EXHIBIT 10.9
EMPLOYMENT AGREEMENT
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This Employment Agreement is dated as of January 1, 1995, by and between
Xxxxxxx X. Xxxxx, III ("Employee") and VISUAL NUMERICS, INC. ("Company").
BACKGROUND:
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WHEREAS, the Company and Employee mutually desire to enter into an
Employment Agreement which will supersede existing agreements with respect to
Employee's employment.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the Company and Employee agree as follows:
1. Term of Agreement. This Agreement shall commence on the date hereof
and may be terminated by either party, with or without cause, on thirty (30)
days written notice to the other party.
2. Duties. Employee shall be employed as Vice President and General
Manager, ADT Business Unit. Employee shall devote his full time, effort and
attention during regular business hours to the business and affairs of the
Company. A general description of Employee's current duties is attached hereto
as Exhibit A. Employee acknowledges that the Company may change the description
of such duties from time to time.
3. At-Will Employment. The Company and the Employee acknowledge that
Employee's employment is and shall continue to be at-will, as defined under
applicable law. If the Employee's employment terminates for any reason, the
Employee shall not be entitled to any payments, benefits, damages, award or
compensation other than as provided in this Agreement, or as may otherwise be
available in accordance with the Company's established written plans and written
policies at the time of termination.
4. Compensation. For the duties and services to be performed by Employee
hereunder, the Company shall pay Employee, and Employee agrees to accept, the
salary, stock options, bonuses and other benefits described below in this
Section 4.
(a) Salary. Employee shall receive a base salary of $129,018 per
annum, payable twice monthly in equal installments (or at such other times as
the other executive officers of the Company are paid or applicable local law
requires), in accordance with the Company's normal payroll practices. The base
salary shall be reviewed at least annually by the Board, its Compensation
Committee or the Chief Executive Officer of the Company, and any increases will
be effective as of the date determined appropriate by the Board, its
Compensation Committee or the Chief Executive Officer.
(b) Stock Options and Other Incentive Programs. Employee shall be
eligible to participate in any stock option or other incentive programs
available to officers or employees of the Company.
(c) Bonuses. Employee shall participate in and, to the extent earned
or otherwise payable thereunder, receive periodic incentive cash bonuses
pursuant to the incentive bonus programs currently maintained or hereafter
established by the Company for its executives generally. Employee's entitlement
to incentive bonuses is discretionary and shall be determined by the Board, its
Compensation Committee or the Chief Executive Officer of the Company in good
faith based upon the extent to which Employee's individual performance
objectives and the Company's profitability objectives and other financial and
nonfinancial objectives were achieved during the applicable bonus period. The
criteria for Employee's bonus eligibility for fiscal year 1995 are set forth in
Exhibit B, attached hereto. In the event of Employee's death or disability
during the term of this Agreement, the Company shall pay to Employee or
Employee's estate the bonus Employee would have earned during the entire year in
which death or disability occurred.
(d) Healthcare. During the term of this Agreement, Employee shall be
eligible to participate in any health insurance programs available to officers
or employees of the Company.
(e) Insurance. During the term of Employee's employment, Employee
shall be eligible to participate in any life or disability insurance programs
available to officers or employees of the Company.
(f) Vacation and Sick Pay. Employee shall be eligible for vacation
and sick leave in accordance with the policies of the Company in effect from
time to time during the term of this Agreement. All accrued vacation pay shall
be paid to Employee in a lump sum payment on the date of retirement or
termination of employment with the Company.
5. Severance Benefits.
(a) Change of Control; Stock Options. Upon the occurrence of a Change
of Control, notwithstanding any other plan or agreement to the contrary, vesting
of all outstanding stock options, restricted stock and other long-term incentive
compensation awards held by Employee shall be accelerated such that all options,
restricted stock and other long-term incentive compensation awards shall be
fully exercisable or otherwise vested effective as of the date of such Change of
Control and any such options shall remain exercisable until the earlier to occur
of (i) two years from the date of the Change of Control or (ii) the original
expiration date of such option.
(b) Termination of Employment. In the event Employee's employment
terminates for any reason, either prior to or after the occurrence of a Change
of Control, then Employee shall be entitled to receive severance benefits as
follows:
(i) Voluntary Resignation. If Employee's employment terminates by
reason of Employee's voluntary resignation (and is not an Involuntary
Termination or a Termination for Cause), then Employee shall not be entitled to
receive severance payments. Employee's benefits will be continued under the
Company's then existing benefit plans and policies in accordance with such plans
and policies in effect on the date of termination and in accordance with the
terms of this Agreement.
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(ii) Involuntary Termination. If Employee's employment is
terminated as a result of Involuntary Termination other than for Cause, Employee
will be entitled to receive severance payments equal to the greater of
Employee's regular monthly salary for three (3) months (the "Severance Period")
or the benefit set forth in the Company's severance policy in effect at the time
of Employee's termination. Such payments shall be made ratably over the
Severance period according to the Company's standard payroll schedule. Health
insurance benefits including the same coverages provided to Employee prior to
the termination (e.g. medical, dental, optical, mental health) and in all other
respects significantly comparable to those in place immediately prior to the
termination will be provided at the Company's cost until the earlier of (A)
three months after the date of termination or (B) the date on which Employee is
provided with comparable benefits by a new employer. Life insurance providing
the same dollar amount of coverage and in all other respects significantly
comparable to that in place immediately prior to the termination will be
provided at the Company's cost until the earlier of (x) three months after the
date of termination or (y) the date on which Employee is provided with
comparable benefits by a new employer, or as otherwise agreed to by Employee and
the Company. Notwithstanding any other plan or agreement to the contrary,
vesting of all outstanding stock options, restricted stock and other long-term
incentive compensation awards held by Employee shall be accelerated such that
all options, restricted stock and other long-term incentive compensation awards
shall be fully exercisable or otherwise vested effective as of the date of
termination and any such options shall remain exercisable until the earlier to
occur of (AA) three months after the date of termination or (BB) the original
expiration date of such option.
(iii) Involuntary Termination for Cause. If Employee's
employment is terminated for Cause, then Employee shall not be entitled to
receive severance payments. Employee's benefits will be continued under the
Company's then existing benefit plans and policies in accordance with such plans
and policies in effect on the date of termination and in accordance with the
terms of this Agreement.
6. Definition of Terms. The following terms referred to in this Agreement
shall have the following meanings.
(a) Change of Control. "Change of Control" shall mean the occurrence
of any of the following events:
(i) Ownership. Any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing fifty-one
percent (51%) or more of the total voting power represented by the Company's
then outstanding voting securities; or
(ii) Composition of Board. A change in the composition of the
Board of Directors of the Company, as a result of which fewer than a majority of
the directors are Incumbent Directors. "Incumbent Directors" shall mean
directors who either (A) are directors of the Company as of the date hereof, or
(B) are elected, or nominated for election, to the Board of Directors of the
Company with the affirmative votes of at least a majority of the Incumbent
Directors at the time of such election or nomination (but shall not include an
individual whose
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election or nomination is in connection with an actual or threatened proxy
contest relating to the election of directors to the Company); or
(iii) Merger/Sale of Assets. The stockholders of the Company
approve a merger or consolidation of the Company with any other corporation,
other than a merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities of
the surviving entity) at least fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or the stockholders
of the Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or substantially all
of the Company's assets.
(b) Cause. "Cause" shall mean gross negligence or willful misconduct
where such gross negligence or willful misconduct has resulted or is likely to
result in substantial and material damage to the Company or its subsidiaries.
Anything contained in this Section 6(b) to the contrary notwithstanding,
Employee shall not be deemed to have been terminated for Cause unless and until
there shall have been delivered to Employee a copy of a resolution duly adopted
by the Board of Directors of the Company, after reasonable notice to Employee
and an opportunity for Employee, together with Employee's counsel, to be heard
before the Board, finding that in the good faith opinion of the Board, Employee
has engaged in the conduct described in this Section 6(b).
(c) Current Compensation. "Current Compensation" shall mean an amount
equal to the greater of (A) Employee's highest annual base salary for the year
preceding the year in which the termination occurs, or (B) Employee's annual
base salary at any time during the year in which the termination occurs.
7. Excise Tax Payments. If an excise tax is imposed pursuant to Section
4999 of the Internal Revenue Code of 1986 or any corresponding provision of
state income tax law on any payments or benefits received by Employee under any
provision of this Agreement (other than this Section 7), the Company will pay
Employee an additional amount equal to the amount of such tax, plus any
interest, penalties or additions to tax which may be imposed with respect
thereto. Employee will not be entitled to receive any payment with respect to
any such excise tax which may be imposed on payments received under this Section
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8. Successors. Any successor to the Company (whether direct or indirect
and whether by purchase, lease, merger, consolidation, liquidation or otherwise)
to all or substantially all of the Company's business and/or assets shall assume
the obligations under this Agreement and agree expressly to perform the
obligations under this Agreement in the same manner and to the same extent as
the Company would be required to perform such obligations in the absence of a
succession. The terms of this Agreement and all of Employee's rights hereunder
shall inure to the benefit of, and be enforceable by, Employee's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
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9. Notice. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by U.S. registered or certified mail, return
receipt requested and postage prepaid. Mailed notices to Employee shall be
addressed to Employee at the home address from which Employee most recently
communicated to the Company in writing. In the case of the Company, mailed
notices shall be addressed to its company headquarters in Houston, Texas, and
all notices shall be directed to the attention of its Secretary.
10. Miscellaneous Provisions.
(a) No Duty to Mitigate. Employee shall not be required to mitigate
the amount of any payment contemplated by this Agreement (whether by seeking new
employment or in any other manner), nor shall any such payment be reduced by any
earnings that Employee may receive from any other source.
(b) Waivers, etc. No amendment of this Agreement and no waiver of any
one or more of the provisions hereof shall be effective unless set forth in
writing by such person against whom enforcement is sought.
(c) Sole Agreement. This Agreement, including the Exhibits hereto
constitutes the sole agreement of the parties and supersedes all oral
negotiations and prior writings with respect to the subject matter hereof.
(d) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Texas.
(e) Severability. If any term or provision of this Agreement or the
application thereof to any circumstance shall, in any jurisdiction and to any
extent, be invalid or unenforceable, such term or provision shall be ineffective
as to such jurisdiction to the extent of such invalidity or unenforceability
without invalidating or rendering unenforceable the remaining terms and
provisions of this Agreement or the application of such terms and provisions to
circumstances other than those as to which it is held invalid or unenforceable,
and a suitable and equitable term or provision shall be substituted therefor to
carry out, insofar as may be valid and enforceable, the intent and purpose of
the invalid or unenforceable term or provision.
(f) Legal Fees and Expenses. The Company shall reimburse Employee for
all reasonable professional fees and expenses as incurred by Employee in
connection with negotiating and executing this Agreement. In the event an action
is brought to enforce any provision of this Agreement, Employee's legal fees and
expenses shall be paid by the Company as incurred by Employee, unless Employee
brings a claim which is determined by the arbitrator or court, as the case may
be, to be frivolous, in which case, Employee shall repay the Company all amounts
advanced by the Company to Employee in connection with such claim within thirty
days of such determination.
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(g) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement the date first
above written.
"Company"
VISUAL NUMERICS, INC.
By:/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx,
President and Chief Executive Officer
"Employee"
/s/ Xxxxxxx X. Xxxxx, III
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Xxxxxxx X. Xxxxx, III
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EXHIBIT A
DESCRIPTION OF DUTIES
EXHIBIT B
FISCAL YEAR 1995 BONUS CRITERIA
To be determined by February 1, 1995
