EXHIBIT 10.33
EMPLOYMENT AGREEMENT
This Agreement is made as of as of the date last indicated below by
and between MARK S. HELWEGE whose residence is located at 1627 Wood
Quail, San Antonio, Texas 78248 (hereafter "Executive") and
INTELOGIC TRACE, INC. located at 8415 Datapoint Drive, San Antonio,
Texas 78229 (hereafter "I T").
1. The Employment Clause
I T hereby agrees to and does hereby employ the Executive, and the
Executive hereby agrees to and does hereby continue in the employ of I
T, for the period set forth in paragraph 2 below (the Period of
Employment), in the position and with the duties and responsibilities
set forth in paragraph 3 below, and upon the other terms and conditions
set forth in this Agreement.
2. Period of Employment
The Period of Employment shall commence on the date of this Agreement
and, subject only to the provisions of Paragraphs 8 and 9 below,
relating, respectively, to death and disability, shall continue until
the close of business one (1) year from the date last written below or
such later date as shall result from a written agreement executed by
both parties to this Agreement. In the event that the Executive shall
continue in the full-time employment of I T after such one (1) year
period or such later date without a written extension of this
Agreement, such continued employment shall be for successive annual
periods and shall be subject to the terms and conditions of this
Agreement and the period of Employment shall include the period during
which the Executive in fact so continues in such employment.
3. The Position
a. It is contemplated that during the Period of Employment
the Executive shall continue to serve as President and
Chief Executive Officer.
b. At all times during the Period of Employment, the Executive
shall hold a position of responsibility and importance, with
the functions, duties and the responsibilities of an officer
of I T. I T reserves the right to make such organizational and
reporting changes as the Office of the President may, in good
faith, deem desirable and for the good of I T.
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4. The Performance Clause
Throughout the Period of Employment, the Executive agrees to devote
Executive's full time and undivided attention during normal business
hours to the business and affairs of I T and its subsidiaries and
divisions, except for earned vacations and except for illness or
incapacity; but nothing in this Agreement shall preclude the Executive
from devoting reasonable periods required for
a) serving as a director, trustee or member of a committee of
any organization involving no conflict of interest with
the interests of I T;
b) delivering lectures, fulfilling speaking engagements,
teaching at educational institutions or business
organizations;
c) engaging in charitable and community activities; and
d) managing Executive's personal investments, provided that
such activities do not, individually or together,
interfere with the regular performance of duties and
responsibilities under this Agreement.
5. The Compensation Clause
a. For all services to be rendered by the Executive in any
capacity during the Period of Employment, including, without
limitation, services as an executive, officer, director or
member of any committee of I T and its subsidiaries, divisions
and affiliates, the Executive shall be paid as compensation:
i) a base or fixed salary, payable not less often than
at the end of each bi-weekly period, at the rate of
$6,346.15 and shall thereafter be increased to
$7,692.30 per bi-weekly period upon the earlier of
(i) I T generating a net profit before taxes in any
quarter, or (ii) as of the closing date if I T is
sold; and
ii) An annual incentive award or bonus earned under I T's
Management Incentive Compensation Plan or such
equivalent successor plan as may be adopted by I T.
iii) for the 1995 fiscal year, the Management Incentive
Compensation Plan shall provide that Executive shall
be entitled to a bonus of .75% of I T's net operating
income from operations up to $5 million and 1% of all
net operating income above $5 million, subject to a
maximum annual payment of $75,000, which will be paid
quarterly based upon year-to-date
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performance within twenty (20) days of the
publication of I T's 1995 quarterly results provided
that Executive is actively employed on such date.
b. Any increase in salary pursuant to (a) above or in annual
incentive awards or other compensation shall in no way
diminish any other obligations of I T under this Agreement.
c. The compensation provided for in paragraph (a) above, together
with the perquisites and benefits set forth in paragraph 6
below, are in addition to the benefits provided for in
paragraph 7 of this Agreement.
d. I T shall promptly establish a new qualified employee stock
option plan substantially similar to the 1985 Employee Stock
Option Plan of I T. Executive shall be provided with a grant
of stock options under the new stock option plan. The quantity
and vesting schedule shall be mutually agreed upon with the
quantity to be commensurate with the office of the Executive.
Provisions for Perquisites
During the Period of Employment the Executive shall be entitled to
perquisites, including, without limitation, an appropriate office,
secretarial and clerical staff, and fringe benefits provided Executive
at the time of this Agreement, including tax preparation assistance, an
automobile allowance of $650 per month, as well as the reimbursement,
upon proper accounting, of reasonable expenses and disbursements
incurred by Executive in the course of Executive's duties. Executive
should be entitled to four (4) weeks of vacation per year.
7. Employee Benefit Plans
a. The Executive, Executive's dependents and beneficiaries,
including, without limitation, any beneficiary of a joint
and survivor or other optional method of payment
applicable to the payment of benefits under the Retirement
Income Plan of I T, as defined in paragraph (c) below,
shall be entitled to all payments and benefits and service
credit under the terms of employee benefit plans and
practices of I T, including, without limitation, the
401(k) Plan of I T, as defined in paragraph (c) below, its
death benefit plans (consisting of its Executive Benefit
Plan for Management Employees providing term life
insurance, accidental death and dismemberment insurance,
and travel accident insurance), its disability benefit
plans providing salary continuation, sickness and accident
and long-term disability benefits, its standard medical,
dental and health, and welfare plans and other present or
equivalent successor plans and practices of I T.
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Executive shall participate in I T's Executive Medical Plan
subject to a maximum of $15,000 per annum.
b. Nothing in this Agreement shall preclude I T from amending
or terminating any employee benefit plan or practice,
including, but not limited to, the 401(k) Plan but, it
being the intent of the parties that the Executive shall
continue to be entitled during the Period of Employment to
perquisites as set forth in paragraph 6 above at least
equal to those attached to Executive's position on the
date of this Agreement, nothing in this Agreement shall
operate or be construed to reduce, or authorize a
reduction, without the Executive's written consent, in the
level of such perquisites and benefits taken as a whole;
provided, however, that I T reserves the unilateral right
to revise or terminate any such perquisites or benefits if
such revision or termination applies to all employees
eligible to receive same. If and to the extent that such
perquisites, benefits, and service credits are not payable
or provided under any such plans or practices by reason of
such amendment or termination thereof, I T itself shall
pay or provide therefor.
8. Effect of Death
In the event of the death of the Executive during the Period of
Employment, the legal representative of the Executive shall be entitled
to the base or fixed salary provided for in paragraph 5(a)(i) above for
the month in which death shall have occurred, at the rate being paid at
the time of death, and the Period of Employment shall be deemed to have
ended as of the close of business on the last day of the month in which
death shall have occurred but without prejudice to any payments
otherwise due in respect of the Executive's death.
9. Effect of Disability
a. In the event of the Disability of the Executive during the
Period of Employment, the Executive shall be entitled to
an amount equal to the base or fixed salary provided for
in paragraph 5(a)(i) above, at the rate being paid at the
time of the commencement of Disability, for the period of
such Disability but not in excess of twelve (12) months
from the end of the period that establishes such
Disability, as described in paragraph 9(c) below.
b. The amount of any payments due under paragraph 9(a) shall be
reduced by any payments to which the Executive may be entitled
for the same period because of disability under any disability
or pension plan of I T or of any division, subsidiary, or
affiliate thereof, or as the result of workers' compensation
or non-occupational disability payments received from any
governmental entity.
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c. The term "Disability", as used in this Agreement, shall
mean an illness or accident occurring during the Period of
Employment which prevents the Executive from performing
Executive's duties under this Agreement for a period of
six (6) consecutive months. The Period of Employment shall
be deemed to have ended as of the close of business on the
last day of such six (6) month period but without
prejudice to any payments due the Executive in respect of
disability under paragraph 9(a) or otherwise due to
Executive or Executive's legal representative or
beneficiary.
10. Provision of Severance Allowance
a. In the event of termination of the employment of the
Executive by I T during the Period of Employment for any
reason other than for Cause, as defined in paragraph 10(d)
below, I T shall pay the Executive a severance allowance
by continuing Executive's base or fixed salary for
thirty-nine (39) consecutive bi-weekly pay periods
commencing as of the date of termination plus $20,000 as
a lump sum on such date of termination plus a bonus of a
pro rata amount based upon Executive's last preceding
Management Incentive Compensation award.
b. During the period that the payments provided for in
paragraph 10(a) are required to be made, the Executive,
Executive's dependents, and beneficiaries shall continue
to be entitled to receive an automobile allowance and
continuation all life and health insurance to the same
extent as if the Executive were still employed during such
period. If and to the extent that such benefits shall not
be payable under any such plan by reason of the
Executive's no longer being an employee of I T, I T shall
itself pay or provide for payment of such benefits to the
Executive, Executive's dependents and beneficiaries.
c. For the purpose of this Agreement, termination of the
Executive's employment shall be deemed to have been for Cause
(and in which case I T shall have no obligation to Executive
whatsoever) only:
i) if termination of Executive's employment shall have
been the result of an act or acts of fraud, theft or
embezzlement on the part of the Executive which, if
convicted, would constitute a felony and which
results or which is intended to result directly or
indirectly in gain or personal enrichment of
Executive at the expense of I T, or
ii) if the Executive shall breach the provisions set
forth in the Memorandum of Employment between
Executive and I T, or
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iii) if termination of Executive's employment results
from Executive's unreasonable neglect or refusal of
Executive to perform the duties appropriate to
Executive's position and Executive has been given
written notice by the Office of the President with
respect to such neglect or refusal and Executive
continues to unreasonably refuse or neglect the
performance of the duties specified, or
iv) if there has been a breach by the Executive during
the Period of Employment of the provisions of
paragraph 4 above, relating to the time to be
devoted to the affairs of I T, and with respect to
any alleged breach of paragraph 4 hereof, the
Executive shall have substantially failed to remedy
such alleged breach within thirty (30) days from
Executive's receipt of written notice from the
Office of the President.
e. During the period that Executive accepts the severance
allowance provided herein, Executive agrees not to directly
recruit or solicit any employee or customer of I T or actively
participate in the solicitation of any employee or customer of
I T.
f. In order to obtain the severance allowance provided for in
this Article, Executive shall submit a Request for Severance
identical to Exhibit A hereof. I T shall have no obligation to
pay any severance allowance unless and until Executive shall
have submitted the Request for Severance.
11. No Trust Created
Nothing contained in this Agreement and no action taken pursuant to the
provisions of this Agreement shall create or be construed to create a
trust fund of any kind. Any funds which may be set aside or provided
for in this Agreement shall continue for all purposes to be a part of
the general funds of I T and no person other than I T shall by virtue
of the provisions of this Agreement have any interest in such funds. To
the extent that any person acquires a right to receive payments from I
T under this Agreement, such right shall be no greater than the right
of any unsecured general creditor of I T.
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12. Successor In Interest
This Agreement and the rights and obligations hereunder shall be
binding upon and inure to the benefit of the parties hereto and their
respective legal representatives, and shall also bind and inure to the
benefit of any successor of I T by merger or consolidation or any
purchaser or assignee of all or substantially all of its assets, but,
except to any such successor, purchaser or assignee of I T, neither
this Agreement nor any rights or benefits hereunder may be assigned by
either party hereto.
13. Invalid Provision
In the event that any provision or portion of this Agreement shall be
determined to be invalid or unenforceable for any reason, the remaining
provisions of this Agreement shall remain in full force and effect to
the fullest extent permitted by law.
14. Arbitration of Disputes
The parties agree that any controversy or claim arising out of or
relating to this Agreement, or any dispute arising out of the
interpretation or application of this Agreement, which the parties
hereto are unable to resolve, shall be finally resolved and settled
exclusively by arbitration in San Antonio, Texas by a single arbitrator
under the American Arbitration Association's Commercial Arbitration
Rules then obtaining and in accordance with the substantive laws of the
State of Texas. If the parties cannot agree upon an arbitrator out of
the panel for the sole purpose of selecting an arbitrator, then each
party shall choose its own independent representative and those
independent representatives shall in turn choose the single arbitrator
within thirty (30) days of the date of the selection of the first
independent representative. The parties severally recognize and consent
to the jurisdiction over each of them by the Courts of the State of
Texas. The legal expenses of Executive shall be reimbursed to Executive
if an award is rendered in favor of Executive or if the arbitrator
finds that Executive exercised good faith in demanding arbitration of
any such dispute.
15. Governing Laws
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Texas applicable to agreements
made and to be performed entirely in Texas.
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16. Entire Agreement
This Agreement shall constitute the entire agreement between the
parties superseding all prior agreements, and may not be modified or
amended and no waiver shall be effective unless by written document
signed by both parties hereto after first being authorized by the
Compensation Committee of the Board of Directors of I T and recorded in
the approved minutes of such meeting. This Agreement shall become
effective as of the date of confirmation of the reorganization plan of
I T and shall at such time supersede the Agreement of July 28, 1991, as
amended, on July 31, 1992 and June 1, 1994.
Executed as of the 1st day of December, 1994.
INTELOGIC TRACE, INC.
MARK S. HELWEGE By: PHILIP D. FREEMAN
Mark S. Helwege
"Executive"
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