Exhibit 10.28
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
THIS SECOND AMENDMENT TO THE EMPLOYMENT AGREEMENT ("Amendment") is made
this 8th day of April, 1999, by and between CONVERGENT COMMUNICATIONS, INC., a
Colorado corporation ("Employer" or the "Company") and XXXX X. XXXXX
("Employee").
A. The Parties have entered into that certain Employment Agreement dated
December 15, 1996 as amended by the First Amendment to Employment Agreement
dated April 13, 1998 (collectively the "Agreement");
B. The Parties desire to amend and modify certain of the terms and
conditions of the Agreement;
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein and in the Agreement, the Parties agree as follows:
1. Compensation and Benefits. Section 3.1 of the Agreement shall be
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amended to increase Employee's annual base salary to Three Hundred Thousand
Dollars ($300,000.00) effective January 1, 1999.
2. Termination. Section 5 of the Agreement is hereby deleted in its
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entirety and the following new Section 5 is inserted in its place:
"5. Termination.
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5.1 If, during the Term of this Agreement, Employee dies or is
prevented from performing his duties by reason of illness or incapacity for
one hundred forty (140) days in any one hundred eighty (180) day period,
the Company may terminate this Agreement, upon thirty (30) days prior
notice thereof to Employee or his duly appointed legal representative.
5.2 The Company or the Employee may terminate this Agreement upon at
least thirty (30) days prior notice to Employee upon the happening of any
of the following events ("Change of Control Event"):
5.2.1 The sale by the Company of substantially all of its
assets to a single purchaser or associated group of purchasers who are not
affiliates of the Company. For the purposes of this Agreement, the term
"affiliate" means a person, firm or corporation that directly or
indirectly, through one or more intermediaries, controls, is controlled by,
or is under common control with the Company.
5.2.2 The sale, exchange or other disposition in one
transaction of eighty percent (80%) or more of the outstanding voting stock
of the Company to or with a person, firm or corporation not then an
affiliate of the Company.
5.2.3 The merger or consolidation of the Company in a
transaction not involving an affiliate of the Company in which the
shareholders of the Company receive less than fifty percent (50%) of the
outstanding voting stock of the new continuing corporation.
5.2.4 A bona fide decision by the Company to terminate its
business and liquidate its assets (but only if such liquidation is not part
of a plan to carry on the Company's business through its shareholders).
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5.3 The Company may terminate this Agreement at any time for gross
negligence or non-performance by Employee of any duty as an employee of the
Company which continues for a period of thirty (30) days after written
notice specifying such negligence or non-performance.
5.4 The Company may terminate this Agreement immediately upon the
intentional commission of a violation of any federal law, rule or
regulation, or any theft, fraud, embezzlement or similar crime involving
the commission of any felony, or for a material breach of any obligation or
covenant created by or under this Agreement.
5.5 Employer or Employee may terminate this Agreement without cause
upon at least thirty (30) days prior notice.
5.6 Termination Fees. In the event that this Agreement is terminated
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pursuant to this Section 5, Employer shall pay Employee a Termination Fee
as described below.
5.6.1 If this Agreement is terminated by (a) the Company
under subsections 5.1, 5.2 or 5.5 above, or (b) by the Employee (i) within
three (3) months for any or no reason following a Change of Control Event
as described in subsection 5.2 above, or (ii) for Good Reason (as defined
below) within twelve (12) months following a Change of Control Event as
described in subsection 5.2 above, then (1) the Company shall continue to
pay Employee's monthly base salary, as shall be in effect on the
termination date, for a period of twenty-four (24) months following the
date of termination; (2) the Company shall continue to provide Employee
with benefits coverage, including, without limitation, coverage under life,
health, accident, and disability plans, for a period of twenty-four (24)
months following the date of termination; (3) the Company shall pay
Employee any incentive bonus earned by Employee pursuant to Section 3.1, if
any, and (4) vesting of Employee's stock options, if any, shall be
accelerated such that all stock options granted to Employee will vest as of
the date of termination.
5.6.2 For purposes of this Agreement, "Good Reason" shall
mean, without the Employee's express written consent, the occurrence within
twelve (12) months after a Change of Control Event of any of the following
circumstances, unless in the case of clauses (i), (v), or (vi), such
circumstances are fully corrected within five (5) days following notice to
the Company:
(i). The assignment to the Employee of any duties
usually performed by an employee or individual of status subordinate to
that of the Employee's position, or a substantial alteration in the nature
or status of the Employee's responsibilities from those in effect
immediately prior to a Change of Control Event;
(ii). A reduction by the Company in the Employee's
annual base salary as then in effect;
(iii). A new Company requirement is instituted which
requires the Employee to change his work location to a location greater
than fifty (50) miles from Employee's work location immediately prior to
the institution of the requirement, but not including a requirement that
the Employee travel on the Company's business to an extent substantially
consistent with his present business travel obligations;
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(iv). The failure by the Company, without the
Employee's consent, to pay to the Employee any portion of his compensation,
or to pay to the Employee any portion of an installment of deferred
compensation under any deferred compensation program of the Company within
seven (7) days of the date such compensation is due, unless such failure to
pay is reasonably in dispute by the Company;
(v). The failure by the Company to continue in
effect any compensation plan in which the Employee participates immediately
prior to the Change of Control Event which is material to the Employee's
total compensation, or any substitute plans adopted prior to the Change of
Control Event, unless an equitable arrangement (embodied in an ongoing
substitute or alternative plan) has been made with respect to such plan in
connection with the Change of Control Event, or the failure by the Company
to continue the Employee's participation therein;
(vi). The failure by the Company to continue to
provide the Employee with benefits substantially similar to those enjoyed
by the Employee under any of the Company's pension, life insurance,
medical, health and accident, or disability plan in which the Employee was
participating at the time of a Change of Control Event; the taking of any
action by the Company which would directly or indirectly materially reduce
any of such benefits or deprive the Employee of any material fringe benefit
enjoyed by the Employee at the time of the Change of Control Event; or the
failure by the Company to provide the Employee with the number of paid
vacation days to which the Employee is entitled pursuant to the greater of
(a) this Agreement or (b) the basis of years of service with the Company in
accordance with the Company's normal vacation policy in effect at the time
of the Change of Control Event.
The Employee's right to terminate his employment pursuant to this
subsection shall not be affected by his incapacity due to physical or
mental illness. The Employee's continued employment shall not constitute
consent to, or a waiver of rights with respect to, any circumstance
constituting Good Reason hereunder.
5.6.3 No Termination Fee shall be paid to Employee in the
event that this Agreement is terminated for any other reason, including,
without limitation, pursuant to subsections 5.3 and 5.4 herein."
3. Other Terms and Conditions. All other terms and conditions of the
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Agreement shall remain in full force and effect, as if fully stated herein.
4. Capitalized Terms. Capitalized terms, and other defined terms, shall
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have the same meaning as that accorded to them in the Agreement, unless the
context requires otherwise.
5. Conflict. If there are any conflicting terms or conditions between the
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terms and conditions of this Amendment and the terms and conditions of the
Agreement, the terms and conditions of this Amendment shall control.
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
be executed by its duly authorized representative on the day and year first
above written.
CONVERGENT COMMUNICATIONS, INC., XXXX X. XXXXX
a Colorado corporation
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By /s/ Xxxxx X. Xxxxx /s/ Xxxx X. Xxxxx
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Its: President and Chief Operating Officer
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