EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement") is made and effective this
29th day of March 1999 by and between Phoenix Communications, Inc. ("Company")
and __________________________ ("Executive").
NOW, THEREFORE, the parties hereto agree as follows:
1. EMPLOYMENT
A. Company hereby agrees to initially employ Executive as its
___________________ ________________________________ and Executive hereby
accepts such employment in accordance with the terms of this Agreement and the
terms of employment applicable to regular employees of Company. In the event of
any conflict or ambiguity between the terms of this Agreement and terms of
employment applicable to regular employees, the terms of this Agreement shall
control. Election or appointment of Executive to another office or position,
regardless of whether such office or position is inferior to Executive's initial
office or position, shall not be a breach of this Agreement.
B. The Employee will devote full time, attention, and energies to the business
of the Company and during this employment, will not engage in any other business
activity, regardless of whether such activity is pursued for profit, gain, or
other pecuiany advantage unless approved by the Chief Executive Officer of
Phoenix Communications Inc. A list of those approved activities will be
contained in Attachment A to this document. Employee is not prohibited from
making personal investments in other business provided those investments do not
require active involvement in the operation of said companies.
C. Employee agrees, during and after the term of this employment, not to
reveal confidential information, or trade secrets to any person, firm,
corporation, or entity. Should Employee reveal to reveal this information,
the Company Shall be entitled to an injunction restraining the Employee from
disclosing same, of from rendering any services to any entity to whom said
information has been or threatened to be disclosed. The right to secure an
injunction is not exclusive, and the Company may pursue any other remedies it
has against the Employee for breach or threatened breach of this condition,
including the recovery of damages from the Employee.
2.0 DUTIES OF EXECUTIVE
A. The duties of Executive shall include the performance of all of the
duties typical of the office held by Executive as described in the bylaws of
the Company and such other duties and projects as may be assigned by a
superior officer of the Company, if any, or the board of directors of the
Company. Executive shall devote his entire productive time, ability and
attention to the business of the Company and shall perform all duties in a
professional, ethical and businesslike manner. Executive will not, during
the term of this Agreement, directly or indirectly engage in any other
business, either as an employee, employer, consultant, principal,
officer, director, advisor, or in any other capacity, either with or without
compensation, without the prior written consent of Company as defined in
Paragraph 1.B above. In addition to the duties described herein, Executive is
also authorized and directed to do the following:
[Other Specific Duties or Authorization].
3. COMPENSATION
Executive will be paid compensation during this Agreement as follows:
A. A base salary of $___________________________ per year, payable in
installments according to the Company's regular payroll schedule. The base
salary may be increased at the end of each year by the compensation committee of
the board of directors. The adjustment will be based upon a written evaluation
of the Executive, prepared by the Executive's immediate supervisor.
B. The Executive is eligible for an award of an Executive Bonus computed as
defined in 3.C below beginning with the Company's fiscal year end 1999 and each
fiscal year thereafter during the term of this Agreement.
C. An Executive Bonus pool equal to 5.0% of the adjusted net profits
(hereinafter defined) of the Company. "Adjusted net profit" shall be the net
profit of the Company before federal and state income taxes, determined in
accordance with generally accepted accounting practices by the Company's
independent accounting firm and adjusted to exclude: (i) any Executive Bonus
payments paid pursuant to this Agreement; (ii) any contributions to pension
and/or profit sharing plans; (iii) any extraordinary gains or losses (including,
but not limited to, gains or losses on disposition of assets); (iv) any refund
or deficiency of federal and state income taxes paid in a prior year; and (v)
any provision for federal or state income taxes made in prior years which is
subsequently determined to be unnecessary. The determination of the adjusted
net profits made by the independent accounting firm employed by the Company
shall be final and binding upon Executive and Company. The Executive Bonus
payment shall be made within thirty (30) days after the Company's independent
accounting firm has concluded its audit. If the final audit is not prepared
within ninety (90) days after the end of the fiscal year, then Company shall
make a preliminary payment equal to fifty percent (50%) of the amount due based
upon the adjusted net profits preliminarily determined by the independent
accounting firm, subject to payment of the balance, if any, promptly following
completion of the audit by the Company's independent accounting firm. The
maximum Executive Bonus payable for any one year shall not exceed 100% of the
then applicable base salary of Executive.
D. Executive will be entitled to participate in the employee stock option
plan as detailed in that agreement.
4. BENEFITS.
A. HOLIDAYS. Executive will be entitled to at least seven (7) paid holidays
and and four (4) personal days each calendar year. Company will notify
Executive on or about the beginning of
each calendar year with respect to the holiday schedule for the coming year.
Personal holidays, if any, will be scheduled in advance subject to
requirements of Company. Such holidays must be taken during the calendar
year and cannot be carried forward into the next year. Executive is not
entitled to any personal holidays during the first six months of employment.
B. VACATION. Following the first six months of employment, Executive shall
be entitled to twenty paid vacation days each year.
C. SICK LEAVE. Executive shall be entitled to sick leave and emergency
leave according to the regular policies and procedures of Company.
Additional sick leave or emergency leave over and above paid leave provided
by the Company, if any, shall be unpaid and shall be granted at the
discretion of the board of directors.
D. MEDICAL AND GROUT) LIFE INSURANCE. Company agrees to include Executive
in the group medical and hospital plan of Company and provide group life
insurance for Executive at no charge to Executive in the amount of one times
the annual income during this Agreement. Executive shall be responsible for
payment of any federal or state income tax imposed upon these benefits.
E. PENSION AND PROFIT SHARING PLANS. Executive shall be entitled to
participate in any pension or profit sharing plan or other type of plan
adopted by Company for the benefit of its officers and/or regular employees.
F. EXPENSE REIMBURSEMENT. Executive shall be entitled to reimbursement for
all preapproved reasonable expenses, including travel and entertainment,
incurred by Executive in the performance of Executive's duties. Executive
will maintain records and written receipts as required by the Company policy
and reasonably requested by the board of directors to substantiate such
expenses.
G. AUTOMOBILE. Company will provide to Executive with an auto allowance of
$500.00 per month
5. TERM AND TERMINATION.
A. The Initial Term of this Agreement shall commence on April 1, 1999 and it
shall continue in effect for a period of Three Years. Thereafter, the Agreement
shall be renewed upon the mutual agreement of Executive and Company. This
Agreement and Executive's employment may be terminated at Company's discretion
during the Initial Term, provided that Company shall pay to Executive an amount
equal to payment at Executive's base salary rate for the remaining period of
Initial Term. In the event of such termination, Executive shall not be entitled
to any incentive salary payment or any other compensation then in effect,
prorated or otherwise.
B. This Agreement and Executive's employment may be terminated by Company
at its discretion at any time after the Initial Term, provided that in such
case, Executive shall be paid
a payment equal to six (6) months of Executive's then applicable base salary.
In the event of such a discretionary termination, Executive shall not be
entitled to receive any incentive salary payment or any other compensation
then in effect, prorated or otherwise.
C. This Agreement may be terminated by Executive at Executive's discretion by
providing at least thirty (30) days prior written notice to Company. In the
event of termination by Executive pursuant to this subsection, Company may
immediately relieve Executive of all duties and immediately terminate this
Agreement, provided that Company shall pay Executive at the then applicable base
salary rate to the termination date included in Executive's original termination
notice.
D. In the event that Executive is in breach of any material obligation owed
Company in this Agreement, habitually neglects the duties to be performed
under this Agreement, engages in any conduct which is dishonest, damages the
reputation or standing of the Company, or is convicted of any criminal act or
engages in any act of moral turpitude, then Company may terminate this
Agreement upon five (5) days notice to Executive. Prior to termination the
Executive will be given written notification of lack of performance of breach
of items identified in this paragraph. The notification will identify the
breach and provide an adequate (typically 60 days or less) time for the
Executive to remedy the breach. In event of termination of the agreement
pursuant to this subsection, Executive shall be paid only at the then
applicable base salary rate up to and including the date of termination.
Executive shall not be paid any incentive salary payments or other
compensation, prorated or otherwise.
E. In the event Company is acquired, or is the non-surviving party in a
merger, or sells all or substantially all of its assets, The Company will use
its best efforts to have this Agreement assigned to the acquirer or surviving
Company.
6. NOTICES.
Any notice required by this Agreement or given in connection with it, shall
be in writing and shall be given to the appropriate party by personal
delivery or by certified mail, postage prepaid, or recognized overnight
delivery services;
If to Company:
Phoenix Communications, Inc.
00000 Xxxxxxx Xxxx
Xxxxxx, XX @ 80134
If to Executive:
[Executive]
[Executive's Address]
7. FINAL AGREEMENT.
This Agreement terminates and supersedes all prior understandings or
agreements on the subject matter hereof. This Agreement may be modified only
by a further writing that is duly executed by both parties.
8. GOVERNING LAW.
This Agreement shall be construed and enforced in accordance with the laws of
the state of Colorado.
9. HEADINGS.
Headings used in this Agreement are provided for convenience only and shall not
be used to construe meaning or intent.
10. NO ASSIGNMENT.
Neither this Agreement nor any or interest in this Agreement may be assigned by
Executive without the prior express written approval of Company, which may be
withheld by Company at Company's absolute discretion.
11. SEVERABILITY.
If any term of this Agreement is held by a court of competent jurisdiction to be
invalid or unenforceable, then this Agreement, including all of the remaining
terms, will remain in full force and effect as if such invalid or unenforceable
term had never been included.
12. ARBITRATION.
The parties agree that they will use their best efforts to amicably resolve any
dispute arising out of or relating to this Agreement. Any controversy, claim or
dispute that cannot be so resolved shall be settled by final binding arbitration
in accordance with the rules of the American Arbitration Association and
judgment upon the award rendered by the arbitrator or arbitrators may be entered
in any court having jurisdiction thereof. Any such arbitration shall be
conducted in Denver, Colorado, or such other place as may be mutually agreed
upon by the parties. Within fifteen (15) days after the commencement of the
arbitration, each party shall select one person to act as arbitrator, and the
two arbitrators so selected shall select a third arbitrator within ten (10) days
of their appointment. Each party shall bear its own costs and expenses and an
equal share of the arbitrator's expenses and administrative fees of arbitration.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Employee Xx. X. Xxxxxxx-CEO
-------------------------------- -------------------------------------------
Dated Dated
Schedule to Executive Employment Agreement
Identifying Other Employment Agreements
to Which Telecom Wireless Is a Party
That Are Substantially Identical And
Material Details in Which Such Agreements
Differ from Filed Agreement
Automobile
Employee Title Annual Salary Allowance
-------- ----- ------------- -----------
Xxxx X. Xxxxxxx Vice President and Chief Technical Officer hourly
Xxxxxx X. Xxxxxxxx Senior Vice President $225,000 $500.00
Xxxxx Xxxxxxx, Xx. Executive Vice President-Business Development $225,000 $500.00
Xxxxx Xxxxxxxx Executive Vice President-Finance,
Chief Financial Officer $250,000 $500.00
Xxxxx Xxxxxxx Vice President-Product Development $125,000 $500.00
Xxxxxx X. Xxxxxx President $225,000 $500.00
