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EXHIBIT 10.5
TXEN, INC.
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EMPLOYMENT AGREEMENT
with
XXXX X. XXXXXX
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Dated: December 16, 1994
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EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into on the 16th day of December, 1994, by
and, among Xxxx X. Xxxxxx, residing at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX
00000 (herein called the "Employee"), TXEN, INC. (herein called "TXEN")
with a principal place of business at 00 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, and XXXXXXX RESEARCH CORPORATION, with a principal
place of business located at 0000 Xxxxxxxx Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx
00000 (herein called "NRC").
W I T N E S S E T H:
WHEREAS, TXEN is engaged in the business of managed care administration
and providing information systems and services to managed care administrators;
WHEREAS, NRC, as purchaser, and TXEN, as seller, entered into and
consummated a Convertible Preferred Stock Purchase Agreement dated as of the
date hereof (the "Purchase Agreement") whereby NRC acquired one share of
Preferred Stock of TXEN, and the Employee's continued employment with TXEN was a
material inducement to NRC to enter into the Purchase Agreement;
WHEREAS, NRC has also entered into a Stock Purchase Option Agreement of
even date herewith giving NRC the option to purchase all of the capital stock of
TXEN owned by the Employee together with the capital stock owned by the other
shareholders of TXEN provided NRC converts the Preferred Stock into Class B
Common Stock; and
WHEREAS, TXEN and NRC desire to obtain the services of the Employee as
Executive Vice President of TXEN and the Employee is willing to render such
services to TXEN upon the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual promises set forth
herein and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1. Duties and Salary.
(a) TXEN agrees to employ the Employee and the Employee agrees to
accept employment by TXEN on a full-time basis as Executive Vice President of
TXEN at a base salary of $5,416.66 per month plus such incentive compensation as
the Board of Directors of TXEN (the "Board") may determine payable during the
Term of Employment, as hereinafter defined. Such salary shall be subject to
increases from time to time as authorized by the Board, provided any increase in
compensation paid to the Employee shall require the
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affirmative vote of the director or directors elected to the Board by NRC so
long as NRC owns any capital stock of TXEN.
(b) The Employee hereby agrees to undertake such travel as may be
required in the performance of his duties. The reasonable travel expenses of the
Employee shall be reimbursed in accordance with TXEN's reimbursement policy, in
effect from time to time.
(c) The Employee shall carry out his duties under the general
supervision of the Board or its designee.
(d) The Employee's duties shall include the duties and responsibilities
identified on Schedule I attached hereto. The Employee shall perform such other
tasks and duties as may be assigned by TXEN, from time to time and TXEN reserves
the right to change the office and/or position of the Employee within TXEN, so
long as such change is mutually acceptable. The Employee shall devote his full
time, attention, skill and efforts to the tasks and duties assigned by TXEN. The
Employee shall not provide services, for compensation, to any other person or
business entity while employed by TXEN without approval of the Board and NRC.
(e) The Employee shall not be required to relocate beyond the
Birmingham, Alabama, metropolitan area without his consent.
2. Term of Employment. This Agreement shall commence as of the date
hereof and shall end four years from the date hereof (the "Term of Employment")
unless terminated earlier or extended as provided herein. Upon expiration of
the initial Term of Employment unless earlier terminated as provided herein, the
Term of Employment shall continue automatically month-to-month until terminated
by either party with at least thirty (30) days' prior written notice with or
without cause. Notwithstanding the foregoing, if NRC purchases all of the
capital stock of TXEN pursuant to the Stock Purchase Option Agreement, NRC may
elect to (1) immediately terminate the Employee's employment or (2) extend the
Employee's employment for thirty months after the purchase of all of the capital
stock of TXEN by NRC in which event the Term of Employment shall be extended by
such additional period, unless terminated earlier as provided herein.
3. Termination Before Expiration of Term of Employment. The termination
of the employment of the Employee during the Term of Employment may occur in one
of the following ways:
(a) By TXEN, for cause. Termination by TXEN shall be deemed to be for
cause only upon:
(i) Employee's conviction of or pleading guilty to a felony;
(ii) A good faith determination by the board that the Employee has
breached either this Agreement, the
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Purchase Agreement or the Stock Purchase Option Agreement;
(iii) Refusal or failure by the Employee, without reasonable excuse
or proper authorization, to carry out any reasonable
instructions of the Board consistent with Employee's rights or
duties as set forth in this Agreement;
(iv) Material breach of this Agreement or any material breach of
any agreement with NRC;
(v) The Employee's demonstration of negligence or willful
misconduct in the execution of his duties, including without
limitation breach of fiduciary duty or the duty of loyalty
owed TXEN.
If TXEN intends to terminate for cause, TXEN shall provide notice to
Employee of intent to terminate this Agreement, stating the termination
provision in this Agreement relied upon and setting forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination under the
provisions so indicated, and shall provide Employee with an opportunity to cure
the alleged default or breach within thirty (30) days of receipt of the notice,
provided that if the matter is not curable within such thirty (30) day period,
the Employee shall not be deemed in default if the Employee commences
immediately to cure the matter and proceeds diligently thereafter to complete
the cure, further provided that the alleged breach or default must be cured
within ninety (90) days of receipt of the notice. TXEN shall not be required to
give more than one notice with respect to the same matter. Notwithstanding the
foregoing, no notice and no cure right shall be required with respect to
termination for cause under 3(a)(i) or an act involving theft of information or
property of TXEN.
(b) By TXEN, Without Cause. Any termination of Employee by TXEN for
reasons other than as set forth in subsections 3(a)(i) through 3(a)(v) above
shall be a termination without cause. TXEN may terminate the employment of
Employee without cause by thirty (30) days' prior written notice at any time. If
NRC purchases all of the capital stock of TXEN pursuant to the Stock Purchase
Option Agreement, NRC may cause TXEN to terminate the employment of Employee
without cause immediately after the closing of such purchase and without giving
30 days' prior notice.
(c) By the Employee. The Employee may by written notice terminate his
employment at any time during the Term of Employment:
(i) For any reason other than for Good Reason (as defined below)
upon thirty (30) days' prior written notice at any time.
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(ii) For "Good Reason," defined as termination because of a
material breach by TXEN of this Agreement including, without
limitation, making a material change in the Employee's duties,
responsibilities or authority as set forth in this Agreement,
without his express written consent. In all cases in which
Employee intends to terminate for Good Reason, the Employee
shall provide TXEN with notice of intent to terminate this
Agreement, stating the facts and circumstances giving rise to
a breach of this Agreement claimed to provide a basis for
termination under the provisions so indicated, and shall
provide TXEN with an opportunity to cure the alleged default
or breach within thirty (30) days of receipt of the notice,
provided that if the matter is not curable within such thirty
(30) day period, TXEN shall not be deemed in default if it
commences immediately to cure the matter and proceeds
diligently thereafter to complete the cure, further provided
that the alleged breach or default must be cured within ninety
(90) days of receipt of the notice. Employee shall not be
required to give more than one such notice with respect to the
same matter.
(d) Death of the Employee.
(e) Disability of Employee. If, during the Term of Employment, a
physician selected by TXEN determines that the Employee has become physically or
mentally disabled so as to be unable to carry out the normal and usual duties of
his employment for three (3) continuous months, and reasonable accommodation
cannot be made to allow the Employee to continue to perform his duties
full-time, his employment hereunder may be terminated at the election of TXEN or
the Employee.
4. Consequences of Termination. The termination of the employment of Employee
will cause the following results:
(a) If the termination is by TXEN for cause, or is by the Employee
for any reason other than for Good Reason, TXEN will pay the Employee within
five (5) days after the date of termination any unpaid salary, the amount of any
accrued annual vacation pay to which he may be entitled under TXEN's vacation
plan, and benefits. All such compensation and benefits (if any) shall be paid
only through the date termination occurs.
(b) If the termination is by TXEN without cause or because of death
or disability, TXEN shall pay to the Employee, in addition to the amounts set
forth in 4(a) above, an amount equal to fifty percent (50%) of the Employee's
annualized base salary then in
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effect in monthly installments over a six-month period immediately following the
termination.
(c) If the termination is by the Employee for Good Reason, TXEN shall
pay to the Employee, in addition to the amounts set forth in 4(a) above, an
amount equal to fifty percent (50%) of the Employee's annualized base salary
then in effect in monthly installments over a six-month period immediately
following the termination.
(d) In the event of the Employee's death or disability, the following
provisions will apply:
(i) Upon his death, the Employee's estate will be entitled to
receive the amount set forth in Section 4(b) and the benefits
set forth in any plans of TXEN then in effect and applicable
under the circumstances. The Employee or his estate shall be
entitled to no other compensation or benefits in the event of
death.
(ii) Upon termination on account of disability, Employee will be
entitled to receive the amount set forth in Section 4(b) and
the benefits set forth in any plans of TXEN then in effect and
applicable under the circumstances. The Employee or his
personal representative shall be entitled to no other
compensation or benefits in the event of disability.
(e) The Employee shall not be required to mitigate the amount of
payment provided for in this Section 4 by seeking employment.
(f) The amounts set forth above in this Section 4 shall be paid and
received in complete discharge of any other obligation of TXEN (or NRC) to
Employee resulting from termination of his employment.
5. Fringe Benefits.
The Employee shall participate in any group health insurance, vacation
and sick leave plans, and other benefit plans available to all employees of TXEN
in accordance with their terms and conditions which may be amended or terminated
by TXEN at any time.
6. Non-Disclosure Covenants and Proprietary Matters.
(a) Unless authorized or instructed in writing by TXEN and NRC, the
Employee shall not, except as required in the conduct of TXEN's business, during
or at any time after the Term of Employment, disclose to others, or use, any of
NRC's or TXEN's inventions or discoveries or their respective secret or
confidential information or data (oral, written, or in machine
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readable form) which the Employee may obtain during the course of or in
connection with the Employee's employment, including such inventions,
discoveries, information, know-how or data relating to machines, equipment,
products, systems, software, contracts, contract performance, research and/or
development, designs, compositions, formulae, processes, manufacturing
procedures or business methods, whether or not developed by the Employee, by
others in NRC or TXEN or obtained by NRC or TXEN from third parties, and
irrespective of whether or not such inventions, discoveries, information,
knowledge or data have been identified by NRC or TXEN as secret or confidential,
unless and until, and then to the extent and only to the extent that, such
inventions, discoveries, information, knowledge or data become available to the
public otherwise than by the Employee's act or omission.
(b) The Employee shall not, except as required in the conduct of TXEN's
business, disclose to others, or use, any of the information (which, if
disclosed or used, could be harmful to NRC or TXEN) relating to present and
prospective customers of NRC or TXEN, business dealings with such customers,
prospective sales and advertising programs and agreements with representatives
or prospective representatives of NRC or TXEN, present or prospective sources of
supply or any other business arrangements of NRC or TXEN, including but not
limited to customers, customer lists, costs, prices and earnings, whether or not
such information is developed by the Employee, by others in NRC or TXEN or
obtained by NRC or TXEN from third parties, and irrespective of whether or not
such information has been identified by NRC or TXEN as secret or confidential,
unless and until, and then to the extent and only to the extent that, such
information becomes available to the public otherwise than by the Employee's act
or omission
(c) The Employee agrees to disclose immediately to TXEN or any persons
designated by it and to assign to TXEN or its successors or assigns, all
inventions made, discovered, or first reduced to practice by the Employee,
solely or jointly with others, during the Term of Employment or within a period
of six months from the date of termination of such employment (either during or
outside of the Employee's working hours and either on or off TXEN's premises),
which inventions are made, discovered or conceived either in the course of such
employment, or with the use of TXEN's time, material, facilities or funds, or
which are directly related to any investigations or obligations undertaken by
TXEN; and the Employee hereby grants and agrees to grant the right to TXEN and
its nominees to obtain, for its own benefits it and in its own name (entirely at
its expense) patents and patent applications including original, continuation,
reissue, utility and design patents, and applications, patents of addition,
confirmation patents, registration patents, xxxxx patents, utility models, and
all other types of patents and the like, and all renewals and extensions of any
of them for those inventions in any and all countries; and the employee shall
assist TXEN, at TXEN'S expense, without further charge during the term of the
employee's employment, and after
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termination of the Employee's employment at the same base salary rate (excluding
any bonuses, incentive or deferred compensation or other benefits and based upon
a forty hour work week) as during the last year of the Employee's employment
(determined on an hourly basis for this purpose), through counsel designated by
TXEN, to execute, acknowledge, and deliver all such further papers, including
assignments, applications for Letters Patent (of the United States or of any
foreign country), oaths, disclaimers or other instruments and to perform such
further acts, including giving testimony or furnishing evidence in the
prosecution or defense of appeals, interferences, suits and controversies
relating to any aforesaid inventions as may reasonably be deemed necessary by
TXEN or its nominees to effectuate the vesting or perfecting in TXEN or its
nominees of all right, title and interest in and to said inventions,
applications and patents. Notwithstanding the foregoing, the Employee need not
take any action called for under this Section 6(c) which will cause undue
personal hardship to the Employee.
(d) The Employee agrees to disclose immediately to TXEN or any persons
designated by it and to assign to TXEN, at its option, or its successors or
assigns, all works of authorship, including all writings, computer programs,
software, and firmware, written or created by the Employee solely or jointly
with others, during the course of his employment by TXEN (either during or
outside of the Employee's working hours and either on or off TXEN's premises),
which works are made or conceived either in the course of such employment, or
with the use of TXEN's time, material, facilities or funds, or which are
directly related to any investigations or obligations undertaken by TXEN; and
the Employee hereby agrees that all such works are works made for hire, of
which TXEN is the author and the beneficiary of all rights and protections
afforded by the law of copyright in any and all countries; and the Employee will
assist TXEN at TXEN's expense without further charges during the term of his
employment, and after termination of his employment at the same base salary rate
(excluding any bonuses, incentive or deferred compensation or other benefits) as
during the last year of his employment (determined on an hourly basis for this
purpose assuming a forty hour work week), through counsel designated by TXEN, to
execute, acknowledge, and deliver all such further papers, including
assignments, applications for copyright registration (in the United States or in
any foreign country), oaths, disclaimers or other instruments, and to perform
such further acts, including giving testimony or furnishing evidence in the
prosecution or defense of appeals, interferences, suits and controversies
relating to any aforesaid works, as may be deemed necessary by TXEN or by its
nominees to effectuate the vesting or perfecting in TXEN or its nominees of
all rights and interest in and to said works and copies thereof, including the
exclusive rights of copying and distribution.
(e) The employee shall keep complete, accurate and authentic accounts,
notes, data and records of all inventions made,
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discovered or developed and all works of authorship written or created by the
Employee as aforesaid in the manner and form requested by TXEN.
(f) All computer or other hardware, computer software, computer
programs, source codes, object codes, magnetic tapes, printouts, samples, notes,
records, reports, documents, customer lists, photographs, catalogues and other
writings, whether copyrightable or not, relating to or dealing with TXEN's or
NRC's business and plans, and those of others entrusted to TXEN or NRC, which
are prepared or created by the Employee or which may come into his possession
during or as a result of his employment, are the property of TXEN or NRC, as
applicable, and upon termination of his employment, the Employee agrees to
return all such computer software, computer programs, source codes, object
codes, magnetic tapes, printouts, samples, notes, records, reports, documents,
customer lists, photographs, catalogues and writings and all copies thereof to
TXEN or NRC.
7. Non-Solicitation and Non-Competition. During the Restriction Period
(as hereinafter defined) within the United States of America, the Employee shall
not directly or indirectly:
(a) Solicit the business of TXEN from any customer of TXEN or any
entity controlled by TXEN or solicit any employees of TXEN to leave the employ
of TXEN.
(b) Directly or indirectly, hire any employees or former employees of
TXEN or any entity controlled by TXEN within one year of the date of termination
of his employment with TXEN or cause any entity with which the Employee is
affiliated to hire any such employees or former employees of TXEN.
(c) Engage in, represent in any way or be connected with, as
consultant, officer, director, partner, employee, sales representative,
proprietor, stockholder or otherwise (except for the ownership of a less than 1%
stock interest in a publicly-traded corporation where Employee is not in a
management or control position), any business competing with the business of
TXEN as conducted by TXEN on the date hereof or during the period of Employee's
employment by TXEN.
(d) As used herein, the Restriction Period shall mean the period while
the Employee is employed by TXEN and the following periods:
(i) 36 months after the date the Employee ceases to be employed by
TXEN and/or
(ii) 36 months after NRC purchases all of the capital stock of TXEN
pursuant to the Stock Purchase Option Agreement.
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The above periods in sections 7(d)(i) and 7(d)(ii) shall not be
mutually exclusive. For example, if NRC purchases the capital stock of TXEN more
than 36 months after the Employee ceases to be employed by TXEN, the Restriction
Period of 7 (d)(ii) shall apply even though the Restriction Period of 7(d)(i)
also applied. Similarly, if the Employee ceases to be employed by TXEN
more than 36 months after NRC purchases the capital stock of TXEN, the
Restriction Period of section 7(d)(i) shall apply even though the Restriction
Period of 7(d)(ii) also applied.
8. No Conflict. Employee represents and warrants that he is not a party to
or otherwise subject to or bound by the terms of any contract, agreement or
understanding which in any manner would limit or otherwise affect his ability
to perform his obligations hereunder, including without limitation any
contract, agreement or understanding containing terms and provisions similar in
any manner to those contained in Sections 6 and 7 hereof. Employee covenants to
indemnify and hold NRC, TXEN and any of their affiliates harmless from any
cost or damages (including attorneys' fees and expenses) resulting from any
breach of the provisions of this Agreement.
9. Survival of Covenants, Effect.
(a) The covenants on the part of the Employee contained or referred to
in Sections 6 and 7 above shall survive termination of this Agreement, and the
existence of any claim or cause of action of the Employee against TXEN or NRC,
whether predicated on this Agreement or otherwise. The Employee agrees that a
remedy at law for any breach of the foregoing covenants contained or referred to
in Sections 6 and 7 would be inadequate, that TXEN and NRC would suffer
irreparable harm as a result and that NRC and/or TXEN shall be entitled to a
temporary and permanent injunction or an order for specific performance of such
covenants without the necessity of proving actual damage to NRC or TXEN and
without the posting of any bond or other security. Any breach of this Agreement
by TXEN or NRC shall not release the Employee from his obligations under
Sections 6 and 7 hereof.
(b) The Employee hereby represents and acknowledges that NRC and TXEN
are relying on the covenants in Sections 6 and 7 in entering into this Agreement
and the Purchase Agreement and other agreements related thereto and that the
restrictions in Sections 6 and 7 are fair and reasonable. The Employee
acknowledges that TXEN does business throughout the United States and that the
geographic scope of the covenants in Section 7 is therefore reasonable and
necessary to protect the interests of TXEN.
(c) It is the intent of the parties that the provisions of Sections 6
and 7 shall be enforced to the fullest extent permissible under the laws and
public policies of each jurisdiction in which enforcement is sought. If any
particular provision of Sections 6 and 7 shall be adjudicated to be invalid or
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unenforceable, such provision(s) of Sections 6 and 7 shall be deemed amended to
provide restrictions to the fullest extent permissible and consistent with
applicable law and policies, and such amendment shall apply only with respect to
the particular jurisdiction in which such adjudication is made. If such deemed
amendment is not allowed by the adjudicating body, the offending provision,
only, shall be deleted and the remainder of Sections 6 and 7 shall not be
effected.
10. Assignment.
The rights and obligations of TXEN under this Agreement may be assigned
by TXEN to NRC or to any other successors in interest of TXEN and/or NRC of that
part of the business of TXEN or NRC to which this Agreement applies or to their
respective affiliates. This Agreement may not be assigned and any duties of the
Employee may not be delegated by the Employee, but any amounts owing to the
Employee upon his death shall inure to the benefit of his estate.
11. Notices.
All notices or other communications which may be or are required to be
given, served or sent by either party to the other party pursuant to this
Agreement shall be in writing, addressed to its/his residence or place of
business as set forth above, and shall be mailed by first-class certified mail,
return receipt requested, postage prepaid, next-day air delivery, or transmitted
by facsimiles or hand delivery. Such notice or other communication shall be
deemed sufficiently given, served, sent or received for all purposes at such
time as it is delivered to the addressee or at such time as delivery is refused
by the addressee upon presentation. Each party may designate by notice in
writing an address to which any notice or communication may thereafter be so
given, served or sent. Any notice or other communication sent by Employee to
TXEN shall also be sent, at the same time, to NRC. Notices hand delivered to
TXEN or NRC must be delivered to an officer of TXEN and NRC and all other
notices shall be sent to the attention of the Board, in the case of TXEN, or to
the President, in the case of NRC.
12. Applicable Law Jurisdiction.
This Agreement has been negotiated and executed in the State of
Alabama, and it shall be governed by, construed and enforced in accordance with
the internal substantive laws and not the choice of law rules of the State of
Alabama.
13. Effectiveness/Interpretation.
The parties acknowledge and agree that this Agreement has been
negotiated at arm's length between parties equally sophisticated and
knowledgeable in the matters dealt with herein. Each party has been represented
by counsel of its or his own choosing.
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Accordingly, any rule of law or legal decision that would require interpretation
of any ambiguities in the Agreement against the party that drafted it is not
applicable and is waived.
14. Third Party Beneficiary.
NRC is a third party beneficiary to this entire Agreement but shall
have no liability to pay the compensation due Employee and to perform the other
obligations of TXEN hereunder. NRC is not a guarantor of any of the TXEN
obligations hereunder.
15. Severability.
If any of the articles, sections, paragraphs, clauses or provisions of
this Agreement shall be held by a court of last resort to be invalid, the
remainder of this Agreement shall not be affected thereby.
16. Entire Agreement.
The foregoing contains the entire agreement between the parties
relating to the subject matter of this Agreement, and may not be altered or
amended except by an instrument in writing approved by TXEN and NRC and signed
by the parties hereto, and this Agreement supersedes all prior understandings
and agreements relating to employment of the Employee by TXEN. The parties
acknowledge that any prior oral or written agreements between NRC and the
Employee, if any, are hereby terminated. The parties acknowledge that the
Employee and NRC have also entered into the Purchase Agreement and Stock
Purchase Option Agreement which shall be in addition to and not in lieu of the
provisions of this Agreement.
IN WITNESS WHEREOF, TXEN and NRC have caused this Agreement to be
executed by their duly authorized officers and the Employee has hereunto set his
hand as of the date first above written.
TXEN, INC.
By /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxxxx, President
XXXXXXX RESEARCH CORPORATION
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------------
Its: V.P. Acquisitions
-----------------------------
/s/ Xxxx X. Xxxxxx
---------------------------------------
Xxxx X. Xxxxxx, Employee
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SCHEDULE I
Duties of Employee
XXXX X. XXXXXX, EXECUTIVE VICE PRESIDENT
(i) to perform the duties of managing the sales and marketing staff.
(ii) to develop compensation plans for the sales and marketing staffs of
TXEN.
(iii) to create annual sales and marketing plans to best accomplish the
business goals of TXEN.
(iv) to train new sales and marketing staff in the sales techniques,
products and sales tools of TXEN.
(v) to participate as needed in management, status and other TXEN meetings
to assist with the overall management and operation of TXEN towards
reaching the TXEN business objectives.
(vi) to oversee the preparation of and approve the proposals submitted to
prospective customers by TXEN.
(vii) as required, to participate in or perform demonstrations and other such
presentations by TXEN.
(viii) to negotiate contracts with new customer accounts.
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AMENDMENT TO EMPLOYMENT AGREEMENT
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XXXXXXX SELECT CORPORATION
AND
XXXX X. XXXXXX
================================================================================
Dated: August 29, 1997
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AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO CERTAIN EMPLOYMENT AGREEMENT, dated 16th of December,
1994, entered into on this the 29th day of August, 1997, by XXXXXXX SELECT
CORPORATION, a Delaware corporation and the wholly owned subsidiary of NRC
("SELECT") and Xxxx X. Xxxxxx ("Employee"). Unless otherwise defined,
capitalized terms used herein shall have the meaning ascribed to such terms in
the Employment Agreement or the Merger Agreement (hereinafter defined).
WITNESSETH:
WHEREAS, Xxxxxxx Research Corporation ("NRC"), SELECT, a wholly owned
subsidiary of NRC, TXEN, Inc. ("TXEN"), and the holders of all of the $0.002 par
value Class A Common Stock of TXEN (the "Shareholders") have entered into and
consummated an Agreement of Merger dated as of August 27, 1997 (the "Merger
Agreement") whereby TXEN merged with and into SELECT;
WHEREAS, the Employee's continued employment with SELECT was a material
inducement to SELECT and NRC to enter into the Merger Agreement;
WHEREAS, the Employee owned Class A Common Stock of TXEN and received a
portion of the Merger Consideration;
WHEREAS, NRC, pursuant to Section 2 of the Employment Agreement, has
elected to extend Employee's Term of Employment after the Effective Date of the
merger of TXEN into SELECT; and
WHEREAS, NRC, SELECT and Employee mutually desire that Employee
continue to be employed by SELECT;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the undersigned parties do hereby amend the Employment Agreement as
follows:
1. SELECT agrees to the continued employment of the Employee,
and the Employee agrees to accept continued employment by SELECT on a
full-time basis as Senior Vice President of SELECT with the same Duties
and Salary as set forth in the Employment Agreement, except that
Employee shall report to the Chief Executive Officer of SELECT.
2. Section 2 of said Employment Agreement is amended to read
as follows:
2. Term of Employment. This Agreement shall commence
as of the Effective Date of the
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Merger Agreement and shall end thirty (30) months from the
date hereof (the "Term of Employment"), unless terminated
earlier or extended as provided herein.
3. Unless the context requires otherwise, all references to
TXEN, Inc., in the Employment Agreement shall mean SELECT.
Except as amended above, the Employment Agreement shall remain in full
force and effect according to its terms and conditions.
IN WITNESS WHEREOF, the parties have hereunto executed this Amendment
to Employment Agreement on the date and year first above written.
XXXXXXX SEARCH CORPORATION
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Xxxxxxx X. Xxxx,
Its: Chief Executive Officer
/s/Xxxx X. Xxxxxx
---------------------------------------
Xxxx X. Xxxxxx, Employee
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AMENDMENT NUMBER TWO TO EMPLOYMENT AGREEMENT
=======================================================
XXXXXXX TXEN CORPORATION
AND
XXXX X. XXXXXX
=======================================================
DATED: NOVEMBER 6, 1998
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AMENDMENT NUMBER TWO
TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT NUMBER TWO TO EMPLOYMENT AGREEMENT, dated December 16,
1994, as amended August 29, 1997 (the "Employment Agreement"), is entered into
on this the 6th day of November, 1998, by XXXXXXX TXEN CORPORATION, formerly
known as XXXXXXX SELECT CORPORATION, a Delaware corporation ("Xxxxxxx TXEN"),
and XXXX X. XXXXXX, ("Employee"). Unless otherwise defined, capitalized terms
used herein shall have the meaning ascribed to such terms in the Employment
Agreement or Merger Agreement (hereinafter defined).
W I T N E S S E T H:
WHEREAS, Xxxxxxx Research Corporation ("NRC"), XXXXXXX SELECT
CORPORATION ("Xxxxxxx Select"), a wholly owned subsidiary of NRC, TXEN, Inc.
("TXEN"), and the holders of all of the $0.002 par value Class A Common Stock of
TXEN (the "Shareholders") entered into and consummated an Agreement of Merger
dated as of August 27, 1997 (the "Merger Agreement") whereby TXEN merged with
and into Xxxxxxx Select with Xxxxxxx Select as the surviving corporation (the
"Merger");
WHEREAS, Xxxxxxx Select changed its name to Xxxxxxx TXEN after the
Merger;
WHEREAS, Employee entered into the Employment Agreement with TXEN which
has been assumed by Xxxxxxx TXEN and which was amended concurrent with the
Merger; and
WHEREAS, Xxxxxxx TXEN and Employee mutually desire to amend the
Employment Agreement;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the undersigned parties do hereby amend the Employment Agreement as
follows:
1. References in the Employment Agreement to TXEN, Xxxxxxx Select or
Select shall mean Xxxxxxx TXEN wherever the context requires in light of the
Merger and the change in name of Xxxxxxx Select to Xxxxxxx TXEN.
2. Section 1(a) of the Employment Agreement entitled "Duties and
Salary" and Section 1 of the August 29, 1997, Amendment to the Employment
Agreement are hereby amended to change the Employee's title to Chief Executive
Officer and to increase the base salary to $12,500 per month. Subparagraph 1(d)
of the Employment Agreement is hereby amended to delete the first sentence
thereof and to substitute in its place the following sentence:
"The Employee's duties shall include the duties and
responsibilities identified in the Bylaws of Xxxxxxx TXEN, as
amended, for the position of Chief Executive Officer."
3. Section 2 of the Employment Agreement and Section 2 of the August
29, 1997, Amendment to the Employment Agreement are deleted and there is hereby
substituted a new Section 2 of the Employment Agreement, as follows:
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"This Employment Agreement shall commence as of the effective
date of the Merger Agreement and shall end on the later of
(i) February 28, 2000; or
(ii) Two years after the date a registration
statement initially registering the
Company's common stock under the Securities
Act of 1933 is declared effective by the
Securities and Exchange Commission, provided
such registration statement is declared
effective before February 28, 2000.
The period between the commencement date and the
termination date as set forth above shall be the
`Term of Employment,' unless terminated earlier or
extended as provided herein. Upon expiration of the
initial Term of Employment unless earlier terminated
as provided herein, the Term of Employment shall
continue automatically month-to-month until
terminated by either party with at least thirty (30)
days prior written notice with or without cause."
4. This Amendment is effective on the date hereof.
5. Except as amended above, the Employment Agreement shall remain in
full force and effect according to its terms and conditions.
IN WITNESS WHEREOF, the parties have hereunto executed this Amendment
Number Two to Employment Agreement on the date and year set forth above.
XXXXXXX TXEN CORPORATION
By:
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Its:
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/s/ XXXX X. XXXXXX
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XXXX X. XXXXXX, Employee
