Exhibit 10.16
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement ("Amendment") is made and
entered into as of January 8, 2002, by and between H.T.E., INC., a Florida
corporation, (hereinafter called the "Company"); and XXXXXX X. XXXXXXX, III
(hereinafter called the "Executive").
R E C I T A L S
The Executive and Company wish to amend the terms and conditions of
that certain Employment Agreement dated as of January 17, 2000 (the "Employment
Agreement").
AMENDMENT AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties agree to amend the Employment Agreement as
follows:
The following "Enhanced Severance and Accelerated Option Vesting"
provisions are hereby added as subparagraph 5.8:
5.8 Enhanced Severance and Accelerated Option Vesting. In the
event of a "Change of Control" of the Company, as defined below, and
notwithstanding any other provision of this Employment Agreement to the
contrary, the Company shall provide "Enhanced Severance" and
"Accelerated Option Vesting" for or to the Executive as hereinafter
provided:
a. Enhanced Severance. If during the eighteen (18)
month period beginning with the date of a Change of Control
(the "Enhanced Severance Period") a "Prohibited Act" occurs,
as defined below, the Company shall pay to the Executive an
amount equal to the aggregate compensation from salary, cash
bonus plan and commissions earned by the Executive during the
twelve (12) months immediately preceding the date of the
Prohibited Act ("Enhanced Severance Payment"). Upon twenty
(20) days written notice to the Company, the Executive shall
have the right to resign his employment upon the occurrence of
a Prohibited Act without further liability to the Company
under this Employment Agreement. Such resignation by the
Executive shall not effect the Company's obligation to pay to
the Executive the Enhanced Severance Payment. The Company
shall pay the Enhanced Severance Payment to the Executive in
equal monthly or more frequent installments during the twelve
(12) months immediately following the date of the Prohibited
Act. In addition, the Executive and the Executive's dependents
shall continue to receive, without charge, all health,
medical, dental and vision insurance coverage or any other
insurance benefits they were receiving or participating in
prior to the date of the Prohibited Act during the twelve (12)
months immediately following the date of the Prohibited Act.
The Enhanced Severance Payment and the above-described
continuation of insurance coverage shall be in lieu of and
replace all other severance or compensation continuation
payments or benefits to which the Executive may otherwise be
entitled to receive under this Employment Agreement.
b. Change of Control. For the purpose of this
Employment Agreement, a "Change of Control" shall mean: (i)
the acquisition (other than by the Company), at any time after
the date hereof, by any person, entity or "group", within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934 (the "Exchange Act"), of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of fifty percent (50%) or more of either the
then outstanding shares of common stock or the combined voting
power of the
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Company's then outstanding voting securities entitled to vote
generally in the election of directors; (ii) the individuals
who, as of the date hereof, constitute the Board of Directors
of the Company (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board of Directors,
provided that any person becoming a director subsequent to the
date hereof whose election, or nomination for election by the
Company's shareholders, was approved, or not objected to, by a
vote of at least a majority of the directors then comprising
the Incumbent Board (other than an election or nomination of
an individual whose initial assumption of office is in
connection with an actual or threatened election contest
relating to the election of the directors of the Company, as
such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) shall be, for purposes of
this Agreement, considered as though such person were a member
of the Incumbent Board; or (iii) approval by the stockholders
of the Company of: (a) a reorganization, merger or
consolidation with respect to which persons who were the
shareholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately
thereafter, own more than fifty percent (50%) of the combined
voting power entitled to vote generally in the election of
directors of the reorganized, merged or consolidated company's
then outstanding voting securities, (b) a liquidation or
dissolution of the Company, or (c) the sale of all or
substantially all of the assets of the Company, unless the
approved reorganization, merger, consolidation, liquidation,
dissolution or sale is subsequently abandoned.
c. Prohibited Act. For the purpose of this Employment
Agreement, a "Prohibited Act" shall mean: (i) if after one
hundred twenty (120) days following the date of a Change of
Control, the Executive is assigned any duties inconsistent in
any respect with the Executive's position (including status,
offices, titles and reporting requirements), authority, duties
or responsibilities as contemplated by this Employment
Agreement or which have, prior to a Change of Control, then
been assigned to the Executive, or any other action by the
Company which results in a diminution in such position,
authority, duties or responsibilities, excluding for this
purpose (x) an isolated, insubstantial and inadvertent action
not taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the
Executive, (y) a diminution in the Executive's position,
authority, duties or responsibilities solely as a result of
the Company not continuing as a separate reporting company
under the Exchange Act of 1934, or (z) a Prohibited Act to
which the Executive either consents or does not object, in
writing, to the Company within thirty (30) days of the
occurrence of such Prohibited Act; (ii) any failure by the
Company to comply with any of the provisions of this
Employment Agreement, other than an isolated, insubstantial
and inadvertent failure not occurring in bad faith and which
is remedied by the Company promptly after receipt of notice
thereof given by the Executive; (iii) the Company requires the
Executive to be based at any office or location which is not
within thirty (30) miles of the Company's current offices at
0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxx Xxxx, Xxxxxxx, except for
travel reasonably required in the performance of the
Executive's responsibilities; (iv) any reduction in the
Executive's base salary or change in any incentive
compensation plans in which the Executive is then
participating; or (v) a termination or purported termination
by the Company of the Executive's employment without cause, as
provided by this Employment Agreement.
d. Extension of Term of Employment Agreement. In the
event of a Change of Control and if the remaining or unexpired
term of this Employment Agreement does not extend to the end
of the Enhanced Severance Period, the term and legal
effectiveness of the provisions of this Employment Agreement
shall be extended to the end of the Enhance Severance Period.
e. Accelerated Option Vesting. Effective upon a
Change of Control and notwithstanding any provision to the
contrary in any option agreement under which the Executive may
acquire the Company's common stock (the "Option Agreements"),
the Executive shall vest as to all then unvested
non-performance based stock options under the Option
Agreements, the greater of: (i) fifty percent (50%) of the
unvested non-performance based stock options; or (ii) an
additional one year's vesting under the pre-Change of Control
time vesting schedule for non-performance based stock options.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first above written.
COMPANY:
H.T.E., INC.
By: /s/ X. X. Xxxxxx, Jr.
--------------------------
X. X. Xxxxxx, Jr., EVP
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxxx, III
--------------------------
Xxxxxx X. Xxxxxxx, III
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