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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into
as of the ____ day of ______, 199__ by and between Telco Communications Group,
Inc., a Virginia corporation (the "Company"), and Xxxxxxx X. Xxxxxx (the
"Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive, and the
Executive desires to be employed by the Company, on the terms and subject to
the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties agree as follows:
1. Employment.
(a) The Company hereby employs the Executive as
President-Consumer and Commercial, and the Executive hereby accepts such
employment, on the terms and subject to the conditions hereinafter set forth.
(b) Executive shall report directly to (i) the Chief
Executive Officer of New RES, Inc., a Delaware corporation and the parent
company of the Company ("Holdings"), for so long as Xxxxx X. Xxxxxx ("Xxxxxx")
is the Chief Executive Officer thereof, and (ii) at any time that Xxxxxx is not
the Chief Executive Officer of Holdings, to the Company's Chief Executive
Officer, unless, in the case of clause (ii), the Company's Board of Directors
(the "Board") directs otherwise. Executive agrees to perform such duties as
are assigned to him, consistent with his position as a senior executive,
pursuant to the direction of the Chief Executive Officer of Holdings or the
Chief Executive Officer of the Company (as provided above) or the Board.
(c) Attention and Effort. The Executive shall be required
to devote his full business time, attention and effort to the Company's
business and affairs and perform diligently his duties that are customary of an
executive in such position, all subject to the direction of the Chief Executive
Officer of Holdings or the Chief Executive Officer of the Company (as provided
in Section 1(b) above) and the Board. The Executive agrees to use all of his
skills and business judgment and render services to the best of his ability to
serve the interests of the Company. Subject to the
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terms of the Non-Competition Agreement referred to in Section 6, this shall not
preclude Executive from serving on community and civic boards, participating in
industry associations, or otherwise engaging in other activities which, in the
Company's judgment, do not unreasonably interfere with his duties to the
Company.
(d) Support Services. The Executive shall be entitled
to all of the administrative, operational and facility support customary for a
similarly situated executive. This support shall include, without limitation, a
suitably appointed private office, a secretary or administrative assistant, and
payment of or reimbursement for reasonable cellular telephone expenses,
business entertainment expenses, expenses of the Executive maintaining his
professional license and standing and any and all other business expenses
reasonably incurred on behalf of or in the course of performing duties for the
Company, all in accordance with the expense reimbursement policies established
from time to time by the Company. The Executive agrees to provide such
documentation of these expenses as may be reasonably required.
2. Term. Subject to the provisions for termination
hereinafter provided, the term of this Agreement (the "Term") shall begin on
the date hereof, and shall continue through the fourth anniversary of the date
hereof.
3. Compensation and Stock Options. Throughout the Term,
the Company shall pay or provide, as the case may be, to the Executive the
compensation and other benefits and rights set forth in this Section 3.
(a) The Company shall pay to the Executive a minimum
"Base Salary," payable in accordance with the Company's usual pay practices
(and in any event no less frequently than monthly), of $325,000 per annum,
which Base Salary shall be subject to increase upon review annually by the
Company's Board of Directors.
(b) The Company, at the discretion of the Board, may pay
to the Executive bonus compensation for each fiscal year, or part thereof, that
he is employed by the Company or, alternatively, allow the Executive to
participate in a management incentive bonus plan should one be adopted by the
Company or Holdings. If a management incentive bonus plan is adopted by
Holdings, the Company will recommend to the Compensation Committee of the Board
of Directors
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of Holdings that Executive will be eligible to participate therein at a level
not lower than would an individual serving as a Vice President of Holdings.
(c) The Company shall (i) in addition to life insurance
available to Executive pursuant to Section 3(d) of this Agreement, reimburse
Executive for the cost, in the amount of up to Two Thousand Dollars ($2,000)
per year, of life insurance having a death benefit payment of, in the aggregate
with the above-referenced Company life insurance, not more than Two Million
Dollars ($2,000,000), (ii) reimburse Executive for the costs, in the amount of
up to Two Thousand Dollars ($2,000) per year, of disability insurance for the
Executive if not otherwise provided to Executive pursuant to Section 3(d) of
this Agreement, and (iii) provide medical, hospitalization and dental insurance
for Executive, his spouse and eligible family members, subject to and in
accordance with the Company's policy, the proportions of the cost thereof to be
borne by the Company and the Executive to be in accordance with such policy.
(d) The Executive shall participate in all retirement and
other benefit plans of the Company generally available from time to time to
employees of the Company and for which the Executive qualifies under the terms
thereof (and nothing in this Agreement shall, or shall be deemed to, in any way
affect the Executive's rights and benefits thereunder except as expressly
provided herein).
(e) The Executive shall be entitled to such periods of
vacation and sick leave allowance each year as provided under the Company's
vacation and sick leave policy and as otherwise provided for executive
officers.
(f) The Executive shall be entitled to participate in any
equity or other employee benefit plan of the Company that is generally
available to senior executive officers, as distinguished from general
management, of the Company. The Executive's participation in and benefits
under any such plan shall be on the terms and subject to the conditions
specified in the governing document of the particular plan.
(g) Concurrently with the execution hereof, the Company
shall recommend that the Compensation Committee of the Board of Directors of
Holdings grant to Executive the right and option, pursuant to a stock option
plan to be adopted by Holdings on or prior to the date hereof, to purchase up
to five hundred thousand (500,000) shares of the Company's common stock, par
value $.001 per share. Subject to the vesting provisions set forth below, the
foregoing options may be
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exercised at any time or from time to time during the ten-year period following
the date of grant, subject to the terms and provisions to be contained in the
aforementioned stock option plan and related grant letter to be authorized by
the Holdings Compensation Committee. The foregoing options shall vest fifty
percent (50%) on the third anniversary of the date of grant and fifty percent
(50%) on the fourth anniversary of the date of grant; provided, however, that
all such options shall vest immediately upon the termination by the Company of
the Executive without "Cause" (as defined in Section 5(a) hereof) pursuant to
Section 5(a) hereof and shall contain "change-of-control" provisions for
accelerated vesting consistent with the change-of-control provisions contained
in the existing stock option plan of EXCEL Communications, Inc. The exercise
prices for such options shall be the fair market value of shares of Holdings on
the date of grant. The Executive shall not have any of the rights of a
shareholder of the Company with respect to any non-exercised options. As soon
as practicable (and in no event later than 30 days) after the date hereof,
Holdings shall file a registration statement on Form S-8 (or any successor or
other appropriate forms), or another appropriate form with respect to the
shares of the Company's common stock subject to vested options held by
Executive and shall use its best efforts to maintain the effectiveness of such
registration statement or registration statements (and maintain the current
status of the prospectus or prospectuses contained therein) for so long as such
options remain outstanding.
4. Permanent Disability.
(a) For purposes of this Agreement, the Executive's
"Permanent Disability" shall be deemed to have occurred one day after one
hundred twenty (120) days in the aggregate during any consecutive twelve (12)
month period, or one day after ninety (90) consecutive days, during which one
hundred twenty (120) or ninety (90) days, as the case may be, the Executive, by
reason of his physical or mental disability or illness, shall have been unable
to discharge fully his duties under this Agreement.
(b) If either the Company or the Executive, after receipt
of notice of the Executive's Permanent Disability from the other, disputes that
the Executive's Permanent Disability shall have occurred, the Executive shall
promptly submit to a physical examination by the chief of medicine of any major
accredited hospital in the metropolitan Washington, D.C. area and, unless such
physician shall issue his written statement to the effect that, in his opinion,
based on his diagnosis, the Executive is capable of resuming his employment and
devoting his full time and energy to discharging fully his duties hereunder
within thirty (30) days after the date of such
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statement, such Permanent Disability shall be deemed to have occurred on the
day above specified.
5. Termination.
(a) The Executive's employment under this Agreement and
the Term shall be terminated immediately on the death of the Executive and may
be terminated by the Company:
(i) at any time after the Permanent Disability of
the Executive;
(ii) at any time for Cause by action of the Board;
or
(iii) at any time without Cause by action of the
Board.
For purposes hereof, Cause shall mean:
(A) Active participation by the Executive in
fraudulent conduct, a conviction of a felony, or an act or
series of acts of dishonesty, recklessness or gross
negligence;
(B) The Executive's breach of any material
provision of this Agreement or of the Non-Competition
Agreement referred to in Section 6, which breach has not been
cured (if it is of a nature that can be cured) within ten (10)
days after the Company gives written notice thereof to the
Executive;
(C) The voluntary resignation of the Executive
without the prior consent of the Board; or
(D) In the reasonable judgment of Xxxxx X. Xxxxxx
(i) acting in his capacity as Chief Executive Officer of
Holdings, and (ii) applying the same standards to Executive as
Xxxxxx would utilize with respect to such a decision regarding
any other senior executive officer of the Company, Executive
is found to have not met minimum performance objectives at any
time after the date that is one (1) year from the date of this
Agreement.
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(b) Termination by Death. If the Executive's employment
is terminated by death, the Executive's estate shall be entitled to receive (i)
life insurance benefits pursuant to any life insurance purchased by the
Company, (ii) a pro rata portion of the bonus applicable to the calendar year
in which such termination occurs, payable if, when and as such bonus is
determined under Section 3(b), and (iii) salary and other benefits accrued by
him hereunder up to and including the date of Executive's death, payable within
ninety (90) days after the date of death.
(c) Termination for Cause. If the Executive's employment
is terminated by the Company for Cause, the Company shall not have any other or
further obligations to the Executive under this Agreement (except (i) as may be
provided in accordance with the terms of retirement and other benefit plans
pursuant to Section 3(d), (ii) as to that portion of any unpaid Base Salary and
other benefits accrued and earned under this Agreement through the date of such
termination, and (iii) as to benefits, if any, provided by any insurance
policies in accordance with their terms). In addition, if the Executive's
employment is terminated by the Company for Cause, the Executive shall
immediately forfeit any and all unvested stock rights and unvested stock
options and other such unvested incentives or unvested awards previously
granted to him by the Company. The foregoing shall be in addition to, and not
in lieu of, any and all other rights and remedies which may be available to the
Company under the circumstances, whether at law or in equity.
(d) Termination without Cause. If the Executive's
employment is terminated by the Company without Cause, the Executive shall be
entitled to receive (i) severance compensation equal to what would have been
his Base Salary under Section 3(a), payable at such times as his Base Salary
would have been paid if his employment had not been terminated, for one year,
as well as a pro rata portion of the bonus applicable to the calendar year in
which such termination occurs, payable if, when and as such bonus is determined
under Section 3(b), (ii) other benefits accrued by him hereunder up to and
including the date of such termination, payable within ninety (90) days after
the date of such termination, and (iii) the benefits set forth in Section 3(c)
and (d) for the remainder of what would have been the Term (and subsequent to
which Executive will be entitled to any COBRA benefits which may be available
to him).
(e) Termination for Permanent Disability. If the
Executive's employment is terminated by the Company for Permanent Disability,
the Executive shall be entitled to receive (i) severance compensation equal to
what would have been his Base Salary under Section 3(a) for the shorter of six
months or the remainder of
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what would have been the Term, payable at such times as his Base Salary would
have been paid if his employment had not been terminated, less any disability
insurance benefits pursuant to any disability insurance provided by the Company
or purchased by Executive, the cost of which is reimbursed by the Company,
which are payable in respect of the period after such termination, as well as a
pro rata portion of the bonus applicable to the calendar year in which such
termination occurs, payable if, when and as such bonus is determined under
Section 3(b), and (ii) other benefits accrued by him hereunder up to and
including the date of termination for Permanent Disability, payable within
ninety (90) days after termination for Permanent Disability,
(f) Termination for Good Reason. The Executive's
employment under this Agreement and the Term may be terminated by the Executive
for "Good Reason" upon thirty (30) days' written notice to the Company. For
this purpose, "Good Reason" means (i) a termination by the Executive within
ninety (90) days following the Executive being required to relocate to an
office that is more than 50 miles from the Company's current office in
Chantilly, Virginia or (ii) there is a material diminution in the Executive's
title, authority or duties, as the same exist on the date hereof, other than
any such diminution that results from the acquisition of the Company by
Holdings and the fact that the Company thereafter will be a wholly-owned
subsidiary of Holdings, or (iii) if the options referred to in Section 3(g)
hereof shall not have been granted within thirty (30) days following the date
hereof. If the Executive shall terminate this Agreement for "Good Reason," the
Executive shall be entitled to receive the same payments and benefits as he
would be entitled to receive pursuant to Section 5(d) hereof in the case of a
Termination without Cause (it being understood that such benefits shall not
include the acceleration of vesting of options). In addition, if the Executive
should terminate this Agreement for "Good Reason" based upon clause (iii)
above, then the agreement by Executive not to exercise Assumed Options
contained in Section 3 of the certain Telco Shareholders Agreement, dated June
5, 1997, by and among EXCEL Communications, Inc., the Executive and the other
parties signatory thereto shall lapse as to the Executive.
(g) Upon the termination of Executive's employment for
any reason, the Executive shall be deemed to have resigned from all offices and
directorships held by the Executive in the Company and with any of its
affiliates.
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6. Non-Competition Agreement
The Executive acknowledges the Company's reliance on and
expectation of the Executive's continued commitment to performance of his
duties and responsibilities during the Term. In light of such reliance and
expectation on the part of the Company, and for other good reasons, the
Executive and Holdings are entering into a Non-Competition Agreement, dated the
date hereof. Executive agrees to perform each and every obligation of
Executive therein contained. If the options referred to in Section 3(g) hereof
shall not have been granted within thirty (30) days following the date hereof,
Executive shall be released from the Non-Competition Agreement, dated the date
hereof, between Holdings and Executive.
7. Miscellaneous.
(a) The Company and the Executive agree that the existing
employment agreement between the Company and the Executive is hereby
terminated. The Executive represents and warrants that he is not a party to
any agreement, contract or understanding, whether employment or otherwise,
which would restrict or prohibit him from undertaking or performing employment
in accordance with the terms and conditions of this Agreement.
(b) The provisions of this Agreement are severable and if
any one or more provisions may be determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions and any partially
unenforceable provision to the extent enforceable in any jurisdiction
nevertheless shall be binding and enforceable.
(c) The rights and obligations of the Company under this
Agreement shall inure to the benefit of, and shall be binding on, the Company
and its successors and assigns, and the rights and obligations (other than
obligations to perform services) of the Executive under this Agreement shall
inure to the benefit of, and shall be binding upon, the Executive and his
heirs, personal representatives and assigns.
(d) All notices and other communications required or
permitted under this Agreement shall be in writing, and shall be deemed
properly given if delivered personally, mailed by registered or certified mail
in the United States mail, postage prepaid, return receipt requested, sent by
facsimile, or sent by Express Mail, Federal Express or other nationally
recognized express delivery service, as follows:
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If to the Company or the Board:
Telco Communications Group, Inc.
c/o New RES, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: _________________
Attention: _________________
With a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxxx, Esq. and
Xxxxxxxxx X. Xxxxx, Esq.
If to the Executive:
Notice given by hand, certified or registered mail, or by Express Mail, Federal
Express or other such express delivery service, shall be effective upon actual
receipt. Notice given by facsimile transmission shall be effective upon actual
receipt if received during the recipient's normal business hours, or at the
beginning of the recipient's next business day after receipt if not received
during the recipient's normal business hours. All notices by facsimile
transmission shall be confirmed promptly after transmission in writing by
certified mail or personal delivery.
Any party may change any address to which notice is to be
given to it by giving notice as provided above of such change of address.
(e) The failure of either party to enforce any provision
or provisions of this Agreement shall not in any way be construed as a waiver
of any such
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provision or provisions as to any future violations thereof, nor prevent that
party thereafter from enforcing each and every other provision of this
Agreement. The rights granted the parties herein are cumulative and the waiver
of any single remedy shall not constitute a waiver of such party's right to
assert all other legal remedies available to it under the circumstances.
(f) This Agreement supersedes all prior or
contemporaneous agreements and understandings between the parties and may not
be modified or terminated orally. No modification or attempted waiver shall be
valid unless in writing and signed by the party against whom the same is sought
to be enforced.
(g) This Agreement shall be governed by, and construed in
accordance with the provisions of, the law of Virginia, without reference to
provisions that refer a matter to the law of any other jurisdiction. Each party
hereto hereby irrevocably submits itself to the non-exclusive personal
jurisdiction of the federal and state courts sitting in Arlington, Virginia.
(h) Arbitration. (i) Except as provided herein, any
controversy, dispute or claim arising out of or relating to this Agreement, its
performance or the breach hereof (an "Arbitrable Dispute") which cannot be
settled by mutual agreement shall be finally settled by arbitration as follows:
Either party hereto (a "Party") who is aggrieved shall deliver a notice to the
other Party setting forth the specific points in dispute. Any points remaining
in dispute twenty (20) days after the giving of such notice shall be submitted
to arbitration before a single arbitrator appointed in accordance with
JAMS/Endispute's Comprehensive Arbitration Rules and Procedures (the "Rules"),
modified only as herein expressly provided. The place of the arbitration shall
be the Washington, D.C. metropolitan area. The arbitrator may enter a default
decision against any Party who fails to participate in the arbitration
proceedings. The arbitration shall be governed by the United States
Arbitration Act, 9 U.S.C. Section 1-16 (the "Act"). If there is any conflict
between either the Rules and the terms of this Section 7(h), or the Act and
this Section 7(h), then the terms of this Section 7(h) shall control. The
decision of the arbitrator on the points in dispute will be final, unappealable
and binding and judgment on the award may be entered in any court having
jurisdiction thereof. The prevailing party in any arbitration shall be
entitled to reimbursement of the reasonable costs and expenses of such party
incurred in connection therewith from the other party. The Arbitrator shall
not have the authority to award punitive damages. The Parties agree that this
clause has been included to rapidly and inexpensively resolve any disputes
between them with respect to this Agreement, and that this clause shall be
grounds for dismissal of any court
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action commenced by either Party with respect to this Agreement, other than (x)
actions to compel a party to comply with these dispute resolution procedures;
(y) actions specified in this Section 7(h), or (z) post-arbitration actions
seeking to enforce an arbitration award. The Parties shall keep confidential,
and shall not disclose to any person, except as may be required by law, the
existence of any controversy hereunder, the referral of any such controversy to
arbitration or the status or resolution thereof. The procedures specified in
this Section 7(h) shall be the sole and exclusive procedures for the resolution
of an Arbitrable Dispute; provided, however, that prior to the appointment of
an arbitrator as provided for above, a party, without prejudice to these
procedures, may seek a temporary restraining order, preliminary injunction, or
other provisional judicial relief, if in its sole judgment such action is
necessary to avoid irreparable damage or to preserve the status quo. Under no
circumstances, however, shall the court be authorized to award money damages.
Any claim shall be time-barred unless the asserting party commences an
arbitration proceeding with respect to such claim within the time limit for
commencement of litigation specified by applicable law for such claim.
(ii) The parties subject to this Agreement further agree that
the scope and meaning of this Section 7(h), including the issue of
whether a dispute is arbitrable, and the scope and meaning of any
other sections or provisions of this Agreement, shall be determined by
the Arbitrator and not by any judicial body, tribunal or forum and
that the decision of the Arbitrator in this and all other matters
presented to him or her for arbitration as provided in this Section
7(h) shall be final and binding.
(iii) The Arbitrator is authorized to award injunctive
relief, including mandatory or prohibitory injunctions and restraining
orders after notice (including in the absence of a party), and
specifically including orders of specific performance to pay money,
and all such orders shall be immediately enforceable in any court of
competent jurisdiction.
(i) All payments required to be made by the Company
hereunder to the Executive shall be subject to the withholding of such amounts
relating to taxes and other government assessments as the Company may
reasonably determine it should withhold pursuant to any applicable law, rule or
regulation.
(j) The Company shall indemnify Executive (for serving as
a director, officer, employee and otherwise at any time whether before or
during the term hereof) to the fullest extent permitted by law and shall at all
times maintain
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appropriate provisions in its articles of incorporation and bylaws which
mandate that the Company provide such indemnification.
(k) Captions and section headings used herein are for
convenience and are not a part of this Agreement and shall not be used in
construing it.
(l) Where necessary or appropriate to the meaning hereof,
the singular and plural shall be deemed to include each other, and the
masculine, feminine and neuter shall be deemed to include each other.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the day and year first set forth above.
TELCO COMMUNICATIONS GROUP, INC.
By:
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Name:
President
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Xxxxxxx X. Xxxxxx
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