Contract
EXHIBIT 10.11AMENDED AND RESTATED EMPLOYMENT AGREEMENTThis Amended and Restated Employment Agreement (this “Agreement”) is entered into the 11th day of January 2002, by and between Xxxxxx X. Xxxxxx, Xx. (“Employee”) and New Century Equity Holdings Corp., a Delaware corporation (the “Company”). Subject to the conditions set forth below, this Agreement is to be effective as of November 1, 2001. W I T N E S S E T H:WHEREAS, the Company (f/k/a Billing Concepts Corp.) and Employee previously entered into an Amended and Restated Employment Agreement through which Employee was employed as the Company’s Chairman of the Board and Chief Executive Officer; and WHEREAS, the Company and Employee now wish to amend and restate the terms of that prior Employment Agreement so as to set forth the ongoing terms of Employee’s employment with the Company and each party’s duties and obligations to the other on and after the Effective Date of the Amendment and Restatement of the Employment Agreement; NOW, THEREFORE, in consideration of the foregoing premises, the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Prior Agreement is hereby amended and restated in its entirety effective as of November 1, 2001 (the “Effective Date”) to read as follows: ARTICLE 1DUTIES1.1 Duties. During the term of this Agreement, the Company agrees to employ Employee as the Company’s Chairman of the Board and Chief Executive Officer, and Employee agrees to serve the Company in such capacities or in such other capacities (subject to Employee’s termination rights under Section 4.2) as the Board of Directors of the Company may direct, all upon the terms and subject to the conditions set forth in this Agreement. 1.2 Extent of Duties. Employee shall devote sufficient business time, energy and skill to the affairs of the Company as shall reasonably be necessary to discharge Employee’s duties in such capacities. Employee may participate in social, civic, charitable, religious, business, education or professional associations, so long as such participation would not materially detract from Employee’s ability to perform his duties under this Agreement. |
| (a) Automobile Allowance. An automobile to be chosen by the Employee, replaceable every two years and complete payment of all operating, insurance and maintenance expenses attendant thereto. Upon termination of the Company’s obligation to provide this benefit, Employee shall have an option, exercisable within 90 days of such termination, to purchase such automobile at its net book value as shown upon the Company’s records as of the date of termination. |
| (b) Country Club Membership. Payment in full of membership fees and dues to a country club of the Employee’s choice in the area of his employment together with payment or reimbursement of all charges incurred at such club relating to entertainment of business guests. Upon termination of this Agreement under Section 4.1, 4.2 or 4.6 hereof, such country club membership shall be transferred to Employee without further consideration. |
| (c) Health Club Membership. Payment in full of membership fees and dues in a lunch or health club of the Employee’s choice, in the area of his employment together with payment or reimbursement of all charges incurred at such club relating to entertainment of business guests. |
| (d) Life Insurance. New York Life Insurance Policy Numbers 43695145 and 43950342 owned by Frost National Bank, Trustee of the Xxxxxx X. Xxxxxx, Xx. Trust of May 1992 and New York Life Insurance Policy Number 46731037 owned by Frost National Bank, Trustee of the Xxxxxx X. Xxxxxx, Xx. 2000 Trust, in the aggregate amount of approximately $5,539,334, insuring the life of Employee. The premiums on the policies owned by Frost National Bank, Trustee of the Xxxxxx X. Xxxxxx, Xx. Trust of May 1992 are to be paid by the Company pursuant to that certain Split Dollar Life Insurance Agreement dated March 16, 1998, as such may have been amended from time to time. The premiums on the policy owned by Frost National Bank, Trustee of the Xxxxxx X. Xxxxxx, Xx. 2000 Trust shall be paid by the Company pursuant to that certain Split Dollar Life Insurance Agreement dated September 6, 2000, as such may have been amended from time to time. Such policies shall be collaterally assigned to the Company to secure the Company’s investment in such policies pursuant to the terms of the referenced Split Dollar Agreements. |
| (e) Medical, Health and Disability Benefits. Employee shall be entitled to receive all of the medical, health and disability benefits that may, from time to time, be provided by the Company to its executive officers. |
| (f) Other Benefits. Employee shall also be entitled to receive any other benefits provided by the Company to all employees of Company as a group, or all executive officers of the Company as a group, including any profit sharing, 401(k) or retirement benefits. |
| (g) Vacation Pay. Employee shall be entitled to an annual vacation as determined in accordance with the prevailing practice and policy of the Company. |
| (h) Holidays.Employee shall be entitled to holidays in accordance with the prevailing practice and policy of the Company. |
| (i) Reimbursement of Expenses. The Company shall reimburse Employee for all expenses reasonably incurred by Employee on behalf of the Company in accordance with the prevailing practice and policy of the Company. |
| (j) Tax Gross Up. The Company shall also provide additional compensation to the Employee in an amount such that after payment by Employee of all taxes on benefits received under Section 3.3(a) through (i) above that Employee retains an amount of such gross up payment equal to the taxes imposed upon said benefits under Sections 3.3(a) through (i) above. |
4.2 Voluntary Termination by Employee for Good Reason. Employee may at any time voluntarily terminate his employment for “good reason” (as defined below) upon 30 days prior written notice thereof to the Company. In the event of such voluntary termination for “good reason,” (a) the Company shall pay Employee, within 15 days of such termination, a lump-sum payment equal to (without discounting to present value) his then effective base salary under Section 3.1 hereof through the expiration of the five-year term then in effect (without giving effect to any further extensions thereof under Article II hereof), (b) the Company shall provide the continued benefit coverage described in Section 4.1 in the event of the Employee’s termination by the Company without cause, and (c) all outstanding stock options held by Employee not already vested and exercisable shall become fully vested and exercisable. For purposes of this Agreement, “good reason” shall mean the occurrence of any of the following events: |
| (a) Removal from the offices Employee holds on the date of this Agreement or a material reduction in Employee’s authority or responsibility, including, without limitation, involuntary removal from the Board of Directors, but not including termination of Employee for “cause”, as defined below; |
| (b) relocation of the Company’s headquarters from Bexar County, Texas; |
| (c) a reduction in the Employee’s then effective base salary under Section 3.1; or |
| (d) The Company otherwise commits a material breach of this Agreement. |
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4.3 Termination by the Company for Cause. The Company may terminate this Agreement at any time if such termination is for “cause” (as defined below), by delivering to Employee written notice describing the cause of termination 30 days before the effective date of such termination and by granting Employee at least 30 days to cure the cause. In the event the employment of Employee is terminated for “cause”, Employee shall be entitled only to the base salary earned pro rata to the date of such termination with no entitlement to any base salary continuation payments or benefits continuation (except as specifically provided by the terms of an employee benefit plan of the Company). Except as otherwise provided in this Agreement, the determination of whether Employee shall be terminated for “cause” shall be made by the Board of Directors of the Company, in the reasonable exercise of its business judgment, and shall be limited to the occurrence of the following events: |
| (a) Conviction of or a plea of nolo contendere to the charge of a felony (which, through lapse of time or otherwise, is not subject to appeal); |
| (b) Willful refusal without proper legal cause to perform, or gross negligence in performing, Employee’s duties and responsibilities; |
| (c) Material breach of fiduciary duty to the Company through the misappropriation of Company funds or property; or |
| (d) The unauthorized absence of Employee from work (other than for sick leave or disability) for a period of 30 working days or more during any period of 45 working days during the term of this Agreement. |
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4.4 Termination Upon Death or Permanent Disability. In the event that Employee dies, this Agreement shall terminate 90 days following the Employee’s death. Likewise, if the Employee becomes unable to perform the essential functions of the position with or without reasonable accommodation, on account of illness, disability, or other reason whatsoever for a period of more than six consecutive or non-consecutive months in any twelve month period, this Agreement shall terminate effective 90 days following such incapacity, and Employee (or his legal representatives) shall be entitled to (a) a lump sum payment equal to (without discounting to present value) his then effective base salary under Section 3.1 hereof for a period of sixty (60) months; (b) the Company shall provide the continued benefit coverage described in Section 4.1 in the event of the Employee’s said disability, and (c) all outstanding stock options held by Employee not already vested and exercisable shall become fully vested and exercisable. 4.5 Voluntary Termination by Employee. Employee may terminate this Agreement at any time upon delivering 30 days’ written notice of resignation to the Company. In the event of such voluntary termination other than for “good reason” (as defined above), Employee shall be entitled to his base salary earned pro rata to the date of his resignation, but no base salary continuation payments or benefits continuation (except as specifically provided by the terms of an employee benefit plan of the Company). On or after the date the Company receives notice of Employee’s resignation, the Company may, at its option, pay Employee his base salary through the effective date of his resignation and terminate his employment immediately. |
4.6 Termination following Change of Control. |
| (a) Notwithstanding anything to the contrary contained herein, should Employee at any time within 24 months of the occurrence of a “change of control” (as defined below) cease to be an employee of the Company (or its successor), by reason of (i) termination by the Company (or its successor) other than for “cause” (following a change of control, “cause” shall be limited to the conviction of or a plea of nolo contendere to the charge of a felony which, through lapse of time or otherwise, is not subject to appeal, or a material breach of fiduciary duty to the Company through the misappropriation of Company funds or property) or (ii) voluntary termination by Employee for “good reason upon change of control” (as defined below), then in any such event, (1) the Company shall pay Employee, within 45 days of the severance of employment described in this Section 4.6, a lump-sum payment equal to (without discounting to present value) his then effective base salary under Section 3.1 hereof through the expiration of the five-year term then in effect (without giving effect to any further extensions thereof under Article II hereof), (2) the Company shall provide the continued benefit coverage described in Section 4.1 in the event of the Employee’s termination by the Company without cause, and (3) all outstanding stock options held by Employee not already vested and exercisable shall become fully vested and exercisable. |
| (b) Employee shall be entitled to an additional payment, to the extent all payments to Employee (whether pursuant to this Agreement or any other agreement whatsoever) in connection with a change of control as defined in this Section 4.6 do not exceed in aggregate, the maximum amount that could be paid to Employee, without triggering an excess parachute payment under Section 280G(b) of the Internal Revenue Code of 1986, as amended (the “Code”), and the resulting excise tax under Section 4999 of the Code, (referred to herein as the “maximum payment amount”) equal to an amount, which when added to the amounts payable to the Employee under paragraph (a) equals the maximum payment amount; it being the express intention of the parties that Employee in all cases (whether through this Agreement or any other agreement whatsoever) receive the maximum payment amount in connection with a change of control without creating an excess parachute payment. If such a payment is required under this paragraph (b) in addition to the amounts set forth in paragraph (a) above, it shall be paid at the time and in the manner set forth under paragraph (a)(1). |
| (c) In determining the amount to be paid to Employee under this Section 4.6, as well as the limitation determined under Section 280G of the Code, (i) no portion of the total payments which Employee has waived in writing prior to the date of the payment of benefits under this Agreement will be taken into account, (ii) no portion of the total payments which nationally recognized tax counsel (whether through consultation or retention of any actuary, consultant or other expert), selected by the Company’s independent auditors and acceptable to Employee, (referred to herein as “Tax Counsel”) determines not to constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code will be taken into account, (iii) no portion of the total payments which Tax Counsel determines to be reasonable compensation for services rendered within the meaning of Section 280G(b)(4) of the Code will be taken into account, and (iv) the value of any non-cash benefit or any deferred payment or benefit included in the total payments will be determined by the Company’s independent auditors in accordance with Sections 280G(d)(3) and (iv) of the Code. |
| (d) As used in this Section, voluntary termination by Employee for “good reason upon change of control” shall mean (i) removal of Employee from the offices Employee holds on the date of this Agreement, (ii) a material reduction in Employee’s authority or responsibility, including, without limitation, involuntary removal from the Board of Directors, (iii) relocation of the Company’s headquarters from Bexar County, Texas, (iv) a reduction in Employee’s then effective base salary under Section 3.1, or (v) the Company otherwise commits a breach of this Agreement. |
| (e) As used in this Agreement, a “change of control” shall be deemed to have occurred if (i) any "Person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), is or becomes a “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than 30% of the combined voting power of the Company’s then outstanding securities, or (ii) at any time during the 24-month period after a tender offer, merger, consolidation, sale of assets or contested election, or any combination of such transactions, at least a majority of the Company’s Board of Directors shall cease to consist of “continuing directors” (meaning directors of the Company who either were directors prior to such transaction or who subsequently became directors and whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least two-thirds of the directors then still in office who were directors prior to such transaction), or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation that would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least 60% of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (iv) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement of sale or disposition by the Company of all or substantially all of the Company’s assets. |
| (f) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company or any of its affiliates to or for the benefit of Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (any such payments or distributions being individually referred to herein as a “Payment”, and any two or more of such payments or distributions being referred to herein as “Payments”), would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest thereon, any penalties, additions to tax, or additional amounts with respect to such excise tax, and any interest in respect of such penalties, additions to tax or additional amounts, being collectively referred herein to as the “Excise Tax”), then Employee shall be entitled to receive an additional payment or payments (individually referred to herein as a “Gross-Up Payment” and any two or more of such additional payments being referred to herein as “Gross-Up Payments”) in an amount such that after payment by Employee of all taxes (as defined in paragraph (p) below) imposed upon the Gross-Up Payment, Employee retains an amount of such Gross-Up Payment equal to the Excise Tax imposed upon the Payments. |
| (g) Subject to the provisions of paragraph (h) through (n) below, any determination (individually, a “Determination”) required to be made under this Section 4.6, including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall initially be made, at the Company’s expense, by Tax Counsel. Tax Counsel shall provide detailed supporting legal authorities, calculations, and documentation both to the Company and Employee within 15 business days of the termination of Employee’s employment, if applicable, or such other time or times as is reasonably requested by the Company or Employee. If Tax Counsel makes the initial Determination that no Excise Tax is payable by Employee with respect to a Payment or Payments, it shall furnish Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to any such Payment or Payments. Employee shall have the right to dispute any Determination (a “Dispute”) within 15 business days after delivery of Tax Counsel’s opinion with respect to such Determination. The Gross-Up Payment, if any, as determined pursuant to such Determination shall, at the Company’s expense, be paid by the Company to Employee within five business days of Employee’s receipt of such Determination. The existence of a Dispute shall not in any way affect Employee’s right to receive the Gross-Up Payment in accordance with such Determination. If there is no Dispute, such Determination shall be binding, final and conclusive upon the Company and Employee, subject in all respects, however, to the provisions of paragraph (h) through (n) below. As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that Gross-Up Payments (or portions thereof) which will not have been made by the Company should have been made (“Underpayment”), and if upon any reasonable written request from Employee or the Company to Tax Counsel, or upon Tax Counsel’s own initiative, Tax Counsel, at the Company’s expense, thereafter determines that Employee is required to make a payment of any Excise Tax or any additional Excise Tax, as the case may be, Tax Counsel shall, at the Company’s expense, determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to Employee. |
| (h) The Company shall defend, hold harmless, and indemnify Employee on a fully grossed-up after tax basis from and against any and all claims, losses, liabilities, obligations, damages, impositions, assessments, demands, judgments, settlements, costs and expenses (including reasonable attorneys’, accountants’, and experts’fees and expenses) with respect to any tax liability of Employee resulting from any Final Determination (as defined in paragraph (o) below) that any Payment is subject to the Excise Tax. |
| (i) If a party hereto receives any written or oral communication with respect to any question, adjustment, assessment or pending or threatened audit, examination, investigation or administrative, court or other proceeding which, if pursued successfully, could result in or give rise to a claim by Employee against the Company under this paragraph (i) (“Claim”), including, but not limited to, a claim for indemnification of Employee by the Company under paragraph (h) above, then such party shall promptly notify the other party hereto in writing of such Claim (“Tax Claim Notice”). |
| (j) If a Claim is asserted against Employee (“Employee Claim”), Employee shall take or cause to be taken such action in connection with contesting such Employee Claim as the Company shall reasonably request in writing from time to time, including the retention of counsel and experts as are reasonably designated by the Company (it being understood and agreed by the parties hereto that the terms of any such retention shall expressly provide that the Company shall be solely responsible for the payment of any and all fees and disbursements of such counsel and any experts) and the execution of powers of attorney, provided that: |
| (i) within 30 calendar days after the Company receives or delivers, as the case may be, the Tax Claim Notice relating to such Employee Claim (or such earlier date that any payment of the taxes claimed is due from Employee, but in no event sooner than five calendar days after the Company receives or delivers such Tax Claim Notice), the Company shall have notified Employee in writing (“Election Notice”) that the Company does not dispute its obligations (including, but not limited to, its indemnity obligations) under this Agreement and that the Company elects to contest, and to control the defense or prosecution of, such Employee Claim at the Company’s sole risk and sole cost and expense; and |
| (ii) the Company shall have advanced to Employee on an interest-free basis, the total amount of the tax claimed in order for Employee, at the Company’s request, to pay or cause to be paid the tax claimed, file a claim for refund of such tax and, subject to the provisions of the last sentence of paragraph (l) below, xxx for a refund of such tax if such claim for refund is disallowed by the appropriate taxing authority (it being understood and agreed by the parties hereto that the Company shall only be entitled to xxx for a refund and the Company shall not be entitled to initiate any proceeding in, for example, United States Tax Court) and shall indemnify and hold Employee harmless, on a fully grossed-up after tax basis, from any tax imposed with respect to such advance or with respect to any imputed income with respect to such advance; and |
| (iii) the Company shall reimburse Employee for any and all costs and expenses resulting from any such request by the Company and shall indemnify and hold Employee harmless, on fully grossed-up after-tax basis, from any tax imposed as a result of such reimbursement. |
| (k) Subject to the provisions of paragraph (j) above, the Company shall have the right to defend or prosecute, at the sole cost, expense and risk of the Company, such Employee Claim by all appropriate proceedings, which proceedings shall be defended or prosecuted diligently by the Company to a Final Determination; provided, however, that (i) the Company shall not, without Employee’s prior written consent, enter into any compromise or settlement of such Employee Claim that would adversely affect Employee, (ii) any request from the Company to Employee regarding any extension of the statute of limitations relating to assessment, payment, or collection of taxes for the taxable year of Employee with respect to which the contested issues involved in, and amount of, the Employee Claim relate is limited solely to such contested issues and amount, and (iii) the Company’s control of any contest or proceeding shall be limited to issues with respect to the Employee Claim and Employee shall be entitled to settle or contest, in his sole and absolute discretion, any other issue raised by the Internal Revenue Service or any other taxing authority. So long as the Company is diligently defending or prosecuting such Employee Claim, Employee shall provide or cause to be provided to the Company any information reasonably requested by the Company that relates to such Employee Claim, and shall otherwise cooperate with the Company and its representatives in good faith in order to contest effectively such Employee Claim. The Company shall keep Employee informed of all developments and events relating to any such Employee Claim (including, without limitation, providing to Employee copies of all written materials pertaining to any such Employee Claim), and Employee or his authorized representatives shall be entitled, at Employee’s expense, to participate in all conferences, meetings and proceedings relating to any such Employee Claim. |
| (l) If, after actual receipt by Employee of an amount of a tax claimed (pursuant to an Employee Claim) that has been advanced by the Company pursuant to paragraph (j)(ii) above, the extent of the liability of the Company hereunder with respect to such tax claimed has been established by a Final Determination, Employee shall promptly pay or cause to be paid to the Company any refund actually received by, or actually credited to, Employee with respect to such tax (together with any interest paid or credited thereon by the taxing authority and any recovery of legal fees from such taxing authority related thereto), except to the extent that any amounts are then due and payable by the Company to Employee, whether under the provisions of this Agreement or otherwise. If, after the receipt by Employee of an amount advanced by the Company pursuant to paragraph (j)(ii) above, a determination is made by the Internal Revenue Service or other appropriate taxing authority that Employee shall not be entitled to any refund with respect to such tax claimed and the Company does not notify Employee in writing of its intent to contest such denial of refund prior to the expiration of thirty days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of any Gross-Up Payments and other payments required to be paid hereunder. |
| (m) With respect to any Employee Claim, if the Company fails to deliver an Election Notice to Employee within the period provided in paragraph (j)(i) above or, after delivery of such Election Notice, the Company fails to comply with the provisions of paragraph (j)(ii) above and (iii) and (k) above, then Employee shall at any time thereafter have the right (but not the obligation), at his election and in his sole and absolute discretion, to defend or prosecute, at the sole cost, expense and risk of the Company, such Employee Claim. Employee shall have full control of such defense or prosecution and such proceedings, including any settlement or compromise thereof. If requested by Employee, the Company shall cooperate, and shall cause its affiliates to cooperate, in good faith with Employee and his authorized representatives in order to contest effectively such Employee Claim. The Company may attend, but not participate in or control, any defense, prosecution, settlement or compromise of any Employee Claim controlled by Employee pursuant to this paragraph (m) and shall bear its own costs and expenses with respect thereto. In the case of any Employee Claim that is defended or prosecuted by Employee, Employee shall, from time to time, be entitled to current payment, on a fully grossed-up after tax basis, from the Company with respect to costs and expenses incurred by Employee in connection with such defense or prosecution. |
| (n) In the case of any Employee Claim that is defended or prosecuted to a Final Determination pursuant to the terms of this paragraph (n), the Company shall pay, on a fully grossed-up after tax basis, to Employee in immediately available funds the full amount of any taxes arising or resulting from or incurred in connection with such Employee Claim that have not theretofore been paid by the Company to Employee, together with the costs and expenses, on a fully grossed-up after tax basis, incurred in connection therewith that have not theretofore been paid by the Company to Employee, within ten calendar days after such Final Determination. In the case of any Employee Claim not covered by the preceding sentence, the Company shall pay, on a fully grossed-up after tax basis, to Employee in immediately available funds the full amount of any taxes arising or resulting from or incurred in connection with such Employee Claim at least ten calendar days before the date payment of such taxes is due from Employee, except where payment of such taxes is sooner required under the provisions of this paragraph (n), in which case payment of such taxes (and payment, on a fully grossed-up after tax basis, of any costs and expenses required to be paid under this paragraph (n) shall be made within the time and in the manner otherwise provided in this paragraph (n). |
| (o) For purposes of this Agreement, the term “Final Determination” shall mean (i) a decision, judgment, decree or other order by a court or other tribunal with appropriate jurisdiction, which has become final and non-appealable; (ii) a final and binding settlement or compromise with an administrative agency with appropriate jurisdiction, including, but not limited to, a closing agreement under Section 7121 of the Code; (iii) any disallowance of a claim for refund or credit in respect to an overpayment of tax unless a suit is filed on a timely basis; or (iv) any final disposition by reason of the expiration of all applicable statutes of limitations. |
| (p) For purposes of this Agreement, the terms “tax” and “taxes” mean any and all taxes of any kind whatsoever (including, but not limited to, any and all Excise Taxes, income taxes, and employment taxes), together with any interest thereon, any penalties, additions to tax, or additional amounts with respect to such taxes and any interest in respect of such penalties, additions to tax, or additional amounts. |
| (q) For purposes of this Agreement, the terms “affiliate” and “affiliates” mean, when used with respect to any entity, individual, or other person, any other entity, individual, or other person which, directly or indirectly, through one or more intermediaries controls, or is controlled by, or is under common control with such entity, individual or person. The term “control” and derivations thereof when used in the immediately preceding sentence means the ownership, directly or indirectly, of 50% or more of the voting securities of an entity or other person or possessing the power to direct or cause the direction of the management and policies of such entity or other person, whether through the ownership of voting securities, by contract or otherwise. |
| (r) The Company shall defend, hold harmless, and indemnify Employee on a fully grossed-up after tax basis from and against any and all costs and expenses (including reasonable attorneys’, accountants’and experts’fees and expenses) incurred by Employee from time to time as a result of any contest (regardless of the outcome) by the Company or others contesting the validity or enforcement of, or liability under, any term or provision of this Agreement, plus in each case interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of the Code. |
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4.7 Exclusivity of Termination Provisions. The termination provisions of this Agreement regarding the parties’ respective obligations in the event Employee’s employment is terminated, are intended to be exclusive and in lieu of any other rights or remedies to which Employee or the Company may otherwise be entitled at law, in equity or otherwise. It is also agreed that, although the personnel policies and fringe benefit programs of the Company may be unilaterally modified from time to time, the termination provisions of this Agreement are not subject to modification, whether orally, impliedly or in writing, unless any such modification is mutually agreed upon and signed by the parties. |
5.4 Noncompetition Covenants Independent. The covenants of the Employee contained in Section 5.2 will be construed as independent of any other provision in this Agreement; and the existence of any claim or cause of action by the Employee against the Company will not constitute a defense to the enforcement by the Company of said covenants. The Employee understands that the covenants contained in Section 5.2 are essential elements of the transaction contemplated by this Agreement and, but for the agreement of the Employee to Section 5.2, the Company would not have agreed to enter into such transaction. The Employee has been advised to consult with counsel in order to be informed in all respects concerning the reasonableness and propriety of Section 5.2 and its provisions with specific regard to the nature of the business conducted by the Company and the Employee acknowledges that Section 5.2 and its provisions are reasonable in all respects. 5.5 Cooperation. In the event of termination, and regardless of the reason for such termination, Employee agrees to cooperate with the Company and its representatives by responding to questions, attending meetings, depositions, administrative proceedings and court hearings, executing documents and cooperating with the Company and its legal counsel with respect to issues, claims, litigation or administrative proceedings of which Employee has personal or corporate knowledge. Employee further agrees to maintain in strict confidence any information or knowledge Employee has regarding current or future claims, litigation or administrative proceedings involving the Company (or any of its subsidiaries). Employee agrees that any communication with a party adverse to the Company, or with a representative, agent or counsel for such adverse party, relating to any claim, litigation or administrative proceeding, shall be solely and exclusively through counsel for the Company. 5.6 Remedies. In the event of a breach or threatened breach by the Employee of any of the provisions of Sections 5.1, 5.2 or 5.5, the Company shall be entitled to a temporary restraining order and an injunctive restraining the Employee from the commission of such breach. Nothing herein shall be construed as prohibiting the Company from pursuing any other remedies available to it for such breach or threatened breach, including the recovery of money damages. ARTICLE 6ARBITRATIONExcept for the provisions of Sections 5.1, 5.2 and 5.5 dealing with issues of nondisclosure, noncompetition and cooperation, with respect to which the Company reserves the right to petition a court directly for injunction or other relief, any controversy of any nature whatsoever, including but not limited to tort claims or contract disputes, between the parties to this Agreement or between the Employee, his heirs, executors, administrators, legal representatives, successors, and assigns and the Company and its affiliates, arising out of or related to the Employee’s employment with the Company, any resignation from or termination of such employment and/or the terms and conditions of this Agreement, including the implementation, applicability and interpretation thereof, shall, upon the written request of one party served upon the other, be submitted to and settled by arbitration in accordance with the provisions of the Federal Arbitration Act, 9 U.S.C. §§1-15, as amended. Each of the parties to this Agreement shall appoint one person as an arbitrator to hear and determine such disputes, and if they should be unable to agree, then the two arbitrators shall chose a third arbitrator from a panel made up of experienced arbitrators selected pursuant to the procedures of the American Arbitration Association (the “AAA”) and, once chosen, the third arbitrator’s decision shall be final, binding and conclusive upon the parties to this Agreement. Each party shall be responsible for the fees and expenses of its arbitrator and the fees and expenses of the third arbitrator shall be shared equally by the parties. The terms of the commercial arbitration rules of AAA shall apply except to the extent they conflict with the provisions of this paragraph. It is further agreed that any of the parties hereto may petition the United States District Court for the Western District of Texas, San Antonio Division, for a judgment to be entered upon any award entered through such arbitration proceedings. |
ARTICLE 7MISCELLANEOUS7.1 Complete Agreement. This Agreement constitutes the entire agreement between the parties and cancels and supersedes all other agreements between the parties which may have related to the subject matter contained in this Agreement. 7.2 Modification; Amendment; Waiver. No modification, amendment or waiver of any provisions of this Agreement shall be effective unless approved in writing by both parties. The failure at any time to enforce any of the provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall not affect the right of either party thereafter to enforce each and every provision hereof in accordance with its terms. 7.3 Governing Law; Jurisdiction. This Agreement and performance under it, and all proceedings that may ensue from its breach, shall be construed in accordance with and under the laws of the State of Texas. 7.4 Employee’s Representations. Employee represents and warrants that he is free to enter in to this Agreement and to perform each of the terms and covenants of it. Employee represents and warrants that he is not restricted or prohibited, contractually or otherwise, from entering into and performing this Agreement, and that his execution and performance of this Agreement is not a violation or breach of any other agreement between Employee and any other person or entity. 7.5 Company’s Representations. Company represents and warrants that it is free to enter into this Agreement and to perform each of the terms and covenants of it. Company represents and warrants that it is not restricted or prohibited, contractually or otherwise, from entering into and performing this Agreement and that its execution and performance of this Agreement is not a violation or breach of any other agreements between Company and any other person or entity. The Company represents and warrants that this Agreement is a legal, valid and binding agreement of the Company, enforceable in accordance with its terms. |
7.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. 7.7 Assignment. The rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of their respective successors, assigns, executors, administrators and heirs, provided, however, that neither the Company nor Employee any assign any duties under this Agreement without the prior written consent of the other. 7.8 Limitation. This Agreement shall not confer any right or impose any obligation on the Company to continue the employment of Employee in any capacity, or limit the right of the Company or Employee to terminate Employee’s employment. 7.9 Attorneys’ Fees and Costs. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement or any obligation owing thereunder, venue will be in Bexar County, Texas and the prevailing party shall be entitled to reasonable attorney’s fees and all costs and expenses of suit, including, without limitation, expert and accountant fees, and such other relief which a court of competent jurisdiction may deem appropriate. 7.10 Notices. All notices and other communications under this Agreement shall be in writing and shall be given in person or by either personal delivery, overnight delivery, or first class mail, certified or registered with return receipt requested, with postage or delivery charges prepaid, and shall be deemed to have been duly given when delivered personally, upon actual receipt, and on the next business day when sent via overnight delivery, or three days after mailing first class, certified or registered with return receipt requested, to the respective persons named below: |
| If to the Company: | Corporate Secretary New Century Equity Holdings Corp. 00000 Xxxxxxx Xxxxx Xxx Xxxxxxx, Xxxxx 00000 |
| If to the Employee: | Xxxxxx X. Xxxxxx, Xx. 00000 Xxxxxxx Xxxxx Xxx Xxxxxxx, Xxxxx 00000 |
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IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the day and year indicated above. |
| COMPANY: |
NEW CENTURY EQUITY HOLDINGS CORP. By: /s/ C. XXX XXXXX Name: C. Xxx Xxxxx Title: Chairman, Compensation Committee |
| EMPLOYEE: |
By: /s/ XXXXXX X. XXXXXX, XX. Xxxxxx X. Xxxxxx, Xx. |
