Exhibit 10.10
ADVANCED COMMUNICATIONS GROUP, INC.
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into on March 31,
1998, XXXXXXX XXXXXX, ("Employee") and Advanced Communications Group, Inc.,
(ACG) a Delaware corporation ("Company") (collectively referred to as the
"Parties"). The Company and Employee agree as follows:
1. EMPLOYMENT
In consideration of the mutual covenants and agreements contained in this
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged by Employee and the Company, the
Company employs Employee, and Employee accepts employment subject to the
terms and conditions of this Agreement. Unless the context otherwise clearly
requires, all references to ACG in this Agreement shall include ACG, the
Company and ACG's other subsidiaries.
2. TERM
This Agreement shall commence and become effective on the date hereof and end
on the fifth anniversary of the date hereof. Such term of employment may be
renewed for successive periods of one year thereafter upon the mutual
agreement of the Parties.
3. COMPENSATION AND OTHER BENEFITS
3.1 As compensation for his services to the Company under this Agreement,
the Company shall pay to Employee during the term of this Agreement
a base salary ("Base Salary") of $135,000 (ONE-HUNDRED THIRTY-FIVE
THOUSAND DOLLARS) per annum, payable in equal semi-monthly
installments, subject only to such payroll and withholding
deductions as may be required by law and other deductions applied
generally to employees of the Company for any employee benefit plans.
3.2 Employee shall be eligible to receive a potential cash bonus of
$35,000 (THIRTY-FIVE THOUSAND DOLLARS) to be based upon his
performance and a payment schedule as determined by the
Compensation Committee of the Board of Directors ("Compensation
Committee") of ACG. Employee agrees that the decision as to
whether to award a Bonus and the percentage amount thereof will be
made by the Compensation Committee and will be based upon the
criteria they set.
3.3 Employee will be entitled to two weeks of paid vacation annually
during the term of this Agreement.
3.4 Employee will be awarded 70,000 stock options to acquire common
stock in Advanced Communications Group, Inc. at an exercise price
equal to the initial public offering price per share. The options
shall have a term of ten years and shall become exercisable in
33 1/3% increments on each anniversary date of Employee's employment
hereunder. Accordingly, the options shall become fully vested three
years from the date of grant. The options shall, except as provided
herein, be subject to such terms and conditions as may be prescribed
by the Compensation Committee.
3.5 Employee shall receive benefits commensurate with his level of
employment under any health plan of ACG.
4. DUTIES AND EXTENT OF SERVICE
Employee shall serve as VICE PRESIDENT /BUSINESS MARKETS of Advanced
Communications Group, Inc. Employee agrees to perform the duties incidental
to his positions, as determined from time to time by the Chief Executive
Officer and Executive Vice President of Sales & Marketing of Advanced
Communications Group, Inc. Employee shall devote such time, attention, and
energy to the business of ACG as are required to perform his duties and
responsibilities hereunder and shall not during the term of this Agreement be
engaged, directly or indirectly, in any other business activity if pursued
for gain, profit, or other pecuniary advantage without the prior written
consent of the Chief Executive Officer of Advanced Communications Group, Inc.
In any event, after the date hereof, Employee shall not take any action
inconsistent with Employee's relationship and responsibilities as an employee
of the Company and Advanced Communications Group, Inc., or take any action
which is intended, or may be reasonably expected, to harm the reputation,
business, prospects, or operations of ACG.
5. PROTECTION OF CONFIDENTIAL INFORMATION AND EMPLOYEE NON-COMPETITION
5.1 Employee recognizes and acknowledges that he will have access to
certain confidential information and trade secrets of ACG
("Confidential Information"). Such Confidential Information
includes, but is not limited to: customer names; contracts;
products purchased by customers; production
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capabilities and processes; customer account and credit data;
referral sources; computer programs and software; names and
information relating to potential acquisition candidates;
financing sources and other business relationships; information
relating to confidential or secret designs, processes, formulae,
plans, devices, or materials of ACG's business and marketing plans,
confidential information and trade secrets relating to the
distribution and marketing of ACG's products and services; patents
pending; confidential characteristics of ACG's products and services;
customer comments; troubleshooting requirements; product and service
development; market development; manuals written by ACG; management,
accounting, and reporting systems, procedures, and programs; off net
contracts, leases, marketing agreements, sales employee compensation
information, plans, and programs; marketing and financial analysis,
plans, research, programs, and related information and data; forms,
agreements, and legal documents; regulatory and supervisory reports;
correspondence; statements; corporate books and records; and other
similar information.
5.2 Employee acknowledges and agrees that this Confidential Information
constitutes valuable, special, and unique property of ACG.
5.3 Employee will not, at any time during or after the term of this
Agreement or his employment with ACG, disclose any Confidential
Information to any person, firm, corporation, association, or other
entity for any reason or purpose.
5.4 The foregoing restrictions shall not apply to: (a) any information
in Employee's possession before its disclosure to Employee by ACG;
or (b) information that is or shall lawfully be published or become
part of the general knowledge through no act or omission of
Employee. The Confidential Information disclosed to Employee under
this Agreement is not within the foregoing exceptions merely
because such information is embraced by more general information
in the public domain or in Employee's possession; or merely because
portions thereof are in the public domain or in Employee's possession.
5.5 To protect the confidentiality of the Confidential Information,
Employee further agrees that while employed by ACG and for a period
of one year
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immediately after the termination of this Agreement or his
employment with ACG, regardless of whether such termination of
employment is voluntary or involuntary, he will not, for himself, or
on behalf of any other person, firm, partnership, company, or
corporation (i) generally compete in any manner whatsoever with ACG
or solicit, accept, divert, or take away from ACG the business of any
person, company, or business; (ii) directly or indirectly induce or
attempt to influence any employee, officer, director, consultant,
agent, vendor or other entity related to ACG to terminate his or her
employment or association in any manner whatsoever with ACG; or
(iii) engage in any commercial or technical activity involving the
development, formulation, manufacture, production, distribution,
marketing or sale of any product and services that ACG designs,
produces, manufactures, distributes, markets or sells during the
term of this Agreement or Employee's employment with ACG. The
prescribed territory in which Employee shall not compete with ACG as
outlined in this Paragraph 5.5 shall consist of all of those areas
of the United States in which ACG is doing business at the time
of Employee's termination of employment.
5.6 Employee understands and acknowledges that due to the unique nature
of the products and services provided by ACG and the need for sales
personnel to have a relatively high degree of technical knowledge
concerning these products and services, employment by ACG for sales,
including the special training, knowledge, and confidential
information that will be acquired in the course of such employment,
will give Employee distinct and substantial advantages for potential
sales activities concerning such products and services. Employee
further understands and acknowledges that: because of the definition
of products and services covered by this Agreement, the highly
specialized nature of those products and services, the limited size
and number of business entities in the business of developing and/or
selling those products and services, and the much more numerous
opportunities for Employee to work in his trade with respect to
products and services not covered by this Agreement, the limitations
as to time and geographic area contained in Paragraph 5.5 are
reasonable and are not unduly onerous on Employee. Employee
therefore agrees that the limitations as to time, geographic area,
and scope of activity contained in Paragraph 5.5 do not impose a
greater restraint than is necessary to protect the Confidential
Information, goodwill, and other business interests of ACG. Employee
also
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agrees that in light of the facts acknowledged above, the
substantial investment of ACG in developing its business and
providing special training to Employee, and the certain and
substantial harm that ACG would suffer if Employee were to engage in
any of the activities described in Paragraph 5.5, ACG's need for the
protection afforded by Paragraph 5.5 is greater than any hardship
Employee might experience by complying with its terms. Employee also
agrees that, if any provision of the covenant set forth in Paragraph
5.5 is found to be invalid in part or whole, ACG may elect, but
shall not be required, to have such provision reformed, whether as
to time, geographic area, scope of activity, or otherwise, as and
to the extent required for its validity under applicable law, and,
as so reformed, such provisions shall be enforceable.
5.7 Employee acknowledges that a violation or attempted violation on his
part of any provision in this Paragraph 5 will cause irreparable
damage to ACG. Accordingly, in the event of a breach or threatened
breach by Employee of the provisions of this Paragraph 5, Employee
agrees that ACG shall be entitled as a matter of right to an
injunction, out of any court of competent jurisdiction, restraining
any violation or further violation of such agreements by Employee or
his agents, without showing any evidence of actual monetary loss
resulting from such breach, including, but not limited to, restraining
Employee from using or disclosing, in whole or in part, such
Confidential Information or trade secrets; rendering any services to
any person, firm, corporation, or other entity to whom any of such
information may have been disclosed or is threatened to be disclosed;
and/or violating the non-competition provision. Nothing herein shall
be construed as prohibiting ACG from pursuing any other remedies
available to it for such breach or threatened breach, including the
recovery of damages and attorney's fees from Employee.
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6. TERMINATION OF EMPLOYMENT
6.1 Employee's employment under this Agreement shall terminate on the
occurrence of any of the following events:
(a) END OF TERM: If the term of employment under the Agreement or
any term of renewal ends.
(b) DEATH OR DISABILITY OF EMPLOYEE: If Employee dies or becomes
disabled such that he no longer is reasonably able to perform
his duties as contemplated by this Agreement, the Company shall
pay to Employee, or to the estate of Employee if he dies, that
part of his Base Salary which would otherwise be payable to
Employee through the end of the month in which his death or
disability occurs, after giving effect to accrued sick leave
benefits and accrued vacation time, if any. In the event of
death of the employee, the estate of the employee shall have
the right to exercise all options in which the employee was
vested at the time of this death, until the expiration of those
options under the terms of the option award. Upon such payment,
as well as applicable insurance benefits, if any, all
obligations of ACG to the Employee or his estate shall be fully
satisfied, and this Agreement shall terminate.
(c) RESIGNATION OF EMPLOYEE: If Employee resigns prior to the end
of the term of this Agreement, this Agreement shall terminate
immediately, and the Company shall pay to Employee that part
of his Base Salary which would otherwise be payable to Employee
through the effective date of his resignation. Upon such
payment, all obligations in any manner whatsoever of ACG to
Employee shall be fully satisfied.
(d) CHANGE IN OWNERSHIP, MANAGEMENT, OR EMPLOYEE'S
RESPONSIBILITIES: If there is a change in the ownership or
management of the Company, and either of these changes
significantly alters Employee's job responsibilities or
compensation, Employee may resign from his positions within 60
days of such a change. If Employee resigns pursuant to this
paragraph, the Company will continue to provide Employee with
his monthly compensation for a period of one year after the
initial date of any such change. Employee is not entitled to
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receive any Bonus if he resigns as provided in this paragraph.
For the period after Employee's resignation during which
Employee will be paid. Employee will not have any authority to
act on behalf of ACG.
(e) TERMINATION BY THE COMPANY "WITH CAUSE." If Employee (i)
violates any provision of this Agreement; (ii) fails to perform
the services required of him pursuant to this Agreement; (iii)
commits acts of fraud or dishonesty against ACG; (iv) is
convicted of a crime other than a routine traffic violation;
and/or (v) violates any policies of ACG as outlined in any ACG
policy handbook, the Company may terminate the employment of
Employee with cause. If Employee is terminated "with cause,"
Employee shall not be entitled to receive any further salary
or benefits under this Agreement other than payment for
that part of Employee's compensation that would otherwise be
payable to Employee through the last date of his employment
with ACG. Upon such payment, all obligations of ACG to Employee
shall be fully satisfied, and this Agreement will terminate.
Employee shall not be entitled to receive any Bonus or accrued
vacation pay if his termination is "with cause."
(f) TERMINATION BY THE COMPANY WITHOUT CAUSE. In the event the
Company terminates Employee's employment for any reason other
than as described in (e) above, Employee shall be entitled to
that part of the Base Salary and benefits payable to Employee
through the last date of his employment and the Base Salary
shall continue thereafter for a period of six (6) months from
termination.
6.2 Termination of this Agreement shall not relieve Employee of any
continuing obligations expressly provided in this Agreement,
including, without limitation, those set forth in Paragraphs 5.1
through 5.6.
7. RETURN OF ACG PROPERTY
7.1 All data, drawings, documents, contracts, computerized data,
information printouts, and tapes, tape recordings, documents,
data, accounting records, personnel files, computer terminals,
equipment, and other records and written material prepared or
compiled by Employee or furnished to Employee while in the
employ of ACG shall be the sole and exclusive property of ACG,
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and none of such data, drawings or other records and written
material, or copies thereof, shall be retained by Employee upon
termination of his employment. This ACG property shall not be
removed from ACG premises without ACG's prior written consent.
7.2 Upon termination of this Agreement or whenever requested by ACG,
Employee immediately shall deliver to ACG all of the ACG property
or any of ACG's documents in Employee's possession or under
Employee's control, including, but not limited to, all documents
or data, Confidential Information, accounting records, computer
terminals, data, discs, printouts and tapes, accounting machines,
and all office furniture and fixtures, supplies, equipment and other
personal property placed in the office of ACG. No copies of any such
data shall be retained by Employee.
8. NOTICES
Any notice required or permitted to be given under this Agreement shall be in
writing and addressed to Employee at 00000 XXXXXX XXX, XXXXXXXX, XX, 00000
Attn: XXXXXXX XXXXXX, and to the Company, c/o XXXXX X. XXXXX, 000 XXXXX XXXX
XXXX, XXXXXXXXXXXX, XX 00000, or to such other address as either party shall
designate by written notice to the other. Notices may be sent by messenger or
by registered or certified mail, postage prepaid, addressed to the party or
parties to be notified, with return receipt requested. Notices sent by
messenger shall be deemed received upon their actual receipt of the party to
whom they are directed. Notices sent by registered or certified mail shall be
deemed received on the third day following their deposit with the United
States Postal Service.
9. ARBITRATION
Exclusive jurisdiction with respect to any dispute, controversy, or claim
brought by Employee concerning the subject matter contained in this
Agreement, including, but not limited to, Employee's employment, termination
from, and/or affiliation with ACG, shall be settled by arbitration in St.
Louis, MO, in accordance with the Employment Dispute Resolution Rules of the
American Arbitration Association, and judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction. In reaching his
or her decision, the arbitrator shall have no authority to change or modify
any provision of this Agreement. Any and all changes that may be made for the
cost of the arbitration and the fees and
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expenses of the arbitrator shall be borne equally by the parties; attorneys'
fees and witness expenses shall be borne by the party incurring them.
Jurisdiction with respect to any dispute, controversy, or claim brought by
ACG, concerning any subject matter contained in this Agreement shall rest in
state or federal courts sitting in the State of Missouri. In addition, ACG,
at its election, may submit any dispute to arbitration in accord with the
procedures set forth in this section.
10. MISCELLANEOUS
10.1 The rights and obligations of ACG under this Agreement shall inure
to the benefit of and shall be binding upon the successors and
assigns of ACG. This Agreement shall be binding upon the Employee
and his agents, heirs, executors, administrators and legal
representatives. The rights and obligations of Employee hereunder
shall not be assignable by Employee.
10.2 This Agreement shall be governed by and construed in accordance
with the laws of the State of Missouri.
10.3 This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original and all of which shall constitute
one instrument.
10.4 This Agreement contains the entire agreement of the parties
pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, whether
oral or written, and there are no other warranties, representations,
covenants or agreements among ACG, the Company, and the Employee in
connection with the subject matter hereof.
10.5 The waiver by ACG of a breach of any provision of this Agreement by
Employee shall not operate or be construed as a waiver by ACG of
any subsequent breach by Employee.
10.6 If a court of competent jurisdiction shall adjudge to be invalid
any clause, sentence, subparagraph, paragraph or section of this
Agreement, such judgment or decree shall not affect, impair,
invalidate, or nullify the remainder of this Agreement, but the
effect thereof shall be confined to the
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clause, sentence, subparagraph, paragraph, or section so adjudged
to be invalid.
The parties have executed this Agreement to be effective as of the day
and year first above written.
"COMPANY" "EMPLOYEE"
ADVANCE COMMUNICATIONS GROUP, INC.
/s/ Xxx Xxxxx /s/ Xxxxxxx X. Xxxxxx
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Xxx Xxxxx Date 03/31/98 Xxxxxxx Xxxxxx Date 04/01/98
Executive Vice President
