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Exhibit 10.20
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 1st day of September, 2000, by and between
HoustonStreet Exchange, Inc., a Delaware corporation with its principal place of
business located at 0 Xxxxxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000-0000
(the "Company"), and Xxxxx X. Xxxxxx Xx., residing at 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000 ("Executive").
Recital
Executive has been acting as President and Chief Executive Officer of
the Company and the parties hereto wish to enter into this Agreement for the
continuation of the employment of Executive in that capacity.
1. Employment.
The Company hereby employs Executive, and Executive hereby accepts such
employment, in accordance with the terms and subject to the conditions set forth
in this Agreement.
2. Position and Duties.
a. Subject to the provisions of this Agreement, the Company
shall employ Executive, and Executive shall serve the Company, as Chairman,
President, and Chief Executive Officer and/or any other titles as may be
designated from time to time by the Board of Directors (the "Board") of the
Company. Executive shall report to the Board.
b. Executive shall have primary authority and responsibility
for operational, management and general business matters of the Company and
shall perform such executive duties and responsibilities on behalf of the
Company and its Affiliates (as defined below) as may be prescribed from time to
time by the Board. Executive shall devote his full-time best efforts to the
business of the Company so as to increase the profitability and shareholder
value of the Company; and Executive shall not during the term of this Agreement
be engaged in any other business activity, other than providing services as a
senior officer of BayCorp Holdings, Ltd., unless written approval is first
secured from the Board. The preceding sentence shall not be deemed to prohibit
Executive's activities relating to his ownership and management of a certain
residential apartment building located in Oneonta, New York, provided that the
ownership and management of such building does not interfere with Executive's
duties hereunder. As used herein, "Affiliates" shall mean entities controlling,
controlled by or under common control with the Company. The Executive agrees
upon the Board's request, to serve on the Board (or any Affiliates' boards of
directors) for no additional consideration.
3. Term of Employment. Unless sooner terminated or extended as provided
in Sections 6 or 8 below, the term of this Agreement shall be three (3) years,
commencing on September 1, 2000 (the "Commencement Date") and ending on August
31, 2003 (the "Expiration
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Date") . As used herein, the word "Term" shall refer to the period beginning on
the Commencement Date and ending on the effective date of the termination of
Executive's employment with the Company as provided in this Agreement.
4. Compensation; Benefits. For all services rendered by Executive
pursuant to this Agreement, the Company shall compensate Executive, during the
Term of Executive's employment hereunder, as follows:
a. Annual Salary; Discretionary Bonus. From and after the
Commencement Date, Executive shall be paid an annual base salary of $160,000 per
year, which shall be payable in equal bi-weekly installments. After the first
anniversary of the Commencement Date, such base salary shall be increased to
$175,000 per year; after the second anniversary to $200,000 per year; and after
the third anniversary, in the event that the Term is extended pursuant to
Section 8, to $500,000 per year. The Executive shall also be eligible to
receive, from time to time, one or more discretionary bonuses to be determined
by the Board. All salary and bonus payments to Executive shall be subject to
payroll tax and related deductions as required by law.
b. Insurance, Executive Benefits; Vacation. During the Term,
the Company shall continue to pay life insurance and disability insurance
premiums with respect to the Executive, consistent with past practices and
subject to the Executive's continued eligibility for coverage at reasonable
rates. During the term of his employment hereunder, Executive shall be entitled
to participate in all employee pension and welfare benefit plans and programs
made available to executive employees of the. Company, as such plans or programs
may be in effect from time to time and as determined by the Board, including,
without limitation, 401(k) plans and health insurance and life insurance plans
not covered above. Executive shall be entitled to three (3) weeks of paid
vacation per calendar year or a pro rata number of vacation days for a period
that is less than a complete calendar year in accordance with the Company's
vacation policy in effect from time to time.
c. Reimbursement of Expenses. Executive shall be reimbursed
for reasonable business expenses incurred in connection with carrying out the
business of the Company, subject to authorization and documentation in
accordance with the Company's policies in effect from time to time.
5. Confidential Information; Non-Competition; Anti-Raiding.
a. Executive agrees that all operating and/or financial data
and projections, plans, contracts, agreements, literature, manuals, brochures,
books, schedules, correspondence and other materials furnished, disclosed or
otherwise made available to Executive by the Company or its Affiliates, or
secured through the efforts of Executive, relating to the business conducted by
the Company and/or its Affiliates, are and shall remain the property of the
Company and/or its Affiliates, and Executive agrees to deliver all such
materials, including all copies or abstracts thereof, to the Company upon the
termination of Executive's employment hereunder, or at any other time at the
Company's request.
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b. Executive agrees that, except in the good faith performance
of his duties and responsibilities under this Agreement or as required by order
of a court or governmental agency having jurisdiction, he will not at any time
during or after his employment with the Company use, reveal, divulge or make
known to any person or entity any confidential or proprietary knowledge or
information concerning the Company or its Affiliates, including without
limitation any such information concerning any equipment, facilities, contracts,
leases, operating and/or financial data and projections, processes,
developments, schedules, lists, plans or other matters relating to the business
of the Company or its Affiliates and will retain all knowledge and information
Executive acquired during his employment therewith relating to the business of
the Company or its Affiliates in trust in a fiduciary capacity for the sole
benefit of the Company, its Affiliates and their respective successors and
assigns. Executive's obligations under this Section 5.b. shall not apply to any
information that (i) is or becomes known to the general public under
circumstances involving no breach by Executive of this Agreement, (ii) is
generally disclosed to third parties (excluding counsel, accountants, financial
advisors, employees, agents and material creditors of the Company) by the
Company without restriction on such third parties, or (iii) is approved for
release by written authorization of the Board.
c. During the Term and for a period of one (1) year from the
date of any termination (a) by the Executive prior to the expiration of the Term
(other than as provided in Section 6.d. or 6.f.) or (b) by the Company pursuant
to Section 6.c. or 6.e., Executive shall not (i) enter into the employment of,
or act as a consultant, director, officer, or employee of, or render any service
or advice to, any other business, partnership, association, corporation or other
entity whose products or activities compete in whole or in part with the
products or activities of the Company or any Affiliate, or with any contemplated
products or activities of the Company or any Affiliate as evidenced by a
business plan or other written memoranda (a "Competing Business"), or (ii)
invest or otherwise acquire any interest, whether as a shareholder, lender,
partner, proprietor, vendor or otherwise, in any Competing Business (excluding
ownership of less than 2% of a class of securities of a publicly-traded
company).
d. During the Term and for a period of one (1) year from the
date of any termination (a) by the Executive prior to the expiration of the Term
(other than as provided in Section 6.d. or 6.f.) or (b) by the Company pursuant
to Section 6.c. or 6.e., Executive will not, directly or indirectly, entice,
induce or in any manner influence any person who is, or shall have been during
such period, in the service of the Company, to leave such service for the
purpose of engaging in a Competing Business, or being employed or engaged by or
otherwise associated with any person or entity which is a Competing Business.
e. The provisions of this Section 5 shall survive the
termination of this Agreement and the termination of Executive's employment with
the Company and shall run to and inure to the benefit of the Company and its
successors and assigns. Executive represents, warrants and acknowledges that he
has carefully read this Section 5, that he has had an opportunity to have the
provisions contained herein explained to him by his attorney, and that he
understands the provisions contained herein. Executive further acknowledges
that, by reason of his training, skills, experience and employment hereunder,
the services to be rendered by him under the provisions of this Agreement and
their value to the Company are of a special, unique and extraordinary character
and that it would be difficult or impossible to replace such services,
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and he further acknowledges that a violation by him of any of the provisions of
this Section 5 could cause continuing material and irreparable injury to the
Company and that in such event money damages would not be readily calculable and
the Company would not have an adequate remedy at law. Executive acknowledges and
agrees that (i) the restrictions under this Section 5 are reasonable and will
not interfere with Executive's ability to earn a livelihood or impose upon him
any undue hardship, and (ii) any breach of the covenants, provisions and
restrictions contained in this Section 5 shall cause, and shall he deemed to be,
a fundamental and material breach of Executive's fiduciary and contractual
obligations to Employer. Therefore, Executive agrees that the Company shall be
authorized and entitled to obtain from any court of competent jurisdiction,
interim and permanent equitable relief, including without limitation, injunctive
relief, in the event of any such breach or threatened breach, together with
payment of reasonable attorneys' fees and disbursements and any other costs of
enforcement incurred in connection with such breach or threatened breach. These
rights and remedies shall be cumulative and shall be in addition to any other
rights or remedies whatsoever to which the Company shall otherwise be entitled
hereunder, at law or otherwise, including the right to seek damages (including
any consequential damages) which any court of competent jurisdiction may deem
appropriate.
6. Termination of Employment. The term of employment may terminate upon
the occurrence of any of the following events:
a. Termination Due to Death. Executive's employment hereunder
shall terminate upon his death. In such event his estate or his beneficiaries,
as the case may be, shall be entitled to:
(1) Salary accrued through the date of death;
and
(2) The right to exercise any or all of his
outstanding stock options (the "Options"),
subject to the terms of the Stock Option
Agreements (the "Option Agreements") and the
applicable Stock Option Plans.
b. Termination Due to Disability. The Company may terminate
Executive's employment at any time on written notice after his "Disability."
"Disability" shall mean Executive's inability by reason of illness or injury
substantially to perform his duties and responsibilities under this Agreement,
as reasonably determined by a majority of the Board based upon the report of a
reputable physician designated by the Board (whom Executive shall permit to
examine him) , for a period of eight-four (84) consecutive days or one hundred
(100) days in any twelve (12) month period. In the event Executive's employment
is terminated due to his Disability, he shall be entitled to receive the
following:
(1) The amount of any disability or retirement
benefits provided to Executive by the
Company under the provisions of any Company
plan for its employees with respect to which
Executive is qualified; and
(2) Any accrued and unpaid salary through the
effective date of termination.
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c. Involuntary Termination for Cause. The Company may
terminate Executive's employment at any time for "Cause" on written notice.
"Cause" shall mean (i) Executive is convicted of a felony, or a misdemeanor
involving moral turpitude; or (ii) the Board determines in good faith, after
reasonable notice to Executive and an opportunity for Executive to present his
views of the relevant facts and circumstances, that Executive has (A) materially
failed or refused to perform competently his duties and responsibilities (after
notice and opportunity to cure if such material failure or refusal can be cured)
as provided in this Agreement; (B) has breached his duty of loyalty to, or
committed any act of fraud, theft or dishonesty against, the Company or any of
its Affiliates; or (C) has violated any of his material obligations under this
Agreement after written notice and a reasonable opportunity (not to be less than
ten (10) days) to cure such default, if curable. In the event of such
termination for Cause, all rights and benefits of Executive under this Agreement
(including without limitation all unexercised options) shall immediately
terminate and in no event shall the Company be obligated to pay Executive any
compensation (other than salary and accrued and vested benefits through the date
of termination) with respect to any period before or after the date of such
termination.
d. Voluntary Termination by Executive. Executive may terminate
this Agreement in a "Qualifying Termination" (as defined in Section 7.d. below).
e. Other Termination by the Company. In the event of the
termination of Executive's employment by the Company other than pursuant to the
provisions of Subsection 6.a., b. or c. above:
(1) Executive shall be entitled to receive the
greater of $300,000 or an amount equal to
his annual salary, in cash, without any
offset for any compensation earned through
other employment and without any obligation
to mitigate damages;
(2) All options previously issued to Executive
shall immediately become exercisable and
shall remain exercisable for two (2) years
from the date of termination, in accordance
with the Option Agreements.
f. Other Termination by the Executive. In the event of the
termination of Executive's employment by Executive following a material breach
by the Company of its obligations under this Agreement which remains uncured
after written notice to the Company and a reasonable opportunity (not to be less
than ten (10) days) to cure such breach:
(1) Executive shall be entitled to receive in
cash an amount equal to his annual salary
from the effective date of such termination
through the Expiration Date; provided,
however, that such sum shall be offset by
the amount of any compensation earned by
Executive through other employment from the
effective date of such termination through
the Expiration Date (it being understood
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that Executive shall be under no obligation
to mitigate his damages in such event);
(2) All options previously issued to Executive
shall immediately become exercisable and
shall remain exercisable for two (2) years
from the date of termination, in accordance
with the Option Agreements.
7. Change of Control.
a. In the event that Executive's employment by the Company
terminates in a Qualifying Termination (as defined in Subsection 7.d. below):
(1) Executive shall be entitled to receive in
cash upon the Qualifying Termination an
amount equal to the greater of (a) the sum
of his annual salary from the date of the
Qualifying Termination through the
Expiration Date or (b) twice his annual
salary immediately prior to the date of the
Change in Control;
(2) All Options previously issued to Executive
shall immediately become exercisable in
accordance with the Option Agreements; and
(3) The covenants contained in Subsections 5.c
and 5.d. shall not apply;
b. Payments under this Subsection 7.a. shall be made without
regard to whether the deductibility of such payments (or any other "parachute
payments," as that term is defined in Section 28OG of the Internal Revenue Code
of 1986, as amended (the "Code"), to or for the Executive's benefit) would be
limited or precluded by Section 280G and without regard to whether such payments
(or any other "parachute payments" as so defined) would subject the Executive to
the federal excise tax levied on certain "excess parachute payments 11 under
Section 4999 of the Code; provided that if the total of all "parachute payments"
to or for the Executive's benefit, after reduction for all federal, state and
local taxes (including the tax described in Section 4999 of the Code, if
applicable) with respect to such payments (the "Total After-Tax Payments"),
would be increased by the limitation or elimination of any payment under this
Subsection 7.a., amounts payable under this Subsection 7.a. shall be reduced to
the extent, and only to the extent, necessary to maximize the Total After-Tax
Payments. The determination as to whether and to what extent payments under this
Subsection 7.a. are required to be reduced in accordance with the preceding
sentence shall be made at the Company's expense by Xxxxxx Xxxxxxxx or by such
other certified public accounting or law firm as the Board may designate prior
to a Change of Control of the Company. In the event of any underpayment or
overpayment under this Subsection 7.a. as determined by Xxxxxx Xxxxxxxx (or such
other firm as may have been designated in accordance with the preceding
sentence) , the amount of such underpayment or overpayment shall forthwith be
paid to the Executive or refunded to the Company, as the case may be, with
interest at the applicable federal rate provided for in Section 7872 of the
Code.
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c. For purposes of this Agreement, a "Change of Control"
occurs upon the occurrence prior to the Expiration Date of any event specified
below:
(1) any corporation, person or other entity
(other than the Company, a majority-owned
subsidiary of the Company, any employee
benefit plan maintained by the Company or
any subsidiary or one of the two largest
shareholders as of the Commencement Date
(any such person, a "Permitted Acquiror")
acquires or becomes the holder of more than
fifty percent (50%) of the Company's voting
equity securities, or
(2) the stockholders of the Company approve a
definitive agreement to merge or consolidate
the Company with or into another corporation
or person (other than a subsidiary of the
Company) or to sell or otherwise dispose of
all or substantially all of its assets
unless at least 50% of the voting power of
the outstanding voting securities of the
resulting or surviving corporation or other
person from such merger or consolidation or
of the corporation or other person acquiring
the assets is, immediately following such
transaction, beneficially owned by
substantially all of the beneficial owners
of the Company's voting securities
immediately prior to such transaction.
d. For purposes of this Agreement, a "Qualifying Termination"
occurs if, prior to the earlier of the Expiration Date or the second anniversary
of a Change of Control, (a) the employment of Executive is terminated other than
for Cause or (b) Executive resigns following any material impairment or material
adverse change in his working conditions, -authority, autonomy, compensation or
benefits immediately prior to the Change of Control, as the same may from time
to time have been improved, or otherwise altered with the written consent of
Executive such that his position within the Company or its successor is no
longer reasonably comparable (a "Material Adverse Change"). An assignment by the
Company of all rights and obligations hereunder to an entity into or with which
the Company merges or consolidates or to which the Company transfers
substantially all of its assets shall not constitute a Material Adverse Change
in and of itself so long as such entity fully assumes the Company's obligations
under this Agreement. In the event that both Subsection (i) 6.e. or 6.f. and
(ii) this Subsection 7.d. are applicable, the provisions of this Section shall
exclusively govern Executive's rights and remedies.
8. Extension of Term.
In the event that the Company participates in an initial firm
commitment underwritten public offering of shares of its Common Stock pursuant
to a registration statement filed under the Securities Act of 1933, the Company,
at its option, may extend the Term of this Agreement for one (1) additional
year, to August 31, 2004, in which event all references in this Agreement to
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the Expiration Date shall mean August 31, 2004. Such option to extend shall be
exercised by written notice delivered to the Executive at any time prior to July
31, 2003.
9. Miscellaneous.
a. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New Hampshire without
reference to principles of conflict of laws. Any dispute, action or proceeding
arising hereunder shall be maintained in the state or federal courts located in
New Hampshire and each party hereto consents to service of process in the manner
provided in Subsection b. of this Section 8 (which shall constitute "personal
service").
b. Any notice given to a party shall be in writing and shall
be deemed to have been given when delivered personally or sent by certified or
registered mail, postage prepaid, return receipt requested, duly addressed to
the party concerned at the address indicated below or to such other address as
to which such party may subsequently give such notice:
If to the Company:
HoustonStreet Exchange, Inc.
0 Xxxxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attention: Compensation Committee Chairman
If to Executive: 000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000
Copies of all notices to the Company shall be sent to Xxxxxxx X. Xxxxxxx,
McLane, Graf, Xxxxxxxxx & Middleton Professional Association, 000 Xxx Xxxxxx, XX
Xxx 000, Xxxxxxxxxx, XX 00000-0000.
c. This Agreement is personal to Executive and shall not be
assignable by Executive, except that Executive's rights to compensation and
benefits may be transferred in the event of death or Disability by will or
operation of law (subject to the terms hereof and of the applicable plans).
Subject to the provisions of Section 7.d. above, the Company may assign (without
Executive's consent) all rights and obligations hereunder to an entity into or
with which the Company merges or consolidates or to which the Company transfers
substantially all of its assets. This Agreement shall be binding upon and inure
to the benefit of Executive's heirs and legal representatives and shall be
binding upon and inure to the benefit of the Company and its successors and
assigns.
d. Executive and the Company each represents and warrants to
the other that such party is fully authorized and empowered to enter into this
Agreement and that the entry into and performance of such party's obligations
hereunder will not violate any agreement between such party and any other person
or entity. Executive represents and warrants that he has made a
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thorough investigation of and is knowledgeable about the facts and circumstances
affecting the business and prospects of the Company.
e. This Agreement contains the entire understanding and
agreement between the parties concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, between the parties with respect thereto.
No provision hereof may be amended unless such amendment is agreed to in writing
and signed by Executive and an authorized officer of the Company acting at the
direction of the Board. No waiver by either party of any breach by the other
party of any condition or provision contained herein to be performed by such
other party shall be deemed a waiver of a similar or dissimilar condition or
provision at the same or any prior or subsequent time. Any waiver must be in
writing and signed by Executive or an authorized officer of the Company, as the
case may be.
f. Any provision of this Agreement that may be prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions thereof. Any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by law, the parties hereby waive any
provision of law that renders any provision of this Agreement prohibited or
unenforceable in any respect. in addition, in the event of any such prohibition
or unenforceability, the parties agree that it is their intention and agreement
that any such provision, as written, in any jurisdiction shall nonetheless be in
force and binding to the fullest extent permitted by the law of such
jurisdiction as though such provision had been written in such a manner and to
such an extent as to be enforceable therein under the circumstances. Without
limitation of the foregoing, with respect to the restrictive covenant contained
herein, if it is determined that any such provision is excessive as to duration,
scope or area, it is intended that it nonetheless be enforced for such shorter
duration or with such narrower scope or area as will render it enforceable, and
the court making such determination shall have the power to modify such
duration, scope or area, or all of them, and/or to delete specific words or
phrases, and such provision shall then be applicable and enforceable in such
modified form.
The parties hereto have signed this Employment Agreement as of the date
first written above.
HOUSTONSTREET EXCHANGE, INC.
By: /s/ Xxxxxxx X. Latina
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Xxxxxxx X. Latina, Director
/s/ Xxxxx X. Xxxxxx Xx.
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Xxxxx X. Xxxxxx Xx.
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