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EXHIBIT 10.18
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (this "Agreement") is
entered into this 1st day of October, 1997, by and between Xxxx X. Xxxxxxxx
("Employee") and Billing Information Concepts Corp., a Delaware corporation (the
"Company"). Subject to the conditions set forth below, this Agreement is to be
effective as of October 1, 1997.
WITNESSETH:
WHEREAS, the Company, Employee and U.S. Long Distance Corp., a Delaware
corporation ("USLD") previously entered into an Amended and Restated Employment
Agreement effective as of the distribution of the common stock of the Company to
holders of USLD's common stock, following which Employee was employed as the
Company's President and Chief Operating Officer; and
WHEREAS, the Company and Employee now wish to amend and restate that
prior Employment Agreement so as to set forth the ongoing terms of Employee's
employment with the Company and each party's duties and obligations to the other
on and after the Effective Date of the Amendment and Restatement of the
Employment Agreement;
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Prior Agreement is
hereby amended and restated in its entirety effective as of October 1, 1997 (the
"Effective Date") to read as follows:
ARTICLE I
DUTIES
1.1 DUTIES. During the term of this Agreement, the Company agrees to
employ Employee as President and Chief Operating Officer of the Company, and
Employee agrees to serve the Company in such capacity or in such other
capacities (subject to Employee's termination rights under Section 4.2) as the
Board of Directors of the Company may direct, all upon the terms and subject to
the conditions set forth in this Agreement.
1.2 EXTENT OF DUTIES. Employee shall devote substantially all of his
business time, energy and skill to the affairs of the Company as the Company,
acting through its Board of Directors, shall reasonably deem necessary to
discharge Employee's duties in such capacities. Employee may participate in
social, civic, charitable, religious, business, education or professional
associations, so long as such participation would not materially detract from
Employee's ability to perform his duties under this Agreement. Employee shall
not engage in any other business activity during the term of this Agreement
without the prior written consent of the Company, other than the passive
management of employee's personal investments or activities which would not
materially detract from Employee's ability to perform his duties under this
Agreement.
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ARTICLE II
TERM OF EMPLOYMENT
The term of this Agreement shall commence on the Effective Date and
continue for a period of two years. The term of this Agreement shall be
automatically extended on each two-year anniversary of this Agreement for an
additional two-year term unless, at least thirty (30) days prior to the end of
the then effective two-year term, the Company shall give Employee written notice
of its election to terminate this Agreement as of the end of the then effective
two-year term. In the event the Company elects to so terminate this Agreement,
(a) the Company shall pay Employee, within fifteen (15) days of the effective
date of such termination, a lump-sum payment equal to (without discounting to
present value) two times his then effective annual base salary under Section 3.1
hereof, (b) shall continue Employee's medical, health and disability benefits
for two years from such termination, and (c) all outstanding stock options held
by Employee not already vested and exercisable shall become fully vested and
exercisable. Payment of such sum by the Company shall constitute Employee's full
severance pay and the Company shall have no further obligation to Employee
arising out of such termination. This Agreement is also subject to earlier
termination as hereinafter provided.
ARTICLE III
COMPENSATION
3.1 ANNUAL BASE COMPENSATION. As compensation for services rendered
under this Agreement, Employee shall be entitled to receive from the Company an
annual base salary of $240,000 (before standard deductions) during the first
year of this Agreement. Employee's annual base salary shall be subject to review
and adjustment by the Compensation Committee of the Company (the "Compensation
Committee") on an annual basis, provided that any such adjustment shall not
result in a reduction in Employee's annual base salary below $240,000 without
Employee's consent. Employee's annual base salary shall be payable at regular
intervals in accordance with the prevailing practice and policy of the Company.
3.2 INCENTIVE BONUS. As additional compensation for services rendered
under this Agreement, the Compensation Committee may, in its sole discretion and
without any obligation to do so, declare that Employee shall be entitled to an
annual incentive bonus (whether payable in cash, stock, stock rights or other
property) as the Compensation Committee shall determine. If any such bonus is
declared, the bonus shall be payable in accordance with the terms prescribed by
the Compensation Committee.
3.3 OTHER BENEFITS. Employee shall, in addition to the compensation
provided for in Sections 3.1 and 3.2 above, be entitled to the following
additional benefits:
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(a) AUTOMOBILE ALLOWANCE. An automobile to be chosen by the
Employee, replaceable every two years and complete payment of all operating,
insurance and maintenance expenses attendant thereto. Upon termination of the
Company's obligation to provide this benefit, Employee shall have an option,
exercisable within 90 days of such termination, to purchase such automobile at
its net book value as shown upon the Company's records as of the date of
termination.
(b) COUNTRY CLUB MEMBERSHIP. Payment in full of membership
fees and dues to a country club of the Employee's choice in the area of his
employment together with payment or reimbursement of all charges incurred at
such club relating to entertainment of business guests. Upon termination of this
Agreement under Section 4.1, 4.2 or 4.6 hereof, such country club membership
shall be transferred to Employee without further consideration.
(c) MEDICAL, HEALTH AND DISABILITY BENEFITS. Employee shall be
entitled to receive all of the medical, health and disability benefits that may,
from time to time, be provided by the Company to its executive officers.
(d) OTHER BENEFITS. Employee shall also be entitled to receive
any other benefits provided by the Company to all employees of the Company as a
group, or all executive officers of the Company as a group, including but not
limited to, any profit sharing, 401(k), retirement benefits or executive
deferred compensation arrangements.
(e) VACATION PAY. Employee shall be entitled to an annual
vacation as determined in accordance with the prevailing practice and policy of
the Company.
(f) HOLIDAYS. Employee shall be entitled to holidays in
accordance with the prevailing practice and policy of the Company.
(g) REIMBURSEMENT OF EXPENSES. The Company shall reimburse
Employee for all expenses reasonably incurred by Employee on behalf of the
Company in accordance with the prevailing practice and policy of the Company.
ARTICLE IV
TERMINATION
4.1 TERMINATION BY THE COMPANY WITHOUT CAUSE. Subject to the provisions
of this Section 4.1, this Agreement may be terminated by the Company without
cause upon thirty (30) days' prior written notice thereof given to Employee. In
the event of termination pursuant to this Section 4.1, (a) the Company shall pay
Employee, within fifteen (15) days of the effective date of such termination, a
lump-sum payment equal to (without discounting to present value) two times his
then effective annual base salary under Section 3.1 hereof, (b) Employee shall
be entitled to all benefits under Section 3.3 hereof, through the expiration of
the two-year term then in effect, and (c) all outstanding stock options held by
Employee not already vested and exercisable shall become fully vested and
exercisable. Payment of such sum by the Company shall constitute Employee's full
severance pay and the Company shall have no further obligation to Employee
arising out of such termination.
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4.2 VOLUNTARY TERMINATION BY EMPLOYEE FOR GOOD REASON. Employee may at
any time voluntarily terminate his employment for "good reason" (as defined
below). In the event of such voluntary termination for "good reason," (a) the
Company shall pay Employee, within fifteen (15) days of the effective date of
such termination, a lump-sum payment equal to (without discounting to present
value) two times his then effective annual base salary under Section 3.1 hereof,
and (b) all outstanding stock options held by Employee not already vested and
exercisable shall become fully vested and exercisable.
For purposes of this Agreement, "good reason" shall mean the
occurrence of any of the following events:
(a) Removal from the offices Employee holds on the date
of this Agreement or a material reduction in
Employee's authority or responsibility, including,
without limitation, involuntary removal from the
Board of Directors, but not including termination of
Employee for "cause," as defined below;
(b) Relocation of the Company's headquarters from Bexar
County, Texas;
(c) A reduction in Employee's then effective base salary
under Section 3.1; or
(d) The Company otherwise commits a material breach of
this Agreement.
4.3. TERMINATION BY THE COMPANY FOR CAUSE. The Company may terminate
this Agreement at any time if such termination is for "cause" (as defined
below), by delivering to Employee written notice describing the cause of
termination thirty (30) days before the effective date of such termination and
by granting Employee at least thirty (30) days to cure the cause. In the event
the employment of Employee is terminated for "cause," Employee shall be entitled
only to the base salary earned pro rata to the date of such termination with no
entitlement to any base salary continuation payments or benefits continuation
(except as specifically provided by the terms of an employee benefit plan of the
Company). Except as otherwise provided in this Agreement, the determination of
whether Employee shall be terminated for "cause" shall be made by the Board of
Directors of the Company, in the reasonable exercise of its business judgment,
and shall be limited to the occurrence of the following events:
(a) Conviction of or a plea of nolo contendere to the
charge of a felony (which, through lapse of time or
otherwise, is not subject to appeal);
(b) Willful refusal without proper legal cause to
perform, or gross negligence in performing,
Employee's duties and responsibilities;
(c) Material breach of fiduciary duty to the Company
through the misappropriation of Company funds or
property; or
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(d) The unauthorized absence of Employee from work (other
than for sick leave or disability) for a period of
thirty (30) working days or more during any period of
forty-five (45) working days during the term of this
Agreement.
4.4 TERMINATION UPON DEATH OR PERMANENT DISABILITY. In the event that
Employee dies, this Agreement shall terminate upon the Employee's death.
Likewise, if the Employee becomes unable to perform the essential functions of
the position, with or without reasonable accommodation, on account of illness,
disability, or other reason whatsoever for a period of more than six consecutive
or nonconsecutive months in any twelve-month period, this Agreement shall
terminate effective upon such incapacity, and Employee (or his legal
representatives) shall be entitled only to the base salary earned pro rata to
the date of such termination with no entitlement to any base salary continuation
payments or benefits continuation (except as specifically provided by the terms
of an employee benefit plan of the Company).
4.5 VOLUNTARY TERMINATION BY EMPLOYEE. Employee may terminate this
Agreement at any time upon delivering thirty (30) days' written notice of
resignation to the Company. In the event of such voluntary termination other
than for "good reason" (as defined above), Employee shall be entitled to his
base salary earned pro rata to the date of his resignation, but no base salary
continuation payments or benefits continuation (except as specifically provided
by the terms of an employee benefit plan of the Company). On or after the date
the Company receives notice of Employee's resignation, the Company may, at its
option, pay Employee his base salary through the effective date of his
resignation and terminate his employment immediately.
4.6 TERMINATION FOLLOWING CHANGE OF CONTROL.
(a) Notwithstanding anything to the contrary contained herein,
should Employee at any time within 12 months of the occurrence of a "change of
control" (as defined below) cease to be an employee of the Company (or its
successor), by reason of (i) termination by the Company (or its successor) other
than for "cause" (following a change of control, "cause" shall be limited to the
conviction of or a plea of nolo contendere to the charge of a felony which,
through lapse of time or otherwise, is not subject to appeal), or a material
breach of fiduciary duty to the Company through the misappropriation of Company
funds or property) or (ii) voluntary termination by Employee for "good reason
upon change of control" (as defined below), then in any such event, (1) the
Company shall pay Employee, within forty-five (45) days of the severance of
employment described in this Section 4.6, a lump-sum payment equal to (without
discounting to present value) two times his then effective base salary under
Section 3.1 hereof, and (2) all outstanding stock options held by Employee not
already vested and exercisable shall become fully vested and exercisable. In
addition, the Company shall continue all benefits under Section 3.3 hereof,
through the expiration of the two-year term then in effect, to the extent
continuation of such benefit is not prohibited by applicable State and/or
federal law.
(b) Employee shall be entitled to the payment set forth in (a)
above, regardless of whether or not that payment, when aggregated with all
payments to Employee (whether pursuant to this Agreement or any other agreement
whatsoever) in connection with a change of control as defined in this Section
4.6 exceeds in aggregate, the maximum amount that could be paid to Employee,
without triggering an excess parachute payment under Section 280G(b) of the
Internal Revenue Code of 1986, as amended (the "Code"), and the resulting excise
tax under Section 4999 of the Code (referred to herein as the "maximum payment
amount").
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(c) In determining the limitation determined under Section
280G of the Code, (i) no portion of the total payments which Employee has waived
in writing prior to the date of the payment of benefits under this Agreement
will be taken into account, (ii) no portion of the total payments which
nationally recognized tax counsel (whether through consultation or retention of
any actuary, consultant or other expert), selected by the Company's independent
auditors and acceptable to Employee (referred to herein as "Tax Counsel"),
determines not to constitute a "parachute payment" within the meaning of Section
280G(b)(2) of the Code will be taken into account, (iii) no portion of the total
payments which Tax Counsel determines to be reasonable compensation for services
rendered within the meaning of Section 280G(b)(4) of the Code will be taken into
account, and (iv) the value of any non-cash benefit or any deferred payment or
benefit included in the total payments will be determined by the Company's
independent auditors in accordance with Sections 280G(d)(3) and (iv) of the
Code.
(d) As used in this Section, voluntary termination by Employee
for "good reason upon change of control" shall mean (i) removal of Employee from
the offices Employee holds on the date of this Agreement, (ii) a material
reduction in Employee's authority or responsibility, including, without
limitation, involuntary removal from the Board of Directors, (iii) relocation of
the Company's headquarters from Bexar County, Texas, (iv) a reduction in
Employee's then effective base salary under Section 3.1, or (v) the Company
otherwise commits a breach of this Agreement.
(e) As used in this Agreement, a "change of control" shall be
deemed to have occurred if (i) any "Person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), is or becomes a "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
representing more than 30% of the combined voting power of the Company's then
outstanding securities, or (ii) at any time during the 24-month period after a
tender offer, merger, consolidation, sale of assets or contested election, or
any combination of such transactions, at least a majority of the Company's Board
of Directors shall cease to consist of "continuing directors" (meaning directors
of the Company who either were directors prior to such transaction or who
subsequently became directors and whose election, or nomination for election by
the Company's stockholders, was approved by a vote of at least two-thirds of the
directors then still in office who were directors prior to such transaction), or
(iii) the stockholders of the Company approve a merger or consolidation of the
Company with any other corporation, other than a merger or consolidation that
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 60% of
the total voting power represented by the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation, or (iv) the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement of sale or disposition by
the Company of all or substantially all of the Company's assets.
(f) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment or
distribution by the Company or any of its affiliates to or for the benefit of
Employee, whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise (any such payments or distributions
being individually referred
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to herein as a "Payment," and any two or more of such payments or distributions
being referred to herein as "Payments"), would be subject to the excise tax
imposed by Section 4999 of the Code (such excise tax, together with any interest
thereon, any penalties, additions to tax, or additional amounts with respect to
such excise tax, and any interest in respect of such penalties, additions to tax
or additional amounts, being collectively referred herein to as the "Excise
Tax"), then Employee shall be entitled to receive an additional payment or
payments (individually referred to herein as a "Gross-Up Payment" and any two or
more of such additional payments being referred to herein as "Gross-Up
Payments") in an amount such that after payment by Employee of all taxes (as
defined in paragraph (p) below) imposed upon the Gross-Up Payment, Employee
retains an amount of such Gross-Up Payment equal to the Excise Tax imposed upon
the Payments.
(g) Subject to the provisions of paragraphs (h) through (n)
below, any determination (individually, a "Determination") required to be made
under this Section 4.6, including whether a Gross-Up Payment is required and the
amount of such Gross-Up Payment, shall initially be made, at the Company's
expense, by Tax Counsel. Tax Counsel shall provide detailed supporting legal
authorities, calculations, and documentation both to the Company and Employee
within fifteen (15) business days of the termination of Employee's employment,
if applicable, or such other time or times as is reasonably requested by the
Company or Employee. If Tax Counsel makes the initial Determination that no
Excise Tax is payable by Employee with respect to a Payment or Payments, it
shall furnish Employee with an opinion reasonably acceptable to Employee that no
Excise Tax will be imposed with respect to any such Payment or Payments.
Employee shall have the right to dispute any Determination (a "Dispute") within
fifteen (15) business days after delivery of Tax Counsel's opinion with respect
to such Determination. The Gross-Up Payment, if any, as determined pursuant to
such Determination shall, at the Company's expense, be paid by the Company to
Employee within five business days of Employee's receipt of such Determination.
The existence of a Dispute shall not in any way affect Employee's right to
receive the Gross-Up Payment in accordance with such Determination. If there is
no Dispute, such Determination shall be binding, final and conclusive upon the
Company and Employee, subject in all respects, however, to the provisions of
paragraphs (h) through (n) below. As a result of the uncertainty in the
application of Sections 4999 and 280G of the Code, it is possible that Gross-Up
Payments (or portions thereof) which will not have been made by the Company
should have been made ("Underpayment"), and if upon any reasonable written
request from Employee or the Company to Tax Counsel, or upon Tax Counsel's own
initiative, Tax Counsel, at the Company's expense, thereafter determines that
Employee is required to make a payment of any Excise Tax or any additional
Excise Tax, as the case may be, Tax Counsel shall, at the Company's expense,
determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to Employee.
(h) The Company shall defend, hold harmless, and indemnify
Employee on a fully grossed-up after tax basis from and against any and all
claims, losses, liabilities, obligations, damages, impositions, assessments,
demands, judgements, settlements, costs and expenses (including reasonable
attorneys', accountants', and experts' fees and expenses) with respect to any
tax liability of Employee resulting from any Final Determination (as defined in
paragraph (o) below) that any Payment is subject to the Excise Tax.
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(i) If a party hereto receives any written or oral
communication with respect to any question, adjustment, assessment or pending or
threatened audit, examination, investigation or administrative, court or other
proceeding which, if pursued successfully, could result in or give rise to a
claim by Employee against the Company under this paragraph (i) ("Claim"),
including, but not limited to, a claim for indemnification of Employee by the
Company under paragraph (h) above, then such party shall promptly notify the
other party hereto in writing of such Claim ("Tax Claim Notice").
(j) If a Claim is asserted against Employee ("Employee
Claim"), Employee shall take or cause to be taken such action in connection with
contesting such Employee Claim as the Company shall reasonably request in
writing from time to time, including the retention of counsel and experts as are
reasonably designated by the Company (it being understood and agreed by the
parties hereto that the terms of any such retention shall expressly provide that
the Company shall be solely responsible for the payment of any and all fees and
disbursements of such counsel and any experts) and the execution of powers of
attorney, provided that:
(i) within thirty (30) calendar days after the
Company receives or delivers, as the case may be, the Tax Claim Notice
relating to such Employee Claim (or such earlier date that any payment
of the taxes claimed is due from Employee, but in no event sooner than
five calendar days after the Company receives or delivers such Tax
Claim Notice), the Company shall have notified Employee in writing
("Election Notice") that the Company does not dispute its obligations
(including, but not limited to, its indemnity obligations) under this
Agreement and that the Company elects to contest, and to control the
defense or prosecution of, such Employee Claim at the Company's sole
risk and sole cost and expense; and
(ii) the Company shall have advanced to Employee on
an interest-free basis, the total amount of the tax claimed in order
for Employee, at the Company's request, to pay or cause to be paid the
tax claimed, file a claim for refund of such tax and, subject to the
provisions of the last sentence of paragraph (l) below, xxx for a
refund of such tax if such claim for refund is disallowed by the
appropriate taxing authority (it being understood and agreed by the
parties hereto that the Company shall only be entitled to xxx for a
refund and the Company shall not be entitled to initiate any proceeding
in, for example, United States Tax Court) and shall indemnify and hold
Employee harmless, on a fully grossed-up after tax basis, from any tax
imposed with respect to such advance or with respect to any imputed
income with respect to such advance; and
(iii) the Company shall reimburse Employee for any
and all costs and expenses resulting from any such request by the
Company and shall indemnify and hold Employee harmless, on fully
grossed-up after-tax basis, from any tax imposed as a result of such
reimbursement.
(k) Subject to the provisions of paragraph (j) above, the
Company shall have the right to defend or prosecute, at the sole cost, expense
and risk of the Company, such Employee Claim by all appropriate proceedings,
which proceedings shall be defended or prosecuted diligently
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by the Company to a Final Determination; provided, however, that (i) the Company
shall not, without Employee's prior written consent, enter into any compromise
or settlement of such Employee Claim that would adversely affect Employee, (ii)
any request from the Company to Employee regarding any extension of the statute
of limitations relating to assessment, payment, or collection of taxes for the
taxable year of Employee with respect to which the contested issues involved in,
and amount of, the Employee Claim relate is limited solely to such contested
issues and amount, and (iii) the Company's control of any contest or proceeding
shall be limited to issues with respect to the Employee Claim and Employee shall
be entitled to settle or contest, in his sole and absolute discretion, any other
issue raised by the Internal Revenue Service or any other taxing authority. So
long as the Company is diligently defending or prosecuting such Employee Claim,
Employee shall provide or cause to be provided to the Company any information
reasonably requested by the Company that relates to such Employee Claim, and
shall otherwise cooperate with the Company and its representatives in good faith
in order to contest effectively such Employee Claim. The Company shall keep
Employee informed of all developments and events relating to any such Employee
Claim (including, without limitation, providing to Employee copies of all
written materials pertaining to any such Employee Claim), and Employee or his
authorized representatives shall be entitled, at Employee's expense, to
participate in all conferences, meetings and proceedings relating to any such
Employee Claim.
(l) If, after actual receipt by Employee of an amount of a tax
claimed (pursuant to an Employee Claim) that has been advanced by the Company
pursuant to paragraph (j)(ii) above, the extent of the liability of the Company
hereunder with respect to such tax claimed has been established by a Final
Determination, Employee shall promptly pay or cause to be paid to the Company
any refund actually received by, or actually credited to, Employee with respect
to such tax (together with any interest paid or credited thereon by the taxing
authority and any recovery of legal fees from such taxing authority related
thereto), except to the extent that any amounts are then due and payable by the
Company to Employee, whether under the provisions of this Agreement or
otherwise. If, after the receipt by Employee of an amount advanced by the
Company pursuant to paragraph (j)(ii) above, a determination is made by the
Internal Revenue Service or other appropriate taxing authority that Employee
shall not be entitled to any refund with respect to such tax claimed and the
Company does not notify Employee in writing of its intent to contest such denial
of refund prior to the expiration of thirty days after such determination, then
such advance shall be forgiven and shall not be required to be repaid and the
amount of such advance shall offset, to the extent thereof, the amount of any
Gross-Up Payments and other payments required to be paid hereunder.
(m) With respect to any Employee Claim, if the Company fails
to deliver an Election Notice to Employee within the period provided in
paragraph (j)(i) above or, after delivery of such Election Notice, the Company
fails to comply with the provisions of paragraph (j)(ii) above and (iii) and (k)
above, then Employee shall at any time thereafter have the right (but not the
obligation), at his election and in his sole and absolute discretion, to defend
or prosecute, at the sole cost, expense and risk of the Company, such Employee
Claim. Employee shall have full control of such defense or prosecution and such
proceedings, including any settlement or compromise thereof. If requested by
Employee, the Company shall cooperate, and shall cause its affiliates to
cooperate, in good faith with Employee and his authorized representatives in
order to contest effectively such Employee Claim. The Company may attend, but
not participate in or control, any defense,
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prosecution, settlement or compromise of any Employee Claim controlled by
Employee pursuant to this paragraph (m) and shall bear its own costs and
expenses with respect thereto. In the case of any Employee Claim that is
defended or prosecuted by Employee, Employee shall, from time to time, be
entitled to current payment, on a fully grossed-up after tax basis, from the
Company with respect to costs and expenses incurred by Employee in connection
with such defense or prosecution.
(n) In the case of any Employee Claim that is defended or
prosecuted to a Final Determination pursuant to the terms of this paragraph (n),
the Company shall pay, on a fully grossed-up after tax basis, to Employee in
immediately available funds the full amount of any taxes arising or resulting
from or incurred in connection with such Employee Claim that have not
theretofore been paid by the Company to Employee, together with the costs and
expenses, on a fully grossed-up after tax basis, incurred in connection
therewith that have not theretofore been paid by the Company to Employee, within
ten calendar days after such Final Determination. In the case of any Employee
Claim not covered by the preceding sentence, the Company shall pay, on a fully
grossed-up after tax basis, to Employee in immediately available funds the full
amount of any taxes arising or resulting from or incurred in connection with
such Employee Claim at least ten calendar days before the date payment of such
taxes is due from Employee, except where payment of such taxes is sooner
required under the provisions of this paragraph (n), in which case payment of
such taxes (and payment, on a fully grossed-up after tax basis, of any costs and
expenses required to be paid under this paragraph (n) shall be made within the
time and in the manner otherwise provided in this paragraph (n).
(o) For purposes of this Agreement, the term "Final
Determination" shall mean (i) a decision, judgment, decree or other order by a
court or other tribunal with appropriate jurisdiction, which has become final
and non-appealable; (ii) a final and binding settlement or compromise with an
administrative agency with appropriate jurisdiction, including, but not limited
to, a closing agreement under Section 7121 of the Code; (iii) any disallowance
of a claim for refund or credit in respect to an overpayment of tax unless a
suit is filed on a timely basis; or (iv) any final disposition by reason of the
expiration of all applicable statutes of limitations.
(p) For purposes of this Agreement, the terms "tax" and
"taxes" mean any and all taxes of any kind whatsoever (including, but not
limited to, any and all Excise Taxes, income taxes, and employment taxes),
together with any interest thereon, any penalties, additions to tax, or
additional amounts with respect to such taxes and any interest in respect of
such penalties, additions to tax, or additional amounts.
(q) For purposes of this Agreement, the terms "affiliate" and
"affiliates" mean, when used with respect to any entity, individual, or other
person, any other entity, individual, or other person which, directly or
indirectly, through one or more intermediaries controls, or is controlled by, or
is under common control with such entity, individual or person. The term
"control" and derivations thereof when used in the immediately preceding
sentence means the ownership, directly or indirectly, of 50% or more of the
voting securities of an entity or other person or possessing the power to direct
or cause the direction of the management and policies of such entity or other
person, whether through the ownership of voting securities, by contract or
otherwise.
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(r) The Company shall defend, hold harmless, and indemnify
Employee on a fully grossed-up after tax basis from and against any and all
costs and expenses (including reasonable attorneys', accountants' and experts'
fees and expenses) incurred by Employee from time to time as a result of any
contest (regardless of the outcome) by the Company or others contesting the
validity or enforcement of, or liability under, any term or provision of this
Agreement, plus in each case interest at the applicable federal rate provided
for in Section 7872(f)(2)(B) of the Code.
4.7 EXCLUSIVITY OF TERMINATION PROVISIONS. The termination provisions
of this Agreement regarding the parties' respective obligations in the event
Employee's employment is terminated, are intended to be exclusive and in lieu of
any other rights or remedies to which Employee or the Company may otherwise be
entitled at law, in equity or otherwise. It is also agreed that, although the
personnel policies and fringe benefit programs of the Company may be
unilaterally modified from time to time, the termination provisions of this
Agreement are not subject to modification, whether orally, impliedly or in
writing, unless any such modification is mutually agreed upon and signed by the
parties.
ARTICLE V
CONFIDENTIAL INFORMATION AND NONCOMPETITION
5.1 NONDISCLOSURE. During the term of this Agreement and thereafter,
Employee shall not, without the prior written consent of the Board of Directors,
disclose or use for any purpose (except in the course of his employment under
this Agreement and in furtherance of the business of the Company) confidential
information, proprietary data or trade secrets of the Company (or any of its
subsidiaries), including but not limited to customer, business planning or
business strategy information, except as required by applicable law or legal
process; provided, however, that confidential information shall not include any
information known generally to the public or ascertainable from public or
published information (other than as a result of unauthorized disclosure by
Employee) or any information of a type not otherwise considered confidential by
persons engaged in the same business or a business similar to that conducted by
the Company (or any of its subsidiaries). All documents which Employee prepared
or which may have been provided or made available to Employee in the course of
work for the Company shall be deemed the exclusive property of the Company and
shall remain in the Company's possession. Upon the termination of Employee's
employment with the Company, regardless of the reason for such termination,
Employee shall promptly deliver to the Company all materials of a confidential
nature relating to the business of the Company (or any of its subsidiaries)
which are within Employee's possession or control.
5.2 NONCOMPETITION. The Company and Employee agree that the services
rendered by Employee hereunder are unique and irreplaceable. For this reason and
in consideration of the benefits of this Agreement, specifically including but
not limited to applicable termination pay provisions, as well as
confidential/proprietary/trade secret information provided to Employee, Employee
hereby agrees that, during the term of this Agreement and for a period of
eighteen months thereafter, he shall not (except in the course of his employment
under this Agreement and in furtherance of the business of the Company (or any
of its subsidiaries)) (i) engage in as principal, consultant or employee in any
segment of a business of a company, partnership or firm ("Business
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Segment") that is directly competitive with any significant business of the
Company in one of its major commercial or geographic markets or (ii) hold an
interest (except as a holder of less than 5% interest in a publicly traded firm
or mutual funds, or as a minority stockholder or unitholder in a form not
publicly traded) in a company, partnership or firm with a Business Segment that
is directly competitive, without the prior written consent of the Company.
5.3 VALIDITY OF NONCOMPETITION. The foregoing provisions of Section 5.2
shall not be held invalid because of the scope of the territory covered, the
actions restricted thereby, or the period of time such covenant is operative.
Any judgment of a court of competent jurisdiction may define the maximum
territory, the actions subject to and restricted by Section 5.2 and the period
of time during which such agreement is enforceable.
5.4 NONCOMPETITION COVENANTS INDEPENDENT. The covenants of the Employee
contained in Section 5.2 will be construed as independent of any other provision
in this Agreement; and the existence of any claim or cause of action by the
Employee against the Company will not constitute a defense to the enforcement by
the Company of said covenants. The Employee understands that the covenants
contained in Section 5.2 are essential elements of the transaction contemplated
by this Agreement and, but for the agreement of the Employee to Section 5.2, the
Company would not have agreed to enter into such transaction. The Employee has
been advised to consult with counsel in order to be informed in all respects
concerning the reasonableness and propriety of Section 5.2 and its provisions
with specific regard to the nature of the business conducted by the Company and
the Employee acknowledges that Section 5.2 and its provisions are reasonable in
all respects.
5.5 COOPERATION. In the event of termination, and regardless of the
reason for such termination, Employee agrees to cooperate with the Company and
its representatives by responding to questions, attending meetings, depositions,
administrative proceedings and court hearings, executing documents and
cooperating with the Company and its legal counsel with respect to issues,
claims, litigation or administrative proceedings of which Employee has personal
or corporate knowledge. Employee further agrees to maintain in strict confidence
any information or knowledge Employee has regarding current or future claims,
litigation or administrative proceedings involving the Company (or any of its
subsidiaries). Employee agrees that any communication with a party adverse to
the Company, or with a representative, agent or counsel for such adverse party,
relating to any claim, litigation or administrative proceeding, shall be solely
and exclusively through counsel for the Company.
5.6 REMEDIES. In the event of a breach or threatened breach by the
Employee of any of the provisions of Sections 5.1, 5.2 or 5.5, the Company shall
be entitled to a temporary restraining order and an injunctive restraining the
Employee from the commission of such breach. Nothing herein shall be construed
as prohibiting the Company from pursuing any other remedies available to it for
such breach or threatened breach, including the recovery of money damages.
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ARTICLE VI
ARBITRATION
Except for the provisions of Sections 5.1, 5.2 and 5.5 dealing with
issues of nondisclosure, noncompetition and cooperation, with respect to which
the Company reserves the right to petition a court directly for injunction or
other relief, any controversy of any nature whatsoever, including but not
limited to tort claims or contract disputes, between the parties to this
Agreement or between the Employee, his heirs, executors, administrators, legal
representatives, successors, and assigns and the Company and its affiliates,
arising out of or related to the Employee's employment with the Company, any
resignation from or termination of such employment and/or the terms and
conditions of this Agreement, including the implementation, applicability and
interpretation thereof, shall, upon the written request of one party served upon
the other, be submitted to and settled by arbitration in accordance with the
provisions of the Federal Arbitration Act, 9 U.S.C. Sections 1-15, as amended.
Each of the parties to this Agreement shall appoint one person as an arbitrator
to hear and determine such disputes, and if they should be unable to agree, then
the two arbitrators shall chose a third arbitrator from a panel made up of
experienced arbitrators selected pursuant to the procedures of the American
Arbitration Association (the "AAA") and, once chosen, the third arbitrator's
decision shall be final, binding and conclusive upon the parties to this
Agreement. Each party shall be responsible for the fees and expenses of its
arbitrator and the fees and expenses of the third arbitrator shall be shared
equally by the parties. The terms of the commercial arbitration rules of AAA
shall apply except to the extent they conflict with the provisions of this
paragraph. It is further agreed that any of the parties hereto may petition the
United States District Court for the Western District of Texas, San Antonio
Division, for a judgment to be entered upon any award entered through such
arbitration proceedings.
ARTICLE VII
MISCELLANEOUS
7.1 COMPLETE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and cancels and supersedes all other agreements between the
parties which may have related to the subject matter contained in this
Agreement.
7.2 MODIFICATION; AMENDMENT; WAIVER. No modification, amendment or
waiver of any provisions of this Agreement shall be effective unless approved in
writing by both parties. The failure at any time to enforce any of the
provisions of this Agreement shall in no way be construed as a waiver of such
provisions and shall not affect the right of either party thereafter to enforce
each and every provision hereof in accordance with its terms.
7.3 GOVERNING LAW; JURISDICTION. This Agreement and performance under
it, and all proceedings that may ensue from its breach, shall be construed in
accordance with and under the laws of the State of Texas.
7.4 EMPLOYEE'S REPRESENTATIONS. Employee represents and warrants that
he is free to enter in to this Agreement and to perform each of the terms and
covenants of it.
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Employee represents and warrants that he is not restricted or prohibited,
contractually or otherwise, from entering into and performing this Agreement,
and that his execution and performance of this Agreement is not a violation or
breach of any other agreement between Employee and any other person or entity.
7.5 THE COMPANY'S REPRESENTATIONS. The Company represents and warrants
that it is free to enter into this Agreement and to perform each of the terms
and covenants of it. The Company represents and warrants that it is not
restricted or prohibited, contractually or otherwise, from entering into and
performing this Agreement and that its execution and performance of this
Agreement is not a violation or breach of any other agreements between the
Company and any other person or entity. The Company represents and warrants that
this Agreement is a legal, valid and binding agreement of the Company,
enforceable in accordance with its terms.
7.6 SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
7.7 ASSIGNMENT. The rights and obligations of the parties under this
Agreement shall be binding upon and inure to the benefit of their respective
successors, assigns, executors, administrators and heirs, provided, however,
that neither the Company nor Employee any assign any duties under this Agreement
without the prior written consent of the other.
7.8 LIMITATION. This Agreement shall not confer any right or impose any
obligation on the Company to continue the employment of Employee in any
capacity, or limit the right of the Company or Employee to terminate Employee's
employment.
7.9 ATTORNEYS' FEES AND COSTS. If any action at law or in equity is
brought to enforce or interpret the terms of this Agreement or any obligation
owing thereunder, venue will be in Bexar County, Texas and the prevailing party
shall be entitled to reasonable attorney's fees and all costs and expenses of
suit, including, without limitation, expert and accountant fees, and such other
relief which a court of competent jurisdiction may deem appropriate.
7.10 NOTICES. All notices and other communications under this Agreement
shall be in writing and shall be given in person or by either personal delivery,
overnight delivery, or first class mail, certified or registered with return
receipt requested, with postage or delivery charges prepaid, and shall be deemed
to have been duly given when delivered personally, upon actual receipt, and on
the next business day when sent via overnight delivery, or three days after
mailing first class, certified or registered with return receipt requested, to
the respective persons named below:
If to the Company: Corporate Secretary
Billing Information Concepts Corp.
0000 Xxxx Xxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
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If to the Employee: Xxxxx X. Xxxxxxx
0000 Xxxx Xxxxx Xx.
Xxx Xxxxxxx, Xxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the day and year indicated above.
COMPANY: BILLING INFORMATION CONCEPTS CORP.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
---------------------------------
Xxxxxx X. Xxxxxx, Xx.
Chairman of the Board and
Chief Executive Officer
EMPLOYEE: /s/ XXXX X. XXXXXXXX
---------------------------------
Xxxx X. Xxxxxxxx
The Compensation Committee of Billing Information Concepts Corp. hereby agrees
to the above Employment Agreement between Billing Information Concepts Corp. and
the Employee all as set forth above.
COMPENSATION COMMITTEE
By /s/ Xxx Xxxxx
---------------------------------
Name: Xxx Xxxxx
Title: Chairman
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