EXHIBIT 10.2
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (this "Agreement") is
entered into this 1st day of August, 1997, by and between W. Xxxxx Xxxx
("Employee"), U. S. Long Distance Corp., a Delaware corporation (the "Company"),
Billing Information Concepts Corp., a Delaware corporation ("BIC") to be
effective as August 1, 1997 (the "Effective Date").
WITNESSETH:
WHEREAS, the Company, BIC and Employee are parties to an Amended and
Restated Employment Agreement dated effective June 25, 1996 (the "Prior
Agreement"); and
WHEREAS, in the Prior Agreement it was anticipated that Employee at his
election could transfer his employment to BIC under certain terms and
conditions; and
WHEREAS, the parties have decided to eliminate the ability of the Employee
to transfer his employment to BIC and desire to extend his Employment Agreement
with the Company; and
WHEREAS, the Company and Employee desire to amend and restate the terms of
such employment so as to clarify the ongoing terms of Employee's employment with
the Company, eliminate the Employee's contractual right to potential future
employment with BIC, and to set forth each party's duties and obligations to the
other;
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 to read as follows:
ARTICLE I
DUTIES
1.1 DUTIES. During the term of this Agreement, the Company agrees to
employ Employee as General Counsel, Senior Vice President and Secretary of the
Company, and Employee agrees to serve the Company in such capacities 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.
ARTICLE II
TERM OF EMPLOYMENT
2.1 GENERAL 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 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, the Company shall pay Employee, within 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 shall continue Employee's medical, health and disability benefits for two
years from such termination. Payment of such sums and continuation of such
medical benefits 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 Company an
annual base salary of $190,000 (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 $190,000 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.
2
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:
(a) 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.
(b) OTHER BENEFITS. Employee shall also be entitled to receive any
other benefits provided by the Company to all employees of Company as a group,
or all executive officers of the Company as a group, including any profit
sharing, 401(k) or retirement benefits.
(c) VACATION PAY. Employee shall be entitled to an annual vacation
as determined in accordance with the prevailing practice and policy of the
Company.
(d) HOLIDAYS. Employee shall be entitled to holidays in accordance
with the prevailing practice and policy of the Company.
(e) 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.
(f) AUTOMOBILE. Employee shall have the right to continue to use the
Mitsubishi and shall have an option, exercisable within 90 days of termination,
to purchase such automobile at its net book value as shown on the Company's
records as of the date of termination.
(g) APARTMENT. Employer agrees to continue, at its expense, to
provide to Employee the apartment at The Meridian Apartments.
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 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 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 (with the exception of medical benefits which shall continue
for two years from the date of termination), to the extent continuation of such
benefits is not prohibited by application state and/or federal law, and (c) any
outstanding stock options to acquire shares of the Company's common stock held
by Employee not already fully vested and exercisable shall become fully vested
and exercisable. Payment of such sum by the Company and two years continuation
of benefits provided under Section 3.3 shall
3
constitute Employee's full severance pay and the Company shall have no
further obligation to Employee arising out of such termination.
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 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)
the Company shall provide the continued benefit coverage described in Section
4.1, and (c) any outstanding stock options to acquire shares of the Company's
common stock held by Employee not already fully 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 the Employee's then effective base salary under
Section 3.1; or
(b) 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 30
days before the effective date of such termination and by granting Employee at
least 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;
4
(c) Material breach of fiduciary duty to the Company through the
misappropriation of Company funds or property; or
(d) The unauthorized absence of Employee from work (other than for
sick leave or disability) for a period of 30 working days or more
during any period of 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 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 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) certain outstanding stock options held by Employee shall become
fully vested and exercisable. In addition, Company shall continue all benefits
under Section 3.3 hereof, through the expiration of the two year term then in
effect (with the exception of medical benefits which shall continue for two
years from the date of termination), to the extent continuation of such benefits
is not prohibited by applicable state and/or federal law.
5
(b) Employee shall also be entitled to an additional payment, to the
extent 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 do not exceed 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") equal to an amount, which when added to the amounts payable to
the Employee under paragraph (a) equals the maximum payment amount; it being the
express intention of the parties that Employee in all cases (whether through
this Agreement or any other agreement whatsoever) receive the maximum payment
amount in connection with a change of control without creating an excess
parachute payment. If such a payment is required under this paragraph (b) in
addition to the amounts set forth in paragraph (a) above, it shall be paid at
the time and in the manner set forth under paragraph (a) above.
(c) In determining the amount to be paid to Employee under this
Section 4.6, as well as 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
6
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 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 paragraph (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 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 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 paragraph (h) through (n) below. As
a result of the
7
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.
(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 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
8
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 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
9
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, 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
10
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.
(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
11
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 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.
12
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.
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.
13
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. 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 COMPANY'S REPRESENTATIONS. Company represents and warrants that it is
free to enter into this Agreement and to perform each of the terms and covenants
of it. 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 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.
14
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
U. S. Long Distance Corp.
0000 Xxx Xxxxx
Xxx Xxxxxxx, Xxxxx 00000
If to BIC: Corporate Secretary
Billing Information Concepts Corp.
0000 Xxx Xxxxx
Xxx Xxxxxxx, Xxxxx 00000
If to the Employee: W. Xxxxx Xxxx
0000 Xxx Xxxxx
Xxx Xxxxxxx, Xxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the day and year indicated above.
COMPANY: U. S. LONG DISTANCE CORP.
By /s/ XXXXX X. XXXXX
-------------------------------
Title Chairman, CEO & President
----------------------------
BIC: BILLING INFORMATION CONCEPTS CORP.
By
-----------------------------
Title
----------------------------
EMPLOYEE: /s/ XXXXX XXXX
-----------------------------
W. Xxxxx Xxxx
15
