EMPLOYMENT AGREEMENT
Exhibit 10.2
THIS EMPLOYMENT AGREEMENT
(this “Agreement”)
is made and entered into as of this 28th day of December, 2010, by and between
Rio Vista GP, LLC, a Delaware limited liability company (the “Company”),
and Xxxxxx X. Xxxxxxxxxx, a Texas resident (“Employee”).
RECITALS:
A. Reference
is hereby made to the Amended and Restated Limited Liability Company Agreement
of the Company dated as of December 16, 2004 (as it may be amended from time to
time, the “LLC
Agreement”). Terms used but not defined herein shall have the
meanings assigned to them in the LLC Agreement.
B. The
Company desires to employ Employee, and Employee desires to be employed by the
Company, on the terms and conditions hereinafter provided.
AGREEMENT:
NOW,
THEREFORE, in consideration of the foregoing, of the mutual promises herein
contained, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound, agree as follows:
1. Term of
Employment. This
Agreement will remain in effect from the date hereof until (i) three years (the
“Initial
Term”), (ii) this Agreement is terminated in accordance with its terms or
renegotiated by the Company and the Employee or (iii) the occurrence of an event
that allows the Company to be dissolved under the LLC Agreement; whichever
occurs first (the “Employment
Period”). Provided that the Agreement has not been terminated
at the expiration of the Initial Term in accordance with the terms, subsequent
to such time, Employee’s employment hereunder shall be automatically continued
for successive additional terms of one year each unless notice of non-renewal is
given by either party no less than 30 days prior to the end of the Initial Term
or any additional term, as applicable.
2. Responsibilities of
Employee.
A. During
the Employment Period, Employee shall serve as Co-President of the
Company. In accepting employment by the Company, Employee shall
undertake and assume the responsibility of performing for and on behalf of the
Company any and all duties of the Co-President and shall have the duties,
functions, responsibilities and authority commensurate with such office as are
from time to time delegated to Employee by the Board of Managers of the Company
(the “Board”).
B. During
the Employment Period, Employee shall devote such portion of his time, skill,
and attention and his best efforts during normal business hours to the business
and affairs of the Company as is necessary, in the best interest of the Company,
to discharge fully and faithfully the duties and responsibilities delegated and
assigned to Employee herein or pursuant hereto.
3. Compensation. As
compensation for the services to be rendered by Employee for the Company under
this Agreement, Employee shall be entitled to the following:
A. The
Company shall pay Employee during the Employment Period an annual salary of
$80,000, which amount may be adjusted upward by the Board, in its sole
discretion, from time to time. Such annual salary shall be payable
periodically for such periods as may be established by the Company for payment
of its employees under its normal payroll practices and shall be subject to
withholding pursuant to Section
8.
B. Employee
may receive such bonuses, commissions or other discretionary compensation
payments, if any, as the Board may determine to award him from time to
time. Any such bonuses, commissions or other discretionary
compensation payments shall be payable to Employee in the manner specified by
the Board at the time any such bonus or other payment is awarded.
4. Expenses. Employee
shall be reimbursed for all reasonable business expenses incurred by him in
connection with or incident to the performance of his duties and
responsibilities hereunder. Such expenses shall be reimbursed to
Employee upon Employee’s submission to the Company of vouchers or expense
statements evidencing such expenses in such form or format as the Company may
reasonably require, subject however, to the Company’s policies relating to
business expenses as in effect from time to time during the Employment
Period.
5. Vacation and Other
Benefits.
A. During
the Employment Period, Employee shall be entitled to five weeks of paid vacation
during each twelve-month period commencing on the date of this
Agreement. Employee shall also be entitled to all paid holidays given
by the Company to its employees. Employee agrees to utilize his
vacation at such time or times as are (i) consistent with the proper performance
of his duties and responsibilities hereunder and (ii) mutually convenient for
the Company and Employee.
B. During
the Employment Period, Employee shall be entitled to participate in all employee
welfare benefit plans, 401(k) plans, and other programs, and arrangements
provided by the Company from time to time to its employees generally, subject to
and on a basis consistent with the terms, conditions, and overall administration
(including eligibility and vesting requirements) of such plans, programs, and
arrangements. In addition to the foregoing, the Company will pay 100%
of the cost to provide the Employee’s, and the Employee’s family and
dependents’, health, disability and dental insurance coverage, as well as the
cost of a life insurance policy covering the Employee in the amount of
[$500,000] with the Employee’s spouse, or other such designee of the Employee’s
choice, named as the beneficiary. Further, Employee shall be entitled
to participate in executive benefit and compensation plans to be established by
the Company, including, but not limited to, stock option plans, incentive
compensation plans, executive vehicle programs and business club reimbursement
plans (collectively “Executive Benefit
Plans”).
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6. Termination of
Employment.
A. Employee’s
employment hereunder shall terminate automatically upon his death.
B. If the
Company determines in good faith that the Disability of Employee has occurred
during the Employment Period, the Company may notify Employee of the Company’s
intention to terminate Employee’s employment hereunder for
Disability. In such event, Employee’s employment hereunder shall
terminate effective on the fifth day of the ninth month following the date such
notice of termination is given to Employee. For purposes of this
Agreement, the “Disability”
of Employee shall be deemed to have occurred if Employee shall have been unable
to perform his duties hereunder on a full-time basis for an aggregate of 90 days
within any given period of 365 consecutive days, (excluding any leaves of
absence approved by the Board and the number of days of accrued vacation of
Employee) as a result of his physical or mental incapacity; provided that, if
Employee has a physical or mental impairment that substantially limits one or
more major life activities, as defined under the Americans with Disabilities
Act, the Company may extend the 90-day period to reasonably accommodate
Employee’s impairment.
C. The
Company may terminate Employee’s employment hereunder at any time for
Cause. For purposes of this Agreement, “Cause”
shall mean any of the following: (i) the breach by Employee of his
duties as an employee of the Company, which breach is materially detrimental to
the Company, monetarily or otherwise, (ii) the failure of Employee to comply in
any material respect with any written or oral direction of the Board of Managers
which reasonably relates to the performance of his duties that he is physically
able to perform and which would not require him to perform an illegal act or
breach any agreement to which the Company is a party, (iii) the failure of
Employee to substantially perform his duties as an employee (other than such
failure resulting from illness of injury to Employee or Employee’s physical or
mental capacity), after demand for substantial performance is delivered by the
Company to Employee that specifically identifies the manner in which the Company
believes that Employee has not substantially performed his duties, (iv) the
commission by Employee of any criminal act that constitutes a felony or involves
fraud, dishonesty, or moral turpitude, (v) Employee’s failure to render the
services to the Company as contemplated under this Agreement as a result of
alcohol, drug or other similar addiction, (vi) the willful, material violation
by Employee of any employer policies of the Company, and its Affiliates, and
(viii) the material breach by Employee of any of his material covenants and
agreements contained in this Agreement.
D. The
Company may terminate Employee’s employment hereunder at any time without Cause
upon 30 days advance notice to Employee.
E. Employee
may terminate his employment hereunder at any time for Good Reason or without
Good Reason upon 30 days advance notice to the Company. For purposes
of this Agreement, “Good
Reason” means (i) a Change in Control of the Company (as hereinafter
defined), (ii) the Company’s failure to timely pay any amount due to Employee
under this Agreement, (iii) a requirement (without Employee’s consent) that
Employee perform his duties at a location other than the Dallas, Texas
metropolitan area for any material period of time, or (iv) the assignment by the
Board to Employee of any duties or responsibilities that are inconsistent in any
material respect with his status, title, and position, and with respect to those
matters described in clauses (ii) through (iv) if the Company fails to cure such
matter within 30 days after notice from Employee. “Change in
Control” means any transaction or series of transactions resulting in any
person or entity, that does not currently have control, obtaining voting control
of the Company’s outstanding securities or the board of managers of the
Company.
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F. In the
event of termination of Employee’s employment hereunder (for any reason other
than the death of Employee), Employee agrees that if at such time he is a
manager or officer of the Company or any of its subsidiaries, he will promptly
deliver to the Company his written resignation from all such positions, such
resignation to be effective as of the date of termination.
7. Obligations of Company Upon
Termination of Employment.
A. If
Employee’s employment hereunder is terminated pursuant to Sections 6.B or 6.C, or if Employee
terminates his employment without Good Reason, the Company shall pay to
Employee, on the 30th day following the date of such termination (the “Termination
Date”), (i) any accrued but unpaid base salary provided for in Section 3.A hereof
for services rendered through the Termination Date, (ii) any accrued but unpaid
expenses required to be reimbursed under Section 4 and (iii)
any vacation accrued to the Termination Date.
B. If
Employee’s employment hereunder is terminated by the Company (other than for
death or Disability or for Cause in accordance with Section
6.C), for any reason without Cause, by Employee for Good Reason, or
if the Company in accordance with Section 1, gives written notice of non-renewal
of this Agreement; the Company shall pay to Employee in a lump sum in cash no
later than the 30th day after the Termination Date the aggregate of the
following: (A) any accrued but unpaid base salary provided for in Section 3.A hereof
for services rendered through the Termination Date; (B) any accrued but unpaid
expenses required to be reimbursed under Section 4; (C) any
vacation accrued to the Termination Date; (D) all bonuses, commissions and/or
incentive compensation payments awarded to the Employee by the Company on or
before the Termination Date, which shall become fully vested and non-forfeitable
as of the Termination Date, (E) severance pay in an amount equal to thirty-six
(36) months times the Employee’s current base monthly
salary. Further, Employee shall become fully vested under any
employee benefit plans (including 401(k) plans) and Executive Benefit Plans
(including stock options) which contain vesting provisions and Employee shall be
further entitled to receive (a) for a period of twenty-four (24)
months following the Termination Date, for both the Employee and his dependents,
100% of the cost of health, disability, dental and life insurance coverage
identical to the benefits to those which the Employee and his dependents
received immediately prior to the Termination Date; and (b) all benefits accrued
by Employee as of the Termination Date under all qualified and nonqualified
retirement, pension, profit sharing and Executive Benefit Plans of the Company
in such manner and at such time as are provided under the terms of such
plans.
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8. Withholding
Taxes. The
Company shall withhold from any payments to be made to Employee hereunder such
amounts (including social security contributions and federal income taxes) as
shall be required by federal, state, and local withholding tax
laws.
9. Indemnity. As
of the date Employee was first employed by the Company and at all times
thereafter, the Company shall to the maximum extent allowed by law protect,
defend, indemnify and hold harmless the Employee against all claims, actions,
lawsuits, judgments, penalties, fines, settlements and reasonable expenses that
are filed, pursued, or otherwise sought by third parties, as applicable, in any
matter resulting from or relating to the performance of the Employee’s duties to
the Company or the fact that the Employee is or was an employee of the Company
or is or was serving at the request of the Company, as a director, officer,
member, employee or agent of another corporation or a partnership, joint
venture, trust or other enterprise. To the same extent, the Company
will pay, and subject to any legal limitations, advance all expenses, including
reasonable attorney fees and costs actually and necessarily incurred by Employee
in connection with the defense of any action, suit or proceeding and in
connection with any appeal, which has been brought against Employee by reason of
the Employee’s service as an officer, agent or director of the
Company.
10. Attorneys’ Fees and
Costs. In
the event there is any litigation between the parties hereto with respect to
this Agreement, the prevailing party in such litigation shall be entitled to
recover all attorneys’ fees and costs incurred by such party in connection with
such litigation.
11. Notices. All
notices, requests, or consents provided for or permitted to be given under this
Agreement must be in writing and must be given either by depositing that writing
in the United States mail, addressed to the recipient, postage paid, and
registered or certified with return receipt requested or by delivering that
writing to the recipient in person, by courier, by electronic transmission, or
by facsimile transmission; and a notice, request, or consent given under this
Agreement is effective on receipt by the person to receive it. All notices,
requests, and consents must be sent to or made at the addresses given
below:
If to the
Company, at:
Rio Vista
GP, LLC
0000 X. Xxxxxxx
Xxxxxxxxxx
Xxxxx 0000
Xxxxxx,
XX 00000
Attn: Co-President
If to the Employee
at:
Xxxxxx X. Xxxxxxxxxx
0000 X. Xxxxxxx
Xxxxxxxxxx
Xxxxx 0000
Xxxxxx,
XX 00000
Or to
such other address as hereafter shall be furnished as provided in this Section
10 by either of the parties hereto to the other party hereto.
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12. Governing
Law. It
is understood and agreed that the construction and interpretation of this
Agreement shall at all times and in all respects be governed by the laws of the
State in which Employee resides.
13. Dispute
Resolution. Employee
and the Company agree that all disputes and claims of any nature that Employee
may have against the Company or that the Company may have against Employee,
including all federal or state statutory, contractual, and common law claims
arising from, concerning, or relating in any way to their employment
relationship, the terms and conditions of this Agreement, or any termination of
the employment relationship will be resolved in accordance with the dispute
resolution provisions in Section 15.5 of the LLC Agreement.
14. Assistance in
Litigation. During
the Employment Period and for a period of four years thereafter, Employee shall,
upon reasonable notice, furnish such information and proper assistance to the
Company as may reasonably be required by the Company in connection with any
litigation in which the Company, or any of its subsidiaries or Affiliates is, or
may become, a party. The Company shall directly pay or reimburse
Employee for all reasonable out-of-pocket expenses incurred by Employee in
rendering such assistance. The provisions of this Section 13 shall
continue in effect notwithstanding termination of Employee’s employment for any
reason.
15. Severability. The
provisions of this Agreement shall be deemed severable, and the invalidity or
unenforceability of any one or more of the provisions of this Agreement shall
not affect the validity and enforceability of the other provisions.
16. Survival. Neither
the expiration nor the termination of the term of Employee’s employment
hereunder shall impair the rights or obligations of either party hereto which
shall have accrued hereunder prior to such expiration or
termination. The rights and obligations of the parties thereunder,
shall survive the expiration or termination of the term of Employee’s employment
hereunder.
17. Entire
Agreement. This Agreement contains the entire agreement and
understanding by and between the Company and Employee with respect to the
employment of Employee, and no representations, promises, agreements, or
understandings, written or oral, not contained herein shall be of any force or
effect. No waiver of any provision of this Agreement shall be valid
unless it is in writing and signed by the party against whom the waiver is
sought to be enforced. No valid waiver of any provision of this
Agreement at any time shall be deemed a waiver of any other provision of this
Agreement at such time or any other time.
18. Modification. No
amendment, alteration or modification to any of the provisions of this Agreement
shall be valid unless made in writing and signed by both parties.
19. Headings. The
section headings have been inserted for convenience only and are not to be
considered when construing the provisions of this Agreement.
20. Binding Effect.
Assignment; No Third Party Benefit. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, legal representatives, successors, and assigns;
provided, however, that
the duties and responsibilities of Employee hereunder may not be assumed by, or
delegated to, any other person. Nothing in this Agreement, express or
implied, is intended to or shall confer upon any person other than the parties
hereto, and their respective heirs, legal representatives, successors, and
permitted assigns, any rights, benefits, or remedies of any nature whatsoever
under or by reason of this Agreement.
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21. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute but one and
the same instrument.
22. Voluntary
Agreement. Each
party to this Agreement has read and fully understands the terms
and provisions hereof, has had an opportunity to review this Agreement with
legal counsel, has executed this Agreement based upon such party’s own judgment
and advice of counsel (if any), and knowingly, voluntarily, and without duress,
agrees to all of the terms set forth in this Agreement. The parties
have participated jointly in the negotiation and drafting of this
Agreement. If an ambiguity or question of intent or interpretation
arises, this Agreement will be construed as if drafted jointly by the parties
and no presumption or burden of proof will arise favoring or disfavoring any
party because of authorship of any provision of this Agreement.
24. Indemnification. The
Company agrees to indemnify the Employee to the fullest extent permitted by law
and shall maintain directors and officers’ insurance at levels reasonably
satisfactory to the Board.
IN
WITNESS WHEREOF, the Company and Employee have executed this Agreement on the
day and year first above written.
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COMPANY:
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RIO
VISTA GP, LLC
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By:
/s/ Xxxx
Xxxxxxx
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Xxxx Xxxxxxx
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Co-President
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EMPLOYEE:
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/S/ Xxxxxx X.
Xxxxxxxxxx
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XXXXXX
X. XXXXXXXXXX
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