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Exhibit 10.15
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of March 30, 2000, by and between
LEXENT INC., a Delaware corporation (the "Company"), and XXXXXX X. XXXXXXXX
(the "Employee").
W I T N E S S E T H:
WHEREAS the Company desires to induce the Employee to enter into
employment with the Company for the period provided in this Agreement, and the
Employee is willing to accept such employment with the Company on a full-time
basis, all in accordance with the terms and conditions set forth below;
NOW, THEREFORE, for and in consideration of the premises hereof and
the mutual covenants contained herein, the parties hereto hereby covenant and
agree as follows:
1. Employment.
(a) The Company hereby agrees to employ the Employee, and the
Employee hereby agrees to accept such employment with the Company,
commencing on April 17, 2000 (the "Commencement Date") and continuing for
the period set forth in Section 2 hereof, all upon the terms and
conditions hereinafter set forth.
(b) The Employee affirms and represents that as of the
commencement of his employment by the Company on the Commencement Date, he
will be under no obligation to any former employer or other party which is
in any way inconsistent with, or which imposes any restriction upon, the
Employee's acceptance of employment hereunder with the Company, the
employment of the Employee by the Company, or the Employee's undertakings
under this Agreement.
2. Term of Employment. Unless earlier terminated as provided in this
Agreement, the term of the Employee's employment under this Agreement shall be
for a period beginning on the Commencement Date and ending on April 17, 2004.
The period from the Commencement Date until April 17, 2004, or, in the event
that the Employee's employment hereunder is earlier terminated as provided
herein, such shorter period, is hereinafter called the "Employment Term"(the
"Employment Term").
3. Duties. The Employee shall be employed as Senior Vice President -
General Counsel of the Company, shall faithfully perform and discharge such
duties as inhere in the
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position of Senior Vice President of the Company as may be specified in the
By-laws of the Company with respect to such position, and shall also perform
and discharge such other duties and responsibilities consistent with such
position as the Board of Directors of the Company (the "Board of Directors")
shall from time to time determine. The Employee shall report to the President
and Chief Executive Officer of the Company. The Employee shall perform his
duties principally at offices of the Company in New York City, New York, with
such travel to such other locations from time to time as the President and
Chief Executive Officer may reasonably prescribe. Except as may otherwise be
approved in advance by the Board of Directors, and except during vacation
periods and reasonable periods of absence due to sickness, personal injury or
other disability, the Employee shall devote his full business time throughout
the Employment Term to the services required of him hereunder. The Employee
shall render his business services exclusively to the Company and its
subsidiaries during the Employment Term and shall use his best efforts,
judgment and energy to improve and advance the business and interests of the
Company and its subsidiaries in a manner consistent with the duties of his
position.
4. Compensation.
(a) Salary. As compensation for the performance by the Employee
of the services to be performed by the Employee hereunder during the
Employment Term, the Company shall pay the Employee a base salary at the
annual rate of Two Hundred and Twenty-five Thousand Dollars ($225,000)
(said amount, together with any increases thereto, being hereinafter
referred to as "Salary"). The Employee's salary shall increase from time
to time as determined by the Board of Directors in its sole discretion.
Any Salary payable hereunder shall be paid in regular intervals in
accordance with the Company's payroll practices from time to time in
effect.
(b) Bonus. The Employee shall be eligible to receive bonus
compensation from the Company in respect of each fiscal year (or portion
thereof) occurring during the Employment Term in an amount targeted at 40%
of his Salary (pro rated for any portion of a fiscal year occurring during
the Employment Term) if the Company achieves the target performance
objectives established by the Compensation Committee of the Board of
Directors (the "Compensation Committee") with respect to such fiscal year.
The Employee shall also be eligible to receive additional bonus
compensation from the Company in respect of each fiscal year (or portion
thereof) occurring during the Employment Term for exceptional performance
as may be determined by the Compensation Committee in its sole discretion.
5. Other Benefits; Options.
(a) General. During the Employment Term, the Employee shall:
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(i) be eligible to participate in employee fringe
benefits and pension and/or profit sharing plans that may be provided by
the Company for its senior executive employees in accordance with the
provisions of such plans, as the same may be in effect from time to time;
(ii) be eligible to participate in any medical and health
plans or other employee welfare benefit plans that may be provided by the
Company for its senior executive employees in accordance with the
provisions of any such plans, as the same may be in effect from time to
time;
(iii) be entitled to the number of paid vacation days in
each calendar year determined by the Company from time to time for its
senior executive officers, provided that such number of paid vacation days
in each calendar year shall not be less than fifteen (15) work days (three
calendar weeks); the Employee shall also be entitled to all paid holidays
given by the Company to its senior executive officers;
(iv) be entitled to sick leave, sick pay and disability
benefits in accordance with any Company policy that may be applicable to
senior executive employees from time to time; and
(v) be entitled to reimbursement for all reasonable and
necessary out-of-pocket business expenses incurred by the Employee in the
performance of his duties hereunder in accordance with the Company's
normal policies from time to time in effect.
(b) Grant of Initial Options. In connection with the execution
and delivery of this Agreement by the Employee, the Company is granting to
the Employee options ("Initial Options") to purchase 250,000 shares of
Company Common Stock, $.001 par value ("Common Stock"), at a purchase
price equal to the price per share of Common Stock sold in the Company's
upcoming initial public offering or, in the event no such public offering
occurs prior to the first anniversary of the Commencement Date, $10.00 per
share, of which options to purchase 25% of such shares of Common Stock
shall vest on the first anniversary of the Commencement Date and options
to purchase the remaining shares of Common Stock will vest in thirty-six
equal increments over the thirty-six month period beginning on the first
anniversary of the Commencement Date. All terms and conditions, including
those referred to herein, shall be provided in Stock Option Agreements of
even date herewith between the Company and the Employee.
(c) Grant of Subsequent Options. In connection with his continued
employment by the Company, on the first anniversary of the Commencement
Date, and on each of the subsequent anniversaries thereof during the
Employment Term, the Company agrees to grant the Employee options
("Subsequent Options") to purchase shares of Common Stock at a purchase
price equal to the fair market value of the
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Common Stock on the date of grant in accordance with any Company policy
that may be applicable for senior executive employees from time to time.
Each grant of these Subsequent Options shall be pursuant to specific terms
set forth in a stock option agreement between the Company and the
Employee.
6. Confidential Information. The Employee hereby covenants, agrees and
acknowledges as follows:
(a) The Employee has and will have access to and will participate
in the development of or be acquainted with confidential or proprietary
information and trade secrets related to the business of the Company and
any present or future subsidiaries or affiliates of the Company
(collectively with the Company, the "Companies"), including but not
limited to (i) customer lists; related records and compilations of
information; the identity, lists or descriptions of any new customers,
referral sources or organizations; financial statements; cost reports or
other financial information; contract proposals or bidding information;
business plans; training and operations methods and manuals; personnel
records; software programs; reports and correspondence; and management
systems, policies or procedures, including related forms and manuals; (ii)
information pertaining to future developments such as future marketing or
acquisition plans or ideas, and potential new business locations and (iii)
all other tangible and intangible property, which are used in the business
and operations of the Companies but not made public. The information and
trade secrets relating to the business of the Companies described
hereinabove in this paragraph (a) are hereinafter referred to collectively
as the "Confidential Information", provided that the term Confidential
Information shall not include any information (A) that is or becomes
generally publicly available (other than as a result of violation of this
Agreement by the Employee), (B) that the Employee receives on a
nonconfidential basis from a source (other than the Companies or their
representatives) that is not known by him to be bound by an obligation of
secrecy or confidentiality to any of the Companies or (C) that was in the
possession of the Employee prior to disclosure by the Companies.
(b) The Employee shall not disclose, use or make known for his or
another's benefit any Confidential Information or use such Confidential
Information in any way except as is in the best interests of the Companies
in the performance of the Employee's duties under this Agreement. The
Employee may disclose Confidential Information when required by a third
party and applicable law or judicial process, but only after providing
immediate notice to the Company of any third party's request for such
information, which notice shall include the Employee's intent to disclose
any Confidential Information with respect to such request.
(c) The Employee acknowledges and agrees that a remedy at law for
any breach or threatened breach of the provisions of this Section 6 would
be inadequate and, therefore, agrees that the Companies shall be entitled
to seek injunctive relief in addition
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to any other available rights and remedies in case of any such breach or
threatened breach by the Employee; provided, however, that nothing
contained herein shall be construed as prohibiting the Companies from
pursuing any other rights and remedies available for any such breach or
threatened breach.
(d) The Employee agrees that upon termination of his employment
with the Company for any reason, the Employee shall forthwith return to
the Company all Confidential Information in whatever form maintained
(including, without limitation, computer discs and other electronic
media).
(e) The obligations of the Employee under this Section 6 shall,
except as otherwise provided herein, survive the termination of the
Employment Term and the expiration or termination of this Agreement.
(f) Without limiting the generality of Section 12 hereof, the
Employee hereby expressly agrees that the foregoing provisions of this
Section 6 shall be binding upon the Employee's heirs, successors and legal
representatives.
7. Termination of Employment.
(a) The Employee's employment hereunder shall be terminated upon
the occurrence of any of the following:
(i) death of the Employee;
(ii) the Employee's inability to perform his duties on
account of disability or incapacity for a period of one hundred eighty
(180) or more days, whether or not consecutive, within any period of
twelve (12) consecutive months;
(iii) the Company giving written notice, at any time, to
the Employee that the Employee's employment is being terminated for
"Cause" (as defined in (b) below);
(iv) the Company giving written notice, at any time, to
the Employee that the Employee's employment is being terminated or is not
being renewed, other than pursuant to clause (i), (ii) or (iii) above
("Without Cause"); or
(v) the Employee terminates his employment hereunder for
any reason whatsoever (whether by reason of retirement, resignation or
otherwise, "Without Good Reason").
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(b) Cause. The following actions, failures and events by or
affecting the Employee shall constitute "Cause" for termination within the
meaning of clause (iii) of Section 7 (a) above:
(i) an indictment for or conviction of the Employee of,
or the entering of a plea of nolo contendere by the Employee with respect
to, having committed a felony;
(ii) abuse of controlled substances or alcohol or acts of
dishonesty or moral turpitude by the Employee that are detrimental to one
or more of the Companies;
(iii) acts or omissions by the Employee that the Employee
knew were likely to damage the business of one or more of the Companies;
(iv) negligence by the Employee in the performance of, or
disregard by the Employee of, his material obligations under this
Agreement or otherwise relating to his employment, which negligence or
disregard continue unremedied for a period of fifteen (15) days after
written notice thereof to the Employee; or
(v) failure by the Employee to obey the reasonable and
lawful orders and policies of the Board of Directors that are consistent
with the provisions of this Agreement.
8. Payments Upon Termination.
(a) Termination Without Cause. In the event that the Employee's
employment is terminated by the Company Without Cause during the period
between the Commencement Date and the date six months following the
Commencement Date (the "Initial Period") or thereafter, then the Company
shall pay to the Employee, as severance pay or liquidated damages or both,
monthly payments at the rate per annum of his Salary at the time of such
termination for a period of:
(i) eighteen (18) months after such termination if such
termination occurs in the first month of the Initial Period;
(ii) seventeen (17) months after such termination if such
termination occurs in the second month of the Initial Period;
(iii) sixteen (16) months after such termination if such
termination occurs in the third month of the Initial Period;
(iv) fifteen (15) months after such termination if such
termination occurs in the fourth month of the Initial Period;
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(v) fourteen (14) months after such termination if such
termination occurs in the fifth month of the Initial Period;
(vi) thirteen (13) months after such termination if such
termination occurs in the sixth month of the Initial Period; and
(vii) twelve (12) months after such termination if such
termination occurs after the end of the Initial Period.
(b) Payments Limited. Notwithstanding anything to the contrary
expressed or implied herein, except as required by applicable law and
except as set forth in Section 8(a) above, neither the Company nor any of
its affiliates shall be obligated to make any payments to the Employee or
on his behalf of whatever kind or nature by reason of the Employee's
cessation of employment (including, without limitation, by reason of
termination of the Employee's employment by the Company for Cause, Without
Cause or otherwise), other than (i) such amounts, if any, of his Salary as
shall have accrued and remained unpaid as of the date of said cessation
and (ii) such other amounts, if any, which may be then otherwise payable
to the Employee pursuant to the terms of the Company's benefits plans or
pursuant to clause (v) of Section 5(a) above.
(c) Interest. No interest shall accrue on or be paid with respect
to any portion of any payments under this Section 8.
9. Non-Assignability.
(a) Neither this Agreement nor any right or interest hereunder
shall be assignable by the Employee or his beneficiaries or legal
representatives without the Company's prior written consent; provided,
however, that nothing in this Section 9(a) shall preclude the Employee
from designating a beneficiary to receive any benefit payable hereunder
upon his death or incapacity. This Agreement may not be assigned by the
Company except with the Employee's prior written consent, provided,
however, that the Company may assign this Agreement to an affiliate of the
Company with the financial resources to fulfill the Company's obligations
hereunder.
(b) Except as required by law, no right to receive payments under
this Agreement shall be subject to anticipation, commutation, alienation,
sale, assignment, encumbrance, charge, pledge, or hypothecation or to
exclusion, attachment, levy or similar process or to assignment by
operation of law, and any attempt, voluntary or involuntary, to effect any
such action shall be null, void and of no effect.
10. Restrictive Covenants.
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(a) Competition. During the Employment Term and, in the event the
Employee's employment is terminated, during the period (the "Applicable
Continuation Period") following such termination and continuing until (i)
the last payment is made to the Employee pursuant to Section 8(a) hereof
or (ii) in the case of a termination of the Employee's employment pursuant
to Section 7(a)(iii) or (v) hereof, the first anniversary of the date of
such termination, the Employee will not directly or indirectly (as a
director, officer, executive employee, manager, consultant, independent
contractor, advisor or otherwise) engage in competition with, or own any
interest in, perform any services for, participate in or be connected with
any business or organization which engages in competition with any of the
Companies within the meaning of Section 10(d), provided, however, that the
provisions of this Section 10(a) shall not be deemed to prohibit the
Employee's ownership of not more than two percent (2%) of the total shares
of all classes of stock outstanding of any publicly held company, or
ownership, whether through direct or indirect stock holdings or otherwise,
of not more than one percent (1%) of any other business.
(b) Non-Solicitation. During the Employment Term and during the
Applicable Continuation Period, the Employee will not directly or
indirectly induce or attempt to induce any employee of any of the
Companies to leave the employ of the Company or such subsidiary or
affiliate, or in any way interfere with the relationship between any of
the Companies and any employee thereof.
(c) Non-Interference. During the Employment Term and during the
Applicable Continuation Period, the Employee will not directly or
indirectly hire, engage, send any work to, place orders with, or in any
manner be associated with any supplier, contractor, subcontractor or other
business relation of any of the Companies if such action by him would have
an adverse effect on the business, assets or financial condition of any of
the Companies, or materially interfere with the relationship between any
such person or entity and any of the Companies.
(d) Certain Definitions.
(i) For purposes of this Section 10, a person or entity
(including, without limitation, the Employee) shall be deemed to be a
competitor of one or more of the Companies, or a person or entity
(including, without limitation, the Employee) shall be deemed to be
engaging in competition with one or more of the Companies, if such person
or entity conducts, or, to the knowledge of the Employee, plans to
conduct, the Specified Business (as hereinafter defined) as a significant
portion of its business in any of the markets served by the Companies or,
in the case of a person or entity pursuing a business strategy of
providing telecommunications infrastructure services, anywhere in the
continental United States.
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(ii) For purposes of this Agreement, "Specified Business"
means (A) providing outsourced telecommunications infrastructure services
to local or long distance telecommunications providers or engaging in any
business conducted by the Company at the time of termination of the
Employee's employment with the Company or (B) conducting, operating,
carrying out or engaging in the business of managing any entity described
in clause (A).
(e) Certain Representations of the Employee. In connection with
the foregoing provisions of this Section 10, the Employee represents that
his experience, capabilities and circumstances are such that such
provisions will not prevent him from earning a livelihood. The Employee
further agrees that the limitations set forth in this Section 10
(including, without limitation, time and territorial limitations) are
reasonable and properly required for the adequate protection of the
current and future businesses of the Companies. It is understood and
agreed that the covenants made by the Employee in this Section 10 (and in
Section 6 hereof) shall survive the expiration or termination of this
Agreement.
(f) Injunctive Relief. The Employee acknowledges and agrees that
a remedy at law for any breach or threatened breach of the provisions of
Section 10 hereof would be inadequate and, therefore, agrees that the
Company and any of its subsidiaries or affiliates shall be entitled to
seek injunctive relief in addition to any other available rights and
remedies in cases of any such breach or threatened breach; provided,
however, that nothing contained herein shall be construed as prohibiting
the Company or any of its affiliates from pursuing any other rights and
remedies available for any such breach or threatened breach.
11. Representations and Warranties. The Employee represents and
warrants that he is not subject to or a party to any agreement, contract,
covenants, order or other restriction which in any way prohibits, restricts or
impairs the Employee's ability to enter into this Agreement and carry out his
duties and obligations hereunder. Each party hereto represents and warrants to
the other that (i) each has the full legal right and power and all authority
and approvals required to enter into, execute and deliver this Agreement and to
perform fully all of his or its obligations hereunder; and (ii) this Agreement
has been duly executed and delivered and constitutes a valid and binding
obligation of each party, enforceable in accordance with its terms.
12. Binding Effect. Without limiting or diminishing the effect of
Section 9 hereof, this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, successors, legal
representatives and assigns.
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13. Notices. All notices which are required or may be given pursuant
to the terms of this Agreement shall be in writing and shall be sufficient in
all respects if given in writing and (i) delivered personally, (ii) mailed by
certified or registered mail, return receipt requested and postage prepaid,
(iii) sent via a nationally recognized overnight courier or (iv) sent via
facsimile confirmed in writing to the recipient, if to the Company at the
Company's principal place of business, and if to the Employee, at his home
address most recently filed with the Company, or to such other address or
addresses as either party shall have designated in writing to the other party
hereto, provided, however, that any notice sent by certified or registered mail
shall be deemed delivered on the date of delivery as evidenced by the return
receipt.
14. Law Governing. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
15. Severability. The Employee agrees that in the event that any court
of competent jurisdiction shall finally hold that any provision of Section 6 or
10 hereof is void or constitutes an unreasonable restriction against the
Employee, the provisions of such Section 6 or 10 shall not be rendered void but
shall apply with respect to such extent as such court may judicially determine
constitutes a reasonable restriction under the circumstances. If any part of
this Agreement other than Section 6 or 10 is held by a court of competent
jurisdiction to be invalid, illegible or incapable of being enforced in whole
or in part by reason of any rule of law or public policy, such part shall be
deemed to be severed from the remainder of this Agreement for the purpose only
of the particular legal proceedings in question and all other covenants and
provisions of this Agreement shall in every other respect continue in full
force and effect and no covenant or provision shall be deemed dependent upon
any other covenant or provision.
16. Waiver. Failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such
term, covenant or condition, nor shall any waiver or relinquishment of any
right or power hereunder at any one or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
17. Entire Agreement; Modifications. This Agreement constitutes the
entire and final expression of the agreement of the parties with respect to the
subject matter hereof and supersedes all prior agreements, oral and written,
between the parties hereto with respect to the subject matter hereof. This
Agreement may be modified or amended only by an instrument in writing signed by
both parties hereto.
18. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Employee have duly executed
and delivered this Agreement as of the day and year first above written. LEXENT
INC.
By: /s/ XXX X. XXXXXX
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Name: Xxx X. Xxxxxx
Title: President and Chief Executive Officer
/s/ XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx
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