Exhibit 10.32
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, November 13, 2000, by and between VALOR
TELECOMMUNICATIONS, LLC, a Delaware limited liability company, and its
affiliates, subsidiaries, successors or assigns, (the "Company"), and Xxxxxxx X.
Xxxxx, Xx. (the "Employee").
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
November 13, 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) Except as previously disclosed to the Company in writing
by the Employee, 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.
(a) 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 November 13, 2003 (the "Initial
Term").
(b) The term of the Employee's employment under this Agreement
shall be automatically renewed for additional one-year terms (each a "Renewal
Term") upon the expiration of the Initial Term or any Renewal Term unless the
Company or the Employee delivers to the other, at least ninety (90) days prior
to the expiration of the Initial Term or the then current Renewal Term, as the
case may be, a written notice specifying that the term of the Employee's
employment will not be renewed at the end of the Initial Term or such Renewal
Term, as the
case may be. The period from the Commencement Date until November 13, 2003 or,
in the event that the Employee's employment hereunder is earlier terminated as
provided herein or renewed as provided in this Section 2(b), such shorter or
longer period, as the case may be, is hereinafter called the "Employment Term".
3. Duties. The Employee shall be employed as Senior Vice
President-Regulatory, General Counsel & Secretary of the Company, shall
faithfully perform and discharge such duties as inhere in the position of Senior
Vice President-Regulatory, General Counsel & Secretary of the Company and as may
be specified in the Limited Liability Company Agreement 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,
including, but not limited to, managerial responsibility for the Human Resources
and Public Relations/Corporate Communications Departments . The Employee shall
report to the President and Chief Operating Officer of the Company. The Employee
shall perform his duties principally in Denver, Colorado in either his home
office or in an office provided by the Company. The Employee shall also perform
his duties at the offices of the Company in Irving, Texas two or three days per
week, unless his responsibilities require travel to other locations, in which
case he may reduce the amount of time spent in the Irving, Texas office. 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. Notwithstanding the foregoing, the Employee shall be entitled to
participate as a director or advisor to one or more associations, businesses or
community or charitable organizations in the Denver area, so long as such
activity does not (i) involve a substantial amount of the Employee's time, (ii)
impair in any material respect the Employee's ability to perform his duties
under this Agreement or (iii) violate the provisions of Section 9 of this
Agreement.
4. Salary and Bonus.
(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 Thousand Dollars ($200,000) (said amount, together with any
increases thereto as may be determined from time to time no less frequently than
annually by the Board of Directors in its sole discretion, being hereinafter
referred to as "Salary"). Any Salary payable hereunder shall be paid in regular
intervals in accordance with the Company's payroll practices from time to time
in effect.
2
(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 50% of
his Salary in accordance with the Company's management bonus plan as in effect
from time to time (pro rated for any portion of a fiscal year occurring during
the Employment Term, excluding the first year of the term), in each case as may
be determined by the Board of Directors in its sole discretion on the basis of
performance-based criteria consistent with the Company's business plan to be
established by the Board of Directors in its sole discretion and disclosed to
the Employee prior to the commencement of each fiscal year of the Company.
5. Other Benefits; Equity Interests.
(a) General. During the Employment Term, the Employee shall:
(i) be eligible to participate at a level commensurate with
his position in any employee equity purchase plans or programs that may
be adopted for the benefit of the Company's officers or employees
generally and in any employee fringe or other employee 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
any such plans, as the same may be in effect from time to time;
(ii) be eligible to participate in any medical and health
plans and 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 and personal days 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.
The Company will obtain for the benefit of the Employee (i) term life insurance
coverage providing two times salary in death benefits to beneficiaries
designated by the Employee and (ii) long-term disability insurance coverage
providing the Employee with long-term disability benefits equal to 60% of his
Salary payable on and after the 181st day of the Employee's qualifying
disability, provided, however, that (x) annual premiums for the insurance
coverage described in (i) and (ii) above cannot exceed $25,000 and (y) the
foregoing assumes the
3
insurability of the Employee. The Company and the Employee agree that the
Employee's existing life and disability insurance policies may, if permitted to
be carried over to the Company, wholly or partially satisfy the Company's
obligations under this paragraph (subject nevertheless to clause (x) above). In
the event that the annual premiums for the insurance coverage described in (i)
and (ii) above would exceed $25,000, then either (A) the coverage will be
reduced to the extent necessary to keep the annual premiums under $25,000 or (B)
the Employee shall pay the amount of such excess.
(b) Options. In connection with the execution and delivery of
this Agreement by the Employee, the Company is causing Valor Telecommunications
Southwest, LLC. ("Southwest") to grant to the Employee options to purchase
175,000 Class B Common Interests of Southwest at an exercise price of $1 (one
dollar) per Interest, which Class B Common Interests shall vest (i) as to 20% of
the Class B Common Interests on May 13, 2001 and (ii) as to an additional 20% of
the Class B Common Interests on each of the first, second, third and fourth
anniversaries of the Commencement Date on which the Employee continues to be
employed on a full time basis by the Company. The terms and conditions of the
Valor Telecommunications Southwest, LLC 2000 Equity Incentive Non-Qualified
Option Agreement shall govern the grant of options.
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 (x) that is
or becomes generally publicly available (other than as a result of
violation of this Agreement by the Employee), (y) 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 (z) that was in the possession of the Employee prior to
disclosure by the Companies.
4
(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 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 10 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.
(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;
5
(iii) the Company giving written notice, at any time, to the
Employee that the Employee's employment is being terminated "for cause"
(as defined below);
(iv) the Company giving written notice, at any time
(including, without limitation, following a change of control of the
Company or a sale of substantially all of the assets of the Company),
to the Employee that the Employee's employment is being terminated ,
other than pursuant to clause (i), (ii) or (iii) above;
(v) the Employee terminates his employment hereunder for "Good
Reason" (as defined below); or
(vi) the Employee terminates his employment hereunder for any
reason whatsoever (whether by reason of retirement, resignation, or
otherwise), other than for "Good Reason".
The following actions, failures and events by or affecting the
Employee shall constitute "cause" for termination within the meaning of clause
(iii) above: (A) gross negligence by the Employee in the performance of, or
willful disregard by the Employee of, his obligations under this Agreement that
results in material damage to the business of one or more of the Companies, (B)
willful 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 (in the case of clause (A) and this clause (B), which gross
negligence, willful disregard or willful failure (and the consequences thereof)
continue unremedied for a period of fifteen (15) days after written notice
thereof to the Employee), (C) conviction of a crime (or entry of a plea of no
contest with respect thereto) that results in material damage to the business of
one or more of the Companies or (D) failure to meet defined objectives based on
the Employee's performance evaluation plan.
For purposes of this Agreement, "Good Reason" means (1) any
material breach by the Company of its obligations under this Agreement; (2) any
substantial diminution of the Employee's responsibilities as an officer of the
Company, as set forth in this Agreement and the Company's Limited Liability
Company Agreement, and in each such case, such breach or diminution shall
continue unremedied for a period of fifteen (15) days after written notice
thereof to the Company; or, (3) upon a demand by the Company that the Employee
relocate to Irving, Texas or that the Employee perform his duties principally at
the office of the Company in Irving, Texas.
(b) In the event that the Employee's employment is terminated
by the Company pursuant to clause (iv) of Section 7(a) above, or by the Employee
pursuant to clause (v) of said Section 7(a), whether during the Initial Term or
during any Renewal Term pursuant to Section 2(b) above, then (i) 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 twelve (12) months after such termination plus, with
respect to such fiscal year if the Company's plan for such fiscal year is
achieved, a pro rata portion of any
6
bonus payable with respect to such fiscal year (such pro rata bonus to be
payable within thirty days after the close of such fiscal year) and (ii) the
Company shall continue to provide the Employee with life insurance and medical
and health insurance coverage at levels comparable to those in effect prior to
such termination for a period from the date of such termination to the earlier
to occur of (x) the date which is twelve (12) months after such termination and
(y) the date upon which the Employee becomes eligible to be covered for such
benefits through his employment with another employer at no greater cost to the
Employee.
(c) Notwithstanding anything to the contrary expressed or
implied herein, except as required by applicable law and except as set forth or
described in Section 7(b) above, the Company (and its affiliates) shall not 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"), 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.
(d) No interest shall accrue on or be paid with respect to any
portion of any payments hereunder.
8. 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 8(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.
7
9. Restrictive Covenants.
(a) Competition. During the Employment Term and during the
twelve (12) month period following the end of the Employment Term for any
reason, 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 9(d), provided, however, that the provisions of this Section 9(a) shall
not be deemed to prohibit (A) 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 (B) any of the current activities permitted by the last sentence of
Section 3.
(b) Non-Solicitation. During the Employment Term and during
the twelve (12) month period following the end of the Employment Term for any
reason whatsoever (or, if later, twelve (12) month period following termination
of the Employee's employment with the Company), 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, in the
event the Employee's employment is terminated (x) by the Company pursuant to
clause (iii) or (iv) of Section 7(a) above or (y) by the Employee as provided in
clause (vi) of said Section 7(a), during the twelve (12) month period following
such termination, 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 For purposes of this Section 9, 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) in any of the local telephone exchange markets
served by the Companies or, in the case of a person or entity pursuing a
business strategy of consolidating local telephone exchange properties, anywhere
in the continental United States. For purposes of this Agreement, "Specified
Business" means (A) providing local telephone service or engaging in a 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).
8
(e) Certain Representations of the Employee. In connection
with the foregoing provisions of this Section 9, 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 9 (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 9
(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 9 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.
10 Binding Effect. Without limiting or diminishing the effect
of Section 8 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.
11 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.
12 Law Governing. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas.
13 Severability. The Employee agrees that in the event that
any court of competent jurisdiction shall finally hold that any provision of
Section 6 or 9 hereof is void or constitutes an unreasonable restriction against
the Employee, the provisions of such Section 6 or 9 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 9 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.
9
14 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.
15 Entire Agreement; Modifications. Unless otherwise
specified, 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.
16 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.
10
IN WITNESS WHEREOF, the Company and the Employee have duly
executed and delivered this Agreement as of the day and year first above
written.
VALOR TELECOMMUNICATIONS, LLC
By: /s/ Xxxx Xxxxxxxx
---------------------
Name: Xxxx Xxxxxxxx
Title: Chairman and Chief Executive Officer
/s/ Xxxxxxx X. Xxxxx, Xx.
-------------------------
Employee
11
