EXHIBIT 10.18
Execution Version
SEVERANCE AGREEMENT
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THIS SEVERANCE AGREEMENT (this "Agreement"), dated February 25, 2002, is
entered into between ZixIt Corporation, a Texas corporation, with its principal
executive offices in Dallas, Texas (the "Company"), and Xxxxxx X. Xxxxxxxx, an
individual currently residing in Coppell, Texas, who is currently employed as
Senior Vice President and General Counsel of the Company ("Employee").
Recitals
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A. The Company and Employee have entered into a Severance Agreement,
dated November 4, 1996, and a Severance Agreement, dated November 9, 2001 (the
"Severance Agreements").
B. The Company and Employee desire to enter into this Severance
Agreement, which will replace the Severance Agreements.
C. In consideration of the Company's agreements herein, Employee is willing to
continue working for the Company or an Affiliate, as applicable, on an "at-will"
basis.
Terms and Conditions
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In consideration of the recitals and the agreements herein and other good
and valuable consideration, the parties agree as follows:
1. Definitions.
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1.1 An "Acquiring Person" shall mean any person (including any "person" as
such term is used in Sections 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) that, together with all Affiliates
and Associates of such person, is the beneficial owner of 10% or more of the
outstanding Common Stock. The term "Acquiring Person" shall not include the
Company, any subsidiary of the Company, any employee benefit plan of the Company
or subsidiary of the Company, or any person to the extent such person is holding
Common Stock for or pursuant to the terms of any such plan. For the purposes of
this Agreement, a person who becomes an Acquiring Person by acquiring beneficial
ownership of 10% or more of the Common Stock at any time after November 4, 1996
shall continue to be an Acquiring Person whether or not such person continues to
be the beneficial owner of 10% or more of the outstanding Common Stock.
1.2 "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Exchange Act in effect on the date of this Agreement.
1.3 The Company and its Affiliates shall have "Cause" to terminate
Employee's employment upon (1) the intentional and continued failure by Employee
to substantially perform Employee's employment duties such intentional actions
involving willful and deliberate malfeasance or gross negligence in the
performance of Employee's duties (other than any such failure resulting from
Employee's incapacity due to physical or mental illness), after written demand
for substantial performance is delivered by the Company or an Affiliate, as
applicable, that specifically identifies the manner (such demand not to be
unreasonable) in which the Company or the Affiliate, as applicable, believes
Employee has not substantially performed Employee's duties; or (2) the willful
engaging by Employee in misconduct that is materially
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injurious to the Company or employing Affiliate, as applicable; or (3) the
conviction of Employee of any felony or crime of moral turpitude that is
injurous to the Company; or (4) Employee attains the mandatory retirement age
specified in any applicable retirement plan of the Company or any
successor-in-interest (but for purposes of this clause (4), any such mandatory
retirement age shall not be less than age 65). For purposes of this definition
no act, or failure to act, on Employee's part shall be considered "willful"
unless done, or omitted to be done, by Employee not in good faith and without
reasonable belief that Employee's action or omission was in the best interest of
the Company or the applicable Affiliate(s), or both, as applicable.
Notwithstanding the foregoing, Employee shall not be deemed to have been
terminated for Cause without the following procedures having been adhered to:
(a) reasonable written notice to Employee, setting forth the reasons for the
Company's or the Affiliate's intention to terminate for Cause; (b) an
opportunity for Employee, together with Employee's counsel, to be heard before
the ZixIt Corporation Board of Directors; and (c) delivery to Employee of a
written Notice of Termination finding that, in the good faith opinion of the
ZixIt Corporation Board of Directors, Employee was guilty of conduct set forth
above in clause (1), (2) or (3) above, and specifying the particulars thereof in
detail.
1.4 "Change in Control" shall mean the occurrence of any of the following
events:
(i) The Company is merged, consolidated or reorganized into or with
another corporation or other legal person, other than an Affiliate, and as
a result of such merger, consolidation or reorganization less than 51% of
the combined voting power to elect each class of directors of the then
outstanding securities of the remaining corporation or legal person or its
ultimate parent immediately after such transaction is owned, directly or
indirectly, in the aggregate by persons who were shareholders, directly or
indirectly, of the Company immediately prior to such merger, consolidation,
or reorganization;
(ii) The Company sells all or substantially all of its assets to any
other corporation or other legal person, other than an Affiliate, and as a
result of such sale less than 51% of the combined voting power to elect
each class of directors of the then outstanding securities of such
corporation or legal person or its ultimate parent immediately after such
transaction is owned, directly or indirectly, in the aggregate by persons
who were shareholders, directly or indirectly, of the Company immediately
prior to such sale;
(iii) Any Acquiring Person has become the beneficial owner (as the
term "beneficial owner" is defined under Rule 13d-3 or any successor rule
or regulation promulgated under the Exchange Act) of securities which when
added to any securities already owned by such person would represent in the
aggregate 35% or more of the then outstanding securities of the Company
which are entitled to vote to elect any class of directors;
(iv) If at any time, the Continuing Directors then serving on the
Board of Directors of the Company cease for any reason to constitute at
least a majority thereof;
(v) Any occurrence that would be required to be reported in response
to Item 6(e) of Schedule 14A of Regulation 14A or any successor rule or
regulation promulgated under the Exchange Act; or
(vi) Such other events that cause a change in control of the Company,
as determined by the ZixIt Corporation Board of Directors in its sole
discretion.
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1.5 "Change in Control Payment" shall mean two times the higher of (i)
Employee's annual base salary in effect on the date of the Change in Control or
(ii) Employee's highest annual base salary during the term of Employee's
employment with the Company.
1.6 A "Continuing Director" shall mean a director of the Company who (i)
is not an Acquiring Person or an Affiliate or Associate thereof, or a
representative of an Acquiring Person or nominated for election by an Acquiring
Person, and (ii) was either a member of the Board of Directors of the Company on
the date of this Agreement or subsequently became a director of the Company and
whose initial election or initial nomination for election by the Company's
shareholders was approved by a majority of the Continuing Directors then on the
Board of Directors of the Company.
1.7 "Disability" shall mean any medically determinable physical or mental
impairment that can reasonably be expected to prevent Employee from performing
substantially all of Employee's customary employment duties for at least six
months.
1.8 "Good Reason" shall mean the occurrence of any of the following
events:
(a) any material diminution in Employee's title and duties that has
not been cured within thirty days after notice of such noncompliance has
been given (within 30 days of the alleged material diminution) by Employee
to the Company or the employing Affiliate, as applicable. A change in title
or duties will not be considered to be a "material diminution" in title or
duties if, after such change, Employee is an officer of the Company;
Employee's reporting relationship does not change or Employee reports to
the Company's Chief Executive Officer or Chief Operating Officer; and a
substantial portion of Employee's duties are in Employee's field of
professional training or experience.
(b) a reduction of more than 10% in Employee's base salary (with the
10% being cumulative over the term of Employee's employment, but any
percentage reduction that is actually made is made against the Employee's
then current base salary).
EXAMPLE: assume Employee's base salary is $100,000. The Company or
Affiliate, as applicable, is permitted to reduce Employee's base salary by
up to 10% ($10,000) without giving Employee "Good Reason" to terminate
employment. Any further salary reductions would constitute "Good Reason" to
terminate employment.
EXAMPLE: assume Employee's base salary is $100,000. Assume the Company or
Affiliate, as applicable, reduces Employee's base salary by 8% ($8,000).
Then, assume Employee's base salary is subsequently increased to $120,000.
The Company or Affiliate is entitled to reduce the $120,000 salary by up to
2% ($2,400) without giving Employee "Good Reason" to terminate employment.
Any further salary reductions would constitute "Good Reason" to terminate
employment.
(c) any purported termination for Cause of Employee's employment
that is not effected pursuant to the procedural requirements of Subsection
1.3.
(d) the location of Employee's place of employment is moved more
than 50 miles from its current location.
(e) Employee becomes the subject of a Disability.
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1.9 "Notice of Termination" shall mean a notice that indicates the
specific reasons for termination and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of Employee's
employment.
1.10 "Person" shall mean an individual, a corporation, a partnership, an
association, a joint-stock company, a trust, an incorporated organization or a
government or political subdivision thereof.
1.11 "Severance Payment" shall mean an amount equal to 150% of Employee's
highest annual base salary during the term of Employee's employment with the
Company; provided that, if the event giving rise to the Severance Payment occurs
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on or before the 180th day following a Change in Control (with the day
immediately following the day of the occurrence of the Change in Control being
day "1"), then the amount of the Severance Payment shall be the greater of (i)
the amount provided for in this sentence or (ii) the amount provided for in
Section 3 (as if Employee had resigned from employment pursuant to Section 3).
2. Severance Payment. From and after the date hereof, upon the occurrence of
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either of the following events, and subject to receiving a release reasonably
satisfactory to the Company relating to employment matters, the Company will pay
to Employee the Severance Payment (in accordance with Section 4) and Employee's
options to acquire the Company's stock shall become vested in full (regardless
of whether the options were granted before or are granted after the date of this
Agreement):
(a) Employee's employment with the Company and its Affiliates is
terminated by the Company or the employing Affiliate, as
applicable, other than for Cause; or
(b) Employee has Good Reason to terminate employment and actually
does so.
To terminate Employee's employment other than for Cause pursuant to 2(a),
the Company or the employing Affiliate, as applicable, shall give Employee
written notice of such termination. Such notice shall be effective 90 days
following the Employee's receipt thereof.
3. Change in Control Payment. If Employee resigns from employment with the
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Company and its Affiliates on or before the 180th day following a Change in
Control (with the day immediately following the day of the occurrence of the
Change in Control being day "1"), the Company shall pay to Employee the Change
in Control Payment (in accordance with Section 4) and Employee's options to
acquire the Company's stock shall become vested in full (regardless of whether
the options were granted before or are granted after the date of this
Agreement).
4. Mode of Payment. The Severance Payment and the Change in Control Payment
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shall be paid in a lump sum (less applicable withholdings for taxes and other
withholdings required by applicable law) contemporaneously with the occurrence
of the applicable event. The Company's obligation to pay the Severance Payment
and the Change in Control Payment is absolute, and such payments shall not be
mitigated or offset by virtue of Employee obtaining new employment or failing to
seek new employment.
5. General.
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5.1 Dispute Resolution. The provisions of Exhibit A attached hereto shall
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govern any disputes arising under this Agreement. Without limiting the
generality of the foregoing, if a dispute arises between the parties as to
whether or not Employee has "Good Reason" to terminate employment, Employee is
not required to resign from employment with the Company or an Affiliate, as
applicable, to "perfect" Employee's right to make a claim for the Severance
Payment, although Employee may resign from employment if Employee chooses. Such
disputes shall be resolved in accordance with the provisions of
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Exhibit A attached hereto. If the dispute is resolved in Employee's favor and it
is determined that Employee has "Good Reason" to terminate employment, then
Employee will be required to terminate employment and provide the required
release in order to collect the Severance Payment.
5.2 Confidential Information. Employee and the Company acknowledge that
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Employee has, or may have, previously executed a Confidentiality and Invention
Agreement which is incorporated herein by reference and shall survive Employee's
separation from employment in accordance with its terms.
5.3 Notice. All notices and other communications provided for in this
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Agreement shall be in writing and shall be deemed to have been received on the
date delivered, if personally delivered, or the date received after being mailed
by United States registered or certified mail, return receipt requested, postage
prepaid, addressed to the applicable party at the address for such party set
forth below or at such other address as such party may designate by like notice:
Employee:
Xxxxxx X. Xxxxxxxx
000 Xxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
The Company:
ZixIt Corporation
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000, LB 36
Xxxxxx, Xxxxx 00000-0000
Attn: CEO
5.4 Successors; Binding Agreement. This Agreement will be binding upon and
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inure to the benefit of the parties hereto and any successors in interest to the
Company following a Change in Control. This Agreement and all rights of
Employees hereunder shall inure to the benefit of and be enforceable by
Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributes, devisees and legatees.
5.5 Entire Agreement; Modifications. This Agreement embodies the entire
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agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements (including the Severance Agreements) and
understandings relating to the subject matter hereof. Only an instrument in
writing executed by both parties may amend this Agreement. No waiver by either
party 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.
5.6 Validity. The invalidity or unenforceability of any provision or
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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.
5.7 Enforcement Fees. In the event of a dispute arising under this
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Agreement, unless otherwise agreed by the parties in writing, each party shall
pay its own costs and expenses in resolving the dispute.
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5.8 Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Texas (excluding its conflict of laws
rules).
ZIXIT CORPORATION
/s/ Xxxx X. Xxxx
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Xxxx X. Xxxx, Chairman, President & CEO
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxxxx
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EXHIBIT A
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MUTUAL ALTERNATE DISPUTE RESOLUTION AGREEMENT
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ZixIt Corporation and its majority-owned subsidiaries are individually and
collectively referred to in this Exhibit A as the "Company."
A. Because this Exhibit A promotes arbitration as the exclusive final and
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binding method of addressing claims covered herein, the Company and Employee
agree to be bound by those laws best promoting the enforceability of arbitration
agreements in effect at any given time, including the Federal Arbitration Act,
federal common law, and any applicable state laws promoting arbitration.
B. Except as otherwise provided in this Exhibit A, the Company and the
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Employee consent and agree to the resolution, in the manner provided for in this
Exhibit A, of all claims or controversies brought by the Employee against the
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Company or any of the Company's current or former officers, directors,
employees, or agents, or brought by the Company against the Employee ("Claims")
for which a court otherwise would be authorized by law to grant relief, that are
(1) claims in any way arising out of, relating to, or associated with the
Employee's employment or termination from employment with the Company or any
adverse employment action by the Company or any Company-provided benefits or
compensation; (2) any other claims the Employee may have against the Company,
any benefit plans of the Company or any fiduciaries, administrators, and
affiliates of any benefit plan, or any of the Company's current or former
officers, directors, employees, or agents in their capacity as such; or (3) any
issue concerning the formation, applicability, interpretation, or enforceability
of this Exhibit A.
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The Employee acknowledges that the Claims intended to be covered by this
Exhibit A include (but are not limited to) claims or controversies under or
relating to: any federal, state, or local constitution, law, or regulation
prohibiting discrimination, harassment, retaliation, discharge, or other adverse
employment action; an alleged or actual contract; any Company policy or benefit;
entitlement to wages or other compensation; and any claim for personal,
emotional, physical, economic, or other injury.
C. The only claims otherwise within the definition of Claims that are not
covered by this Exhibit A are: (1) claims asserted in any administrative actions
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that the Employee is permitted to pursue under applicable law that are not
precluded by virtue of the Employee having entered into this Exhibit A; (2) any
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claim by the Employee for benefits under a workers' compensation insurance
policy or for statutory unemployment compensation benefits; (3) any claim by the
Employee for benefits under a Company pension or benefit plan that provides its
own non-judicial final and binding dispute resolution procedure; (4) any claim
by the Company for injunctive relief, specific performance and/or damages for
unfair competition, use or unauthorized disclosure of confidential or
proprietary information or trade secrets, use or ownership of patents,
trademarks, copyrights, know-how, and other intellectual property and
applications with respect to the foregoing; or (5) any claim arising under the
Confidentiality and Invention Agreement signed by the Employee in connection
with employment with the Company.
D. The arbitration will be conducted in accordance with the provisions of
this Exhibit A and the National Rules for the Resolution of Employment Disputes
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of the American Arbitration Association ("AAA") in effect at the time the
written notice of the Claim is received. A copy of AAA's current rules can be
found at xxx.xxx.xxx. The arbitrator shall also have the authority to determine
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a motion for summary disposition of a particular claim or issue, either by
agreement of all interested parties or at the request of one, provided all
interested parties have reasonable opportunity to respond. An arbitrator shall
be selected
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in the manner provided for by the AAA, except that the parties agree that the
arbitrator shall (1) be an attorney licensed in the state where the arbitration
is being conducted and (2) have expertise in the area of employment law. The
arbitration will be held in Dallas County, Texas, the Company's corporate
headquarters.
E. The arbitrator shall follow the law applicable to the Claim, including
but not limited to, statutes of limitations, exhaustion of administrative
remedies and burdens of proof, and shall have the authority to award all
remedies that would be available in a court of law. The arbitrator shall issue a
written decision that identifies the factual findings and principles of law upon
which any award is based. Such decision shall be final and binding on the
parties, and a judgment of any court having jurisdiction may be entered on the
award.
F. The Employee understands that by agreeing to submit Claims to
arbitration, he or she gives up the right to seek a trial by court or jury and
the right to an appeal from certain errors of the decision maker and forgoes any
and all related rights he or she may otherwise have under federal and state
laws. Any party who initiates litigation in violation of this Agreement will
incur liability to the person(s) sued for costs and attorneys' fees incurred in
defending the Claim and enforcing the terms of this Exhibit A.
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G. In the event any provision of this Exhibit A is found by an
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arbitrator, arbitration organization, or court to be unenforceable, in whole or
in part, the remaining provisions of this Exhibit A shall nevertheless remain
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enforceable, and the unenforceable provisions shall, to the extent permitted
under applicable law, be modified so as to be enforceable to the maximum extent
possible under applicable law or, if not subject to modification, severed and
excluded from this Exhibit A. If a court, arbitrator, or arbitration
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organization determines that some other aspect of the arbitration process
contemplated by this Exhibit A, but not addressed by the preceding sentence,
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would cause the Exhibit A to be invalid, unenforceable, or not subject to
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administration by the arbitration organization because the Employee is adversely
effected in some manner, the Company shall be given the option to remedy the
perceived defect in such a manner that arbitration may proceed.
H. This Exhibit A shall survive the termination of Employee's employment.
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This Exhibit A can be modified only in a writing signed by Employee and an
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officer of ZixIt Corporation that specifically states an intent to resolve or
modify this Exhibit A.
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I. EMPLOYEE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT; THAT
HE HAS BEEN GIVEN THE OPPORTUNITY TO DISCUSS THIS AGREEMENT WITH PRIVATE LEGAL
COUNSEL AND HAS MADE USE OF THAT OPPORTUNITY TO THE EXTENT HE WISHES TO DO SO;
THAT HE UNDERSTANDS ITS TERMS; THAT ALL UNDERSTANDINGS BETWEEN EMPLOYEE AND THE
COMPANY RELATING TO THE SUBJECTS COVERED IN THIS EXHIBIT A ARE CONTAINED IN THIS
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EXHIBIT A AND THAT HE HAS ENTERED INTO THIS EXHIBIT A VOLUNTARILY AND NOT IN
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RELIANCE ON ANY PROMISES OR REPRESENTATIONS BY THE COMPANY OTHER THAN THOSE
CONTAINED IN THIS EXHIBIT A ITSELF.
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