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EXHIBIT 10.23
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (the "Amendment") is entered
into this 5th day of August, 1999 by and between BIRCH TELECOM, INC., a Delaware
corporation (the "Corporation"), and XXXXX X. XXXXX ("Employee").
The Corporation and Employee entered into an Employment Agreement dated
February 10, 1998 (the "Employment Agreement") which contains the terms and
conditions of the Corporation's employment of the Employee. The Corporation and
Employee now desire to amend certain compensation and noncompetition provisions
of the Employment Agreement. The Employment Agreement may be amended by the
Corporation and Employee in accordance with section 9.8 of the Employment
Agreement upon the mutual consent of the Corporation and Employee.
NOW, THEREFORE, in consideration of the following promises and mutual
covenants, and intending to be legally bound, the parties agree as follows:
1. DEFINED TERMS. Except as otherwise specifically provided in this
Amendment, the capitalized terms used in this Amendment and defined in the
Employment Agreement shall have the same meanings as provided in the Employment
Agreement.
2. AMENDMENT OF SUBSECTION 3.1(A). Subsection 3.1(a) of the Employment
Agreement is amended by deleting the terms of that subsection in their entirety
and substituting the following in their place, reading in their entirety as
follows:
The Employee will be paid a minimum base annual salary of $250,000 (the
"Salary"), which will be payable in equal periodic installments
according to the Company's customary payroll practices, but no less
frequently than monthly. The Salary may be increased by the
Compensation Committee or Board of Directors of the Company during the
term of this Agreement, and when increased, such higher amount shall
then be the minimum base annual salary under this Agreement. The Salary
shall not be reduced below the highest minimum base annual salary fixed
from time to time by the Compensation Committee or Board of Directors
of the Company without the Employee's written consent. When increased
or decreased in accordance with the terms of this Agreement, the new
minimum base annual salary shall be deemed the Employee's "Salary" for
all purposes of this Agreement.
3. AMENDMENT OF SECTION 6.4. Section 6.4 of the Employment Agreement is
amended by deleting the terms of that section in their entirety and substituting
the following in their place, reading in their entirety as follows:
For purposes of Section 6.1, the term "Good Reason" shall mean (a) a
substantial reduction in the Employee's duties or responsibilities, (b)
any reduction in Employee's Salary, or (c) relocation of the Employee's
primary workplace to a location that is greater than 35 miles from the
Employee's current workplace, in each
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case which is not cured within 30 days following the Company's receipt
of written notice from the Employee describing the event constituting
Good Reason.
4. AMENDMENT OF SUBSECTION 6.5(A). Subsection 6.5(a) of the Employment
Agreement is amended by deleting the terms of that subsection in their entirety
and substituting the following in their place, reading in their entirety as
follows:
If the Employee terminates this Agreement for Good Reason, or if the
Company terminates this Agreement other than for Cause (but not because
of the Disability or death of the Employee), or if the Company notifies
the Employee in accordance with Section 2.2 that this Agreement will
not be renewed as of an applicable expiration date, the Company will
pay the Employee (i) the Employee's Salary for the remainder, if any,
of the calendar month in which such termination is effective and for
twenty-four consecutive calendar months thereafter, (ii) the amount of
the Employee's targeted incentive compensation for the year during
which the termination is effective (prorated for the period from the
beginning of the year until the effective date of termination), and
(iii) the sum of two times the amount of the Employee's targeted
incentive compensation for the year in which the termination was
effective (such amount to be determined as if the Employee had been
employed for the entire year and not prorated as described in clause
(ii) above), payable in equal monthly installments over the
Post-Employment Period. Notwithstanding the preceding sentence, if the
Employee obtains other employment prior to the end of the twenty-four
months following the month in which the termination or expiration is
effective, he must promptly give notice thereof to the Company, and the
payments under this Agreement for any period after the Employee obtains
other employment will be reduced by the amount of the cash compensation
received and to be received by the Employee from the Employee's other
employment for services performed during such period.
5. EFFECT OF AMENDMENT ON EMPLOYMENT AGREEMENT. All provisions of this
Amendment shall be deemed to be incorporated in, and made part of, the
Employment Agreement, and the Employment Agreement, as amended and supplemented
by this Amendment, shall be read, taken, and construed as one and the same
agreement. Other than as expressly set forth herein, this Amendment shall not
constitute a consent or waiver to or modification of any term or condition of
the Employment Agreement. Subject to the express modifications made by this
Amendment, all terms, provisions, covenants, representations, warranties,
agreements, and conditions contained in the Employment Agreement shall remain in
full force and effect.
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IN WITNESS WHEREOF, the Company has caused this Amendment to be signed
by a duly authorized officer and Employee has executed this Amendment, both as
of the day and year first written above.
BIRCH TELECOM, INC.
By: /s/ Xxxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxx
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Xxxxxxx X. Xxxxxx, Senior Vice Xxxxx X. Xxxxx
President
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