EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made as of the 23rd day of
March, 2000 by and between ICG Communications, Inc. ("Employer" or the
"Company") and W. Xxxxxxx Xxxxxxxxx, Xx. ("Employee").
R E C I T A L S
WHEREAS, the Company desires to employ Employee as provided herein; and
WHEREAS, Employee desires to be employed by Employer as provided
herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties agree as follows:
1. Employment. The Company agrees to employ Employee and Employee
hereby agrees to be employed on a full-time basis by the Company or by such of
its subsidiary or affiliate corporations as determined by the Company in
such position as is mutually agreed, for the period and upon the terms and
conditions hereinafter set forth.
2. Duties. During his employment, Employee shall perform the duties
and bear the responsibilities commensurate with his position and shall serve
the Employer faithfully and to the best of his ability. Employee shall devote
100% of his working time to carrying out his obligations hereunder.
3. Compensation and Benefits.
3.1 The Company shall pay Employee during the Term of this
Agreement an annual base salary, payable bi-weekly. The annual base salary will
initially be Three Hundred Thirty-Five Thousand and no/100 Dollars
($335,000.00).
3.2 In addition to the base salary, Employee will be eligible
for an annual performance bonus in an exact amount to be determined by the Board
of Directors of the Company or the Compensation Committee of the Board. The
annual bonus will be determined in accordance with the bonus plan of the Company
and will be based on objectives and goals set for the Company and the Employee.
Employee's annual bonus is initially established at 50% of annual base salary if
all objectives and goals are met.
3.3 In addition to salary and bonus payments as provided
above, the Company will provide Employee, during the Term of this Agreement,
with the benefits of such insurance plans, hospitalization plans and other
perquisites as shall be generally provided to employees of the Company at his
level and for which Employee may be eligible under the terms and conditions
thereof. Employee will also be entitled to all benefits provided under any
directors and officers liability insurance or errors and omissions insurance
maintained by the Company.
3.4 Throughout the Term of this Agreement, the Company will
reimburse Employee for all reasonable out-of-pocket expenses incurred by
Employee in connection with the business of the Company and the performance of
his duties under this Agreement, upon presentation to the Company by Employee of
an itemized accounting of such expenses with reasonable supporting data.
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3.5 The Company will from time to time provide to Employee
stock options and/or awards pursuant to and subject to the terms and conditions
of the Company's Stock Option Plans and/or stock option agreements.
4. Term. The initial term of this Agreement will be for two (2) years
commencing as of the date hereof ("Term"). From the date hereof, this
Agreement will automatically renew from month-to-month such that there will
always be two (2) years remaining in the Term, unless and until either party
shall give at least sixty (60) days notice to the other of his or its desire
to terminate this Agreement (in such case, the Term shall end upon the date
indicated in such notice). The applicable provisions of Sections 6, 7, and 8
shall remain in full force and effect for the time periods specified in such
Sections notwithstanding the termination of this Agreement.
5. Termination.
5.1 If Employee dies during the Term of this Agreement, this
Agreement will terminate. The Company will pay the estate of Employee an amount
equal to three (3) months salary. In addition, the estate of Employee will be
entitled to exercise all options theretofore vested under the Company's Stock
Option Plans for a period of one (1) year after the date of death of Employee in
accordance with the plans and agreements relating to such options.
5.2 If, during the Term of this Agreement, Employee 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 notice to Employee or his
duly appointed legal representative. Employee will be entitled to all benefits
provided under any disability plans of the Company. In addition, Employee or his
duly appointed legal representative will be entitled to exercise all options
theretofore vested under the Company's Stock Option Plans for a period of one
(1) year after the date of termination in accordance with the plans and
agreements relating to such options.
5.3 For the purposes of this Agreement, a "Change in Control"
of the Company shall mean and be deemed to have occurred if (a) any "person" (as
such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934 as amended (Exchange Act)) is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Company representing 50% or more of the combined voting power of the
Company's then outstanding securities; (b) at any time a majority of the
directors of the Company are persons who were not nominated for election by the
Board; (c) the stockholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) at least 50% of the combined voting power of the voting securities of
the Company or such surviving entity outstanding immediately after such merger
or consolidation; (d) the Company shall sell or otherwise dispose of, in one
transaction or a series of related transactions, assets aggregating more than
50% of the assets of the Company and its subsidiaries consolidated; or (e) the
stockholders of the Company approve a plan of complete liquidation of the
Company or any agreement for the sale or disposition by the Company of all or
substantially all the Company's assets. Upon the occurrence of a Change of
Control of the Company, all options to purchase shares of the Company that have
been granted to Employee pursuant to the Company's Stock Option Plans and/or
agreements, but not yet vested, will immediately vest and Employee shall be
entitled to exercise such options in accordance with the plans and agreements
relating to such options, provided, however, that the options granted under the
Share Price Appreciation Vesting Non-Qualified Stock Option Agreement dated
March 23, 2000 between Employee and the Company shall not vest on an accelerated
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basis upon the occurrence of a Change of Control of the Company except as
expressly set forth in that option agreement. At any time within one (1) year
after the occurrence of a Change in Control of the Company, either the Company
or Employee may terminate this Agreement upon at least thirty (30) days notice.
5.4 Employee may terminate this Agreement upon at least thirty
(30) days notice upon the occurrence of a constructive dismissal of Employee.
For the purposes of this Agreement, "constructive dismissal" includes, without
limiting the generality of any action by the Company which constitutes
constructive dismissal, unless consented to by Employee in writing, any of the
following actions by the Company:
(i) any material reduction in Employee's positions, duties,
responsibilities, powers or reporting relationships;
(ii) any reduction in the annual compensation of Employee;
(iii) prior to the occurrence of a Change in Control of the
Company, any requirement to relocate to another city, state
or country, provided, however, that this provision shall not
be applicable if the principal executive offices of the
Company are being relocated to such city, state or country;
(iv) subsequent to the occurrence of a Change in Control of the
Company, any requirement to relocate to another city, state
or country; and
(v) any material reduction in the value of Employee's benefits
plans and programs, including, without limiting the
generality of the foregoing, bonus arrangements.
5.5 The Company may terminate this Agreement immediately for
gross negligence, intentional misconduct or the commission of a felony by the
Employee, in which case all rights under this Agreement shall end as of the date
of such termination.
5.6 If this Agreement is terminated by the Company under
Section 4 or Section 5.3, the Company shall pay Employee a termination fee in an
amount equal to two (2) times the aggregate amount of his annual base salary
plus his targeted annual bonus plus the annual value of his benefits and
perquisites. Such termination fee will be paid in a lump sum within fifteen (15)
days from the date of termination. If this Agreement is terminated by Employee
under Section 5.4, the Company will pay Employee a termination fee equal to one
(1) times the aggregate amount of his annual base salary plus his targeted
annual bonus plus the annual value of his benefits and perquisites. Such
termination fee will be paid in a lump sum within fifteen (15) days from the
date of termination. In addition, if the Company terminates this Agreement under
Section 4 or Employee terminates this Agreement under Section 5.3 or Section
5.4, all options to purchase shares of the Company and/or stock awards that have
been granted to Employee, but not yet vested, will immediately vest on the date
of termination and Employee will be entitled to exercise all options held by the
Employee for a period of six (6) months after the date of termination in
accordance with the plans and agreements relating to such options, provided,
however, the options granted under the Share Price Appreciation Vesting
Non-Qualified Option Agreement dated March 23, 2000 between Employee and the
Company shall not vest on an accelerated basis upon Employee's termination of
employment except as expressly set forth in that option agreement. If the terms
of this Section 5.6 and the terms of the plans and agreements relating to such
stock options and/or awards conflict, the terms of the option plans and/or award
agreements shall control.
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5.7 The Company shall be responsible for any gross-up payment required
to off-set any excise taxes placed on Employee if any payments made to
Employee under this Section 5 are considered "parachute payments" within the
meaning of Section 280g of the Internal Revenue Code.
6. Non-Compete and Non-Interference.
6.1 During the Term of this Agreement and, if Employee's
employment with the Company is terminated under Section 4 or Section 5.3, for a
period of twelve (12) months after such termination, Employee shall not,
directly or indirectly, own, manage, operate, control, be employed by, or
participate in the ownership, management, operation or control of, a business
that is engaged in the same business as the Company within any area
constituting, during the term of Employee's employment or at the time Employee's
employment is terminated, a Relevant Area. A "Relevant Area" shall be defined
for the purposes of this Agreement as any area located within, or within fifty
(50) miles of, the legal boundaries or limits of any city within which the
Company is engaged in business or in which the Company has publicly announced or
privately disclosed to Employee that it plans to engage in business.
6.2. During the Term of this Agreement and for a period of two
(2) years after termination of this Agreement, Employee shall not (i) directly
or indirectly cause or attempt to cause any employee of the Company or any of
its affiliates to leave the employ of the Company or any affiliate, (ii) in any
way interfere with the relationship between the Company and any employee or
between an affiliate and any employee of the affiliate, or (iii) interfere or
attempt to interfere with any transaction in which the Company or any of its
affiliates was involved during the Term of this Agreement.
6.3 Employee agrees that, because of the nature and sensitivity
of the information to which he will be privy and because of the nature and
scope of the Company's business, the restrictions contained in this Section 6
are fair and reasonable.
7. Confidential Information.
7.1 The relationship between the Company and Employee is one
of confidence and trust. This relationship and the rights granted and duties
imposed by this Section shall continue until a date ten (10) years from the date
Employee's employment is terminated.
7.2 As used in this Agreement (i) "Confidential Information"
means information disclosed to or acquired by Employee about the Company's
plans, products, processes and services, including information relating to
research, development, inventions, manufacturing, purchasing, accounting,
engineering, marketing, merchandising, selling, pricing, tariffed or contractual
terms, customer lists and prospect lists and other market information, with
respect to any of the Company's business activities; and (ii) "Inventions" means
any inventions, discoveries, concepts and ideas, whether patentable or not,
including, without limitation, processes, methods, formulas, and techniques (as
well as related improvements and knowledge) that are based on or related to
Confidential Information, that pertain in any manner to the Company's
technology, expertise or business and that are made or conceived by Employee,
either solely or jointly with others, and while employed by the Company or
within six (6) months thereafter, whether or not made or conceived during
working hours or with the use of the Company's facilities, materials or
personnel.
7.3 Employee agrees that he shall at no time during the Term
of this Agreement or at any time thereafter disclose any Confidential
Information to any person, firm or corporation to any extent or for any reason
or purpose or use any Confidential Information for any purpose other than the
conduct of the Company's business.
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7.4 Any Confidential Information that is directly or indirectly
originated, developed or perfected to any degree by Employee during the term of
his employment by the Company shall be and remain the sole property of the
Company and shall be deemed trade secrets of the Company.
7.5 Upon termination of Employee's employment pursuant to any
of the provisions herein, Employee or his legal representative shall deliver to
the Company all originals and all duplicates and/or copies of all documents,
records, notebooks, and similar repositories of or containing Confidential
Information then in his possession, whether prepared by him or not.
7.6 Employee agrees that the covenants and agreements contained
in this Section 7 are fair and reasonable and that no waiver or modification of
this Section or any covenant or condition set forth herein shall be valid unless
set forth in writing and duly executed by the parties hereto.
8. Injunctive Relief. Upon a material breach or threatened material
breach by Employee of any of the provisions of Sections 6 or 7 of this
Agreement, the Company shall be entitled to an injunction restraining Employee
from such breach. Nothing herein shall be construed as prohibiting the Company
from pursuing any other remedies for such breach or threatened breach, including
recovery of damages from Employee.
9. No Waiver. A waiver by the Company of a breach of any provision of
this Agreement by Employee shall not operate or be construed as a waiver of any
subsequent or other breach by Employee.
10. Severability. It is the desire and intent of the parties that the
provisions of this Agreement shall be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular provision or portion of
this Agreement shall be adjudicated to be invalid or unenforceable, this
Agreement shall be deemed amended to delete therefrom the portion thus
adjudicated to be invalid or unenforceable, such deletion to apply only with
respect to the operation of such provision in the particular jurisdiction in
which such adjudication is made.
11. Notices. All communications, requests, consents and other notices
provided for in this Agreement shall be in writing and shall be deemed given if
delivered by hand or mailed by first class mail, postage prepaid, to the last
known address of the recipient.
12. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Colorado.
13. Assignment. Neither this Agreement nor any rights or duties
hereunder may be assigned by Employee or the Company without the prior written
consent of the other, such consent not to be unreasonably withheld.
14. Amendments. No provision of this Agreement shall be altered,
amended, revoked or waived except by an instrument in writing, signed by each
party to this Agreement.
15. Binding Effect. Except as otherwise provided herein, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective legal representatives, heirs, successors and
assigns.
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16. Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
17. Entire Agreement. This Agreement sets forth the entire agreement
and understanding of the parties and supersedes all prior understandings,
agreements or representations by or between the parties, whether written or
oral, which relate in any way to the subject matter hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
W. XXXXXXX XXXXXXXXX, XX.
/s/ W. Xxxxxxx Xxxxxxxxx, Xx.
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ICG COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Beans, Jr.
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Name: Xxxxxxx X. Beans, Jr.
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Title: President and COO
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