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EXHIBIT 10.23
AGREEMENT
OF XXXXX X. XXXXX
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of this 1st day
of December, 1998, by and between the individual identified on Exhibit A hereto
("Individual"), and AmeriVision Communications, Inc., an Oklahoma corporation
("AmeriVision").
RECITALS
WHEREAS, AmeriVision wishes to retain Individual and Individual wishes
to be retained by AmeriVision, all on the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Individual and AmeriVision hereby agree as follows:
1. Employment Duties. AmeriVision hereby employs individual in the
position identified on Exhibit A hereto, made a part hereof and incorporated
herein by reference, and Individual hereby accepts for the term of this
Agreement and subject to the terms and conditions set forth herein. Individual
shall report to and serve at the direction of the President/CEO of AmeriVision
and shall, subject to such direction, have such responsibilities, duties and
authority as are customary for such position, and shall participate in the
administration and execution of AmeriVision's business affairs, operations and
policies at the direction of the President/CEO of AmeriVision. AmeriVision's
Board of Directors or President/CEO may change Individual's title or
responsibilities upon notice of the same to Individual. Beginning upon execution
of this Agreement, individual shall perform faithfully and to the best of his or
her abilities the duties assigned, and shall devote his or her full and
undivided business time and attention to the transaction of the business and
affairs of AmeriVision.
2. Term. The term of this Agreement shall commence on thirty (30) days
from the above date (the "Commencement Date"), and shall continue in effect
until the second anniversary of the Commencement Date (the "Initial Term"),
unless sooner terminated pursuant to Section 3 hereof (the Initial Term and any
extension thereof shall be known as the "Terms"). Upon expiration of the Initial
Term, this Agreement shall renew automatically for successive terms of one (1)
year each, unless AmeriVision notifies Individual of its intention not to renew
at least ninety (90) days prior to the expiration of the then current Term,
which shall not result in any liability for severance pay as set forth in
Section 3 hereof.
3. Termination and Severance Pay. Notwithstanding Section 2 and Section
4 hereof, AmeriVision may also terminate this Agreement at any time during the
Term and for any reason whatsoever upon ninety (90) days notice to Individual.
If AmeriVision notifies Individual of its
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election to terminate Individual pursuant to this Section before the first
anniversary of the Effective Date, Individual shall be entitled to receive
severance pay equal to six (6) months pay (and payable in a lump sum or over the
course of such period, at the option of AmeriVision) and health insurance for
such period. If AmeriVision notifies Individual of its election to terminate
Individual pursuant to this Section between the first anniversary of the
Effective Date and the second anniversary of the Effective Date, Individual
shall be entitled to receive severance pay equal to four (4) months pay and
health insurance for such period. Severance pay shall be payable in a lump sum
or over the course of the period covered, at the option of AmeriVision. In
addition to the amounts set forth in the previous two sentences, upon
termination pursuant to this Section. Individual shall be entitled to receive a
share of the Guaranteed Bonus identified on Exhibit A hereto pro rata from the
beginning of the fiscal year in which the termination occurs (the "Termination
Year") to the date of the termination notice (the "Pro Rated Guaranteed Bonus"),
which shall be calculated as follows: The Pro Rated Guaranteed Bonus shall be
equal to the total Guaranteed Bonus for the entire Termination Year (a)
multiplied by a fraction the numerator of which is the number of days in the
Termination Year through the date of the termination notice and the denominator
of which is 365, and then (b) reduced (but not below zero) by the amount of
Guaranteed Bonus already paid to individual with respect to the Termination Year
prior to the date of the termination notice. Individual shall not be entitled to
any severance pay except as specifically set forth in this Section. Severance
pay after the Initial Term shall be subject to negotiation between Individual
and AmeriVision.
4. Salary. As compensation for services provided hereunder, AmeriVision
shall pay Individual an amount which is no less than a base annual salary and
Compensated Bonus in the amount listed in Exhibit A hereto (the "Base Salary")
at intervals (currently bi-monthly) consistent with AmeriVision's customary
practice as such practice may from time-to-time change. The Base Salary and
Guaranteed Bonus shall be subject to review after the Initial Term and may, at
AmeriVision's discretion, be adjusted from time-to-time according to
Individual's responsibilities, capabilities, performances and any other factor
deemed appropriate by AmeriVision.
5. Exclusive Services. Individual shall devote his or her entire time
and attention to AmeriVision's business and shall not, without the written
consent of AmeriVision, either directly or indirectly, engage to any other
profession or business to which Individual would be giving his or her time and
effort to the detriment of AmeriVision's business.
6. Business Expenses. AmeriVision shall reimburse individual for
reasonable and necessary business expenses incurred by Individual in performing
his duties so long as such expenses are consistent with any budget or policies
established by AmeriVision. Individual shall provide AmeriVision with reasonable
supporting documentation sufficient to satisfy reporting requirements of the
Internal Revenue Service and AmeriVision.
7. Nondisclosure of Information and Post Employment Restrictions.
a. Nondisclosure of confidential information and trade
secrets. Individual agrees that, except as authorized by AmeriVision or a final
judicial determination by a court of law, Individual shall not use or disclose
any "Confidential Information," as defined in Section 7(b) of this Agreement, or
Trade Secrets respecting AmeriVision during the Term or at any time thereafter.
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b. "Confidential Information." Individual understands and
agrees that: (i) in the course of Individual's retention by AmeriVision it will
be necessary for Individual to acquire information which could include, in whole
or in part, information concerning AmeriVision sales, sales volume, sales
methods, sales proposals, customers and prospective customers, identity of
customers and prospective customers, identity of key purchasing personnel in the
employ of customers and prospective customers, amount or kind of customer
purchases from AmeriVision, AmeriVision sources and terms of supply, AmeriVision
computer programs, system documentation, special hardware, product hardware,
related software development, AmeriVision manuals, formulae, processes, methods,
machines, compositions, ideas, improvements, inventions, or other confidential
or proprietary information belonging to AmeriVision or relating to AmeriVision's
affairs (collectively referred to as "Confidential Information); (ii) the
Confidential Information is the property of AmeriVision; (iii) the use,
misappropriation, or disclosure of the Confidential Information would constitute
a breach of trust and could cause irreparable injury to AmeriVision; and (iv) it
is essential to the protection of AmeriVision's good will and to the maintenance
of AmeriVision's competitive position that the Confidential Information be kept
secret and that Individual not disclose the Confidential Information to others
or use the Confidential Information to Individual's own advantage or the
advantage of others.
c. Restrictions on Competition. Individual covenants and
agrees that, during the period of Individual's retention and for a period of one
(1) year following the latter of: (i) termination of this Agreement, and (ii)
the last day of the period as to which severance or any other pay or
compensation relates, Individual shall not engage, directly or indirectly,
whether as principal or as agent, officer, director, employee, consultant,
shareholder, or otherwise, alone or in association with any other person,
corporation or other entity, in any Competing Business which has a location
which is a corporate headquarters or regional office within fifty (50) miles of
Oklahoma City, Oklahoma. For purposes of this Agreement, the term "Competing
Business" means any person, corporation or other entity which sells or attempts
to sell any products or services which are the same as or similar to the
products and services sold or promoted by AmeriVision at any time and from time
to time during the two (2) years immediately prior to the termination of
individual's employment.
d. Non-Solicitation of Customers and Suppliers. Individual
agrees that, during his or her retention with AmeriVision and for one (1) year
following the latter of: (i) termination of this Agreement, and (ii) the last
day of the period as to which severance or any other pay or compensation
relates, Individual will not directly or indirectly solicit the trade of, or
trade with, any customer, prospective customer or supplier of AmeriVision for
any business purpose other than for the benefit of AmeriVision.
e. Non-Solicitation of Individuals. Individual agrees that,
during his or her employment with AmeriVision and for one (1) year following the
latter of (i) termination of this Agreement, and (ii) the last day of the period
as to which severance or any other pay or compensation relates, Individual will
not, whether on his or her own behalf or on behalf of another person,
corporation or other entity, directly or indirectly solicit or induce, or
attempt to solicit or induce, any employee of AmeriVision to leave AmeriVision
for any reason whatsoever, or hire any person who then is, or was during the
Term, an employee of AmeriVision.
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f. Return of Materials. Upon the termination of Individual's
employment with AmeriVision, including without termination for any reason, with
or without cause, Individual will promptly deliver to AmeriVision all
correspondence, drawings, blueprints, manuals, letters, notes, notebooks,
reports, flowcharts, programs, proposals and any documents concerning
AmeriVision's customers or concerning products or processes used by AmeriVision,
together with all copies, compilations and analyses of any of the foregoing,
and, without limiting the foregoing, will promptly deliver to AmeriVision any
and all other documents or materials containing or constituting Confidential
Information.
g. Equitable Relief. Because a remedy at law for any breach of
the provisions of this Section 7 will be inadequate, in addition to any and all
other remedies available to AmeriVision, AmeriVision shall be entitled to have
the remedies of a restraining order, injunction or other emergency, temporary or
permanent equitable relief to enforce the provisions hereof. Individual agrees
that the issues in any action brought under this Section 7 will be limited to
claims under this Section 7 and all other claims and counterclaims under other
provisions of this Agreement will be excluded. All expenses, including
reasonable attorneys' fees and expenses arising out of claims under this Section
7 shall be borne by the losing party to the fullest extent permitted by law. The
provisions in Section 17 (arbitration) notwithstanding. AmeriVision may elect to
remedy an alleged breach by Individual of this Section 7 by commencing an
immediate court action without resort to arbitration in any court of competent
jurisdiction.
h. Individual acknowledges, warrants, represents, and agrees
that the confidentiality covenants, restrictions and competition and the
additional nondisclosure of information and post-employment restrictions
contained in this Section 7 are necessary for the protection of AmeriVision's
legitimate business interest and are reasonable in scope and content.
8. Inventions and Work Product.
a. For purposes of this Section 8, the following definitions
shall apply:
i. "Inventions", shall mean: (A) all
inventions, improvements, modifications, and
enhancements, whether or not patentable,
made by Individual during Individual's
retention by AmeriVision, and (B) all
inventions, improvements, modifications and
enhancements made by Individual during a
period one (1) year after any suspension or
termination of Individual's employment by
AmeriVision, which relate, directly or
indirectly, to the past, present or future
business of AmeriVision.
ii. "Work Product" shall mean all documentation,
manuals, software, creative works, know-how,
processes and information created, in whole
or in part, by Individual during
Individual's retention by AmeriVision,
whether or not copyrightable or otherwise
protectable, excluding Inventions.
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b. Individual shall promptly disclose to AmeriVision all
inventions and keep accurate records relating to the conception and reduction to
practice of all Inventions. Such records shall be the sole and exclusive
property of AmeriVision, and Individual shall surrender possession of such
records to AmeriVision upon any suspension by termination of Individual's
retention with AmeriVision.
c. Individual hereby assigns to AmeriVision, without
additional consideration to Individual, the entire right, title and interest in
and to the Inventions and Work Product and in and to all proprietary rights
therein or based thereon. Individual agrees that the Work Product shall be
deemed to be a "work made for hire," Individual shall execute all such
assignments, oaths, declarations and other documents as may be prepared by
AmeriVision to effect the foregoing.
d. Individual shall provide AmeriVision with all information,
documentation, and assistance AmeriVision may request to perfect, enforce or
defend the proprietary rights in or based on the Inventions or Work Product.
AmeriVision, in its sole discretion, shall determine the extent of the
proprietary rights, if any, to the protected in or based on the Inventions and
Work Product. All such information, documentation, and assistance shall be
provided at no additional expense to AmeriVision, except for out-of-pocket
expenses which Individual incurs at AmeriVision's request.
e. Individual represents, warrants and covenants that he or
she owns no proprietary rights in any Inventions or Work Product.
9. Severability Reformation. Should any provision of this Agreement, or
the application thereof, to any extent, be held invalid or unenforceable by a
court of competent jurisdiction, the remainder of this Agreement, or alternative
applications thereof shall not be affected thereby and shall continue to be
valid and enforceable to the fullest extent permitted by law or equity. Further,
should any provisions of this Agreement be held invalid or unenforceable by
reason of an excessive scope, restrictions or obligation, such provision shall
be deemed reformed to provide for such scope, restriction or obligation to the
fullest extent deemed not to be invalid or unenforceable.
10. Notices. All notices required or permitted under this Agreement
shall be in writing and shall be deemed delivered when delivered in person or
deposited in the United States mail, postage prepaid, addressed as follows:
If to AmeriVision, to:
0000 Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxx Xxxx, XX 00000
Attn: Xxx Xxxxxx
Fax: (000) 000-0000
If to Individual, to the address set forth on Exhibit A hereto.
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11. Entire Agreement. This Agreement, together with any other
agreements concurrently or subsequently entered into between the parties hereto,
contain the entire Agreement of the parties with respect to the subject matter
hereof and thereof, and there are no other promises or conditions in any other
agreement whether oral or written. This Agreement supersedes any prior written
or oral agreements between the parties.
12. Amendment. This Agreement may be modified or amended only by a
writing signed by both parties.
13. Waiver of Breach. The waiver by AmeriVision of a breach of any
provisions of this Agreement by Individual shall not operate or be construed as
a waiver of any subsequent breach by Individual.
14. Assignment; Third-Party Beneficiaries. The rights and obligations
of AmeriVision and Individual under this Agreement are of a personal nature,
and, therefore this Agreement and the rights and obligations of the parties
hereto are not assignable by Individual. This Agreement is personal in nature
and there are no third-party beneficiaries.
15. Governing Law. This Agreement shall be incorporated and constructed
pursuant to Texas law.
16. Knowing and Voluntary Agreement Entered into After Opportunity for
Review by Counsel. Individual represents and warranties that he or she has been
afforded an opportunity for his or her attorney to thoroughly and completely
review this Agreement with him or her, and that he or she understands the
contents hereof and agrees to be bound by the terms of this Agreement.
17. Dispute Resolution. If a dispute arises from or relates to this
contract or breach thereof, and if the dispute cannot be settled through direct
discussion between the parties, the parties hereby agree to endeavor first to
settle the dispute by mediation administered by the American Arbitration
Association under its Commercial Mediation Rules before resorting to
arbitration. Any unresolved controversy or claim arising from or relating to
this contract or breach thereof shall be settled by arbitration administered by
the American Arbitration Association in accordance with its Commercial
Arbitration Rules, and judgment on the award rendered by the neutral arbitrator
may be entered in any court having jurisdiction thereof. The arbitrator shall
have the authority to award equitable as well as legal relief. Any mediation or
arbitration shall be held in Dallas, Texas.
18. Reimbursement. AmeriVision agrees to reimburse Individual to the
extent that PricewaterhouseCoopers ("PWC") requires a non-competition payment
under the Individual's contract with PWC.
[SIGNATURE PAGE FOLLOWS]
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SIGNATURE PAGE FOR EMPLOYMENT AGREEMENT
AMERIVISION: AMERIVISION COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President/CEO
INDIVIDUAL: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx, Individual
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EXHIBIT A
Individual: Xxxxx X. Xxxxx
Home Address: 0000 Xxxxxxxxxxxx Xxxxx
Xxxxx, Xxxxx 00000
Facsimile: 000-000-0000
Position: Vice President - Support Services
Base Annual Salary: $215,000
Health Benefits: Consistent with Company policy
Bonuses: Guaranteed Annual Bonus: $50,000 for the
year beginning December 1, 1998 payable as
follows:
Payment Payment Date
------- ------------
First Quarter $8,000.00 March 31
Second Quarter $8,000.00 June 30
Third Quarter $8,000.00 September 00
Xxxxxx Xxxxxxx $26,000.00 December 31
The Guaranteed Annual Bonus will be no less
than the amounts set forth above, but
increases shall be subject to performance
objectives set by AmeriVision President/CEO
Xxxxx Xxxxxxxx, including those set forth
below:
o Create Service Delivery organization
o Introduce new products and services
into AmeriVision organizational
structure and sales portfolio.
o Increase departmental efficiencies
through reallocation of resources and
streamlining functionality.
o Implement automated solutions and
applications to achieve productivity
gains and cost reductions.
o Establish performance objectives, sales
and marketing goals across all lines of
product and services.
o Develop strategy for migration to
facilities- based carrier.
o Define strategies for MIS directions,
Y2K risk management and IT improvement
initiatives.
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MEMORANDUM
TO: Xxxxx X. Xxxxx
FROM: Xxxxxxx X. Xxxxxxxx
DATE: December 2, 1998
RE: Agreement dated December 1, 1998
Listed below are additional compensation details related to the
Agreement dated December 1, 1998:
o At Risk Bonus Pools for all Senior Executives
o 2% of Net Revenue generated from TRI Enhanced Platform
("VirtuO")
o 2% of Net Revenue generated from Prepaid Debit Cellular
(Shared Technology)
o 1% of incremental long distance Net Revenue associated with
AmeriVision's quarterly performance starting with the
second fiscal quarter after the Commencement Date.
Net Revenue is collected revenue less sales and non-profit
commissions, payments and royalties and less sales returns and
allowances. The above three pools are separate and each shall
be decreased to the extent the budgeted Gross Profit
Percentage is not achieved. Gross Profit Percentage is the
percentage calculated based on Net Revenue less direct
expenses associated with that pool. The reduction shall be 1%
for every .5% shortfall in gross profit percentage.
Accordingly, no bonus shall be due unless at least 50% of the
budgeted gross profit percentage is achieved. These pools
shall apply to the Initial Term only. The applicability of the
pools to any renewal term is subject to negotiation. Each
bonus pool is payable forty-five (45) days after the end of
the calendar year for all eligible employees who are still
employed at that date. All pools will be calculated on a
calendar year basis.
o Stock Incentive Plan ("SIP"). Employee will be granted twice
the average award of options under the AmeriVision SIP. It is
anticipated that the SIP will have two phases or 5% each of
822,000 shares allocated to the senior executives, and that
Phase I shall be completed on or before June 30, 1999. Fair
market value of the options will be determined on day of
issuance after plan approval. Stock will be subject to a
vesting schedule anticipated to be no more than four (4)
years. In the event that the company is merged or sold and
AmeriVision is not the dominate or surviving party, a cash
settlement will be awarded to Employee for all vested and
awarded but uninvested stock options. The settlement will
reflect the purchase price
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at the time of sale or merger. The SIP is subject to approval
of such plan by the Board of Directors of AmeriVision.
AMERIVISION COMMUNICATIONS, INC.
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------- -----------------------------
Xxxxx X. Xxxxx, an individual Name: Xxxxxxx X. Xxxxxxxx
Title: President/CFO
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