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EXHIBIT 10.60
e.spire(TM) COMMUNICATIONS, INC.
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Employment Agreement"), made as of this
29th day of December, 2000 by and between e.spire(TM) Communications, Inc., a
Delaware corporation, having its principal place of business at 00000 Xxxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000 (which, together with any affiliates or
subsidiaries are hereinafter collectively referred to as "Company") and Xxxxxx
X. Xxxxxxx, an individual residing at 000 Xxxxxxx Xxxxx, Xxxxxxx Xxxxxxx, Xxxxxx
00000 (hereinafter referred to as "Executive").
WITNESSETH
WHEREAS, the Company desires to employ the services of Executive as its
Chairman and Acting Chief Executive Officer under the terms and conditions set
forth herein; and
WHEREAS, Executive desires to provide services as Chairman and Acting
Chief Executive Officer for the Company under the terms and conditions set forth
herein,
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants undertaken herein, and with the intent to be legally bound hereby, the
Company and Executive hereby agree as follows:
1. Employment. The Company hereby agrees to employ Executive and Executive
hereby agrees to said employment in accordance with the terms and conditions
hereinafter set forth.
2. Term. Employment hereunder shall be deemed to have commenced as of
December 29, 2000 (the "Effective Date") and continue through December 29, 2001,
unless terminated earlier pursuant to section 10, or renewed by written
agreement upon such terms and conditions as are then mutually acceptable to the
Executive and the Company.
3. Location. The Company shall provide office space, administrative
support (including secretarial assistance, telephone, computer support,
transportation) and related costs for Executive in Incline Village, Nevada, as
well as at the Company's headquarters in Herndon, Virginia.
4. Duties. Executive shall serve as Chairman and Acting Chief Executive
Officer of the Company, with duties and responsibilities established by the
Company's Board of Directors. Executive shall serve under the general
supervision of the Board. The Board will not appoint or approve any individual
to a position senior to Executive, or to a position that will interfere with
Executive's relationship with the Board, without Executive's express permission,
which he may withhold for any reason. The Executive shall devote the majority of
his business time, attention and efforts to his duties hereunder, except as
otherwise provided in this Employment Agreement. As an officer of the Company,
the Executive shall be entitled to all of the benefits and
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protections to which all other officers and executives of the Company are
entitled pursuant to the Company's Amended By Laws.
5. Compensation.
(a) Base Salary. Executive shall be compensated by the payment of
$70,000 per annum (as such amount may be increased from time to time, ("Base
Salary")), paid bi-weekly. Executive understands that all salary, regardless of
form, paid to Executive under this Employment Agreement shall be subject to the
usual and customary federal and state tax withholding and other employment taxes
as required by law. Executive will receive a review of his base salary on the
anniversary of this Employment Agreement. Additional or increased compensation,
in the form of salary or other compensation, will be based on the Company's
performance as well as his individual contribution to that performance, and
shall be determined at the sole discretion of the Board of Directors.
(b) Stock.
(i) The Company agrees to sell to the Executive one million
five hundred thousand (1,500,000) shares of common stock of e.spire TM
Communications, Inc. ("Company Stock"), $.01 par value per share, at a per share
price equal to the closing price of the Company Stock on the Effective Date of
this Agreement. The Executive shall pay the purchase price for such shares by
the delivery of a check in the amount of $15,000, representing the par value of
the shares, and by the delivery of a full recourse promissory note for the
remaining amount to be fully repaid within twelve (12) months.
(ii) Executive shall be obligated to execute a Subscription
Agreement, a Restricted Stock Purchase Agreement and a Promissory Note and
Pledge Agreement with respect to such shares.
(c) Special Bonus. The Executive shall receive a special bonus in
the amount of one million dollars ($1,000,000) contingent on the Company's
achieving EBITDA positive financial results for the third quarter of 2001. Such
bonus shall be payable in cash within fifteen (15) business days following the
publication of the Company's third quarter financial results.
6. Fringe Benefit Plans. Executive shall be entitled to all benefits
accorded to Company officers in general. Executive shall also be entitled to
participate in fringe benefit plans, including, but not limited to, the
Company's medical and dental insurance, disability insurance, stock option
plans, 401(k) plan, employee stock purchase plan or other benefit plans which
may be adopted or amended by the Company from time to time during the term of
this Employment Agreement to the same extent and in the same manner as other
officers and executives similarly situated, as permitted by law. Except in the
case of terminations pursuant to sections 10(a) or 10(b), the Company agrees to
continue Executive's employment, with regard to payment of salary and
eligibility for benefits only, after the termination or expiration of this
Employment
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Agreement so that he may participate in the Company's fringe benefit plans in
the same manner as other employees, to the extent permitted by those plans, for
a period of five years. Notwithstanding the foregoing, Executive will not
participate in the Company's life insurance plan. Instead, the Company will pay
the annual premium on Executive's existing $2 million life
insurance policy during the term of this Employment Agreement and for two annual
premium periods thereafter.
7. Executive and Company Representations. Executive hereby represents and
warrants to the Company that: (a) the execution, delivery and performance of
this Employment Agreement by Executive does not and will not conflict with,
breach, violate or cause a default under any contract, agreement, instrument,
order, judgement or decree to which Executive is a party or is presently bound;
and (b) Executive is not a party to or bound by any employment agreement or
non-competition agreement with any other person or entity that has not been
disclosed to Company. Company will not ask Executive to take any action that
will cause him to violate the terms of his termination agreement with
Voicestream or its successors, a copy of which has been provided to Company.
8. Business Expenses. The Company shall reimburse Executive for all
reasonable business and professional expenses, including travel, incurred by
Executive in connection with his employment within thirty (30) days of the
Company's receipt of vouchers, receipts or other appropriate documentation which
conform to the requirements of the Company's expense reimbursement procedures.
"Reasonable expenses" include all travel expenses between Incline Village,
Nevada and Herndon, Virginia on a bi-weekly basis. "Reasonable expenses" also
include Executive's living expenses, such as housing and transportation, during
the periods he is located at the Company's headquarters at Herndon, Virginia.
9. Financial Planning Expenses. The Company shall reimburse Executive for
the fees paid to his financial adviser and tax planner, up to a maximum of
$15,000 per year, in addition to reasonable expenses associated with
professional assistance utilized for negotiation of this agreement.
10. Termination of Employment
(a) Termination Due to Death or Disability. In the event that the
Executive's employment terminates due to death or is terminated by the Employer
due to the Executive's Disability, the Company shall have no further obligations
under this Agreement. No post-termination benefits will be payable to Executive
except that, in the event of termination due to Disability, post-termination
life insurance premiums will be paid as provided in section 6, and Executive may
continue to participate in Company's other benefit plans as permitted by the
terms of those plans. For purposes of this Agreement, "Disability" means (i) a
disability as defined in the Company's insurance plan, or (ii) a physical or
mental illness, disability or
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incapacity that prevents the Executive from performing the essential functions
of his position, if the disability has existed continuously for a period of more
than three (3) consecutive months.
(b) Termination by the Employer for Cause. The Executive may be
terminated for "Cause" by the Employer. "Cause" will mean (i) the failure of the
Executive substantially to perform his duties hereunder (other than any such
failure due to the Executive's Disability) within a reasonable period after a
written demand for substantial performance is delivered to the Executive by the
Board, which written notice identifies in reasonable detail the manner in which
the Board believes that the Executive has not substantially performed his
duties; (ii) the Executive's engaging in serious misconduct that is or is
expected to be injurious to the Employer or any of its affiliates, including but
not limited to an act of dishonesty, fraud, embezzlement or theft; (iii) the
Executive's conviction of, or entering a plea of nolo contendere to a crime that
relates to the performance of the Executive's duties under this Agreement, to
any felony or to any crime of moral turpitude, with the exception of conviction
for vicarious liability; (iv) the material breach of the Executive of any
material obligations hereunder, or the material breach by the Executive of any
written covenant or agreement with the Employer or its affiliates not to
disclose any information pertaining to the Employer or not to compete or
interfere with the Employer or any of its affiliates, including without
limitation, the provisions of Sections 14-17 hereof, or (v) the Executive's
refusal to perform specific directives of the Board that are consistent with the
scope and nature of the Executive's duties. In the event of termination of
Executive for Cause, Company shall have no further obligations of any kind under
this Agreement.
(c) Notice of Termination. Any termination by the Employer pursuant
to Section 10(a) or 10(b), will be communicated by a written "Notice of
Termination" addressed to Executive. The Notice of Termination will state that
the Executive's employment hereunder has been or will be terminated, and
reference the specific termination provisions in this Agreement relied upon and
set forth in reasonable detail the facts and circumstances claimed to provide a
basis for such termination of employment.
(d) Termination by Executive With Cause. Executive may terminate
this Agreement for cause, which shall include a change in reporting relationship
described in paragraph 4, breach of contract by the Employer, significant
reduction in Executive's responsibilities, or a failure of a successor company
to assume this Agreement. Any termination by Executive pursuant to this
subsection will be communicated by a written "Notice of Termination" addressed
to the Board of Directors. The Notice will reference the specific termination
provision in this Agreement relied upon and set forth in reasonable detail the
facts and circumstances claimed to provide a basis for such termination.
(e) Termination Without Cause. A termination "Without Cause" will
mean a termination of employment by the Employer or Executive other than
termination due to death, Disability or Cause. Termination Without Cause shall
be at the option of either Company or Executive, and may be for any reason
whatsoever, provided that the terminating party gives
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written notice to the other party not later than 90 days prior to the scheduled
expiration of the term of the Agreement.
(f) Effect of Termination under subsections (d) and (e), or of
non-renewal. In the event that either party terminates pursuant to subsection
(d) or (e), or this agreement is not renewed at the end of its term pursuant to
section 2, the terms of paragraph 6 shall apply. If Executive has not yet
satisfied the conditions for the special bonus pursuant to section 5(c), he
shall be entitled to a pro rata share.
(g) Date of Termination. As used in this Agreement, the term "Date
of Termination" will mean the last date of the Employment Period and will refer
(i) if the Executive's employment is terminated by his death; to the date of his
death, (ii) if the Executive's employment is terminated by the Employer for
Cause, to the date on which Notice of Termination is given; (iii) if the
Executive's employment is terminated by the Employer due to the Executive's
Disability to the date that is thirty (30) days after the date on which Notice
of Termination is given; and (iv) if the Executive's employment is terminated
Without Cause, or by action of the Executive for good cause, to the date that is
ninety (90) days after the date on which Notice of Termination is given, or, if
no such Notice is given, thirty (30) days after the date of termination of
employment.
(h) Excise Tax on Change of Control Event. In the event Executive is
subject to any excise or similar taxes under IRC Sections 4999 and 280g for any
compensation associated with a change of control event, e.spire shall pay to or
reimburse Executive the amount of any such excise tax as well as any further
federal, state and local income taxes payable by Executive with respect to such
excise amounts received by Executive from Company.
11. Purchase of e.spire(TM) Communications, Inc. Securities. The Executive,
for his own account or the accounts of his immediate family, shall have the
right to participate in any private equity offerings in which the Xxxx
Alternative Income Fund, or any of its affiliates ("Xxxx") participate, on no
less favorable terms than Xxxx, subject to all applicable laws including
applicable securities laws and stock exchange requirements.
12. Loyalty. Executive represents that he has disclosed to the Company in
writing all obligations to third parties that might limit his ability to perform
services under this Employment Agreement. The performance of services hereunder
shall be Executive's exclusive employment relationship and Executive shall
devote the majority of his business time and best efforts to the performance of
services under this Employment Agreement. During the term of this Employment
Agreement, Executive shall not at any time or place whatsoever, either directly
or indirectly, engage in business or render services to any extent whatsoever to
any third party, unless expressly agreed upon by the parties. This paragraph
shall not prohibit Executive from continuing to serve on the Boards of Directors
of up to five corporate entities other than Company. Neither shall this
paragraph preclude Executive from providing consulting services to other
organizations, provided that such services do not interfere with his duties to
e.spire(TM).
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13. Confidential Information. Executive acknowledges that the proprietary
information, observations and data obtained by Executive while employed by the
Company concerning the business or affairs of the Company or any affiliate or
subsidiary thereof ("Confidential Information") are the property of the Company.
Therefore, Executive agrees not to disclose to any unauthorized person or use
for the Executive's account any Confidential Information without the prior
written consent of the Company unless and to the extent that the aforementioned
matters become generally known to and available for use by the public other than
as a result of Executive's acts or omissions. Upon request, Executive shall
deliver to the Company at the termination of this Employment Agreement, or at
any other time the Company may request, all memoranda, notes, plans, records,
reports, and other documents (and copies thereof) relating to the Confidential
Information or the business of the Company. This provision shall not apply to
information (other than Confidential Information even if obtained prior to this
Employment Agreement) deemed to be known by Executive at the time of the
execution of the Employment Agreement, including information gained by virtue of
his past experience and know-how, or to his general expertise.
14. Work Product. Executive agrees that all methods, analyses, reports,
plans and all similar or related information which: (a) relate to the Company or
any of its affiliates or subsidiaries and which (b) are conceived, developed or
made by Executive in the course of his employment by the Company ("Work
Product") belong to the Company. Executive will promptly disclose such Work
Product to the Company and perform all actions reasonably requested by the
company to establish and confirm such ownership by the Company.
15. Covenant Not to Solicit. For one (1) year following termination of
employment under the terms of this Employment Agreement, Executive covenants and
agrees with the Company not to, either directly or indirectly, whether acting on
behalf of himself or a corporation, partnership, joint venture or some other
entity:
(a) induce or attempt to induce any employee of the Company to leave
the Company's employ, or in any way interfere with the relationship between the
Company and any employee thereof; and/or
(b) hire directly or through another entity any person who was an
employee of the Company at any time during the twelve (12) months preceding
Executive's termination.
16. Covenants Not to Compete or Solicit. For one (1) year following the
termination of Executive's employment with the Company, Executive covenants and
agrees with the Company not to engage, either directly or indirectly, as an
equity owner or personally as an officer, director, employee, partner,
consultant or agent, in the rendering of any of the same services as are
provided by the Company at the time Executive's employment with the Company is
terminated, or which the Company has targeted to provide in its written business
plan which has been approved by the Board of Directors as of the time of such
termination, in any of the market
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areas in which the Company has targeted to provide such services in its business
plan at the time of such termination, provided that Executive may own up to 2%
of the outstanding equity securities of any publicly-traded company regardless
of whether any such company is a competitor of the Company, so long as
Executive's relationship to any such company is that of a strictly passive
investor.
17. Specific Performance. The Executive acknowledges that the services to be
rendered by him are of a special, unique and extraordinary character, and in
connection with such services, the Executive will have access to confidential
information vital to the company's business. Therefore, the Executive agrees
that if he violates any of the foregoing paragraphs 14-17, the Company would
sustain irreparable injury and that monetary damages would not provide adequate
remedy to the Company. The Executive hereby agrees that the Company shall be
entitled to have those paragraphs specifically enforced (including, without
limitation, by injunction and restraining order) by any court having equity
jurisdiction, and Executive agrees to subject himself to the jurisdiction of
said court. Nothing contained 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 damages from the Executive.
18. Reasonableness. The Parties agree that paragraphs 14-18 impose a
reasonable restraint on the Executive in light of the activities and business of
the Company on the date of execution of this Employment Agreement and the
current plans of the Company. Executive acknowledges that the covenants in these
paragraphs shall not prevent him from earning a livelihood upon the termination
of his employment, but merely prevent unfair competition with the Company for a
limited period of time Notwithstanding the foregoing, it is the intent of the
Company and the Executive that such covenants be construed and enforced in
accordance with the changing activities, business and locations of the Company
throughout the term of these covenants. All of these covenants shall be
construed as an agreement independent of any other provision in this Employment
Agreement, and the existence of any claim or cause of action of the Executive
against the Company shall not constitute a defense to the enforcement by the
Company of such covenants. These covenants shall survive the termination or
expiration of this Employment Agreement.
19. Non-Assignability. Neither this Employment Agreement nor any right or
interest hereunder hall be assignable or subject to any encumbrance, pledge,
hypothecation, attachment, or anticipation of any kind by Executive, his spouse
or his legal representatives, without the company's written consent but shall
inure to the benefit of and be binding upon Executive's estate. If Executive
should die while any amounts would still be payable to Executive under this
Employment Agreement, all such amounts will be paid in accordance with this
Employment Agreement to Executive's estate.
20. Entire Agreement. This Employment Agreement shall be the entire
agreement and understanding of the parties relating to the subject matter
hereof, and any prior negotiations, promises, agreements, representations,
warranties, or understandings relating to the same subject matter, and except as
specifically provided herein, shall be subject to subsequent modification
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only by another mutually signed written instrument which by its terms evidences
an intention to modify or amend the provisions hereof.
21. Choice of Law. This Employment Agreement shall be construed in
accordance with the laws of the State of Delaware without regard to the conflict
of law provisions thereof. For purposes of this Employment Agreement, the
parties consent to jurisdiction in the State of Delaware.
22. Cost of Enforcement. Each party shall bear its own costs and attorney's
fees in connection with any suit or proceeding against the other to enforce any
provision of this Employment Agreement or to recover damages resulting from a
breach hereof, however, the party which prevails in any such suit or proceeding
shall be entitled to receive from the non-prevailing party the costs and
reasonable attorneys' fees of the prevailing party incurred in such suit or
proceeding.
23. Severability. In the event that any provision hereof is determined to be
illegal or unenforceable, such determination shall not affect the validity or
enforceability of the remaining provisions hereof, all of which shall remain in
full force and effect.
24. Waiver. The waiver by either party of a breach of any provision of this
Employment Agreement by the other party shall not operate or be construed as a
waiver of any subsequent breach by such party.
25. Counterparts. This Employment Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Employment Agreement
shall become effective upon the execution of a counterpart hereof by each of the
parties hereto.
26. Notices. Any notice, request, claim, demand, document and other
communication hereunder to either party shall be effective upon receipt (or
refusal of receipt) and shall be in writing and delivered personally or sent by
telex or telecopy (with such telex or telecopy confirmed promptly in writing
sent by first class mail) or other similar means of communications, as follows:
(i) If to the Company, addressed to e.spire(TM) Communications
Services, Inc.,
00000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel;
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(ii) If to Executive, addressed to him at:
000 Xxxxxxx Xxxxx
Xxxxxxx Xxxxxxx, Xxxxxx 00000
or, in each case, to such other address or telex or telecopy number as such
party may designate in writing to the other by written notice given in the
manner specified herein.
All such communications shall be deemed to have been given, delivered or
made when so delivered personally or sent by telex or telecopy (confirmation
received), or five business days after being so mailed.
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INTENDING TO BE LEGALLY BOUND BY THIS EMPLOYMENT AGREEMENT, the parties
have signed below as of the date first written above.
EXECUTIVE: EMPLOYER:
/s/ XXXXXX X. XXXXXXX /s/ XXXXXXXX XXXXX
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Xxxxxx X. Xxxxxxx e.spire(TM) Communications, Inc.
1-2-01 2-26-01
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Date Date
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