Exhibit 10.41
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of February 1, 2005, by and between
Xxxxxx X. Xxxxx (the "Executive") and Brightstar Information Technology Group,
Inc. and BrightStar Information Technology Services, Inc. (individually and
collectively the "Company").
Section 1. Term of Employment
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(a) Basic Rule. The Company agrees to continue the Executive's employment, and
the Executive agrees to remain in employment with the Company, from the
effective date of this agreement, until the earliest of:
(1) The date of the Executive's death;
(2) December 31, 2005; or
(3) The date when the Executive's employment terminates pursuant to
Subsection (b), (c), (d) or (e) below.
(b) Early Termination or Resignation. The Company may terminate the Executive's
employment at any time and for any reason by giving the Executive 30 days'
advance notice in writing or 30 days payment of Base Compensation in lieu
of notice. The Executive may terminate the Executive's employment for any
reason by giving the Company not less than 30 days' advance notice in
writing.
(c) Termination for Cause. The Company may terminate the Executive's employment
at any time for Cause shown. For all purposes under this Agreement, "Cause"
shall mean (1) a failure by the Executive to substantially perform the
Executive's duties under this Agreement, other than a failure resulting
from the Executive's complete or partial incapacity due to physical or
mental illness or impairment, (2) an intentional act by the Executive that
constitutes gross misconduct and that is materially injurious to the
Company, (3) a breach by the Executive of a material provision of this
Agreement or (4) a material violation of a federal or state law or
regulation applicable to the business of the Company that is materially and
demonstrably injurious to the Company. No act, or failure to act, by the
Executive shall be considered "intentional" unless committed without good
faith and without a reasonable belief that the act or omission was in the
Company's best interest.
(d) Termination for Disability. Not applicable.
(e) Termination of Agreement. Not applicable.
(f) Automatic Renewal. Not applicable.
Section 2. Duties and Scope of Employment
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(a) Position. The Company and each of its subsidiaries agree to employ the
Executive for the term of employment under this Agreement in the position
of President and Chief Executive Officer. Executive shall be given such
duties, responsibilities and authorities as are appropriate to his
position.
(b) Obligations. During the term of employment under this Agreement, the
Executive shall devote such efforts and time to the business and affairs of
the Company as needed in his judgment to carry out his duties and
responsibilities hereunder subject to the overall supervision of the
Company's Board of Directors. The foregoing shall not preclude the
Executive from engaging in appropriate civic, charitable or religious
activities or from devoting a reasonable amount of time to private
investments or from serving on the boards of directors of other entities,
as long as such activities and service do not interfere or conflict with
the Executive's responsibilities to the Company. In addition, the Executive
may undertake, in his complete discretion, other remunerated services
activities for his personal benefit, not inconsistent with his
responsibilities to the Company and BrightStar Technology Services, LLC.
(c) Board of Directors. During the term of employment under this Agreement, the
Executive shall also be appointed to and serve on the Board of Directors of
the Company.
Section 3. Compensation
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(a) Base Compensation. During the term of employment under this Agreement, the
Company agrees to pay the Executive as compensation for services a base
salary at the annual rate of $150,000 until the expiration of this
agreement. Such salary shall be payable in accordance with the standard
payroll procedures of the Company. Once the Company's Compensation/Option
Committee of the Board of Directors has increased such salary, it
thereafter shall not be reduced; provided, however, that if a Change in
Control has not occurred, such salary (including any increases) may be
reduced by the Company if (1) the Executive commits an act or omission that
meets the definition of Cause, as defined in Section 1 (c), or (2) the
Executive and all other executive officers of the Company who are parties
to written employment agreements containing substantially the same
provisions as this Agreement have their salaries (including any increases)
reduced by the same percentage amount for the same time period. The annual
compensation specified in this Section 3, together with any increases in
such compensation that the Compensation/Option Committee of the Board of
Directors may grant from time to time, and together with any reductions
made in accordance with this Section 3, is referred to in this Agreement as
"Base Compensation."
(b) Bonus Compensation. Not applicable.
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(c) Use of Vacation Bank. The Executive's accrued vacation entitlement
("Vacation Bank") shall be based on his base salary at the time the vacation was
earned and accrued on the books of the Company on a FIFO basis and the Company's
accrual shall not be reduced by reason of any subsequent reductions in base
salary. Until January 31, 2005, the Executive was permitted to elect to use
dollars from his Vacation Bank to increase the amount paid as base salary to an
annual rate of $350,000 through January 31, 2005 and/or to fund vacation time
taken at any time until January 31, 2005. The Vacation Bank shall be reduced or
increased by the net use or accrual, respectively, of vacation time using the
annual rate of Base Compensation in effect at the time of the vacation use
through January 31, 2005, at which time the balance of the Vacation Bank shall
remain accrued until paid. In the event of a Qualifying Termination, the
Executive shall receive in cash the balance of such accrued amounts in his
Vacation Bank at the time of the Qualifying Termination, or upon such schedule
as may be agreeable to the Executive and the Company.
Section 4. Company Stock and Stock Options
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(a) Up-Front Stock Grant. Not applicable.
(b) Future Grant of Stock or Options. The Executive may be awarded
restricted stock or stock options as incentive compensation in the
future at the complete discretion of the board.
Section 5. Executive Benefits
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In General. During the term of employment under this Agreement, the Executive
shall be eligible to participate in the executive benefit plans and executive
compensation programs maintained by the Company (except the Company's vacation
program), including (without limitation) savings or profit-sharing plans,
deferred compensation plans, stock option, incentive or other bonus plans, life,
disability, health, accident and other insurance programs and similar plans or
programs, subject in each case to the generally applicable terms and conditions
of the plan or program in question and to the discretion and determinations of
any person, committee or entity administering such plan or program.
Section 6. Business Expenses and Travel
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During the term of employment under this Agreement, the Executive shall be
authorized to incur necessary and reasonable travel, entertainment and other
business expenses in connection with the Executive's duties hereunder. The
Company shall reimburse the Executive for such expenses upon presentation of an
itemized account and appropriate supporting documentation, all in accordance
with generally applicable policies.
Section 7. Involuntary Actual or Constructive Termination Without Cause
--------- or Disability
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Not applicable.
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Section 8. Definition of Change in Control. Not applicable.
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Section 9. Confidential Information
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(a) Acknowledgement. The Company and the Executive acknowledge that the
services to be performed by the Executive under this Agreement are unique
and extraordinary and that, as a result of the Executive's employment, the
Executive will be in a relationship of confidence and trust with the
Company and will come into possession of "Confidential Information" (1)
owned or controlled by the Company, (2) in the possession of the Company
and belonging to third parties or (3) conceived, originated, discovered or
developed, in whole or in part, by the Executive. As used herein
"Confidential Information" includes trade secrets and other confidential or
proprietary business, technical, personnel or financial information,
whether or not the Executive's work product, in written, graphic, oral or
other tangible or intangible forms, including but not limited to
specifications, samples, records, data, computer programs, drawings,
diagrams, models, customer names, ID's or e-mail addresses, business or
marketing plans, studies, analyses, projections and reports, communications
by or to attorneys (including attorney-client privileged communications),
memos and other materials prepared by attorneys or under their direction
(including attorney work product), and software systems and processes. Any
information that is not readily available to the public shall be considered
to be a trade secret and confidential and proprietary, even if it is not
specifically marked as such, unless the Company advises the Executive
otherwise in writing.
(b) Nondisclosure. The Executive agrees that the Executive will not, without
the prior written consent of the Company, directly or indirectly use or
disclose Confidential Information to any person, during or after the
Executive's employment, except as may be necessary in the ordinary course
of performing the Executive's duties under this Agreement. The Executive
will keep the Confidential Information in strictest confidence and trust.
This Section 9 shall apply indefinitely, both during and after the term of
this Agreement.
(c) Surrender Upon Termination. The Executive agrees that in the event of the
termination of the Executive's employment for any reason, the Executive
will immediately deliver to the Company all property belonging to the
Company, including all documents and materials of any nature pertaining to
the Executive's work with the Company, and will not take with the Executive
any documents or materials of any description, or any reproduction thereof
of any description, containing or pertaining to any Confidential
Information. It is understood that the Executive is free to use information
that is in the public domain (not as a result of a breach of this
Agreement). Executive will be allowed to purchase his laptop and PDA at the
Company's net book value.
Section 10. Successors
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(a) Company's Successors. The Company shall require any successor (whether
direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company's
business and/or assets, by an agreement in substance and form satisfactory
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to the Executive, to assume this Agreement and to agree expressly to
perform this Agreement in the same manner and to the same extent as the
Company would be required to perform it in the absence of a succession. The
Company's failure to obtain such agreement prior to the effectiveness of a
succession shall be a breach of this Agreement and shall entitle the
Executive to all of the compensation and benefits to which the Executive
would have been entitled hereunder if the Company had involuntarily
terminated the Executive's employment without Cause or Disability, on the
date when such succession becomes effective. For all purposes under this
Agreement, the term "Company" shall include any successor to the Company's
business and/or assets that executes and delivers the assumption agreement
described in this Subsection (a) or that becomes bound by this Agreement by
operation of law.
(b) Executive's Successors. 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, distributees, devisees and legatees.
Section 11. Miscellaneous Provisions
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(a) Waiver. No provision of this Agreement shall be modified, waived or
discharged unless the modification, waiver or discharge is agreed to in
writing and signed by the Executive and by an authorized officer of the
Company (other than the Executive). No waiver by either party of any breach
of, or of compliance with, any condition or provision of this Agreement by
the other party shall be considered a waiver of any other condition or
provision or of the same condition or provision at another time.
(b) Whole Agreement. No agreements, representations or understandings (whether
oral or written and whether express or implied) that are not expressly set
forth in this Agreement have been made or entered into by either party with
respect to the subject matter hereof. In addition, the Executive hereby
acknowledges and agrees that this Agreement supersedes in its entirety any
employment agreement between the Executive and the Company in effect
immediately prior to the effective date of this Agreement. As of the
effective date of this Agreement, such employment agreement shall terminate
without any further obligation by either party thereto, and the Executive
hereby relinquishes any further rights that the Executive may have had
under such prior employment agreement.
(c) Notice. Notices and all other communications contemplated by this Agreement
shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by U.S. registered or certified mail,
return receipt requested and postage prepaid. In the case of the Executive,
mailed notices shall be addressed to the Executive at the home address that
the Executive most recently communicated to the Company in writing. In the
case of the Company, mailed notices shall be addressed to its corporate
headquarters, and all notices shall be directed to the attention of its
Corporate Secretary.
(d) Choice of Law. The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of the State of California,
irrespective of California's choice-of-law principles.
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(e) Severability. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full
force and effect.
(f) Arbitration. Except as otherwise provided in Section 14 and in the
enforcement of Section 15, any dispute or controversy arising out of the
Executive's employment or the termination thereof, including, but not
limited to, any claim of discrimination under state or federal law, shall
be settled exclusively by arbitration in San Francisco, California, in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court
having jurisdiction.
(g) No Assignment of Benefits. The rights of any person to payments or benefits
under this Agreement shall not be made subject to option or assignment,
either by voluntary or involuntary assignment or by operation of law,
including (without limitation) bankruptcy, garnishment, attachment or other
creditor's process, and any action in violation of this Subsection (i)
shall be void.
(h) Employment at Will; Limitation of Remedies. The Company and the Executive
acknowledge that the Executive's employment is at will, as defined under
applicable law. If the Executive's employment terminates for any reason,
the Executive shall not be entitled to any payments, benefits, damages,
awards or compensation other than as provided by this Agreement.
(i) Employment Taxes. All payments made pursuant to this Agreement shall be
subject to withholding of applicable taxes.
(j) Benefit Coverage Non-Additive. In the event that the Executive is entitled
to life insurance and health plan coverage under more than one provision
hereunder, only one provision shall apply, and neither the periods of
coverage nor the amounts of benefits shall be additive.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case
of the Company by its duly authorized officer, as of the day and year first
above written. Executive has consulted (or has had the opportunity to consult)
with his own counsel (who is other than the Company's counsel) prior to
execution of this Agreement.
___________________________________________
Xxxxxx X. Xxxxx
BrightStar Information Technology Group, Inc.
By _______________________________________
Xxxxx Xxxxxx, Corporate Secretary
BrightStar Information Technology Services, Inc.
By _______________________________________
Xxxxx Xxxxxx, Corporate Secretary
Approved:
By the Compensation Committee of the Board
___________________________________________
___________________________________________
___________________________________________
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