding the Change of Control.
3. MISCELLANEOUS PROVISIONS
3.1 EMPLOYMENT AT WILL
Entex and the Executive acknowledge that the Executive's
employment is at will, as provided by applicable law. If the
Executive's employment terminates for any reason other than a
Severance Event, then the Executive shall only be entitled to such
severance pay and benefits (if any) to which the Executive may be
entitled under Entex's then-existing termination policies and
practices and benefit plans and policies at the time of termination.
3.2 WITHHOLDING TAXES
Any payment or distribution under this Agreement shall be subject
to reduction to the extent required to satisfy any withholding tax
obligation imposed by federal, state, local or foreign law.
3.3 ENTEX SUCCESSORS
This Agreement shall be binding upon and inure to the benefit of
Entex and any successor of Entex (including, without limitation, any
corporation or other entity which directly, or indirectly acquires all
or substantially all of the assets or shares of Entex whether by
merger, consolidation, sale, or otherwise) but shall not otherwise be
assignable by Entex. Entex shall require that any such successor
expressly assume and agree to perform this Agreement in the same
manner and to the same extent that Entex would be required to perform
this Agreement if no succession had taken place.
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4. DEFINITIONS
4.1 "Change of Control" means the transfer of ownership or
control of more than 50% of all of the assets or shares of Entex or
its parent Entex Holdings, Inc., whether by tender offer, merger,
consolidation, sale of assets or contested election or any combination
of the foregoing transactions, to any other person, firm, corporation
or other entity, provided, however, that no Change of Control shall be
deemed to have occurred if ownership or control is acquired by any
entity in which any member or group of members of the current
management of Entex, or its parent Entex Holdings, Inc., as the case
may be, has a controlling participation.
4.2 "Cause" means (i) a willful failure by the Executive to
substantially perform the Executive's duties; or (ii) a willful act by
the Executive which constitutes misconduct and which is materially
injurious to Entex.
IN WITNESS WHEREOF, the parties have executed this Agreement as of this
date first above written.
Entex Information Services, Inc.
By /s/
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Chairman
/s/ Xxxx X. XxXxxxx, Xx.
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Xxxx X. XxXxxxx, Xx.
