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Exhibit 10.19.1
EXECUTIVE EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made as of May 30, 2000 by and between
Exult, Inc. (the "Company"), and Xxxxx Xxxxxxxx ("Executive").
1. DUTIES AND RESPONSIBILITIES.
A. Executive shall serve as the Company's Operations President
and shall report to and perform the duties and responsibilities assigned to
Executive by the Company's Chief Executive Officer, or such other person as may
be designated by the Company's Chief Executive Officer.
B. Executive's duties will include management of and
responsibility for the outsourcing operations of the Company, including without
limitation the following functions as they relate to the Company's outsourcing
operations: (i) sales, (ii) implementation of client contracts and transition of
clients to the Company's services and systems, (iii) client management and
relations, (iv) delivery of outsourcing services, and (v) profitability of
operations. The Company's Chief Executive Officer or Board of Directors may also
assign other duties and responsibilities to Executive that are reasonably
related to the foregoing.
C. Executive shall be based at the Company's office located at
the Corporate Headquarters at 0 Xxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx, but
Executive shall be required to travel to other geographic locations in
connection with the performance of his executive duties.
2. PERIOD OF EMPLOYMENT. Executive's employment with the
Company shall be governed by the provisions of this Agreement for the period
commencing May 30, 2000 and continuing until this Agreement terminates pursuant
to written notice by either the Company or Executive. The period during which
Executive's employment continues in effect shall be hereafter referred to as the
"Employment Period." However, notwithstanding the foregoing, commencement of
Executive's employment will be subject to Executive's lawful and effective
cessation of partnership with and resignation from Ernst & Young LLP or its
successors, and his lawful and effective cessation of any employment or
consulting relationship with any other third party.
3. CASH COMPENSATION.
A. Executive's initial base salary shall be $400,000 per year
payable in accordance with the Company's standard payroll schedule. Executive's
base salary shall be subject to annual review by the Company, and may be
increased or decreased in the Company's discretion.
B. For each fiscal year during the Employment Period,
Executive shall be eligible for a bonus. Executive's annual incentive target
will be 50% of Executive's base salary as in effect on the first day of the
fiscal year for which the bonus is paid, prorated for the portion of the first
fiscal year of the Employment Period. The bonus amount will be based
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on the financial performance of the Company as determined and measured by the
Company's Board of Directors and Chief Executive Officer. The bonus amount is
intended to reward contribution to the Company's performance over an entire
fiscal year, and consequently will be paid only if Executive is employed and in
good standing at the time of bonus payments, which generally occurs within 45
days after the close of the Company's fiscal year. Bonus determinations will be
made in the Company's sole discretion.
C. The Company may deduct and withhold from the compensation
payable to Executive hereunder any and all applicable federal, state and local
income and employment withholding taxes and any other amounts required to be
deducted or withheld by the Company under applicable statutes, regulations,
ordinances or orders.
4. EQUITY COMPENSATION. Pursuant and subject to the terms and
conditions of the Company's stock option plan and approval by the Company's
Board of Directors, the Company will grant to Executive an option to purchase
shares of the Company's Common Stock. The option will vest and become
exercisable in installments over time beginning on the first anniversary of the
commencement of the Employment Period and continuing for three years thereafter.
The option price will be the fair market value per share of Common Stock on the
date of grant, as determined by the Company's Board of Directors.
5. EXPENSE REIMBURSEMENT. In addition to the compensation
specified in Section 3, Executive shall be entitled, in accordance with the
Company's reimbursement policies in effect from time to time, to receive
reimbursement from the Company for reasonable business expenses incurred by
Executive in the performance of his duties hereunder, provided Executive
furnishes the Company with vouchers, receipts and other details of such expenses
in the form required by the Company sufficient to substantiate a deduction for
such business expenses under all applicable rules and regulations of federal and
state taxing authorities.
6. FRINGE BENEFITS.
A. Executive shall, throughout the Employment Period, be
eligible to participate in all executive life and disability insurance programs,
group term life insurance plans, group health plans, accidental death and
dismemberment plans and disability programs and other executive perquisites
which are made available to the Company's executives and for which Executive
qualifies.
B. Executive shall earn vacation time during the Employment
Period at the rate of four (4) weeks per year. Vacation shall accrue and be
taken pursuant to the Company's vacation benefit policy set forth in the
Company's Employee Handbook.
7. MOVING EXPENSES. The Company will advance Executive up to
the maximum as specified in the Company's Executive relocation policy for
reasonable expenses incurred by Executive in relocating from Atlanta to Orange
County. The Company's complete policy on moving expenses can be obtained from
the Company's Human Resources Department. The moving expense advance will be
forgiven by the Company at the rate of
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one-eighteenth (1/18) of the advanced amount each month Executive remains
employed by the Company. Should Executive terminate his employment prior to full
repayment of the advanced amount, amounts that remain outstanding will be
deducted from Executive's final paychecks for unpaid wages and accrued but
unused vacation, or from any severance due to Executive.
8. EMPLOYMENT AT WILL; SEVERANCE.
A. Executive's employment with the Company is at will and not
for a specific term and may be terminated by either the Company or Executive at
any time, for any reason without notice. Similarly the Company may change the
terms and conditions of Executives employment at any time for any reason.
B. If the Company terminates Executive's employment for cause,
as defined below, the Company shall have no further obligation to Executive
under this Agreement or any other severance obligation other than for accrued
but unpaid salary and vacation as of the date of termination. For purposes of
this Agreement, "cause" shall mean a reasonable belief that Executive has
engaged in any one of the following: (i) financial dishonesty, including,
without limitation, misappropriation of funds or property, or any attempt by
Executive to secure any personal profit related to the business or business
opportunities of the Company without the informed, written approval of the
Company's Board of Directors; (ii) refusal to comply with reasonable directives
of the Company's Chief Executive Officer or Board of Directors; (iii) gross
negligence or reckless or willful misconduct in the performance of Executive's
duties; (iv) repeated failure to achieve reasonable performance standards that
have been described by the Company in writing and communicated to Executive in
reasonable detail, or continuing neglect in the performance of duties assigned
to Executive; (v) intentional misconduct which has a materially adverse effect
upon the Company's business or reputation; (vi) the conviction of, or plea of
nolo contendre to, any felony, or any misdemeanor involving moral turpitude or
fraud; (vii) the material breach of any provision of this agreement or any other
legal obligation or representation to the Company, and if such breach is
susceptible of cure, failure to cure such breach within thirty days of the
Company's delivery to Executive of notice of the breach and demand for cure; or
(viii) violation of Company policies including, without limitation, the
Company's policies on equal employment opportunity and prohibition of unlawful
harassment.
C. Contingent upon execution and delivery to the Company of an
unconditional release in form satisfactory to the Company of all claims against
the Company and its affiliates and the officers, directors, and employees of the
Company and its affiliates, and any other persons that the Company or its
affiliates would be required to indemnify, arising from or in connection with
this Agreement or Executive's employment with the Company or the termination of
that employment, Executive will be entitled to severance in the greater amount
of the Company's current standard Executive Severance Policy or as specified
below:
(i) If the Company terminates Executive's employment other
than for cause, death or disability, Executive will be entitled to receive one
year's annual salary and bonus,
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measured by Executive's salary as in effect on the first day of the fiscal year
in which termination occurs, and payable in a lump sum within 90 days of
termination.
(ii) Within 18 months following a change in control of the
Company, if (i) Executive's employment is terminated other than for cause, or
(ii) Executive is assigned a level of responsibility or duties not commensurate
with his level and duties as in effect at the time of the change in control, or
his salary or bonus target is reduced below the levels prevailing at the time of
the change in control, or his primary location of work is greater then 50 miles
from his primary location of work at the time of the change in control, and
Executive resigns his employment within 180 days after such change in his
duties, compensation or primary work location, Executive will be entitled to
receive one year's salary and bonus measured by Executive's salary as in effect
at the time of the change in control and payable in a lump sum within 90 days of
termination.
(iii) If Executive dies during the Employment Period, this
letter agreement will terminate and the Company shall have no obligations
hereunder, except that Executive's legal representatives shall be entitled to
receive six months of Executive's annual salary, payable in equal installments
in accordance with Company's standard payroll schedule (subject to all
applicable withholdings required by law), but reduced (not below 0) by the
aggregate amount of any death benefits provided by Company, whether through
insurance purchased by the Company or otherwise.
(iv) If during the Employment Period Executive becomes
physically or mentally disabled, whether totally or partially, as evidenced by a
written statement of a competent physician licensed to practice medicine in the
United States who is mutually acceptable to the Company and Executive (or
Executive's legal representative if Executive is not then able to make such a
choice), so that Executive is unable substantially to perform his obligations
under this Agreement for (i) a period of 60 consecutive days or (ii) for shorter
periods aggregating to 60 days during any one year, the Company may, without any
liability under this agreement and by written notice to Executive, at any time
after the last day of the consecutive 60 days of disability or the day on which
the shorter periods of disability equal an aggregate of 60 days, suspend or
terminate the Employment Period without any severance obligation, except that
Executive shall be entitled to continue to receive payments of his salary, as in
effect at the time the determination of disability is made, in accordance with
the Company's regular payroll schedule for a period 180 days, provided that such
obligation will be reduced (but not below 0) by the aggregate amount of any
monthly disability benefits provided by or through the Company during the period
of 180 days following the determination of disability, whether through insurance
purchased by the Company or otherwise. The Company may then discontinue payments
of Executive's annual salary for the duration of the disability or until earlier
termination of Executive's employment.
D. Notwithstanding anything herein to the contrary, the
Company shall have no obligation to make any severance payments to Executive,
and Executive shall return to the Company any severance payments made by the
Company to Executive, if at any time after termination of employment Executive
breaches in any material respect any provision of any legal obligation to the
Company, and if such breach is susceptible of cure, fails to cure such breach
within thirty days of the Company's delivery to Executive of notice of the
breach and
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demand for cure, and any severance payment obligation of the Company will be
suspended pending such cure.
9. REPRESENTATIONS AND RESTRICTIVE COVENANTS.
A. In order to induce the Company to hire him as set forth in this Agreement,
Executive represents, warrants and undertakes to the Company as follows:
(i) Executive has been fully advised by counsel independent
of the Company of his obligations under and the terms of all agreements and
other obligations applicable to his relationship with Ernst & Young LLP
(including without limitation as a partner thereof), its successors, and all
other prior employers or parties engaging Executive's services (collectively,
the "Prior Employers"). Executive does and will rely upon his own judgment and
the advice he receives from counsel independent of the Company in any action he
takes (or decides not to take) in relation to all of the matters referred to in
this Agreement, but Executive will keep the Company fully informed of the nature
and extent of his obligations to all Prior Employers at any time and any steps
Executive proposes to take to effect his disengagement from all Prior Employers.
(ii) Executive has been fully advised by counsel independent
of the Company of his obligations under and the terms of this Agreement and the
other documents referenced in Section 15.
(iii) Executive is under no contractual restriction or other
restrictions or obligations that are inconsistent with the execution of this
Agreement or the performance of Executive's duties and covenants hereunder, and
will not breach any obligations to any Prior Employer.
(iv) Without in any way detracting from the generality of
paragraph (iii), Executive will not, during his employment with the Company,
improperly use or disclose any confidential information, proprietary information
or trade secrets belonging to any Prior Employer, or bring onto the premises of
the Company or in any other way use or refer to any unpublished document or any
property belonging to any Prior Employer unless consented to in writing by them,
and will return all property and confidential information belonging to any Prior
Employer. This is in addition to all obligations of Executive under the
Confidential Information and Assignment of Inventions Agreement.
(v) Executive is under no physical or mental impairment that
would interfere with Executive's ability to perform his duties hereunder.
(vi) Executive has full right and power to enter into this
Agreement and perform his duties and covenants hereunder without any consent
from any third party.
(vii) Executive's performance of his duties and covenants
hereunder will not infringe the rights, including intellectual property rights,
of any third party.
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B. During the Employment Period:
(i) Executive shall devote his full business time and energy
solely and exclusively to the performance of his duties to the Company, and to
render his services under this Agreement fully, faithfully, diligently, and to
the best of his ability.
(ii) Executive shall not directly or indirectly provide
services to or through any person, firm or other entity except the Company,
unless otherwise authorized by the Company's Board of Directors in writing.
(iii) Executive shall not render any services of any kind or
character for Executive's own account or for any other person, firm or entity
without first obtaining the Company's written consent.
Executive, however, shall have the right to perform such incidental services as
are necessary in connection with (a) Executive's private passive investments,
but only if Executive is not obligated or required to (and shall not in fact)
devote any managerial efforts which interfere with the services required to be
performed by him, or (b) Executive's charitable or community activities, or
participation in trade or professional organizations, but only if such
incidental services do not interfere with the performance of Executive's
services to the company.
10. NON-COMPETITION. Executive acknowledges and agrees that
given the extent and nature of the confidential and proprietary information he
will obtain during the course of his employment with the Company, it would be
inevitable that such confidential information would be disclosed or utilized by
the Executive should he obtain employment from, or otherwise become associated
with, an entity or person that is engaged in a business or enterprise that
directly competes with the Company. Consequently, during any period for which
Executive is receiving payments from the Company, either as wages or as a
severance Executive shall not, without prior written consent of the Company's
Board of Directors, directly or indirectly own, manage, operate, join, control
or participate in the ownership, management, operation or control of, or be
employed or engaged by or connected in any manner with, any enterprise which is
engaged in any business competitive with or similar to that of the Company;
provided, however, that such restriction shall not apply to any passive
investment representing an interest of less than two percent (2%) of an
outstanding class of publicly-traded securities of any company or other
enterprise which is not, at the time of such investment, engaged in a business
competitive with the Company's business. This Section 10 does not limit
Executive's obligations under the Confidential Information and Assignment of
Inventions Agreement referred to in Section 12.
11. NON-SOLICITATION. During the Employment Period and for one
(1) year following termination of Executive's employment, Executive shall not
encourage or solicit any of the Company's employees to leave the Company's
employ for any reason or interfere in any other manner with employment
relationships at the time existing between the Company and its employees; or
solicit any client of the Company, induce any of the Company's clients to
terminate its existing business relationship with the Company or interfere in
any other manner with any existing business relationship between the Company and
any client or other third party. Executive hereby acknowledges that monetary
damages may not be sufficient to
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compensate the Company for any economic loss which may be incurred by reason of
his breach of the foregoing restrictive covenants. Accordingly, in the event of
any such breach, the Company shall, in addition to any remedies available to the
Company at law, be entitled to obtain equitable relief in the form of an
injunction precluding Executive from continuing such breach.
12. PROPRIETARY INFORMATION. As a condition precedent to
Executive's employment with the Company, Executive will execute the Company's
standard Confidential Information and Assignment of Inventions Agreement.
Executive's obligations pursuant to the Confidential Information and Assignment
of Inventions Agreement will survive termination of Executive's employment with
the Company.
13. SUCCESSORS AND ASSIGNS. This Agreement is personal in its
nature and the Executive shall not assign or transfer his rights under this
Agreement.
14. NOTICES. Any notices, demands or other communications
required or desired to be given by any party shall be in writing and shall be
validly given to another party if served either personally or if deposited in
the United States mail, certified or registered, postage prepaid, return receipt
requested. If such notice, demand or other communication shall be served
personally, service shall be conclusively deemed made at the time of such
personal service. If such notice, demand or other communication is given by
mail, such notice shall be conclusively deemed given forty-eight (48) hours
after the deposit thereof in the United States mail addressed to the party to
whom such notice, demand or other communication is to be given as hereinafter
set forth:
To the Company: Exult, Inc.
0 Xxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
To Executive: Xxxxx Xxxxxxxx
At his address of record as maintained in the Company's
employment files
Any party may change its address for the purpose of receiving notices, demands
and other communications by providing written notice to the other party in the
manner described in this paragraph.
15. GOVERNING DOCUMENTS. This Agreement and the Company's
Confidential Information and Assignment of Inventions Agreement, and the
separate documentation related to Executive's stock options and loan from the
Company constitute the entire agreement and understanding of the Company and
Executive with respect to the terms and conditions of Executive's employment
with the Company and the provision by the Company of any consideration or
severance benefits and supersedes all prior and contemporaneous written or
verbal agreements and understandings between Executive and the Company relating
to such subject matter. This Agreement may only be amended by written instrument
signed by Executive and an authorized officer of the Company. Any and all prior
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agreements, understandings or representations relating to the Executive's
employment with the Company are terminated and cancelled in their entirety and
are of no further force or effect.
16. GOVERNING LAW. The provisions of this letter agreement
will be construed and interpreted under the laws of the State of California
applicable to agreements executed and to be wholly performed within the State of
California. If any provision of this Agreement as applied to any party or to any
circumstance should be adjudged by a court of competent jurisdiction to be void
or unenforceable for any reason, the invalidity of that provision shall in no
way affect (to the maximum extent permissible by law) the application of such
provision under circumstances different from those adjudicated by the court, the
application of any other provision of this Agreement, or the enforceability or
invalidity of this Agreement as a whole. Should any provision of this Agreement
become or be deemed invalid, illegal or unenforceable in any jurisdiction by
reason of the scope, extent or duration of its coverage, then such provision
shall be deemed amended to the extent necessary to conform to applicable law so
as to be valid and enforceable or, if such provision cannot be so amended
without materially altering the intention of the parties, then such provision
will be stricken and the remainder of this Agreement shall continue in full
force and effect.
17. REMEDIES. All rights and remedies provided pursuant to
this Agreement or by law shall be cumulative, and no such right or remedy shall
be exclusive of any other. A party may pursue any one or more rights or remedies
hereunder or may seek damages or specific performance in the event of another
party's breach hereunder or may pursue any other remedy by law or equity,
whether or not stated in this Agreement.
18. ARBITRATION. Any and all disputes between Executive and
the Company that arise out of Executive's employment with the Company shall be
resolved through final and binding arbitration. This shall include, without
limitation, disputes relating to this Agreement, Executive's employment by the
Company or the termination thereof, claims for breach of contract or breach of
the covenant of good faith and fair dealing, and any claims of discrimination or
other claims under Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Americans With Disabilities Act, the
California Fair Employment and Housing Act, or any other federal, state or local
law or regulation now in existence or hereinafter enacted and as amended from
time to time concerning in any way the subject of Executive's employment with
the Company or its termination. The only claims not covered by this Agreement
are claims for benefits under the workers' compensation or unemployment
insurance laws, which will be resolved pursuant to those laws. Binding
arbitration will be conducted in Orange County, California in accordance with
the rules and regulations of the American Arbitration Association. Each party
will split the cost of the arbitration filing and hearing fees, and the cost of
the arbitrator; each side will bear its own attorneys' fees, that is, the
arbitrator will not have authority to award attorneys' fees unless a statutory
section at issue in the dispute authorizes the award of attorneys' fees to the
prevailing party, in which case the arbitrator has authority to make such award
as permitted by the statute in question. Executive understands and agrees that
the arbitration shall be instead of any civil litigation and that this means
that he is waiving his right to a jury trial as to such claims. The parties
further understand and agree that the arbitrator's decision shall be
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final and binding to the fullest extent permitted by law and enforceable by any
court having jurisdiction.
19. NO WAIVER. The waiver by either party of a breach of any
provision of this Agreement shall not operate as or be construed as a waiver of
any later breach of that provision.
20. COUNTERPARTS. This Agreement may be executed in more than
one counterpart, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
EXULT, INC.
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By: Xxxxx X. Xxxxxx, V
Title: President & CEO
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Xxxxx Xxxxxxxx
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