PREMIERE GLOBAL SERVICES, INC. AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EXHIBIT 10.1
PREMIERE GLOBAL SERVICES, INC.
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into by and between PREMIERE GLOBAL SERVICES, INC., a Georgia corporation (the “Company”), and XXXXXXXX X. XXXXXXXX (the “Employee”), on September 15, 2006, to be effective as of July 20, 2006 (the “Effective Date”).
The Employee and the Company’s subsidiary, American Teleconferencing Services, Ltd., entered into that certain Employment Agreement as of January 1, 2000, as amended by a First Amendment to Employment Agreement dated as of January 1, 2001, a Second Amendment to Employment Agreement dated as of May 30, 2003 and a Third Amendment to Employment Agreement dated as of April 22, 2005 (as amended, the “Original Agreement”). The Company and the Employee desire to amend and restate the Original Agreement as set forth herein.
THEREFORE, in consideration of and reliance upon the foregoing Background Statement and the representations and warranties contained in this Agreement, and other good and valuable consideration, the Company and the Employee amend and restate the Original Agreement as follows:
Section 1. Duties. The Company hereby employs the Employee as President of the Company. The Employee will have the powers, duties and responsibilities set forth in the Company’s Bylaws and as from time to time assigned to him by the Company’s Board of Directors or its Chief Executive Officer consistent with such position, and the Employee will report directly to the Chief Executive Officer. The Employee will devote substantially all of his business time to faithfully and industriously perform his duties and promote the business and best interests of the Company. The Employee’s duties hereunder are to be performed (subject to travel as may be required in the conduct of his duties hereunder) at the Company’s corporate headquarters located in Atlanta, Georgia.
Section 4. Termination of Employment.
Section 4.2. Termination by the Company without Cause or by the Employee with Good Reason.
(a) The Company may terminate the Employee’s employment under this Agreement for “Cause,” which shall consist of any of the following:
(i) the willful and continued failure of the Employee to perform substantially his duties with the Company (other than any such failure resulting from incapacity due to physical or mental illness, and specifically excluding any failure by the Employee, after reasonable efforts, to meet performance expectations), after a written demand for substantial performance is delivered to he Employee by the Chief Executive Officer of the Company which specifically identifies the manner in which the Chief Executive Officer of the Company believes that the Employee has not substantially performed his duties; (ii) the willful engaging by the Employee in illegal conduct or gross misconduct which has, or reasonably may be expected to have, a substantial, adverse effect upon the Company; (iii) Employee’s violation of any written policy of the Company; (iv) the Employee’s indictment, conviction, or entry of a plea of guilty or nolo contendere for the commission or perpetration of any felony or any crime involving dishonesty, embezzlement, theft, moral turpitude or fraud; (v) the Employee’s breach of any provision of Section 5 of this Agreement; or (vi) the Employee’s breach of any other material term or covenant of this Agreement; provided that such breach is not cured, if it is susceptible to cure, within thirty (30) days following receipt of notice from the Company setting forth the allegations of Cause. |
(b) The Employee may terminate his employment under this Agreement for “Good Reason,” which shall consist of any of the following:
(i) the assignment to the Employee of any duties inconsistent in any respect
with the Employee’s position (including status, offices, titles
and reporting requirements), authority, duties or responsibilities
with the Company or any other |
action by the Company which results in a diminution in such position, authority, duties or responsibilities, excluding for this purpose an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by Employee; (ii) a material reduction in the Employee’s base salary or target bonus opportunity without a corresponding adjustment to, or the provision by the Company to the Employee of, alternate compensation, having an equivalent value, in a different form (including, without limitation, cash incentive awards, stock and stock-based awards, or other property); (iii) a material breach by the Company of any of the provisions of this Agreement; or (iv) the Company’s requiring the Employee without his consent to be based at any office or location other than the Atlanta, Georgia area. |
However, no such event described hereunder shall constitute Good Reason unless the Employee has given written notice to the Company specifying the event relied upon for such determination within ninety (90) days after the occurrence of such event and the Company has not remedied such situation within thirty (30) days of receipt of such notice. The Company shall notify the Employee of the timely cure of any claimed event of Good Reason and the manner in which such cure was effected, and any notice of termination delivered by the Employee based on such claimed Good Reason that has been cured shall be deemed withdrawn and shall not be effective to terminate the Agreement.
(c) Any non-renewal of the term of this Agreement by the Company pursuant to Section 3 hereof, in contemplation of, or within twenty-four (24) months after, a Change in Control (as defined below) shall be deemed to constitute a termination by the Company without Cause as of the expiration of the then-current term of this Agreement.
(d) If the Employee’s employment with the Company under this Agreement is terminated (i) by the Company without Cause either before or after a Change in Control or (ii) by the Employee with Good Reason within twenty-four (24) months after a Change in Control, the Employee will be entitled to receive (A) an amount equal to his annual base salary through the date of termination (the “Termination Date”) to the extent not theretofore paid, (B) a pro rata portion of any quarterly bonus earned by the Employee with respect to the calendar quarter in which the termination occurs, payable on or about the same date that bonuses for such calendar quarter are paid to other executive officers of the Company, (C) severance pay equal, in the aggregate, to two hundred percent (200%) of the Employee’s annual base salary in effect on the Termination Date, and (D) an amount equal to the cost of the Employee’s COBRA coverage for eighteen (18) months, determined as of the Termination Date. Subject to Section 8, if the Employee’s employment with the Company is terminated by the Company without Cause before a Change in Control or more than twenty-four (24) months after a Change in Control, the
amounts in clauses (C) and (D) shall be paid in accordance with the Company’s payroll practices over the twenty-four (24) month and eighteen (18) month periods, respectively, following the Termination Date. If, during the twenty-four (24) months after a Change in Control, the Employee’s employment with the Company is terminated by the Company without Cause or by the Employee with Good Reason, the Employee will be entitled to receive the amounts in clauses (C) and (D) payable in a lump sum within five (5) business days of the Termination Date. As a condition to the payment of these severance amounts, the Employee will sign a release and waiver of claims in substantially the form set forth in Exhibit A hereto.
(e) For the purposes of this Agreement, a “Change in Control” shall mean the occurrence of any of the following events:
(i) An acquisition (other than directly from the Company) of any voting securities of the Company (“Voting Securities”) by any “Person” (as the term person is used for purposes of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”)) immediately after which such Person has “Beneficial Ownership” (within the meaning of Rule 13d-3 promulgated under the 0000 Xxx) of fifty percent (50%) or more of the combined voting power of the Company’s then outstanding Voting Securities; provided, however, that in determining whether a Change in Control has occurred, Voting Securities that are acquired in an acquisition by (A) an employee benefit plan (or a trust forming a part thereof) maintained by (I) the Company or (II) any corporation or other person of which a majority of its voting power or its equity securities or equity interests are owned directly or indirectly by the Company (a “Subsidiary”), or (B) the Company or any Subsidiary, or (C) any Person in connection with a “Non-Control Transaction” (as hereinafter defined), shall not constitute an acquisition for purposes for this clause (i); or
(ii) The individuals who, as of the date of this Agreement, are members of the Board of Directors of the Company (the “Incumbent Board”) cease for any reason to constitute at least sixty percent (60%) of the Board; provided, however, that if the election, or nomination for election by the Company’s shareholders, of any new director was approved by a vote of at least eighty percent (80%) of the Incumbent Board, such new director shall for purposes of this Agreement, be considered as a member of the Incumbent Board; provided, further, however, that no individual shall be considered a member of the Incumbent Board if such individual initially assumed office as a result of either an actual or threatened “Election Contest” (as described in Rule 14a-11 promulgated under the 0000 Xxx) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board (a “Proxy Contest”), including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest; or
(iii) Approval by the shareholders of the Company of:
(A) a merger, consolidation or reorganization involving the Company, unless:
(I) the shareholders of the Company, immediately before such merger, consolidation or reorganization, own, directly or indirectly, immediately following such a merger, consolidation or reorganization, at least fifty one percent (51%) of the combined voting power of the outstanding voting securities of the corporation resulting from such merger, consolidation or reorganization (the “Surviving Corporation”) in substantially the same proportion as their ownership of the Voting Securities immediately before such merger, consolidation or reorganization, and (II) the individuals who were members of the Incumbent Board immediately prior to the execution of the agreement providing for such merger, consolidation or reorganization constitute at least two thirds (2/3) of the members of the board of directors of the Surviving Corporation. (A transaction in which both of clauses (I) and (II) above shall be applicable is hereinafter referred to as a “Non-Control Transaction.”); or |
(B) A complete liquidation or dissolution of the Company; or
(C) | An agreement for the sale or other disposition of
all or substantially all of the assets of the Company to any Person (other
than a transfer to a Subsidiary). |
Section 4.4. Compensation Upon Termination by the Company for Cause or by the Employee without Good Reason. In the event the Company terminates the Employee’s employment hereunder for Cause, or if the Employee terminates his employment pursuant to Section 4.3, the Company will pay to the Employee his accrued base salary through the termination date, as well as any earned and accrued but unpaid bonus compensation.
Section 5. Restrictive Covenants.
Company and the Company’s significant investment of resources and money in specialized training and professional development of the Employee concerning the Company’s unique business services, processes and strategies. Accordingly, the Employee acknowledges that he will be in a position to have a substantial adverse impact on the Company’s business interests should the Employee engage in activities in violation of the restrictive covenants of this Section 5. The Employee acknowledges that the Company is materially relying upon the Employee’s compliance with the terms of this Section 5 and that the Employee’s covenants herein are material to the Company’s ongoing operations. The Employee further acknowledges that the Employee’s adherence to the restrictive covenants set forth in this Section 5 is also an important and substantial part of the consideration that the Company is receiving under this Agreement and agrees that the term, geographic area and scope of the restrictive covenants in this Section 5 are reasonably necessary to protect and preserve the legitimate business interest of the Company and enforceable in all respects. Employee further acknowledges and agrees the Employee is capable of obtaining gainful, lucrative and desirable employment that does not violate the restrictions contained in this Agreement.
(a) Non-competition. Participate in the ownership or management of, or provide services, within a seventy-five (75) mile radius of each location in which the Company conducts “Business” (as defined below) within the United Sates on the Effective Date of the Agreement (the “Territory”), of substantially the same nature or character as those provided to the Company by the Employee to any business that directly or indirectly competes with the Company in the Territory with respect to audio and data conferencing and Web-based collaboration services and multimedia messaging (high-volume actionable communications, including e-mail, wireless messaging, voice message delivery, SMS messaging and fax) (collectively, the “Business”). Employee acknowledges and agrees that in connection with his performance of the duties set forth in Section 1, Employee will be performing services in and have overall responsibility, including without limitation management and sales and marketing responsibility, for each of these office locations.
shall be deemed to have had “material contact” with a customer if (a) he had business dealings with the customer on the Company’s behalf; (b) he was responsible for supervising or coordinating the dealings between the Company and the customer; or (c) he obtained Trade Secrets or Confidential Information about the customer as a result of his association with the Company.
(c) Non-recruitment. Solicit or induce, or attempt to solicit or induce, any of the Company’s employees, agents, consultants, or independent contractors to terminate their relationship with the Company or to establish a relationship with a competitor of the Company of substantially the same nature or character theretofore existing with respect to the Company.
(d) Non-disparagement. Speak or act in any manner that is intended to, or does in fact, damage the goodwill or the business or reputation of the Company.
For purposes of this Agreement, the Restricted Period will be a period beginning on the Effective Date and continuing for a period of one (1) year after the termination or expiration of the Employee’s employment hereunder, regardless of the reason for such termination or expiration. The foregoing notwithstanding, the Employee may own as a passive investment less than three percent (3%) of any class of securities registered pursuant to the 1934 Act of any corporation engaged in competition with the Company pursuant to Section 5.2(a) hereof so long as the Employee does not otherwise (i) participate in the management or operation of any such business, or (ii) violate any other provision of this Agreement.
(a) The Employee agrees to maintain in strict confidence, and not use or disclose to anyone except pursuant to written instructions from the Company, any “Trade Secret” of the Company, for so long as the pertinent data or information remains a Trade Secret, provided that the obligation to protect the confidentiality of any such information or data shall not be excused if such information or data ceases to qualify as a Trade Secret as a result of the unauthorized acts or omissions of the Employee.
(b) The Employee agrees to maintain in strict confidence and, except as necessary to perform his duties hereunder, not to use or disclose any “Confidential Information” during his employment hereunder and for a period of two (2) years thereafter.
(c) Upon termination of the Employee’s employment with the Company, the Employee shall not retain or destroy and shall return to the Company any and all property and all business records of the Company and its customers, including, but not limited to, cell phones, keys, credit and identification cards, computers, files, personal items or equipment provided to the Employee for his use, together with all written or recorded materials, contracts, calendars, telephone lists, electronically stored information, documents, computer disks, plans, records (including, without limitation, customer records on computer drives, computer disks or paper), notes or other materials relating to the Company, its business or its customers, including all copies thereof, regardless of whether the Employee prepared them himself or they were provided to the Employee by the Company or any customer. At all times, the items listed above shall remain the property of the Company or its customers.
(d) The Employee may disclose Trade Secrets or Confidential Information pursuant to any order or legal process requiring him (in his legal counsel’s reasonable opinion) to do so, provided that the Employee shall first have notified the Company in writing of the request or order to so disclose the Trade Secrets or Confidential Information in sufficient time to allow the Company to seek an appropriate protective order.
(e) “Trade Secret” shall mean information that is a trade secret as defined under applicable law. In the absence of a definition under applicable law, a “Trade Secret” shall mean any information, without regard to form, including, but not limited to, technical or non-technical data, a formula, a pattern, a compilation, a program, a plan, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which is not commonly known by, or available to, the public and which information (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
(f) “Confidential Information” shall mean any nonpublic information of a competitively sensitive nature, other than Trade Secrets, acquired by the Employee, directly or indirectly, in connection with the Employee’s employment, including (without limitation) oral, written or electronic information concerning the Company, its businesses, or its customers, suppliers or partners that is not generally known to the public or the Company’s competitors and which has value to the Company or its customers, including, but not limited to the following: information concerning the Company’s financial position and results of operations (including, but not limited to, revenues, margins, EBITDA, net income, assets and liabilities); annual and long-range business plans and methods; product or service plans; technical information; inventions; marketing plans and methods, account invoices; training, educational and administrative manuals; customer information, including names, addresses, telephone numbers, customer requirements, and purchase histories; “Customer Content” (as defined below);
and associate lists. Confidential Information shall not include any data or information that has been voluntarily disclosed to the public by the Company (except where such public disclosure has been made by or at the direction of the Employee without authorization), that has been independently developed and disclosed by others, or that otherwise enters the public domain through lawful means. “Customer Content” shall mean any nonpublic information or content owned by the Company’s customers and disclosed to the Company and/or Employee, either directly or through the Company’s services, including technical data, financial information, proprietary information, business information or information protected by a confidentiality agreement between the Company and its customers.
Section 6. Ownership of Employee’s Work
Section 17. Arbitration. Any dispute between the parties shall be resolved through binding arbitration conducted by the American Arbitration Association under the rules then in effect. The parties agree that any arbitration proceeding shall be conducted in Atlanta, Georgia and hereby consent to jurisdiction and venue there. The predominately nonprevailing party, as determined by the arbitrator(s), shall pay the reasonable attorneys’ fees and other expenses of the predominately prevailing party in any such arbitration or resulting litigation.
Section 19. Governing Law. This Agreement shall be governed by and interpreted in accordance with the substantive laws of the State of Georgia without reference to conflicts of law.
prepaid by certified or registered mail with return receipt requested, or when delivered by overnight delivery service or by facsimile to the recipient at the following address or facsimile number, or to such other address or facsimile number as to which the other party subsequently shall have been notified in writing by such recipient:
If to the Company:
Premiere Global Services, Inc.
0000 Xxxxxxxxx Xxxx
The Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Chief Legal Officer
Facsimile: (000) 000-0000If to the Employee:
Xxxxxxxx X. Xxxxxxxx
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
PREMIERE GLOBAL SERVICES, INC.
By:
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/s/
Xxxxxx X. Xxxxx |
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Xxxxxx X. Xxxxx |
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Its:
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Chief Executive Officer | |
EMPLOYEE |
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/s/ Xxxxxxxx
X. Xxxxxxxx
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Xxxxxxxx X. Xxxxxxxx |