EXHIBIT 10.18
Exhibit D
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), effective as of July 2,
2004, is entered into in Richardson, Texas by and between Remote Dynamics, Inc.,
a Delaware corporation formerly known as Minorplanet Systems USA, Inc. with its
principal place of business located at 0000 Xxx Xxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxx, 00000 ("Employer"), and Xxxxxx X. Xxxxx, an individual residing 000
Xxxxxxxx Xxxxxxx, XxXxxx, XX 00000 ("Executive").
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
Employer and Executive, intending to be legally bound, hereby agree as follows:
1. Employment Relationship. Employer hereby employs Executive, and Executive
hereby accepts such employment, upon the terms and conditions set forth in
this Agreement. Such employment relationship shall continue for the stated
term of this Agreement, as described in Section 7 hereof, unless earlier
terminated pursuant to Section 5 hereof.
2. Position and Responsibilities of Executive. Executive shall be employed as
President and Chief Executive Officer with job responsibilities related
thereto, and such job responsibilities may be expanded at the sole
discretion of the Board of Directors of Employer. Executive shall report
to the Board of Directors of Employer and shall devote such time, skill
and attention to the business of Employer as shall be required for the
efficient management thereof, and shall manage and supervise such
business, and shall devote his full time best efforts to the faithful
performance of his duties on behalf of Employer. Executive shall report to
the Board of Directors of the Company. Executive shall also perform such
other duties, and may have job responsibilities and titles modified from
time to time as may be requested by the Board of Directors of Employer,
provided such duties and job titles are generally consistent with the
level of responsibility currently held by Executive. Executive's duties
shall be performed at the Employer's corporate headquarters in Richardson,
Texas. Executive may be required to travel and/or work from time to time
on a non-permanent basis wherever the Employer shall reasonably require.
Executive shall not engage in additional gainful employment of any kind or
undertake any role or position, whether or not for compensation, with any
competitor of Employer during the term of this Agreement without advance
written approval of the Board of Directors of Employer.
3. Compensation. For all services rendered by Executive pursuant to this
Agreement, Employer shall pay to Executive, and Executive shall accept as
full compensation hereunder the following:
a. Salary. Executive shall receive a salary of $18,750.00_PER MONTH
payable by Employer in semi-monthly amounts in Richardson, Texas.
Executive's salary shall be subject to all appropriate federal and
state withholding taxes and shall be payable in accordance with the
normal payroll procedures of Employer. Employer shall not reduce
Executive's salary without Executive's written consent. The Company
shall review for potential increase such Executive's
annual base salary on or about January 1 of each calendar year.
b. Benefits and Perquisites. Executive shall be entitled to participate
in the Executive benefit plans provided by Employer for all
employees generally, and for executive employees of Employer.
Employer shall be entitled to change such plans from time to time,
and the parties acknowledge that at the initial date of this
Agreement the fringe benefits provided to Executive include a
corporate 401(k) plan, health, dental, life, short and long-term
disability insurance for the Executive, and reimbursement of certain
expenses in accordance with the policies and procedures of Employer.
c. Discretionary Bonuses. The Board of Directors of Employer shall
establish a discretionary incentive bonus plan for Executive based
on various targets and performance criteria to be established by the
Board of Directors of Employer. The evaluation of the performance of
Executive as measured by the applicable targets and the awarding of
applicable bonuses, if any, shall be at the sole discretion of the
Board of Directors of Employer. The annual bonus which may be
awarded to Executive shall be in the amount of fifty percent (50%)
of Executive's annual base salary at each calendar year end of
Employer during the term of this Agreement, pro-rated for partial
years of employment. The annual discretionary bonus may be awarded
in whole, or in part, based on the level of incentive bonus plan
performance criteria achieved by Executive, in the sole judgment of
the Board of Directors of Employer.
d. Restricted Stock Grant; Vesting. Employer shall grant to Executive
150,000 SHARES of restricted stock (the "Restricted Shares"), which
shall be governed by the attached Restricted Stock Agreement and the
Remote Dynamics, Inc. 2004 Management Incentive Plan (the "Plan").
Specifically, the Restricted Shares shall vest as follows:
- One Third (1/3) of the Restricted Shares shall vest upon
the execution by Employer of an agreement with the member
companies of SBC Communications, Inc. for the retrofit of
SBC's fleet of service vehicles at the substantially
similar volumes and profit margins as set forth in the May
20, 2004 Report to the Official Unsecured Creditors
Committee;
- One Third (1/3) of the Restricted Shares shall vest upon
the completion by Employer of three (3) consecutive fiscal
quarters in which Employer achieved positive EBIDTA within
two and one-half (2.5) years of the effective date of this
Agreement; and
- One Third (1/3) of the Restricted Shares shall vest upon
the completion by Employer of four (4) consecutive fiscal
quarters in which Employer achieved net income within three
(3) years of the effective date of this Agreement.
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e. Acceleration of Vesting. In the event that (i) Employer terminates
this employment relationship with Executive for a reason other than
Cause (as defined in Section 5(b) below) or due to Executive's death
(other than by suicide) or permanent disability (as provided in
Section 5(a) below); or (ii) Executive terminates this employment
relationship with Employer for Good Reason following a Change in
Control (as such terms are defined in Annex A), then in addition to
any other compensation and benefits due to Executive as set forth in
this Agreement, all Restricted Shares previously vested at the time
of termination shall be retained by Executive, and fifty percent
(50%) of the Restricted Shares not yet vested at the time of
termination shall vest as of the date of termination; provided that,
if it is no longer possible to earn such unvested Restricted Shares
(for example, if an SBC agreement was executed on terms which do not
qualify for vesting), then Executive shall not be entitled to
receive fifty percent (50%) of the Restricted Shares that are no
longer possible to become vested.
4. Protective Covenants. Executive recognizes that his employment by Employer
is one of the highest trust and confidence because (i) Executive has
become and/or in the future will become fully familiar with all aspects of
Employer's business during the period of his employment with Employer,
(ii) certain information of which Executive will gain knowledge during his
employment by Employer is proprietary and confidential information and is
of special and peculiar value to Employer, and (iii) if any such
proprietary and confidential information were imparted to or became known
by any person, including Executive, engaging in a business in competition
with that of Employer, hardship, loss and irreparable injury and damage
could result to Employer, the measurement of which would be difficult if
not impossible to ascertain. Executive further acknowledges that Employer
has developed unique skills, concepts, sales presentations, marketing
programs, marketing strategy, business practices, methods of operation,
pricing information, production cost information, trademarks, licenses,
technical information, proprietary information, computer software
programs, tapes and discs concerning its operations systems, customer
lists, customer leads, documents identifying past, present and future
customers, customer profile and preference data, hiring and training
methods, investment policies, financial and other confidential and
proprietary information concerning its operations and expansion plans
("Trade Secrets"). Therefore, Executive agrees that it is necessary for
Employer to protect its business and that of its affiliates from such
damage, and Executive further agrees that the following covenants
constitute a reasonable and appropriate means, consistent with the best
interest of both Executive and Employer, to protect Employer or its
affiliates against damage due to loss or disclosure of proprietary
information or Trade Secrets and shall apply to and be binding upon
Executive as provided herein:
a. Trade Secrets. Executive recognizes that his position with Employer
is one of the highest trust and confidence by reason of Executive's
access to and contact with certain Trade Secrets of Employer.
Executive agrees and covenants that, except as may be required by
Employer in connection with this Agreement, or with the prior
written consent of Employer, Executive shall not, either during the
term of this Agreement or at any time thereafter, directly or
indirectly, use for Executive's
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own benefit or for the benefit of another, or disclose, disseminate,
or distribute to another, except as directed by Employer or as
required for the performance of Executive's duties on behalf of the
Employer, any Trade Secret (whether or not acquired, learned,
obtained, or developed by Executive alone or in conjunction with
others) of Employer or of others with whom Employer has a business
relationship. All Trade Secrets, and all memoranda, notes, records,
drawings, documents, or other writings whatsoever made, compiled,
acquired, or received by Executive at any time during his employment
with Employer, including during the term of this Agreement, arising
out of, in connection with, or related to any activity or business
of Employer, including, but not limited to, the customers,
suppliers, or others with whom Employer has a business relationship,
the arrangements of Employer with such parties, and the pricing and
expansion policies and strategy of Employer, are, and shall continue
to be, the sole and exclusive property of Employer and shall,
together with all copies thereof, any and all documents constituting
or relating to Employer's proprietary information and Trade Secrets,
and all advertising literature, be returned and delivered to
Employer by Executive immediately, without demand, upon the
termination of this Agreement, or at any time upon Employer's
demand.
Executive acknowledges that Employer would not employ
Executive or provide Executive access to Employer's Trade Secrets
and proprietary and confidential information but for Executive's
covenants in this Section 4.
Executive represents and warrants that he is not bound by any
agreement with any prior employer or other party that will be
breached by execution and performance of this Agreement, or which
would otherwise prevent him from performing his duties with Employer
as set forth in this Agreement. Executive represents and warrants
that he has not retained any copies of proprietary and confidential
information of any prior employer, and he will not use or rely on
any confidential and proprietary information of any prior employer
in carrying out her duties for Employer.
b. Covenant Not to Compete. In consideration of the numerous mutual
promises contained in the Agreement between Employer and the
Executive, including, without limitation, those involving access to
Trade Secrets and confidential information and training, and in
order to protect Employer's Trade Secrets and the confidential
information and to reduce the likelihood of irreparable damage which
would occur in the event such information is provided to or used by
a competitor of Employer, Executive agrees that during his
employment and for an additional period of twelve (12) months
immediately following the voluntary or involuntary termination of
his employment for any reason whatsoever (the "Non-Competition
Term"), Executive will not, without the prior written consent of
Employer (which consent may be withheld in its sole discretion),
enter the employ of any person or entity, either directly or
indirectly either as principal, agent, representative, shareholder
(except owning publicly traded stock for investment purposes only in
which Executive owns less than 5%) consultant, officer, business
partner,
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associate, Executive or otherwise, with a place of business in the
United States of America and/or Canada, which sells or offers to
sell services and/or products which compete directly with the
services and/or products offered or to be offered for sale by
Employer.
Executive hereby acknowledges that the geographic boundaries,
scope of prohibited activities and the time duration of the
provisions of this Section 4 are reasonable and are no broader than
are necessary to protect the legitimate business interests of the
Employer.
The Employer and Executive agree and stipulate that the agreements
and covenants not to compete contained in Section 4 hereof are fair
and reasonable in light of all of the facts and circumstances of the
relationship between Executive and Employer; however, Executive and
Employer are aware that in certain circumstances courts have refused
to enforce certain provisions of agreements not to compete.
Therefore, in furtherance of, and not in derogation of the
provisions of Section 4, Employer and Executive agree that in the
event a court should decline to enforce the provisions of Section 4,
that Section 4 shall be deemed to be modified or reformed to
restrict Executive's competition with Employer or its affiliates to
the maximum extent, as to time, geography and business scope, which
the court shall find enforceable; provided, however, in no event
shall the provisions of Section 4 be deemed to be more restrictive
to Executive than those contained herein.
c. Non-Solicitation. Executive agrees that during his employment, and
for a period of twelve (12) months following the termination of his
employment for any reason whatsoever, that neither he nor any
individual, partner(s), limited partnership, corporation or other
entity or business with which he is in any way affiliated,
including, without limitation, any partner, limited partner,
director, officer, shareholder, Executive, or agent of any such
entity or business, will (i) request, induce or attempt to
influence, directly or indirectly, any employee of Employer to
terminate their employment with Employer or (ii) employ any person
who as of the date of this Agreement was, or after such date, is an
employee of Employer. Executive further agrees that during the
period beginning with the commencement of Executive's employment
with Employer and ending twelve (12) months after the termination of
Executive's employment with Employer for any reason whatsoever, he
shall not, directly or indirectly, as an Executive, agent,
consultant, stockholder, director, partner or in any other
individual or representative capacity of Employer or of any other
person, entity or business, solicit or encourage any present or
future customer, supplier, contractor, partner or investor of the
Employer to terminate or otherwise alter his, her or its
relationship with Employer.
d. Work Product. For purposes of this Section 4, "Work Product" shall
mean all intellectual property rights, including all trade secrets,
U.S. and international copyrights, patentable inventions,
discoveries and other intellectual property rights in any
programming, design, documentation, technology, or other work
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product that is created in connection with Executive's work. In
addition, all rights in any preexisting programming, design,
documentation, technology, or other Work Product provided to
Employer during Executive's employment shall automatically become
part of the Work Product hereunder, whether or not it arises
specifically out of my "Work." For purposes of this Agreement,
"Work" shall mean (1) any direct assignments and required
performance by or for the Employer, and (2) any other productive
output that relates to the business of the Employer and is produced
during the course of Executive's employment or engagement by
Employer. For this purpose, Work may be considered present even
after normal working hours, away from Employer's premises, on an
unsupervised basis, alone or with others. Unless otherwise approved
in writing by the Board of Directors of Employer, this Agreement
shall apply to all Work Product created in connection with all Work
conducted before or after the date of this Agreement.
Employer shall own all rights in the Work Product. To this end, all
Work Product shall be considered work made for hire for Employer. If
any of the Work Product may not, by operation of law or agreement,
be considered Work made by Executive for hire for the Employer (or
if ownership of all rights therein do not otherwise vest exclusively
in the Employer immediately), Executive agrees to assign, and upon
creation thereof does hereby automatically assign, with further
consideration, the ownership thereof to the Employer. Executive
hereby irrevocably relinquishes for the benefit of Employer and its
assigns any moral rights in the Work Product recognized by
applicable law. Employer shall have the right to obtain and hold, in
whatever name or capacity it selects, copyrights, registrations, and
any other protection available in the Work Product.
Executive agrees to perform upon the request of Employer, during or
after Executive's Work or employment, such further acts as may be
necessary or desirable to transfer, perfect, and defend the
Employer's ownership of the Work Product, including by (1)
executing, acknowledging, and delivering any requested affidavits
and documents of assignment and conveyance, (2) obtaining and/or
aiding in the enforcement of copyrights, trade secrets, and (if
applicable) patents with respect to the Work Product in any
countries, and (3) providing testimony in connection with any
proceeding affecting the rights of the Employer in any Work Product.
Executive warrants that Executive's Work for Employer does not and
will not in any way conflict with any remaining obligations
Executive may have with any prior employer or contractor. Executive
also agrees to develop all Work Product in a manner that avoids even
the appearance of infringement of any third party's intellectual
property rights.
e. Survival of Covenants. Each covenant of Executive set forth in this
Section 4 shall survive the termination of this Agreement and shall
be construed as an agreement independent of any other provision of
this Agreement, and the
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existence of any claim or cause of action of Executive against
Employer whether predicated on this Agreement or otherwise shall not
constitute a defense to the enforcement by Employer of said
covenant. No modification or waiver of any covenant contained in
Section 4 shall be valid unless such waiver or modification is
approved in writing by the Board of Directors of Employer.
f. Remedies. In the event of breach or threatened breach by Executive
of any provision of this Section 4, Employer shall be entitled to
relief by temporary restraining order, temporary injunction, or
permanent injunction or otherwise, in addition to other legal and
equitable relief to which it may be entitled, including any and all
monetary damages which Employer may incur as a result of said
breach, violation or threatened breach or violation. Employer may
pursue any remedy available to it concurrently or consecutively in
any order as to any breach, violation, or threatened breach or
violation, and the pursuit of one of such remedies at any time will
not be deemed an election of remedies or waiver of the right to
pursue any other of such remedies as to such breach, violation, or
threatened breach or violation, or as to any other breach,
violation, or threatened breach or violation.
Executive hereby acknowledges that Executive's agreement to be
bound by the protective covenants set forth in this Section 4 was a
material inducement for Employer entering into this Agreement,
agreeing to pay Executive the compensation and benefits set forth
herein, and providing Executive access to Employer's Trade Secrets
and other confidential information.
5. Termination. The employment relationship between Executive and Employer
created hereunder shall terminate before the expiration of the stated term
of this Agreement upon the occurrence of any one of the following events:
a. Death or Permanent Disability. The employment relationship shall be
terminated effective on the death or permanent disability of the
Executive. However, Executive shall be entitled to leaves of absence
from the Company in accordance with the policy of the Company
generally applicable to executives for illness or temporary
disabilities for a period or periods not exceeding six (6) months in
any calendar year, and his status as an Executive shall continue
during such periods. However, if the Executive qualifies for short
term disability payments under Employer's standard short term
disability plan during such leave, Executive shall apply to receive
such short term disability payments. Employer shall supplement such
short term disability payments during the first three (3) months of
any such six (6) month period so that Executive receives such
monthly amounts when combined with the short term disability
payments to equal Executive's monthly compensation as set forth in
paragraph 3(a) of this Agreement. However, during the last three (3)
months of any such six (6) month period, Executive shall accept
payments under Employer's standard short term disability plan in
lieu of any salary payments set forth in Section 3(a) above. If
Executive is incapacitated due to physical or mental illness and
such incapacity prevents Executive from
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satisfactorily performing his duties for the Company on a full time
basis for six (6) months or more during a single fiscal year,
Executive shall be deemed to have experienced a permanent disability
and the Company may terminate this Agreement upon thirty (30) days
written notice. In the event that Employer terminates this Agreement
on the basis of the Executive's permanent disability, the Executive
shall be entitled to a cash payment equal to the Executive's annual
salary as of the date of termination. The Company shall make such
payment within thirty (30) days of such termination.
b. Termination for Cause. The following events, which for purposes of
this Agreement shall constitute "cause" for termination:
i. Any act of fraud, misappropriation or embezzlement by
Executive with respect to any aspect of Employer's business;
ii. The breach by Executive of any provision of Sections 1, 2 or 4
(including but not limited to a refusal to follow lawful
directives of the Board of Directors of Employer or their
designees which are not inconsistent with the duties of
Executive's position and the provisions of this Agreement) of
this Agreement;
iii. The conviction of Executive by a court of competent
jurisdiction of a felony or of a crime involving moral
turpitude;
iv. The intentional and material breach by the Executive of any
non-disclosure or non-competition/non-solicitation provision
of any agreement to which the Executive and Employer or any of
its subsidiaries are parties;
v. The intentional and continual failure by the Executive to
perform in all material respects his duties and
responsibilities (other than as a result of death or
disability) and the failure of the Executive to cure the same
in all material respects within thirty (30) days after written
notice thereof from Employer;
vi. The illegal use of drugs by Executive during the term of this
Agreement that, in the determination of the Board of Directors
of Employer, substantially interferes with Executive's
performance of his duties hereunder; or
vii. Acceptance of employment with any other employer except upon
written permission of the Board of Directors of Employer.
c. Termination by Employer with Notice. Employer may terminate this
Agreement without cause at any time upon thirty (30) days written
notice to Executive, during which period Executive shall not be
required to perform any services for Employer other than to assist
Employer in training his successor and generally
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preparing for an orderly transition; PROVIDED, HOWEVER, that
Executive shall be entitled to compensation upon such termination as
provided in Section 6(a), (b), (c) and (d) below.
d. Termination by Executive Upon Notice For Good Reason Upon Change in
Control. Executive may terminate this Agreement upon Good Reason
either six (6) months prior to or within two (2) years subsequent to
a Change in Control (as defined in Annex A hereto). Executive shall
give Employer fifteen (15) business days notice of an intent to
terminate this Agreement for "Good Reason" as defined in Annex A,
and provide the Employer with ten (10) business days after receipt
of such notice from Executive to cure the conditions giving rise to
Executive's right to terminate for Good Reason. Upon termination for
Good Reason, Executive shall be entitled to compensation upon such
termination as provided in Section 6(a), (b), (c) and (d) below.
6. Compensation Upon Termination. Upon the termination of Executive's
employment under this Agreement before the expiration of the stated term
hereof for any reason, Executive shall be entitled to:
a. the salary earned by him before the effective date of termination as
provided in Section 3(a) hereof (including salary payable during any
applicable notice period), prorated on the basis of the number of
full days of service rendered by Executive during the salary payment
period to the effective date of termination;
b. any accrued, but unpaid, vacation benefits;
c. the percentage of bonus compensation earned by Executive prior to
the effective date of the termination based upon targets achieved
prior to the effective date of termination; and
d. any previously authorized but unreimbursed business expenses.
If Executive's employment hereunder terminates because of the death
or permanent disability of Executive, all amounts that may be due to her
under this Section 6 or Section 5(a) shall be paid to him or his
administrators, personal representatives, heirs and legatees, as may be
appropriate.
e. Additional Compensation and Benefits Upon Termination Without Cause
by Employer or Termination by Executive for Good Reason Upon Change
in Control. If Executive's employment hereunder is terminated by
Employer without Cause pursuant to Section 5(c) above or is
terminated by Executive for Good Reason pursuant to Section 5(d)
above, Employer shall provide to Executive in addition to the
amounts set forth in Subparagraphs 6(a), 6(b) and 6(c) above:
i. a cash payment equal to twelve (12) months of base salary for
such
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Executive.
ii. the vesting of Executive's Restricted Shares shall be
accelerated as set forth in Section 3(e) above.
iii. for twelve (12) months following the date of termination of
the Executive's employment in circumstances in which a
severance payment is due hereunder, Employer shall provide the
Executive, at Employer's expense, health and other welfare
benefits that are not less favorable to the Executive than
those to which he was entitled immediately prior to the
termination. Provided however, Employer shall have no
obligation to provide Executive with any compensation under
this Section 6 if Executive is in breach or violation of any
of the covenants contained in Section 4, which are applicable
to the Executive at the time of the severance payment.
Employer shall pay the severance amounts, and the Restricted Shares
shall be deemed vested, immediately upon the effective date of the
termination. Executive shall have no obligation to mitigate any
severance obligation of Employer under this Agreement by seeking new
employment. Employer shall not be entitled to set off or reduce any
severance payments owed to Executive under this Agreement by the
amount of earnings or benefits received by Executive in future
employment. The provisions of Sections 4, 5, 6 and 7 hereof shall
survive the termination of the employment relationship hereunder and
this Agreement.
7. Term. This Agreement shall be binding and enforceable against Employer and
Executive immediately upon its execution by both such parties. The stated
term of this Agreement and the employment relationship created hereunder
shall begin on the effective date of this Agreement (with Executive to be
bound by confidentiality and other provisions set forth in Section 4
herein to the extent confidential information is provided to Executive
prior to such date), and shall remain in effect for two (2) years
thereafter, unless sooner terminated in accordance with Section 5 hereof.
This Agreement shall be deemed to be renewed for a month-to-month term
after its initial term ("Renewal Term"), unless the parties execute an
express written renewal agreement which specifies a different term or
either party exercises its right to terminate the Agreement pursuant to
the provisions herein. Following expiration of the initial two (2) year
term, the severance payments due to Executive as per Section 6(e)(i) upon
termination for a reason other than Cause by Employer as per Section 5(c)
or termination for Good Reason by Executive as per Section 5(d) above
shall be reduced by 1/12 for every two (2) months of employment subsequent
to the expiration of the initial two (2) year term; provided, however,
that under no circumstances shall the severance payment be reduced below
six (6) months of base salary. Except for the modification to Section
6(e)(i), Executive shall receive all other severance and benefits due to
Executive under Section 6(e)(ii), (iii) and (iv) following expiration of
the initial two (2) year term.
a. Notwithstanding any provision of this Agreement to the contrary, the
parties'
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respective rights and obligations under Sections 3, 4, 6 and 7 shall
survive any termination or expiration of this Agreement or the
termination of the Executive's employment for any reason whatsoever.
8. Remedies. Each of the parties to this Agreement will be entitled to
enforce its rights under this Agreement specifically, to recover damages
by reason of any breach of any provision of this Agreement and to exercise
all other rights existing in its favor. Notwithstanding Section 9 below,
the parties hereto agree and acknowledge that money damages may not be an
adequate remedy for any breach of the provisions of this Agreement and
that any party may in its sole discretion apply to any court of law or
equity of competent jurisdiction for specific performance and/or
injunctive relief in order to enforce or prevent any violations of the
provisions of this Agreement.
9. Arbitration. Except as Provided in Section 8 above, any controversy or
claim arising out of or relating to this Agreement or relating to
Executive's rights, compensation and responsibilities as an Executive
shall be determined by arbitration in Dallas County, Texas in accordance
with the rules of the American Arbitration Association then in effect. The
arbitration shall be submitted to a single arbitrator selected in
accordance with the American Arbitration Association's procedures then in
effect for the selection of employment arbitrators. The parties shall
split the cost of the arbitrator. The arbitrator shall have the authority
to award any remedy that could be awarded by a court of competent
jurisdiction. This Section 9 shall survive termination of this Agreement
for any reason.
10. Assignment. This Agreement is personal to Executive and may not be
assigned in any way by Executive without the prior written consent of
Employer. This Agreement shall not be assignable or delegable by Employer,
other than to an affiliate of Employer; provided, however, that in the
event of the acquisition, merger or consolidation of Employer, the
obligations of Employer hereunder shall be binding upon the surviving or
resulting entity of such acquisition, merger or consolidation. The rights
and obligations under this Agreement shall inure to the benefit of and
shall be binding upon the heirs, legatees, administrators and personal
representatives of Executive and upon the successors, representatives and
assigns of Employer.
11. Severability and Reformation. The parties hereto intend all provisions of
this Agreement to be enforced to the fullest extent permitted by law. If,
however, any provision of this Agreement is held to be illegal, invalid,
or unenforceable under present or future law, such provision shall be
fully severable, and this Agreement shall be construed and enforced as if
such illegal, invalid, or unenforceable provision were never a part
hereof, and the remaining provisions shall remain in full force and effect
and shall not be affected by the illegal, invalid, or unenforceable
provision or by its severance.
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12. Notices. All notices and other communications required or permitted to be
given hereunder shall be in writing and shall be deemed to have been duly
given if delivered personally, mailed by certified mail (return receipt
requested) or sent by overnight delivery service, cable, telegram,
facsimile transmission or telex to the parties at the following addresses
or at such other addresses as shall be specified by the parties by like
notice:
If to Employer: Remote Dynamics, Inc.
Attn: General Counsel
0000 Xxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
If to Executive: Xxxxxx X. Xxxxx
000 Xxxxxxxx Xxxxxxx
XxXxxx, XX 00000
Notice so given shall, in the case of notice so given by mail, be deemed
to be given and received on the fourth calendar day after posting, in the
case of notice so given by overnight delivery service, on the date of
actual delivery and, in the case of notice so given by cable, telegram,
facsimile transmission, telex or personal delivery, on the date of actual
transmission or, as the case may be, personal delivery.
13. Further Actions. Whether or not specifically required under the terms of
this Agreement, each party hereto shall execute and deliver such documents
and take such further actions as shall be necessary in order for such
party to perform all of his or its obligations specified herein or
reasonably implied from the terms hereof.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO
THE CONFLICT OF LAWS (RULES) OR CHOICE OF LAWS (RULES) THEREOF.
15. Entire Agreement and Amendment. This Agreement contains the entire
understanding and agreement between the parties, and supersedes any other
agreement between Executive and Employer, whether oral or in writing, with
respect to the subject matter hereof.. This Agreement may not be altered,
amended, or rescinded, nor may any of its provisions be waived, except by
an instrument in writing signed by both parties hereto or, in the case of
an asserted waiver, by the party against whom the waiver is sought to be
enforced. Any modification of this Agreement shall be effective only if
signed by the President and Chief Executive Officer of Employer as
authorized by the Board of Directors of Employer.
16. Counterparts. This Agreement may be executed in counterparts, with the
same effect as if both parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
EMPLOYER:
REMOTE DYNAMICS, INC.
By: /s/ J. Xxxxxxx Xxxxxx
---------------------
J. Xxxxxxx Xxxxxx,
Senior Vice President, General Counsel & Secretary
EXECUTIVE:
/s/ Xxxxxx X. Xxxxx
-------------------
Xxxxxx X. Xxxxx
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ANNEX A
DEFINITIONS
"Change of Control" means the occurrence of any of the following events:
i. any "person" or "group" as such terms are used under Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), other than Employer or a current
shareholder or option holder, any trustee or any other
fiduciary holding securities under an Executive benefit plan
of Employer, or any corporation owned, directly or indirectly,
by the stockholders of Employer in substantially the same
proportions as their ownership of Common Stock of Employer,
becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), of securities of Employer representing
thirty-five percent (35%) or more of the combined voting power
of Employer's voting securities then-outstanding;
ii. during any period of two (2) consecutive years, individuals
who at the beginning of such period constituted the Board of
Directors of Employer cease for any reason to constitute a
majority thereof (unless the election, or nomination for
election by Employer's stockholders, of such director was
approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at
the beginning of such period or whose election or nomination
for election was previously so approved);
iii. Employer completes a merger or consolidation of Employer with
another corporation, other than (A) a merger or consolidation
which would result in the voting securities of Employer
outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into
voting securities of the surviving entity) more than eighty
percent (80%) of the combined voting power of the voting
securities of Employer or such surviving entity outstanding
immediately after such merger or consolidation, or (B) a
merger or consolidation effected to implement a
recapitalization of Employer (or similar transaction) in which
no "person" (as herein above defined), excluding a current
shareholder or option holder, acquires more than thirty
percent (35%) of the combined voting power of Employer's
then-outstanding voting securities; or
iv. the stockholders of Employer approve a plan of complete
liquidation of Employer or any agreement for the sale or
disposition by Employer of all or substantially all of
Employer's assets.
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"Good Reason" means the occurrence of any of the following events:
a. the reduction of the Executive's job title, position or
responsibilities without the Executive's prior written consent;
b. any reduction of the Executive's annual base salary and percentage
bonus potential from the highest annual base salary actually paid to
Executive and the highest potential percentage bonus which could
have been earned by Executive during the two (2) years immediately
preceding the Change of Control.
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