EXHIBIT 10.5
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT (this "Agreement") made as of the 15th day of
April, 1998 by and between Versatility Inc., a Delaware corporation (the
"Company"), and Xxxxx X. Xxxxxxxxx (the "Executive").
WHEREAS, the Board of Directors of the Company (the "Board") desires to
set forth the nature and amount of compensation and other benefits to be
provided to Executive and any of the rights of the Executive in the event of his
termination of employment with the Company;
WHEREAS, the Executive is willing to commit himself to continue to
serve the Company, on the terms and conditions herein provided; and
WHEREAS, in order to effect the foregoing, the Company and the
Executive wish to enter into this Agreement under the terms and conditions set
forth below.
NOW, THEREFORE, in consideration of the foregoing, of the mutual
promises and the respective covenants and agreements of the parties herein
contained, the parties hereto intending to be legally bound, hereby agree as
follows:
20. Employment. The Company hereby agrees to continue to employ the
Executive, and the Executive hereby agrees to continue to serve the Company, on
the terms and conditions set forth herein.
21. Term. This Agreement shall continue in effect through December 31,
2003; provided, however, that commencing on January 1, 2003 and each January 1
thereafter, the term of this Agreement shall automatically be extended for one
additional year unless, not later than September 30 of the preceding year, the
Company or the Executive shall have given written notice that such party does
not wish to extend the term of this Agreement; provided, further, if a Change in
Control of the Company shall have occurred during the original or extended term
of this Agreement, the term of this Agreement shall continue in effect for a
period of twenty-four (24) months beyond the month in which such Change in
Control occurred.
22. Position and Duties. The Executive shall serve as Senior Vice
President - Operations of the Company and shall have such responsibilities and
authority as may normally be exercised by a senior vice president of a company.
23. Place of Performance. The Executive shall be based at the current
principal executive offices of the Company in Fairfax, Virginia, or in the
Company's headquarters, provided that such headquarters is not more than 35
miles from the location of the Company's principal executive offices on the date
hereof.
24. Compensation and Related Matters.
(a) Base Salary. During the Executive's employment with the
Company, the Company shall pay to the Executive a salary at a rate of not less
than Two Hundred Thousand Dollars ($200,000) per annum in equal installments as
nearly as practicable on the normal payroll periods for employees of the Company
generally (the "Base Salary"). The Base Salary may be increased from time to
time and, if so increased, shall not thereafter be decreased during the term of
this Agreement.
(b) Stock Options. The Executive shall receive options to
purchase Two Hundred and Eighty Thousand (280,000) shares of the Company's
Common Stock, par value $.01 per share ("Company Shares"), at an exercise price
equal to the lesser of (x) the average of the closing price of the Company
Shares as traded on the NASDAQ for the first five trading days after the
reinstatement of trading for the Company's Common Stock and (y) the lowest per
share purchase price, conversion price or exchange price for the Company's
Common Stock in any equity financing completed by the Company within six (6)
months of the date hereof. The options granted to the Executive pursuant to this
Section shall provide for anti-dilution protection effective through December
31, 1998 to insure the Executive's right to maintain the ratio of Company Shares
subject to such option and shares of Common Stock outstanding.
(c) Bonus. During the Executive's employment with the Company,
the Executive shall be eligible to receive periodic bonuses payable under the
Company's Executive Incentive Compensation Plan, or such successor plan or plans
which provide the Executive substantially the same level of incentive
compensation; provided, however, that the Executive's minimum bonus per annum
shall be equal to at least 50% of Base Salary.
(d) Expenses. During the Executive's employment with the
Company, the Executive shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by the Executive in performing services, including
all expenses of travel and living expenses while away from home on business or
at the request of and in the service of the Company, provided that such expenses
are incurred and accounted for in accordance with the policies and procedures
established by the Company.
(e) Benefits. During the Executive's employment with the
Company, the Company shall maintain in full force and effect, and the Executive
shall be entitled to continue to participate in, all of its employee benefit
plans and arrangements in effect on the date hereof in which the Executive
participates or receives benefits, or plans or arrangements providing the
Executive with at least equivalent benefits thereunder. The Company shall not
make any changes in such plans and arrangements which would adversely affect the
Executive's rights or benefits thereunder, unless such change occurs pursuant to
a program applicable to all officers of the Company and does not result in a
proportionately greater reduction in the rights of or benefits to the Executive
as compared with any other officers of the Company. The
Executive shall be entitled to participate in or receive benefits under any
employee benefit plan or arrangement made available by the Company in the future
to its officers and key management employees, subject to and on a basis
consistent with the terms, conditions and overall administration of such plans
and arrangements. Nothing paid to the Executive under any plan or arrangement
presently in effect or made available in the future shall be deemed to be in
lieu of any amounts payable to the Executive pursuant to this Section 5.
(f) Automobile. During the Executive's employment with the
Company, the Company shall provide to the Executive an allowance of Six Hundred
Dollars ($600) per month for automobile expenses. In the event that the
Executive's employment shall terminate for any reason other than for Cause, the
Company shall, after such termination, pay to, or for the benefit of, the
Executive an amount necessary to discharge the indebtedness or obligation to
finance the purchase or leasing of such automobile.
(g) Vacation. The Executive shall be initially entitled to
three (3) weeks vacation for the first twelve months of this Agreement, and four
(4) weeks vacation for each twelve month period thereafter. The Executive's
vacation shall be administered in accordance with the Company's vacation policy.
The amount of vacation may be increased from time to time and, if so increased,
shall not thereafter be decreased during the term of this Agreement.
25. Termination.
(a) The Executive's employment with the Company may be
terminated by the Company (i) at any time for Cause or without Cause; (ii) if,
as a result of the Executive's incapacity due to physical or mental illness, the
Executive shall have been absent from the full-time performance of the
Executive's duties with the Company for six (6) consecutive months (a
"Disability"); or (iii) upon the death of the Executive. During the term of this
Agreement, the Executive's employment with the Company may be terminated at any
time by the Executive for Good Reason or without Good Reason.
(b) Any purported termination of the Executive's employment
(other than by reason of death) shall be communicated by written Notice of
Termination from one party hereto to the other in accordance with Section 15
hereof. A "Notice of Termination" shall mean a notice which shall indicate the
specific termination provision in this Agreement relied upon and shall set forth
in reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated.
(c) The "Date of Termination" with respect to any purported
termination of the Executive's employment shall mean (i) if the Executive's
employment is terminated for Disability, thirty (30) days after Notice of
Termination is given (provided that the Executive shall not have returned to the
full-time performance of the Executive's duties during such thirty (30) day
period), (ii) if the Executive's employment is terminated by reason of death,
then the date thereof, and (iii) if the Executive's employment is terminated for
any other reason, the date specified in the Notice of Termination (which, in the
case of a termination by the Company shall not be less than thirty (30) days,
(except in the case of termination for Cause) and in the case of a termination
by the Executive, shall not be less than fifteen (15) nor more than sixty (60)
days, respectively, from the date such Notice of Termination is given).
26. Severance Payments.
(a) The Company shall pay the Executive the payments set forth
in Section 7(b) upon any termination of the Executive's employment, unless such
termination is (x) by the Company for Cause, (y) by reason of death or
Disability or (z) by the Executive without Good Reason. Such payments shall be
in addition to the payments and benefits set forth in Section 8 hereof.
(b) In the event of any termination of the Executive's
employment other than pursuant to clauses (x), (y) or (z) of Section 7(a):
(i) in lieu of any further salary payments to
the Executive for periods subsequent to the Date of Termination, the Company
shall pay as severance pay to the Executive a lump sum severance payment in cash
equal to the sum of (x) two times the Executive's Base Salary in effect
immediately prior to the occurrence of the circumstance giving rise to the
Notice of Termination given in respect thereof and (y) two times the maximum
bonus or incentive compensation that the Executive could potentially be awarded
in the fiscal year in which the Date of Termination occurs;
(ii) notwithstanding any provision of any bonus
or compensation plan, the Company shall pay to the Executive a lump sum amount
in cash equal to the sum of (x) any bonus or incentive compensation which has
been allocated or awarded to the Executive for a fiscal year or other measuring
period preceding the Date of Termination under any bonus or compensation plan
but has not yet been paid, and (y) a pro rata portion, to the Date of
Termination, of the maximum bonus or incentive compensation that the Executive
could potentially be awarded in the fiscal year in which the Date of Termination
occurs;
(iii) notwithstanding the provisions of any agreement
or plan pursuant to which the Executive shall have been granted options to
purchase Company's Shares (the "Options"), all Options that are vested as of the
Date of Termination and all Options which would vest within 181 days thereof (or
in the case of a Change of Control, all vested or unvested Options), shall be
deemed vested and immediately exercisable as of the Date of Termination and
shall not expire prior to the 181st day after the Date of Termination, (or in
the case of a Change of Control on the third anniversary of the Change of
Control);
(iv) for a twenty-four (24) month period after
the Date of Termination, the Company shall administer and pay for the
Executive's life, disability, accident and health insurance benefits, which
shall be substantially similar to those insurance benefits which the Executive
receives immediately prior to the Notice of Termination.
(c) The payments provided in Section 7(b) shall be made not
later than the fifth day following the Date of Termination or, if the
Executive's termination is a result of a Change of Control, immediately after
the Change of Control.
(d) In lieu of exercising any outstanding Option by tendering
cash, the Executive may elect (in his sole discretion) to exercise any Option by
tendering Company Shares and/or Options with a value equal to the amount of the
exercise price of the Option. The per share value of each Company Share tendered
in accordance with this Section 7(d) shall be the last closing price preceding
the Date of Termination of Company Shares on the nationally recognized exchange
or quotation system on which trading volume in Company Shares is highest (or, if
the Company Shares are not listed or traded on a nationally recognized exchange
or quotation system, the highest per share price actually paid for Company
Shares on or prior to the Date of Termination). The per Option value of each
Option tendered in accordance with this Section 7(d) shall be the excess of the
per share value of the Company Shares (as determined in accordance with the
preceding sentence) over the exercise price for the Option.
27. Compensation Other Than Severance Payments.
(a) For any period that the Executive fails to perform the
Executive's full-time duties with the Company as a result of incapacity due to
physical or mental illness, the Company shall pay the Executive's Base Salary to
the Executive at the rate in effect at the commencement of any such period,
together with all compensation and benefits payable to the Executive under the
terms of any compensation or benefit plan, program or arrangement maintained by
the Company during such period, until the Executive's employment is terminated
by the Company for Disability.
(b) If the Executive's employment shall be terminated for any
reason, the Company shall pay the Executive's full salary to the Executive
through the Date of Termination at the rate in effect at the
time the Notice of Termination is given, together with all compensation and
benefits payable to the Executive through the Date of Termination under the
terms of any compensation or benefit plan, program or arrangement during such
period.
(c) If the Executive's employment shall be terminated for any
reason during the term of this Agreement, the Company shall pay the Executive's
normal post-termination compensation and benefits to the Executive (excluding
any cash severance based upon salary and years of service) as such payments
become due. Such post-termination compensation and benefits shall be determined
under and paid in accordance with, the Company's retirement, insurance and other
compensation or benefit plans, programs or arrangements during such period.
28. Certain Definitions.
(a) Cause. A termination for "Cause" shall mean termination of
the Executive's employment by the Company resulting from theft or dishonesty in
the conduct of the Company's business or conviction of a felony, in each case
having a material adverse effect on the business of the Company.
(b) Change in Control. A "Change in 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 the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company (not
including any securities acquired directly from the Company) representing more
than 30% of the combined voting power of the Company's then outstanding
securities; (ii) during any period of two (2) consecutive years during the term
of this Agreement, individuals who at the beginning of such period constitute
the Board cease for any reason to constitute at least a majority thereof, unless
the election of each director who was not a director at the beginning of such
period has been approved in advance by directors representing at least
two-thirds of the directors then in office who were directors at the beginning
of the period, (iii) the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than (x) a merger
or consolidation which 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 66 2/3% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation, or (y) a merger or consolidation effected to
implement a recapitalization of the Company in which no person acquires more
than 30% of the combined voting power of the Company and outstanding securities;
(iv) the shareholders of the Company approve a plan of complete liquidation of
the Company or an agreement for the sale or disposition by the Company of all or
substantially all the Company's assets; or (v) the Company's insolvency, general
assignment for the benefit of creditors, or the commencement by or against the
Company of any case, proceeding, or other action seeking reorganization,
arrangement, adjustment, liquidation, dissolution, or composition of the
Company's debts under any law relating to bankruptcy, insolvency, or
reorganization, or relief of debtors, or seeking appointment of a receiver,
trustee, custodian, or other similar official for the Company or for all or any
substantial part of the Company's assets. Notwithstanding anything in the
foregoing to the contrary, no Change in Control of the Company shall be deemed
to have occurred for purposes of this Agreement by virtue of any transaction
which results in the Executive, or a group of persons which includes the
Executive, acquiring, directly or indirectly, more than 25% of the combined
voting power of the Company's then outstanding securities.
(c) Good Reason. "Good Reason" shall mean the occurrence,
without the Executive's express written consent, of any of the following
circumstances unless, in the case of paragraphs (i) or (iv), such circumstances
are fully corrected prior to the Date of Termination specified in the Notice of
Termination given in respect thereof:
(i) the assignment to the Executive of any
duties inconsistent in any respect with the Executive's position, authority,
duties or responsibilities (including status, offices, effective titles
and reporting structures) in effect immediately prior to such assignment, or any
other action by the Company which results in the diminishment of such position,
authority, duties or responsibilities;
(ii) a reduction by the Company in the
Executive's Base Salary as in effect on the date hereof or as the same may be
increased from time to time;
(iii) the relocation of the Company's principal
executive offices to a location more than 35 miles from the location as of the
date hereof or the Company's requiring the Executive to be based anywhere other
than the Company's principal executive offices, except for required travel on
the Company's business to an extent substantially consistent with the
Executive's present business travel obligations;
(iv) the failure by the Company, without the
Executive's consent, to pay to the Executive any portion of the Executive's then
Base Salary or allocated bonus, incentive or other form of compensation or to
pay to the Executive any portion of an installment of deferred compensation
under any deferred compensation program of the Company, within seven (7) days of
the date such compensation is due; or
(v) there shall have occurred a Change of Control.
The Executive's right to terminate the Executive's employment for Good Reason
shall not be affected by the Executive's incapacity due to physical or mental
illness. The Executive's continued employment shall not constitute consent to,
or a waiver of rights with respect to, any circumstance constituting Good Reason
hereunder.
29. Counsel Fees. In the event that (i) the Company terminates, or
seeks to terminate, this Agreement, alleging as justification for such
termination a material breach by the Executive or Cause or (ii) the Executive
elects to terminate his service hereunder pursuant to Section 6; and the Company
disputes its obligation to pay the Executive the severance amounts set forth in
Sections 7 and 8 hereof; the Company shall pay, or reimburse to the Executive,
all reasonable costs incurred by him in such dispute, including attorneys' fees
and costs.
30. Cooperation. In the event that the Executive's employment is
terminated for whatever reason (other than death), for a period of one year
thereafter, and upon reasonable written notice by the Company, for reasonable
amounts of time, and at mutually agreed upon times and places, the Executive
agrees to cooperate with the Company and to be reasonably available to the
Company with respect to continuing and/or future matters arising out of this
Agreement or any other relationship with the Company, whether such matters are
business-related, legal or otherwise. With respect to each written request by
the Company for the Executive's cooperation or availability under this Section
11, the Company agrees to pay the Executive for each day the Executive actually
renders services to the Company pursuant to such request, $200 per hour, but in
no case less than $1,600 per day, and to reimburse the Executive for the
Executive's reasonable expenses (including attorneys' fees) incurred in
complying with the terms of this Section 11.
31. No Mitigation. The Company agrees that, if the Executive's
employment is terminated during the term of this Agreement, the Executive is not
required to seek other employment or to attempt in any way to reduce any amounts
payable to the Executive by the Company. Further, the amount of any payment
provided hereunder shall not be reduced by any compensation earned by the
Executive.
32. Covenants Not to Compete or Hire Employees. It is recognized and
understood by the parties hereto that the Executive, through the Executive's
association with the Company as an employee, shall acquire a considerable amount
of knowledge and goodwill with respect to the business of the Company, which
knowledge and goodwill are extremely valuable to the Company and which would be
extremely detrimental to the Company if used by the Executive to compete with
the Company. It is, therefore, understood and agreed by the parties hereto that,
because of the nature of the business of the Company, it is
necessary to afford fair protection to the Company from such competition by the
Executive. Consequently, as a material inducement to the Company to enter into
this Agreement, the Executive covenants and agrees that for the period
commencing with the date hereof and ending one (1) year after the Date of
Termination, the Executive shall not engage, directly, indirectly or in concert
with any other person or entity, in the geographical area of the contiguous
forty-eight (48) states of the United States, in the provision of customer care
solutions of the type then being marketed or actively planned by the Company.
The Executive further covenants and agrees that for the period commencing on the
Date of Termination for any reason whatsoever and ending one (1) year after the
Date of Termination, the Executive shall not, directly or indirectly, hire or
engage or attempt to hire or engage any individual who is an employee of the
Company, whether for or on behalf of the Executive or for any entity in which
the Executive shall have a direct or indirect interest (or any subsidiary or
affiliate of any such entity), whether as a proprietor, partner, co-venturer,
financier, investor or stockholder, director, officer, employer, employee,
servant, agent, representative or otherwise; provided, however, such restriction
shall be inapplicable with respect to former officers of the Company who have
terminated their employment with the Company for Good Reason.
33. Successors; Binding Agreement.
(a) Successors. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company, by
agreement in form and substance satisfactory to the Executive, to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which executes and delivers the agreement provided for in this Section
14 or which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
(b) Binding Agreement. 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. If the Executive should
die while any amounts would still be payable to him hereunder if he had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to the Executive's devisee,
legatee, or other designee or, if there be no such designee, to the Executive's
estate.
34. Notice. All notices and other communications provided for herein
shall be in writing and shall be deemed to have been duly given, delivered and
received (a) if delivered personally or (b) if sent by registered or certified
mail (return receipt requested) postage prepaid, or by courier guaranteeing next
day delivery, in each case to the party to whom it is directed at the following
addresses (or at such other address for any party as shall be specified by
notice given in accordance with the provisions hereof, provided that notices of
a change of address shall be effective only upon receipt thereof). Notices
delivered personally shall be effective on the day so delivered, notices sent by
registered or certified mail shall be effective three days after mailing, and
notices sent by courier guaranteeing next day delivery shall be effective on the
earlier of the second business day after timely delivery to the courier or the
day of actual delivery by the courier:
If to the Executive: Xx. Xxxxx X. Xxxxxxxxx
00000 Xxxxx Xxxx XX.
Xxx Xxxx, XX 00000
If to the Company: Versatility Inc.
00000 Xxx Xxxxxxx Xxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attn: Chairman of the Board of Directors
35. Prior Agreement. All prior agreements between the Company and the
Executive with respect to the employment of the Executive (other than the
Indemnification Agreement between the Company and Executive dated as of April
15, 1998 which shall remain in full force and effect), including, but not
limited to, the Severance Agreement dated February 20, 1998 by and between the
Executive and the Company, are hereby superseded and terminated effective as of
the date hereof and shall be without further force or effect.
36. Miscellaneous. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and duly authorized officer of the Company.
No waiver by either party hereto at any time of any breach by the other hereto
of, or compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not set forth expressly in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the Commonwealth of Virginia.
37. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
38. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
[SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
VERSATILITY, INC., a Delaware corporation
/s/ Xxxxxxx X. Xxxxxx
___________________________________________
By: Xxxxxxx X. Xxxxxx
Title:
EXECUTIVE:
/s/ Xxxxx X. Xxxxxxxxx
___________________________________________
Xxxxx X. Xxxxxxxxx
