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EXHIBIT 10.5
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into
this 20th day of February, 1996, the Effective Date, by and between Electronic
Transmission Corporation, a Texas corporation ("ETC"), and Xxxxxx X. Xxxxxx
("Xx. Xxxxxx").
ETC desires to employ Xx. Xxxxxx as its EDI Analyst and Xx. Xxxxxx
desires to accept such employment with ETC, all on the following terms and
subject to the following conditions.
NOW, THEREFORE, ETC and Xx. Xxxxxx hereby agree as follows.
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 EDI Analyst. In that capacity, Xx. Xxxxxx shall have responsibility for
developing new business. Xx. Xxxxxx shall not make any agreements,
representations, or performance guarantees, or execute or agree to any
instruments or contracts, on behalf of ETC or any of its subsidiaries or
affiliates without prior consent of ETC's chief executive officer or Board of
Directors. During the term of this Agreement, Xx. Xxxxxx shall devote her
entire business time and efforts to the performance of the duties and
responsibilities contained in this Agreement.
3. Compensation. As compensation for her services rendered to ETC
in the capacities set forth above, ETC shall pay Xx. Xxxxxx at the rate of
forty thousand dollars ($40,000) per year from February 20 to February 29,
1996. From March 1 through March 31, 1996 she will be paid at a rate of sixty
thousand dollars ($60,000) per year. From April 1 through April 30, 1996 she
will be paid at a rate of forty thousand dollars ($40,000) per year. On May 1,
1996, ETC will review her performance for a possible increase in compensation.
ETC shall pay to Xx. Xxxxxx a commission for each calendar month during the
term hereof equal to seven percent (7%) of the gross of revenue realized by ETC
from new accounts credited to Xx. Xxxxxx during such calendar month, calculated
as follows.
Gross income realized by ETC and credited to Xx. Xxxxxx shall be
calculated for each calendar month during the term hereof by (i) determining
the gross income received by ETC in immediately available funds during such
calendar month from commissions, administrative and other fees, fees for
editing and transmitting claims, and other direct sources, from new accounts
credited to Xx. Xxxxxx, and (ii)subtracting any third party subcontractor or
consultant or other third party expenses incurred by ETC with respect to such
new accounts during such calendar
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Employment Agreement Between ETC and Xxxxxx X. Xxxxxx Page 2
month. The percentages specified above of the gross income so calculated for
each calendar month during the term hereof, less any authorized deductions,
shall be paid to Xx. Xxxxxx in the next calendar month. There shall be no
carry-over from one month to the next of any negative net income. Commissions
shall continue for the life of the new accounts unless this agreement is
terminated. In that event, commissions shall be paid on the new accounts for
one year after termination of this agreement. Should this agreement be
terminated without cause by ETC, the liquidated damages shall be payment of
commissions to Xx. Xxxxxx for the remainder of the term of this agreement and
for one year thereafter.
Xx. Xxxxxx shall additionally receive the option to purchase up to
30,000 shares of ETC stock at a price of one dollar ($1.00) per one thousand
(1,000) shares, to be exercised at the rate of 10,000 on February 20, 1997,
10,000 on February 20, 1998, and 10,000 on February 20, 1999. Xx. Xxxxxx must
be an employee of ETC or its successor company on the aforementioned dates to
exercise this option.
Xx. Xxxxxx is also granted an option to purchase 25,000 shares of
post-merger ETC stock at the rate of $1.25 per share. This option will expire
one year after the effective date of this agreement or thirty days after the
aforementioned stock reaches a trade price of $3.00 per share, whichever is
sooner.
4. Benefits. During the term hereof, Xx. Xxxxxx shall be entitled
to medical insurance programs provided by ETC on the same basis as other ETC
employees.
5. Reimbursement of Expenses. ETC shall reimburse Xx. Xxxxxx for
all pre-approved travel and other expenses actually incurred by her 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 February 20, 1996, and ending on December 31, 1999, subject to
earlier termination as provided in Section 7. The term of this Agreement may be
extended beyond December 31, 1999, by mutual consent of ETC and Xx. Xxxxxx.
7. Termination. This Agreement and Xx. Xxxxxx'x employment
hereunder shall terminate in the event of Xx. Xxxxxx'x death or if Xx. Xxxxxx
becomes permanently disabled as determined by the ETC Board of Directors. 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 engaged in gross malfeasance or
willful misconduct in performing her duties hereunder and that her continued
employment by ETC no longer is in the best interests of ETC.
8. Non-Disclosure of Information and Trade Secrets. During her
employment hereunder
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Employment Agreement Between ETC and Xxxxxx X. Xxxxxx Page 3
and thereafter, Xx. Xxxxxx will not disclose to any person or entity not
directly connected with ETC, or use for her own benefit, any of the trade
secrets, financial information, systems, records, or business methods 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 her duties hereunder.
9. 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, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Mr. L. Xxxx Xxxxxx,
Chief Executive Officer
If to Xx. Xxxxxx: Xx. Xxxxxx X. Xxxxxx
0000 Xxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
10. 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. 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 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.
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
duly executed and delivered by its duly authorized representatives, on and
effective as of the Effective Date.
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Employment Agreement Between ETC and Xxxxxx X. Xxxxxx Page 4
ELECTRONIC TRANSMISSION CORPORATION
By: /s/ L. Xxxx Xxxxxx
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L. Xxxx Xxxxxx
Chairman and Chief Executive Officer
XX. XXXXXX
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
