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EXHIBIT 10.31
PYRA
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), is made and entered into
as of this ___ day of _______, 1998, to be effective as of July 1, 1998 (the
"Effective Date"), by and between Xxxxx/Xxxxxx, Inc., a Texas corporation (the
"Company"), and Xxxxxx X. Xxxx, a resident of Texas (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company is a corporation engaged in business in the State
of Texas and throughout the United States; and
WHEREAS, the Company desires to employ the Employee in the capacity of
Chief Financial Officer, upon the terms and conditions hereinafter set forth;
and
WHEREAS, the Employee is willing to enter into this Agreement with
respect to his employment and services upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations contained herein, the Company hereby employs the Employee and the
Employee hereby accepts such employment upon the terms and conditions
hereinafter set forth:
1. Term of Employment. The term of employment under this
Agreement shall be for a period of three (3) years, commencing on the Effective
Date and terminating on June 30, 2001. Unless the Employee's employment is
terminated or notice of termination is given by one of the parties hereto prior
to the expiration of this Agreement, the Employee's employment shall
automatically continue for a period of ninety (90) days after the expiration of
the term of this Agreement and during such time the parties will attempt to
negotiate the terms and conditions for the Employee's continued employment and
determine the desirability of executing a new employment agreement.
2. Duties of the Employee. The Employee agrees that during the
term of this Agreement, he will devote his full professional and
business-related time, skills and best efforts to the businesses of the Company
in the capacity of Chief Financial Officer, or such other capacity as the
Company and the Employee may agree upon. If there are major significant
changes in the duties or responsibilities of the Employee inconsistent with
Employee's status and responsibilities that are not mutually agreed upon, the
Employee may terminate his employment within sixty (60) days of any such
change. In addition, the Employee shall devote all necessary time and his best
efforts in the performance of any other duties as may be assigned to him from
time to time by the Board of Directors of the Company including, but not
limited to, serving in similar capacities with parents, subsidiaries and
affiliates of the Company and serving on the Board of Directors of the Company
or any parent, subsidiary or affiliate of the Company if elected. The Employee
shall devote his full professional and business skills to the Company as
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his primary responsibility provided, however, that the Company acknowledges and
consents to Employee's reasonable winding down of activities involving Geodesic
Systems, Inc. through September 1998. The Company may elect to cause any
parent, subsidiary or affiliate to provide any of the compensation and benefits
required to be provided to Employee hereunder. Employee may reside in Austin,
Texas and the Company shall provide reasonable executive office accommodations
in Austin, Texas as may be approved by the Company; provided, however, that
Employee shall be available not less than five days per calendar month to
perform services in the Dallas, Texas office of the Company. The Employee may
engage in personal, passive investment activities provided such activities do
not interfere with the performance of his duties hereunder and violate the
noncompetition and nondisclosure provisions set forth herein.
3. Compensation.
(a) Base Salary. The Company shall pay the Employee an
annual base salary of Two Hundred Thousand Dollars ($200,000) per
annum (or fraction for portions of a year). Such base salary will be
adjusted from time to time in accordance with then current standard
salary administration guidelines of the Company. The Employee'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 the Company.
(b) Annual Bonus. In addition to the salary set forth in
Section 3(a) hereof, the Employee shall receive a bonus each year
during the term of this Agreement in an amount as determined in
accordance with the 1998 Bonus Plan (prorated based on the actual
number of days of employment with the Company during 1998) attached as
Schedule 3(b) with respect to 1998 and thereafter Employee shall
participate in the 1999 Annual Bonus Plan of the Company.
(c) Stock Options. Employee shall be granted stock
options for shares of common stock of Employer (or of the parent
company of Employer) pursuant to the terms of a Stock Option Agreement
granted under the Xxxxx Xxxxxx, Inc. 1998 Stock Option Plan, as
amended, a copy of which has been provided to Employee (the
"Options"). The number of shares of common stock, exercise price and
date of grant for the Options is set forth on Schedule 3(c) attached
hereto.
4. Fringe Benefits. The terms of this Agreement shall not
foreclose the Employee from participating with other employees of the Company
in such fringe benefits or incentive compensation plans as may be authorized
and adopted from time to time by the Company; provided, however, that the
Employee must meet any and all eligibility provisions required under said
fringe benefits or incentive compensation plans. The Employee may be granted
such other fringe benefits or perquisites as the Employee and the Company may
from time to time agree upon.
5. Vacations. The Employee shall be entitled to the number of
paid vacation days in each calendar year as shall be determined by the Board of
Directors of the Company from time to
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time. In no event, however, shall the Employee be entitled to less than four
(4) weeks paid vacation during each calendar year.
6. Reimbursement of Expenses. The Company recognizes that the
Employee will incur legitimate business expenses in the course of rendering
services to the Company hereunder. Accordingly, the Company shall reimburse
the Employee, upon presentation of receipts or other adequate documentation,
for all necessary and reasonable business expenses incurred by the Employee in
the course of rendering services to the Company under this Agreement.
7. Working Facilities. The Employee shall be furnished an
office, administrative assistance and such other facilities and services
suitable to his position and adequate for the performance of his duties, which
shall be consistent with the policies of the Company.
8. Termination. The employment relationship between the Employee
and the Company 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 death or
permanent disability of the Employee. For the purpose of this
Agreement, the "permanent disability" of the Employee shall mean the
Employee's inability, because of his injury, illness, or other
incapacity (physical or mental), to perform the essential functions of
the position contemplated herein, with or without reasonable
accommodation to the Employee with respect to such injury, illness or
other incapacity, for a continuous period of 150 days or for 180 days
out of a continuous period of 360 days. Such permanent disability
shall be deemed to have occurred on the 150th consecutive day or on
the 180th day within the specified period, whichever is applicable.
(b) Termination for Cause. The following events, which
for purposes of this Agreement shall constitute "cause" for
termination:
(1) The willful breach by the Employee of any
provision of Sections 2, 11, 12, or 13 hereof (including but
not limited to a refusal to follow lawful directives of the
Board of Directors of the Company) after notice to the
Employee of the particular details thereof and a period of ten
(10) days thereafter within which to cure such breach and the
failure of the Employee to cure such breach within such ten
(10) day period;
(2) Any act of fraud, misappropriation or
embezzlement by the Employee with respect to any aspect of the
Company's business;
(3) The use of illegal drugs by the Employee
during the term of this Agreement that, in the determination
of the Board of Directors of the Company, substantially
interferes with the Employee's performance of his duties
hereunder;
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(4) Substantial failure of performance by the
Employee that is repeated or continued after thirty (30) days
written notice to the Employee of such failure and that is
reasonably determined by the Board of Directors of the Company
to be materially injurious to the business or interests of the
Company and which failure is not cured by the Employee within
such thirty (30) day period; or
(5) Conviction of the Employee by a court of
competent jurisdiction of a felony or of a crime involving
moral turpitude.
Any notice of discharge shall describe with reasonable specificity the
cause or causes for the termination of the Employee's employment, as well as
the effective date of the termination (which effective date may be the date of
such notice). If the Company terminates the Employee's employment for any of
the reasons set forth above, the Company shall have no further obligations
hereunder from and after the effective date of termination (other than as set
forth below) and shall have all other rights and remedies available under this
Agreement or any other agreement and at law or in equity.
(c) Termination by the Employee with Notice. The
Employee may terminate this Agreement without liability to the Company
arising from the resignation of the Employee upon ninety (90) days
prior written notice to the Company. The Company retains the right
after proper notice of the Employee's voluntary termination to require
the Employee to cease his employment immediately; provided, however,
in such event, the Company shall remain obligated to pay the Employee
his salary during the ninety (90) day notice period or the remaining
term of this Agreement, whichever is less. During such ninety (90)
day notice period, which in no event shall exceed the remaining term
of this Agreement, the Employee shall provide such consulting services
to the Company as the Company may reasonably request and shall assist
the Company in training his successor and generally preparing for an
orderly transition.
(d) Termination by the Company with Notice. The Company
may terminate this Agreement at any time upon ninety (90) days prior
written notice to the Employee; provided, however, upon such notice
the Employee shall not be required to perform any services for the
Company other than during the ninety (90) day period immediately
following the receipt of such notice of termination. During such time
period, the Employee shall assist the Company in training his
successor and generally preparing for an orderly transition. If at
the time the Company provides the Employee with notice, as required by
this Section 8(d), the remaining term of this Agreement is less than
ninety (90) days, the term of this Agreement shall automatically be
extended without further action by any party to the extent necessary
to give full effect to the ninety (90) day notice period required
herein.
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9. Compensation Upon Termination.
(a) General. Unless otherwise provided for herein, upon
the termination of the Employee's employment under this Agreement
before the expiration of the stated term hereof for any reason, the
Employee shall be entitled to (i) the salary earned by him before the
effective date of termination, as provided in Section 3(a) hereof,
prorated on the basis of the number of full days of service rendered
by the Employee during the year to the effective date of termination,
(ii) any accrued, but unpaid, vacation or sick leave benefits, (iii)
any authorized but unreimbursed business expenses, and (iv) any
accrued, but unpaid annual bonus which will be paid in the year
following the Employee's termination in accordance with the Company's
customary practices.
(b) Termination For Other Than Cause. If such
termination is the result of the discharge of the Employee by the
Company for any reason other than (i) his death or permanent
disability, (ii) by the Company or the Employee with notice pursuant
to Section 8(d) or 8(c), respectively, or (iii) for cause (as defined
in Section 8(b) hereof), then the Employee shall be entitled to
receive as severance compensation an amount equal to the salary
(excluding bonuses) that the Employee would have received for the
greater of 90 days or the remainder of the term of this Agreement, in
either case, in accordance with the regular payroll periods of the
Company. The severance payment provided for in this Section 9(b)
shall be made to the Employee on the effective date of the
termination. If the Employee's employment hereunder terminates
because of the death of the Employee, all amounts that may be due to
him under the terms of this Agreement shall be paid to his
administrators, personal representatives, heirs and legatees, as may
be appropriate.
(c) Termination For Cause. If the employment
relationship hereunder is terminated by the Company for cause (as
defined in Section 8(b) hereof), the Employee shall not be entitled to
any severance payment, but shall be entitled to receive the
compensation and other benefits provided for in Section 9(a)(i), (ii)
and (iii) above.
(d) Termination by the Company with Notice. If the
employment relationship is terminated by the Company pursuant to
Section 8(d) hereof (and not for cause or the permanent disability of
the Employee), then the Employee shall be entitled to receive his
salary during the ninety (90) day notice period together with a
severance payment in an amount equal to the salary that the Employee
would have received for a period of one (1) year after the effective
date of the termination in accordance with the regular payroll periods
of the Company. This severance payment shall be paid to the Employee
on the effective date of his termination and shall be in addition to
the compensation and other benefits to be paid to the Employee
pursuant to Section 9(a) above.
(e) Termination by the Employee with Notice. If the
employment relationship is terminated by the Employee pursuant to the
provisions of Section 8(c) hereof, the Employee shall be entitled to
receive his salary during the ninety (90) day notice period
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(such notice period not to exceed the remaining term of this
Agreement) but he shall not receive or otherwise be entitled to any
severance compensation nor shall the Employee be entitled to receive
any accrued but unpaid bonus. The Employee shall, however, be
entitled to the compensation and other benefits provided for in
Section 9(a)(i),(ii) and (iii).
(f) Survival. The provisions of Sections 9, 11, 12, and
13 hereof shall survive the termination of the employment relationship
hereunder and this Agreement to the extent necessary or reasonably
appropriate to effect the intent of the parties hereto as expressed in
such provisions.
10. Other Agreements. This Agreement shall be separate and apart
from, and shall be deemed to alter the terms of, any executive compensation
agreements, deferred compensation agreements, bonus agreements, general
employment benefit plans, stock option plans and any other plans or agreements
entered into between the Employee and the Company pursuant to which the
Employee has been granted specific rights, benefits or options.
11. Noncompetition. The Employee agrees that, during his
employment with the Company and for a period of two (2) years from the date of
termination of his employment with the Company, he will not directly or
indirectly engage in or have any financial interest in any business which is in
competition with the business of the Company, its parent, any subsidiary or
affiliate ("Prohibited Activities"), including, but not limited to, the
businesses listed on Exhibit A hereto, anywhere within the United States of
America (the "Restricted Area"). For purposes of this Section 11, the Employee
recognizes and agrees that the Company conducts and will conduct business in
the entire Restricted Area and that the Employee will perform his duties for
the Company within the entire Restricted Area. The Employee shall be deemed to
be engaged in and carrying on the Prohibited Activities if he engages in the
Prohibited Activities in any capacity whatsoever, including, but not limited
to, by or through a partnership of which he is a general or limited partner or
an employee engaged in such activities, or by or through a corporation or
association of which he owns five percent (5%) or more of the stock or of which
he is an officer, director, employee, member, representative, joint venturer,
independent contractor, consultant or agent who is engaged in such activities.
The Employee agrees that during the two (2) year period described above, he
will notify the Company of the name and address of each company with whom he
has accepted employment during such period. Such notification shall be made in
writing within five (5) days after the Employee accepts any employment or new
employment by certified mail, return receipt requested.
12. Confidential Information. The Employee further agrees that,
during his employment with the Company and thereafter, he will keep
confidential and not divulge to anyone, disseminate or appropriate for his own
benefit or the benefit of another any confidential, operational, financial and
proprietary information known or obtained by the Employee, whether before or
after the date hereof, relating to the Company including, by way of example and
not limitation, any and all notes, analyses, compilations, studies, plans,
records, reports, strategies, forecasts, client lists, trade secrets,
intellectual property agreements, pricing policies, contracts,
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sales techniques, marketing brochures, budgets, memoranda, financial
statements, catalogues, books, manuals or other documents which reflect such
information (collectively, the "Confidential Information"). The Employee
hereby acknowledges and agrees that this prohibition against disclosure of
Confidential Information is in addition to, and not in lieu of, any rights or
remedies that the Company may have available pursuant to the laws of any
jurisdiction or at common law or pursuant to any other agreements that the
Employee may have with the Company to prevent the disclosure of trade secrets
or intellectual property, and the enforcement by the Company of its rights and
remedies pursuant to this Agreement shall not be construed as a waiver of any
other rights or available remedies that it may possess in law or equity absent
this Agreement.
13. Nonsolicitation of Employees. The Employee covenants that,
during his employment with the Company and for a period of one (1) year from
the date of termination of his employment with the Company, he will not (i)
directly or indirectly induce or attempt to induce any employee of the Company
to terminate his or her employment, or (ii) without prior written consent of
the Company, offer employment either on behalf of himself or on behalf of any
other individual or entity to any employee of the Company or to any terminated
employee of the Company.
14. Property of the Company. The Employee acknowledges that from
time to time in the course of providing services pursuant to this Agreement he
shall have the opportunity to inspect and use certain property, both tangible
and intangible, of the Company and the Employee hereby agrees that such
property shall remain the exclusive property of the Company, and the Employee
shall have no right or proprietary interest in such property, whether tangible
or intangible, including, without limitation, the Employee's customer and
supplier lists, contract forms, books of account, computer programs and similar
property.
15. Equitable Relief. The Employee acknowledges that the services
to be rendered by him are of a special, unique, unusual, extraordinary, and
intellectual character, which gives them a peculiar value, and the loss of
which cannot reasonably or adequately be compensated in damages in an action at
law, and that a breach by him of any of the provisions contained in this
Agreement will cause the Company irreparable injury and damage. The Employee
further acknowledges that he possesses unique skills, knowledge and ability and
that competition by him in violation of this Agreement or any other breach of
the provisions of this Agreement would be extremely detrimental to the Company.
By reason thereof, the Employee agrees that the Company shall be entitled, in
addition to any other remedies it may have under this Agreement or otherwise,
to injunctive and other equitable relief to prevent or curtail any breach of
this Agreement by him.
16. Successors Bound. This Agreement shall be binding upon the
Company and the Employee, their respective heirs, executors, administrators or
successors in interest, including without limitation, any corporation,
partnership or other entity acquiring control of the Company.
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17. 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.
18. Integrated Agreement. This Agreement constitutes the entire
Agreement between the parties hereto with regard to the subject matter hereof,
and there are no agreements, understandings, specific restrictions, warranties
or representations relating to said subject matter between the parties other
than those set forth herein or herein provided for.
19. Attorneys' Fees. If any action at law or in equity, including
any action for declaratory or injunctive relief, is brought to enforce or
interpret the provisions of this Agreement, the prevailing party shall be
entitled to recover reasonable attorneys' fees from the nonprevailing party,
which fees may be set by the court in the trial of such action, or may be
enforced in a separate action brought for that purpose, and which fees shall be
in addition to any other relief which may be awarded.
20. 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:
(a) If to the Company: Xxxxx/Xxxxxx, Inc.
0000 Xxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxx Xxxxxx
Facsimile No.: (000) 000-0000
(b) If to Employee: Xxxxxx X. Xxxx
0000 Xxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000-0000
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.
21. 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
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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.
22. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAW, AND NOT THE LAW OF CONFLICTS, OF
THE STATE OF TEXAS.
23. Assignment. This Agreement is personal to the Employee and
may not be assigned in any way by the Employee without the prior written
consent of the Company. This Agreement shall not be assignable or delegable by
the Company, other than to an affiliate of the Company, except if there is a
change of control of the Company, the Company may assign its rights and
obligations hereunder to the person, corporation, partnership or other entity
that has gained such control.
24. Counterparts. This Agreement may be executed in counterparts,
each of which will take effect as an original and all of which shall evidence
one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
COMPANY:
Xxxxx/Xxxxxx, Inc.
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
EMPLOYEE:
-------------------------------
Xxxxxx X. Xxxx
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EXHIBIT A
PROHIBITED ACTIVITIES
Competitors of the Company include, but are not limited to, the following
companies and their affiliates:
Compensation Resource Group
Mullur Consulting
TBG Financial
The Benefits Group
Management Compensation Group
The Xxxx Organization
AYCO
The Newport Group
Harris, Long, Xxxxx, Xxxxxx & Xxxxxx
M Financial
The Partners Group
The Hemisphere Group
Aon
J&H Xxxxx XxXxxxxxx
XxxXxxx
Xxxx Koppis
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SCHEDULE 3(b)
ANNUAL BONUS
Xxxxxx X. Xxxx
Maximum Bonus 75% of Base Salary
Bonus amount to be based on formula to be determined by Board based on
net income and incremental 5 year net income.
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SCHEDULE 3(c)
STOCK OPTIONS
Name of Optionee: Xxxxxx X. Xxxx
Number of Shares: 50,000 shares
Date of Grant: IPO Date
Option Exercise Price: IPO Price
Vesting: 1/3 per year commencing on Date of Grant.
Additional Provisions: Accelerated vesting and other terms as provided
in Stock Option Agreement.
Term: February 28, 2007, unless earlier termination
pursuant to Stock Option Agreement.
