EXHIBIT 10.3
MANAGEMENT EMPLOYMENT AGREEMENT
THIS MANAGEMENT EMPLOYMENT AGREEMENT (this "Agreement") is entered into
by and between Allstar Systems, Inc., a Texas corporation ("Old Allstar"), and
Xxxxx X. Xxxx, a resident of Sugarland, Fort Bend County, Texas ("Employee") as
of the 15th day of August, 1996.
WITNESSETH:
WHEREAS, Old Allstar intends to reincorporate in Delaware by merging
into a new Delaware corporation to be named Allstar Systems, Inc. ("New
Allstar");
WHEREAS, upon consummation of the merger of Old Allstar into New
Allstar (the "Merger"), New Allstar would succeed to the business and assets of
Old Allstar, including, without limitation, Old Allstar's rights and obligations
under this Agreement;
WHEREAS, the Merger would be consummated to facilitate a pending,
initial registered public offering of New Allstar's common stock, par value $.01
per share (the "Common Stock"), pursuant to applicable federal and state
securities laws (the "Offering"); and
WHEREAS, in connection with the pending Merger and Offering, the
parties hereto desire to memorialize the terms and conditions of the employment
relationship between Employer and Employee, the term "Employer" meaning Old
Allstar before the Merger and New Allstar upon and after the Merger.
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE 1
TERM AND NATURE OF EMPLOYMENT
1.1 TERM OF EMPLOYMENT. Subject to the terms and conditions of
this Agreement, Employer hereby agrees to employ Employee and Employee hereby
accepts employment with Employer for a term beginning on the date first above
written and continuing in effect until Employee's employment hereunder is
terminated in accordance with Article 5 (the "Employment Period").
1.2 PRINCIPAL DUTIES. Employee's employment hereunder shall be in
the capacity of President And Chief Executive Officer. In such capacity,
Employee shall perform such duties as are prescribed for such office in
Employer's Bylaws and as may from time to time be prescribed by Employer's Board
of Directors or management more senior than Employee and which are reasonably
related or incidental to the capacity in which Employee serves Employer.
Employee shall perform diligently and to the best of his ability his duties
hereunder in accordance with any lawful instructions, rules, regulations or
policies made or adopted by Employer's Board of
Directors, including those applicable to Employer's employees generally. During
the Employment Period, Employee shall devote his full time, and best efforts and
skills to the business and interests of Employer during Employer's normal
working hours, do his utmost to further enhance and develop Employer's best
interests and welfare, and endeavor to improve his ability and knowledge of
Employer's business, particularly as it relates to his duties hereunder, in an
effort to increase the value of his services for the mutual benefit of the
parties hereto. At all times during the term of this Agreement, Employee shall
project a positive and professional image on behalf of Employer.
1.3 ACCOUNTING AND FIDELITY BOND. Employee shall truthfully and
accurately make, maintain and preserve all records and reports that Employer may
from time to time request or require. Employee shall fully account for all
money, records, goods, wares and merchandise or other property belonging to
Employer or its "Affiliates" (as that term is defined in Rule 405 under the
Securities Act of 1933, as amended) of which he may have custody and will pay
over and deliver the same promptly whenever and however he may be directed to do
so. Employee also shall make available to Employer any and all information of
which he has knowledge that is relevant to Employer's business, and will make
all suggestions and recommendations which he feels will be of benefit to
Employer. Employee shall, upon Employer's written request, furnish all
information and take any other steps necessary to enable Employer to obtain a
fidelity bond conditioned on the rendering of a true account by Employee of all
moneys, goods or other property which may come into the custody, charge or
possession of Employee during the Employment Period. The surety company issuing
the bond and the amount of the bond must be acceptable to Employer in its sole
discretion. Employer shall pay all premiums on any such bond.
1.4 EMPLOYEE DISHONESTY. If at any time Employee becomes aware or
believes that any other employee of the Employer is or appears to be (i)
removing or using the property or fiends of Employer or its Affiliates for the
benefit of anyone other than Employer or its Affiliates, or (ii) providing
Confidential Information (as defined in Section 3.2) to any Person (defined
below) not authorized by Employer to receive such Confidential Information (any
such employee described in (i) or (ii) being referred to as a "Dishonest
Employee"), Employee shall immediately communicate his knowledge or belief as to
such matters to Employer's Board of Directors. As used in this Agreement,
"Person" means any individual or corporation, company, partnership, joint
venture, firm, syndicate, trust, estate, association, business, organization,
governmental authority or any other incorporated or unincorporated entity.
1.5 FIDUCIARY DUTIES OF EMPLOYEE. The obligations of Employee
expressed in this Agreement shall be in addition to any obligations imposed upon
Employee as an employee or officer of Employer or its Affiliates by the law of
the State of Texas applicable to employees, the General Corporation Law of the
State of Delaware applicable to corporate officers while New Allstar is
Employer, the Texas Business Corporation Act applicable to corporate officers
while Old Allstar is Employer, or federal law applicable to employees or
corporate officers, including all such Texas, Delaware or federal laws which
limit the activities of any employee or corporate officer to those which would
not threaten, impair or usurp the goodwill, trade secrets, intellectual
property, business opportunities, or business relations of his employer.
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1.6 PERFORMANCE. The execution, delivery and performance of this
Agreement will not breach any contract or other obligation of Employee, and
Employee knows of no circumstances which will prevent his performance hereunder.
Employee shall perform his duties hereunder at the principal executive offices
of Employer in Houston, Texas, at such other place where Employer's principal
executive offices subsequently may be located, or at any other place as may be
directed by Employer in order to enable Employee to discharge his duties
hereunder; provided, however, that Employee shall have no obligation to
permanently relocate to any location which is more than 90 miles from said
offices. Employee acknowledges and agrees that Employer may require Employee to
travel and render services in different locations from time to time incident to
the performance of his duties hereunder.
ARTICLE 2
COMPENSATION
For and in consideration of the performance by Employee of the
services, terms, conditions, covenants and agreements contained in this
Agreement, Employer shall pay to Employee at the times, in the amounts and in
the manner herein provided, the following:
2.1 BASE COMPENSATION. As the principal consideration for
Employee's performance of his duties hereunder during the Employment Period,
Employee shall be entitled to receive as base compensation from Employer a
salary of not less than $12,500 per month (the "Base Salary"), which shall be
prorated for any partial Employment Period and payable in the manner and on the
timetable in which Employer's payroll is customarily handled, or at such more
frequent intervals as Employer and Employee may hereafter agree to from time to
time. No overtime compensation shall be payable under this Agreement. Employer's
Board of Directors or a duly authorized committee thereof shall review
Employee's performance at least annually and shall make any adjustments to
Employee's compensation which it deems, in its sole discretion, appropriate,
provided that at no time during the Employment Period shall Employee's
compensation be adjusted to an amount below the Base Salary in effect
immediately before any such adjustment. Employer shall be entitled to withhold
from all amounts of compensation payable under this Agreement such amounts on
account of payroll taxes and similar matters as are required by any applicable
law, rule, or regulation of any appropriate governmental authority. Such
compensation shall continue to be paid during any period of physical or mental
incapacity unless and until Employee's employment is terminated as herein
provided.
2.2 CASH PAYMENT. In addition to the other consideration being
given by Employer to Employee under this Agreement, as independent and valuable
consideration for Employee's performance of his obligations under Articles 3 and
4 of this Agreement, Old Allstar shall pay Employee $2,500 upon execution of
this Agreement by both parties hereto. Employee hereby acknowledges and agrees
that such payment is reasonable, adequate and valuable independent consideration
to support the performance of his obligations under Articles 3 and 4 of this
Agreement (whether or not his employment is terminated, with or without Cause or
Employee Cause as defined below), and that no other or additional consideration
is necessary to support Employee's obligations under such Articles.
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2.3 BONUSES AND BENEFITS. In addition to the Base Salary and other
consideration described in Sections 2.1 and 2.2, Employer shall provide Employee
with the following during the Employment Period:
(a) any bonus if, when and based upon or subject to such
terms and conditions as Employer's Board of
Directors, in its sole and absolute discretion, may
determine to grant to Employee;
(b) participation in any present or future disability,
medical, health, dental, insurance, pension,
profit-sharing, thrift, and retirement plans on the
same terms generally available to all of Employer's
employees generally; and
(c) payment or reimbursement, as the case may be, of
substantiated reasonable business expenses (within
limits that may be established by Employer's Board of
Directors or management more senior than Employee)
incurred in connection with the performance of his
duties hereunder, such expense payment or
reimbursement being subject to, and made in
accordance with Employer's policies and procedures on
employee expense payment or reimbursement in effect
from time to time.
2.4 VACATION. During the Employment Period, Employee shall accrue
paid vacation time in such amounts and at such times as determined by Employer's
Board of Directors, in its sole discretion; provided, however, that the minimum
amount of paid vacation to which Employee shall be entitled shall be no less
than that to which he is entitled as an Old Allstar employee at the time of the
Merger. Unless Employer's Board of Directors determines otherwise, no unused
vacation time shall be accrued and added to the vacation time for any succeeding
year and there shall be no compensation payable in lieu thereof.
ARTICLE 3
CONFIDENTIAL INFORMATION; PROPERTY RIGHTS
3.1 NON-DISCLOSURE. Obligation of Employee. For purposes of this
Article 3, all references to Employer shall mean and include its Affiliates. To
the extent necessary to perform his duties hereunder, Employer will give
Employee access to pertinent Confidential Information (defined below) of
Employer. In addition, because of the nature of Employee's duties and
responsibilities to Employer, Employee from time to time will have access or be
exposed to certain Confidential Information of Employer. Employee hereby
acknowledges, understands and agrees that all Confidential Information, whether
developed by Employee or others employed by or in any way associated with
Employee or Employer, is the exclusive and confidential property of Employer and
shall be at all times regarded? treated and protected as such in accordance with
this Agreement. Failure to xxxx any writing confidential shall not affect the
confidential nature of such writing or the information contained therein.
3.2 DEFINITION OF CONFIDENTIAL INFORMATION. "Confidential
Information" shall mean information, whether or not originated by Employee,
which is used in Employer's business and (1) is proprietary to, about or created
by Employer; (2) gives Employer some competitive business advantage, the
opportunity of obtaining such advantage, or the disclosure of which
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might be detrimental to the interests of Employer; (3) is not typically
disclosed by Employer to, or known by, Persons who are not employed by Employer;
or (4) is designated as Confidential Information by Employer, known by the
Employee to be considered confidential by Employer, or from all the relevant
circumstances considered confidential by Employer, or from all the relevant
circumstances should reasonably be assumed by Employee to be confidential and
proprietary to Employer. Such Confidential Information includes, but is not
limited to, the following types of information and other information of a
similar nature (whether or not reduced to writing or designated as
confidential):
(a) Work product resulting from or related to work or
projects performed or to be performed for Employer or
for customers or clients of Employer, including but
not limited to data bases, draft and other non-public
written documents, the interim and final lines of
inquiry, hypotheses, research and conclusions related
thereto and the methods, processes, procedures,
analyses, techniques and audits used in connection
therewith;
(b) Computer software of any type or form in any stage of
actual or anticipated research and development,
including but not limited to programs and program
modules, routines and subroutines, processes,
algorithms, design concepts, design specifications
(design notes, annotations, documentation,
flowcharts; coding sheets, and the like), source
codes, object codes and load modules, programming,
program patches and system designs;
(c) Information relating to Employer's proprietary rights
prior to any public disclosure thereof, including but
not limited to the nature of the proprietary rights,
production data, technical and engineering data, test
data and test results, the status and details of
research and development of products and services,
and information regarding acquiring, protecting,
enforcing and licensing proprietary rights
(including, without limitation, patents, copyrights
and trade secrets);
(d) Internal Employer personnel and financial
information, lists or other documents which identify
vendor names and: other vendor information (including
vendor characteristics, services and agreements),
information concerning the identification and nature
of goods or services provided by vendors, purchasing
and internal cost information, internal service and
operational manuals, and the manner and methods of
conducting Employer's business;
(e) Business, marketing and development plans, price and
price discounting policies and practices, price and
cost data, price and fee amounts, pricing and billing
policies, quoting procedures, marketing techniques
and methods of obtaining business, forecasts and
forecast assumptions and volumes, and future plans
and potential strategies of Employer which have been
or are being discussed;
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(f) Names, lists or compilations of customers or clients
and their representatives, contracts and their
contents and parties, customer or client services,
and the type, quantity, specifications and contents
of products and services purchased, leased, licensed
or received by customers or clients of Employer;
(g) Information provided to Employer by any actual or
potential customer, client, government agency, or
other third party (including businesses, consultants
and other entities and individuals); and
(h) Contracts with, or developed by Employer for use
with, customers, agents or vendors of or to Employer,
including, without limitation, the terms and
conditions thereof.
3.3 EXCLUSIONS FROM CONFIDENTIAL INFORMATION. "Confidential
Information" shall not include information publicly known other than as a result
of a disclosure by Employee in breach of this Article 3, and the general skills
and experience gained during Employee's work with Employer which Employee
reasonably could have been expected to acquire in similar work with another
company. The phrase "publicly known" shall mean readily accessible to the public
in a written publication and shall not include information which is only
available by a substantial searching of the published literature or information
the substance of which must be pieced together from a number of different
publications and sources, or by focused searches of literature guided by
Confidential Information. The burden of proving that information or skills and
experience are not Confidential Information shall be on the party asserting such
exclusion.
3.4 COVENANTS OF EMPLOYEE. As a consequence of Employee's
acquisition or anticipated acquisition of Confidential Information, Employee
will occupy a position of trust and confidence with respect to Employer's
affairs and business. Employee acknowledges that Employer's Confidential
Information are valuable, special and unique assets of Employer, which Employer
uses in its business to obtain competitive advantage over the Employer's
competitors which do not know or use such information. In view of the foregoing
and of the consideration being provided to Employee, Employee agrees that it is
reasonable and necessary that Employee make the following covenants. Employee
does hereby covenant and agree as follows:
(a) At any time during or after the termination of the
Employment Period, Employee will not disclose
Confidential Information to any Person, either inside
or outside of Employer, other than as necessary in
carrying out his duties on behalf of Employer,
without obtaining Employer's prior written consent
(unless such disclosure is compelled pursuant to
court order or subpoena, and at which time Employee
gives prompt prior notice of such proceedings to
Employer), and Employee will take all reasonable
precautions to prevent inadvertent disclosure of such
Confidential Information. This prohibition against
Employee's disclosure of Confidential Information
includes, but is not limited to, disclosing the fact
that any similarity exists between the Confidential
Information and information independently developed
by another Person, and Employee
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understands that such similarity does not excuse
Employee from abiding by his covenants or other
obligations under this Agreement.
(b) At any time during or after the termination of the
Employment Period, Employee will not use, copy or
transfer Confidential Information other than as
necessary in carrying out his duties on behalf of
Employer, without first obtaining Employer's prior
written consent, and will take all reasonable
precautions to prevent inadvertent use, copying or
transfer of such Confidential Information. This
prohibition against Employee's use, copying, or
transfer of Confidential Information includes, but is
not limited to, selling, licensing or otherwise
exploiting, directly or indirectly, any products or
services (including data bases, written documents and
software in any form) which embody or are derived
from Confidential Information, or exercising judgment
in performing analyses based upon knowledge of
Confidential Information.
3.5 RETURN OF CONFIDENTIAL MATERIAL. Employee shall turn over to
Employer all originals and copies of materials containing Confidential
Information in the Employee's possession, custody, or control upon request or
upon termination of the Employee's employment with Employer. Employee agrees to
attend a termination interview with Employer's Board of Directors or a committee
thereof to confirm turnover of such materials and to discuss any questions the
undersigned may have about his continuing obligations under this Agreement.
3.6 INVENTIONS. Any and all inventions, products, discoveries,
improvements, copyrightable works, trademarks, servicemarks, ideas, processes,
formulae, methods, designs, techniques or trade secrets (collectively
hereinafter referred to as "Inventions") made, developed, conceived or resulting
from work performed by Employee (alone or in conjunction with others, during
regular hours of work or otherwise) while he is employed by Employer and which
may be directly or indirectly useful in, or related to, the business of Employer
(including, without limitation, research and development activities of
Employer), or which are made using any equipment, facilities, Confidential
Information, materials, labor, money, time or other resources of Employer, shall
be promptly disclosed by Employee to Employer's Board of Directors or executive
management more senior than Employee, shall be deemed Confidential Information
for purposes of this Agreement, and shall be Employer's exclusive property.
Employee shall, upon Employer's request, execute any documents and perform all
such acts and things which are necessary or advisable in the opinion of Employer
to cause issuance of patents to, or otherwise obtain recorded protection of
rights to intellectual property for, Employer with respect to Inventions that
are to be Employer's exclusive property under this Section 3.6, or to transfer
to and vest in Employer full and exclusive right, title and interest in and to
such Inventions; provided, however, that the expense of securing any such
protection of right to Inventions shall be borne by Employer. In addition,
Employee shall, at Employer's expense, assist Employer in any proper manner in
enforcing any Inventions which are to be or become Employer's exclusive property
hereunder against infringement by others. Employee shall keep confidential and
will hold for Employer's sole use and benefit any Invention that is to be
Employer's exclusive property under this Section 3.6 for which full recorded
protection of right has not been or cannot be obtained.
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3.7 SURVIVAL OF COVENANTS. The covenants and agreements of
Employee set forth in this Article 3 are of a continuing nature and shall
survive the expiration, termination or cancellation of this Agreement and
Employee's employment with Employer regardless of the reason of such termination
or cancellation.
ARTICLE 4
COVENANT NOT TO COMPETE; NON-INTERFERENCE
4.1 PROHIBITED EMPLOYEE ACTIVITIES. Employee agrees that except in
the ordinary course of his employment hereunder during the Employment Period,
Employee shall not during the Employment Period and subject to Section 4.2, for
a period of 18 months thereafter (all references to Employer shall mean and
include its Affiliates):
(a) directly or indirectly, engage or invest in, own,
manage, operate, control or participate in the
ownership, management, operation or control of, be
employed by, associated or in any manner connected
with, or render services or advice to, any Competing
Business (as defined below) provided, however, that
the Employee may invest in the securities of any
enterprise (but without otherwise participating in
the activities of such enterprise) if such securities
are listed on any United States national or regional
securities exchange or have been registered under
Section 12(g) of the Securities Exchange Act of 1934,
provided that Employee and his Affiliates combined do
not purchase or hold (directly or indirectly) an
aggregate equity interest of more than five percent
(5%) in any such enterprise; or
(b) directly or indirectly, either as principal, agent,
independent contractor, consultant, director,
officer, employee, employer, advisor (whether paid or
unpaid), stockholder, partner or in any other
individual or representative capacity whatsoever,
either for his own benefit or for the benefit of any
other Person solicit, divert or take away, any
Persons who (1) are customers or clients of Employer
or (2) at any time during the 18-month period before
the date of Employee's termination of employment with
Employer, were customers or clients of Employer.
"COMPETING BUSINESS" means any Person or any Affiliate of any Person which at
any time in the Employment Period or for a period of 18 months thereafter
engages in the business of reselling to end-users computers, computer-related
products, computer-related services, telephone systems or telephone-related
services (in each case insofar, but only insofar, as such business is reasonably
competitive with that of Employer during the same period) in or into any county
or parish in which Employer has a sales or executive office and counties or
parishes adjacent thereto.
4.2 POST-EMPLOYMENT. During the 18 months after termination of
Employee's employment with Employer, Employee shall be bound by Section 4.1
under any of the following circumstances:
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(a) if Employee is terminated by Employer for Cause (as
defined in Section 5.1),
(b) if Employee resigns for no reason or any reason
except Employee Cause (as defined in Section 5.2), or
(c) if within 10 days after the effective date of such
termination, Employer delivers written notice to
Employee that Employer elects to continue to pay
Employee on a monthly basis during such 18-month
period an amount equal to the greater of (i) 75% of
his Base Salary as of the termination date or (ii)
75% of the quotient of (y) the sum of his Base Salary
and cash bonus paid in respect of the 12 months of
Employer's fiscal year ended immediately before the
termination date, divided by (z) 12. Any such payment
which Employer elects to make shall be payable in the
manner and on the timetable specified in Section 2.1
or sooner at Employer's election, including in one or
more advance lump sum payments.
4.3 NON-SOLICITATION. Employee agrees that during the Employment
Period and for a period of 18 months thereafter Employee shall not, directly or
indirectly, either as principal, agent, independent contractor, consultant,
director, officer, employee, employer, advisor (whether paid or unpaid),
stockholder, partner or in any other individual or representative capacity
whatsoever, either for his own benefit or for the benefit of any other Person,
either (a) hire, attempt to hire, contact or solicit with respect to hiring any
employee of Employer or its Affiliates, (b) induce or otherwise counsel, advise
or encourage any employee of Employer or its Affiliates to leave the employment
of Employer or any of its Affiliates, or (c) induce any distributor, vendor,
representative or agent of Employer or its Affiliates to terminate or modify its
relationship with Employer or any of its Affiliates.
4.4 NECESSITY AND REASONABLENESS OF ARTICLE 4. Employee hereby
specifically acknowledges, agrees, and represents to Employer as a material
inducement for Employer to enter into this Agreement (all references to Employer
shall mean and include its Affiliates):
(a) Employer has expended and will continue to expend
substantial time, money and effort in developing (i)
its business in which the designs, plans, manuals and
specifications are valuable trade secrets, and (ii) a
valuable list of customers, clients and agents, and
information about their technical problems and needs,
purchasing habits, idiosyncracies and internal
purchasing procedures;
(b) Employee has been and will be personally entrusted
with and exposed to the Confidential Information of
Employer;
(c) Employer, during the term of this Agreement and after
its termination, will be engaged in its highly
competitive business in which many firms, including
Employer, compete;
(d) Employer will, during the course of Employee's
employment by Employer, provide Employee with
valuable training and experience;
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(e) Employer, pursuant to acquiring certain patents,
copyrights, technology and associated trade secrets
and know-how, will further develop its business;
(f) Employee could, after having access to Employer's
Confidential Information or after receiving further
training by and experience with Employer, and after
obtaining Confidential Information, become a
competitor;
(g) Employer will suffer great loss and irreparable harm
if Employee terminates his employment and enters
directly or indirectly, into competition with
Employer;
(h) the temporal and other restrictions contained in this
Article 4 are in all respects reasonable and
necessary to protect the business goodwill, trade
secrets, prospects and other business interests of
Employer;
(i) the enforcement of this Agreement, particularly this
Article 4, will not work an undue or unfair hardship
on Employee or otherwise be oppressive to him; and
(j) the enforcement of this Agreement in general, and of
this Article 4 in particular, will neither deprive
the public of needed goods or services nor otherwise
be injurious to the public.
4.5 SURVIVAL OF COVENANTS. The covenants and agreements of
Employee set forth in this Article 4 are of a continuing nature and shall
survive the expiration, termination or cancellation of this Agreement and
Employee's employment with Employer regardless of the reason for such
termination or cancellation.
ARTICLE 5
TERMINATION
5.1 Termination by Employer for Cause and Certain Other Events.
(a) Notwithstanding any other provision of this
Agreement, at any time during the Employment Period,
this Agreement and Employee's employment hereunder
shall terminate upon his death, and Employer shall
have the right, in its sole and absolute discretion,
to terminate this Agreement and Employee's employment
at any time by giving him written notice of such
termination (i) for Cause (as defined below), (ii) if
Employee shall fail to qualify for the fidelity bond
described in Section 1.3 within sixty (60) days from
the date of the Employer's written request
thereunder, or (iii) if Employee shall suffer a
Disability (as defined below).
(b) "Cause" shall mean any of the following events:
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(1) Employee's conviction or the entry of a plea
of guilty or nolo contendere or equivalent plea in a court of
competent jurisdiction of any crime or offense involving moral
turpitude or any felony;
(2) Employee's commission of an act of fraud
upon Employer, any of its Affiliates or any customers or
suppliers of Employer or any of its Affiliates;
(3) Employee's gross negligence or willful
misconduct in the performance of his duties and services
required of him under this Agreement, or Employee's willful
misappropriation of funds or property of Employer or any of
its Affiliates;
(4) Employee's knowing engagement, without prior
written approval by Employer's Board of Directors, in any
conflict of interest with Employer or any of its Affiliates,
or in any other activity which might result in substantial
injury to Employer's business or financial condition;
(5) Employee's failure or refusal to perform his
duties under, or other breach by Employee of Article 1 of this
Agreement which remains uncorrected 30 days after Employer has
given written notice of such breach to Employee describing
such breach in reasonable detail;
(6) Employee's breach of Section 1.4 or Articles
3 or 4 of this Agreement; or
(7) Employee's use of alcohol or drugs which, in
the reasonable opinion of Employer, substantially impairs the
performance of Employee's duties.
(c) "DISABILITY" shall mean any mental or physical
illness, impairment or condition which, in the
reasonable opinion of Employer: (i) is of a nature
that cannot reasonably be controlled by Employee,
(ii) significantly inhibits or impedes Employee's
ability to perform the services required under this
Agreement, and (iii) is likely to be either
long-lasting in duration or recurring from time to
time.
5.2 TERMINATION BY EMPLOYEE. Notwithstanding any other provision
of this Agreement, at any time during the Employment Period, Employee shall have
the right to terminate his employment under this Agreement by giving written
notice of such termination at least 30 days prior to its effective date, for any
of the following reasons, provided that Employee is not in breach of this
Agreement: (a) the failure of Employer to elect or appoint Employee to the
office described in Section 1.2; or (b) a material breach by Employer of any
provision of this Agreement which remains uncorrected for 30 days following
written notice to Employer of such breach; which notice shall describe in
reasonable detail each event or condition considered to be in breach of this
Agreement. Employee's rightful termination under this Section 5.2 is referred to
herein as "Employee Cause."
5.3 TERMINATION BY EITHER PARTY. In addition to termination under
Sections 5.1 or 5.2, Employer or Employee may at any time terminate Employee's
employment hereunder
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without regard to any reason for such termination. Each of Employer's and
Employee's option to terminate employment under this Agreement pursuant to this
Section 5.3 shall be exercised by delivery of a written notice to Employee or
Employer, as applicable, specifying the effective date of such termination which
in no event shall be sooner than expiration of thirty (30) calendar days
following delivery of such written notice.
5.4 Effect of Termination.
(a) Upon termination of Employee's employment with
Employer, Employee shall have no right to receive any
compensation or benefits for any period after the
effective date of such termination ("Effective
Date"), or for any period before the Effective Date
which have not been earned or vested as of the
Effective Date. If Employee is employed hereunder
during a period for which a bonus contemplated by
Section 2.3(a) is payable, such bonus shall, for
purposes of this Agreement, be deemed vested as of
the Effective Date in respect of that portion of such
period during which Employee is so employed;
provided, however, that no such vesting shall occur
and no such bonus shall be payable if Employer
terminates Employee for Cause. If Employer elects to
pay Employee under Section 4.2(c), the amounts
payable thereunder shall, for purposes of this
Agreement, be deemed vested as of the Effective Date.
(b) Employer's right of termination shall be in addition
to and shall not affect Employer's rights and
remedies under Articles 3 and 4 and Section 6.1 of
this Agreement, and such rights and remedies shall
survive termination of Employee's employment with
Employer. Articles 3, 4 and 6 shall survive
termination of this Agreement and Employee's
employment with Employer.
ARTICLE 6
MISCELLANEOUS
6.1 INJUNCTIVE RELIEF. Because of the unique nature of Employer's
assets and business, the business to be conducted by Employer and further
developed by Employer therewith, and the confidential and proprietary
information relating thereto, including the Confidential Information, Employee
acknowledges, understands and agrees that Employer will suffer immediate and
irreparable harm if Employee fails to comply with any of his obligations under
Articles 3 or 4 of this Agreement, and that monetary damages will be inadequate
to compensate Employer for such breach. Accordingly, Employee agrees that
Employer shall, in addition to any other remedies available to it at law or in
equity, be entitled to temporary, preliminary, and permanent injunctive relief
and specific performance to enforce the terms of Articles 3 or 4 without the
necessity of proving inadequacy of legal remedies or irreparable harm, or
posting bond. This Section 6.1 does not, and shall not be construed to
constitute a waiver of the parties rights and obligations under Section 6.9 with
respect to arbitration of disputes other than those relating to the enforcement
of Employee's confidentiality, non-competition and non-solicitation covenants of
Articles 3 and 4.
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6.2 INDEMNIFICATION. Employer shall indemnify Employee in the same
manner and to the same extent that Employer is obligated to indemnify its
directors pursuant to Employer's Certificate of Incorporation and Bylaws, as
each may be amended or restated from time to time.
6.3 ACTION BY AND CONSENT OF EMPLOYER. All rights and remedies of
Employer hereunder shall be exercised by the Employer solely by and through the
Employer's Board of Directors or a committee thereof.
6.4 NOTICES. Any notice, instruction, authorization, request,
demand or waiver required hereunder shall be in writing, and shall be delivered
either by personal delivery, by telegram, telex, telecopy or similar facsimile
means, by certified or registered mail, return receipt requested, or by courier
or delivery service, addressed to the parties hereto at the principal offices of
Employer at the address indicated beneath its signature on the execution page of
this Agreement, and also to Employee at his home address indicated beneath his
signature on the execution page of this Agreement, or at such other address and
number as a party shall have previously designated by written notice given to
the other party in the manner hereinabove set forth. Notices shall be deemed
given when received, if sent by facsimile means (confirmation of such receipt by
confirmed facsimile transmission being deemed receipt of communications sent by
facsimile means); and when delivered and receipted for (or upon the date of
attempted delivery where delivery is refused), if hand-delivered, sent by
express courier or delivery service, or sent by certified or registered mail,
return receipt requested.
6.5 AMENDMENT AND WAIVER. This Agreement may be amended, modified
or superseded only by written instrument executed by all parties hereto. Any
waiver of any terms or conditions hereof shall be made only by a written
instrument executed and delivered by the party waiving compliance. Any waiver
granted by Employer shall be effective only if executed and delivered by a duly
authorized executive officer of Employer other than Employee. The failure of any
party at any time to require performance of any terms or conditions hereof shall
in no manner effect the right to enforce the same. No waiver by any party of any
terms or conditions, or the breach of any terms or conditions contained in this
Agreement in one or more instances shall be deemed to be or construed as a
further or continuing waiver of any such term or condition or breach or a waiver
of any other term, condition or breach of any other term or condition.
6.6 SUCCESSORS AND ASSIGNS. This Agreement shall bind, be
enforceable by, and inure to the benefit of, the parties hereto, but this
Agreement and the rights and obligations hereunder shall not be assignable or
delegable by any party; provided, however, that this Agreement and Employer's
rights and obligations hereunder may be assigned or delegated by it to any of
its Affiliates and shall be binding upon and inure to the benefit of, any of its
successors or permitted assigns, but such assignment or delegation by Employer
shall not relieve it of any of its obligations hereunder.
6.7 DEFINITIONS, GENDER AND CERTAIN REFERENCES. As used in this
Agreement, each parenthetically or quoted capitalized term in the introduction,
recitals and other Sections of this Agreement shall have the meaning so ascribed
to it. Unless otherwise specified, all references herein to days, weeks, months
or years shall be to calendar days, weeks, months or years. Whenever the context
requires, the gender of all words used herein shall include the masculine,
13
feminine and neuter, and the number of all words shall include the singular and
plural. References to Articles or Sections are to Articles or Sections of this
Agreement unless otherwise specified. The headings and captions used in this
Agreement are solely for convenient reference and shell not affect the meaning
or interpretation of any article, section or paragraph herein, or this
Agreement. The terms "hereof," "herein" or "hereunder" shall refer to this
Agreement as a whole and not to any particular article, section or paragraph.
The terms "including" or "include" are used herein in an illustrative sense and
not to limit a more general statement. When computing time periods described by
a number of days before or after a stated date or event, the stated date or date
on which the specified event occurs shall not be counted and the last day of the
period shall be counted.
6.8 GOVERNING LAW. This Agreement has been executed and delivered
in Texas. The validity, interpretation, construction, and performance of this
Agreement shall be governed by the internal law, and not the law of conflicts,
of the State of Texas, except to the extent that the General Corporation Law of
the State of Delaware or federal law is explicitly made applicable by Section
1.5. Each party hereto hereby acknowledges and agrees that it has had the
opportunity to consult with its own legal counsel in connection with the
negotiation of this Agreement, and that it has bargaining power equal to that of
the other party hereto in connection with the negotiation, execution and
delivery of this Agreement. Accordingly, the parties hereto agree that the rule
of contract construction that an agreement shall be construed against the
drafter shall have no application in the construction or interpretation of this
Agreement.
6.9 DISPUTE RESOLUTION; SEVERABILITY; JUDICIAL MODIFICATION.
Except as otherwise contemplated by Section 6.1 (enforcement of Articles 3 and
4), the parties expressly intend, desire and agree that any dispute arising out
of, or in connection with any term or provision of this Agreement or Employee's
employment with Employer shall be resolved by binding arbitration in Houston,
Texas in accordance with the Commercial Rules of the American Arbitration
Association then in effect; that judgment on the award rendered by the
arbitrators) may be entered in any court of competent jurisdiction; and that if
any such dispute is pending in any court, the parties agree to move that the
court refer the matter to such arbitration. The location of such arbitration in
Houston, Texas shall be selected by Employer in its sole discretion. All costs
and expenses, including attorneys' fees, relating to the resolution of any such
dispute shall be borne by the party incurring such costs and expenses. If any
term, provision, covenant, or restriction of this Agreement (including any
arbitration provision of this Section 6.9) is held by a court of competent
jurisdiction to be invalid, void, or unenforceable, the remainder of this
Agreement and the other terms, provisions, covenants and restrictions hereof
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated. It is hereby stipulated and declared to be the intention of the
parties that they would have executed this Agreement had the terms, provisions,
covenants and restrictions which may be hereafter declared invalid, void, or
unenforceable not initially been included herein. If a court of competent
jurisdiction determines that the length of time or any other restriction or
portion thereof, set forth in Articles 3 or 4 is overly restrictive and
unenforceable, the court may reduce or modify such restrictions to those which
it deems reasonable and enforceable under the circumstances, and the parties
agree to request the court to exercise such power, and, as so reduced or
modified, the parties hereto agree that the restrictions of Article 3 and 4
shall remain in full force and effect, shall be enforceable and shall be
enforced.
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6.10 EXPENSES. Each party hereto shall pay all of its respective
fees and expenses of attorneys, accountants and other Persons employed by it in
connection with the resolution of any dispute between the parties hereto arising
out of or relating to this Agreement, except for any indemnification obligations
of Employer pursuant to Section 6.2.
6.11 ENTIRE AGREEMENT. No agreements or representations, oral or
otherwise, express or implied, have been made by any party hereto with respect
to the subject matter hereof that are not set forth expressly in this Agreement.
This Agreement supersedes and cancels any prior agreement, arrangement or
understanding entered into between Employer and Employee relating to the subject
matter hereof, except any agreement entered into pursuant to New Allstar's 1996
Incentive Stock Plan as contemplated by Section 2.2 of this Agreement.
6.12 COUNTERPARTS. The parties may execute this Agreement in any
number of counterparts, each of which is an original, but all of which together
constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
15
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
EMPLOYER:
ALLSTAR SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx, Chief
Financial Officer
Address: 0000 Xxxxxxxxx Xxxxxxx
Xxxxxxx XX 00000
Telecopy No. 713-2049
Attention: Board of Directors
EMPLOYEE:
/s/ Xxxxx X. Xxxx
-----------------
Xxxxx X. Xxxx
Address: 000 Xxxxxx
Xxxxxxxxx, XX 00000
Telecopy No. 000-000-0000
[ACKNOWLEDGMENTS FOLLOW]
EMPLOYER ACKNOWLEDGMENT
STATE OF TEXAS Section
Section
COUNTY OF XXXXXX Section
Before me, the undersigned authority, on this date personally appeared
Xxxxxx X Xxxxxxxx, Chief Financial Officer of Allstar Systems, Inc., a Texas
corporation, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed, in the capacity stated, and as the
act and deed of said corporation.
Given under my hand and seal this 15th day of August, 1996.
XXXXXX XXXXXX /s/ Xxxxxx Xxxxxx
NOTARY PUBLIC -----------------
State of Texas Notary Public in and for
Comm. Exp. 04-02-2000 The State Texas
My Commission Expires:________
EMPLOYEE ACKNOWLEDGMENT
STATE OF TEXAS Section
Section
COUNTY OF XXXXXX Section
Before me, the undersigned authority, on this date personally appeared
Xxxxx X. Xxxx, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
Given under my hand and seal this 15th day of August, 1996.
XXXXXX XXXXXX /s/ Xxxxxx Xxxxxx
NOTARY PUBLIC --------------------
State of Texas Notary Public in and for
Comm. Exp. 04-02-2000 The State Texas
My Commission Expires:________
