Exhibit 10.2
AMENDMENT NO. 1
TO
EMPLOYMENT AGREEMENT
This Amendment No. 1, made as of this 26th day of May, 1999 by and
between e.spire Communications, Inc., a Delaware corporation, formerly known as
American Communications Services, Inc., having its principal place of business
at 000 Xxxxxxxx Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx Xxxxxxxx, Xxxxxxxx 00000
(which, together with any affiliates or subsidiaries are hereinafter
collectively referred to as "Company") and Xxxxxxx Xxxx, an individual residing
at 00000 Xxxxxxxxxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxxxx 00000 (hereinafter
referred to as "Employee").
WITNESSETH
WHEREAS, the Company and Employee have entered into an Employment
Agreement dated as of December 4, 1997 (the "Employment Agreement"); and
WHEREAS, the Company and Employee wish to enter into this Amendment to
provide for a loan by the Company to the employee and to set forth the repayment
terms thereof; and
WHEREAS, the Company desires to take a security interest to
collateralize the Employee's obligation to repay the loan, and Employee is
willing to grant the Company such security interest issuable to Employee upon
exercise of the options to purchase the Company's Common Stock currently owned
or obtained in the future by Employee;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants undertaken herein, and with the intent to be legally bound hereby, the
Company and Employee hereby agree to amend the Employment Agreement as follows:
1. Section 6 of the Employment Agreement shall be amended as follows:
(i) The existing Section 6 in the Employment Agreement shall
be redesignated as Section 6(a), and the "April 1, 1998" date specified therein
shall be changed to July 1, 1999".
(ii) The following Section 6(b) shall be added:
"6(b). Loan to Employee. If so requested by Employee, the
Company, shall use its best efforts to extend a loan to Employee in the
aggregate amount of up to $100,000. Any such loan shall bear simple interest at
the rate of 8% per year, and the principal and accrued interest on such loan
shall be due and payable on the one year anniversary date of such loan;
provided, however, that Employee shall be obligated to make payments of interest
and principal on such loan prior its payments of interest and principal on such
loan prior to its scheduled maturity equal to the amount of Profit (as
hereinafter defined) realized by Employee from the sale of shares of the
Company's common stock underlying options which have previously been granted
(the "Current Options") or may in the future be granted by the Company to
Employee (the "Future Options"); and, provided further, that the entire amount
of outstanding principal and accrued interest on such loan shall be immediately
due and payable in the event that the Employee's employment is terminated, and,
any amounts then owing to Employee by the Company, including any severance
payments, shall be withheld by the Company to the extent necessary to satisfy
the remaining obligations of Employee under such loan. Any such loan shall be
evidenced by a promissory note of Employee to the Company containing
commercially reasonable terms, including without limitation, full recourse
against Employee. For purposes hereof, Profit shall be equal the price at which
the shares of Common Stock are sold by Employee minus the sum of (i) the
exercise price of the underlying option and (ii) the taxes payable by Employee
with respect to the exercise price of such option.
2. Non-Assignability. Except as contemplated by Section 1 herein, neither this
Amendment nor any right or interest hereunder shall be assignable or
subject to any encumbrance, pledge, hypothecation, attachment, or
anticipation of any kind by Employee, his spouse or his legal
representatives, without the Company's written consent but shall be binding
upon Employee's estate.
3. Entire Agreement. This Amendment shall be subject to amendment,
modification or waiver only by a mutually signed written instrument which
by its terms evidences an intention to modify or amend the provisions
hereof.
4. Choice of Law. This Amendment shall be construed in accordance with the
internal laws of the State of Maryland. For purposes of this Amendment, the
parties consent to jurisdiction in the State of Maryland.
5. Cost of Enforcement. Each party shall bear its own costs and attorneys'
fees in connection with any suit or proceeding against the other to enforce
any provision of this Amendment or to recover damages resulting from a
breach hereof, however, the party which prevails in any such suit or
proceeding shall be entitled to receive from the non-prevailing party the
costs and reasonable attorneys' fees of the prevailing party incurred in
such suit or proceeding.
6. Counterparts. This Amendment may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. This Amendment shall become
effective upon the execution of a counterpart hereof by each of the parties
hereto.
7. Interpretation. All masculine terms shall include the feminine counterpart
and all singular terms shall include plural and vice versa, as necessary to
interpret and enforce the intent of this Amendment. All captions are
included only for reference and shall not constitute substantive provisions
hereof.
8. Notices. Any notice, request, claim, demand, document and other
communication hereunder to either party shall be effective upon receipt (or
refusal of receipt) and shall be in writing and delivered personally or
sent by telex or telecopy (with such telex or telecopy confirmed promptly
in writing send by first class mail) or other similar means of
communications, as follows:
(i) If to the Company, addressed to e.spire Communications, Inc.,
000 Xxxxxxxx Xxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxx Xxxxxxxx, Xxxxxxxx 00000,
Attention: Board of Directors; or
(ii) If to Employee, addressed to him at 00000 Xxxxxxxxxxxxx Xxxxxx,
Xxxxxxx Xxxxx, Xxxxxxxx 00000;
or, in each case, to such other address or telex or telecopy number as such
party may designate in writing to the other by written notice given in the
manner specified herein.
All such communications shall be deemed to have been given, delivered
or made when so delivered personally or sent by telex or telecopy (confirmation
received), or five business days after being so mailed.
INTENDING TO BE LEGALLY BOUND BY THIS AMENDMENT NO. 1 TO
EMPLOYMENT AGREEMENT, the parties have signed below as of the date
first written above.
EMPLOYEE: e.spire COMMUNICATIONS, INC.
/s/ Xxxxxxx Xxxx /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx Xxxx Xxxxxxx X. Xxxxxxxxx
Chairman & CEO
