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EXHIBIT 10.1
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement is entered into this 13th day of
December 1999 between Xxxxxx X. Xxxxxxxx, a resident of Houston, Texas
("Executive") and Intelect Communications, Inc., a Delaware corporation.
1. The Company and Executive have previously entered into that
certain Employment Agreement dated July 1, 1998 (the "Employment
Agreement").
2. In order to clarify the operation of certain of the
provisions of the Employment Agreement, the parties hereby desire to
amend the Employment Agreement as follows.
NOW THEREFORE, in consideration of the mutual promises contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The first sentence of Section 5(b) is deleted in its entirety and
replaced with the following:
"The Company and Executive agree that in the event that the Executive's
employment with the Company is terminated by the Executive pursuant to Section
10(a) hereof or by the Company other than as specified in Section 9(a)(iii)
hereunder, all unvested stock options issued and outstanding to the Executive as
of the date of notice of termination shall vest upon (i) the effectiveness of
the notice of termination of employment delivered pursuant to Section 10(a)
hereof, or (ii) such date that written notice of termination is delivered to
Executive."
2. As amended hereby, the Employment Agreement remains in full force and
effect.
IN WITNESS WHEREOF, the parties hereby execute this amendment effective
the date first written above.
"COMPANY"
INTELECT COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, Executive Vice
President and Chief Financial Officer
"EXECUTIVE"
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
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EMPLOYMENT AGREEMENT
BETWEEN
INTELECT COMMUNICATIONS, INC.
AND
XXXXXX X. XXXXXXXX
Effective the 1st day of July, 1998 (the "Effective Date"), XXXXXX X. XXXXXXXX
("Executive") and INTELECT COMMUNICATIONS, INC., a Delaware corporation
("Company"), hereby agree as follows:
1. TERM
Subject to the provisions for earlier termination specified hereunder,
the initial Term of Executive's employment by Company under this Agreement is
three (3) years extending from the Effective Date hereof to June 30, 2001.
Thereafter, the Term of this Agreement shall be continuous, provided however
that Company, if terminating this Agreement on any basis other than as provided
in Section 9 hereof, shall provide written notice of termination to Executive
and the effective date of such termination shall be on the next December 31
following three years from Executive's receipt of such notice. For example,
notice of termination received by Executive on August 15, 1999 would have an
effective date of December 31, 2002.
2. TITLE AND DUTIES
During the Term, Executive shall be employed by Company as its Chairman
and Chief Executive Officer. Executive shall devote his full time and best
efforts exclusively to the Company, provided, however, that the foregoing shall
not preclude Executive from engaging in charitable and community affairs,
managing his personal passive investments, and accepting membership and serving
on boards of other companies with the prior approval of the Company's Board of
Directors (not to be unreasonably withheld), provided that none of such
activities or managing shall interfere with, or be inconsistent with, the
performance of his duties hereunder. Executive shall perform such duties, which
shall not be inconsistent with his position as Chairman and Chief Executive
Officer of Company and as are agreed from time to time with the Board of
Directors of the Company and any other duties undertaken or accepted by
Executive. Executive shall operate within the Company's bylaws, goals,
guidelines, budgets, directives, policies and procedures. Company agrees to use
its best efforts to cause Executive to be elected to hold a position on the
Board of Directors of Company (or its successor in interest), at each annual
meeting of stockholders at which Executive's director class comes up for
election. Executive agrees to serve on the Board if elected. Executive agrees to
serve as Company's designee for similar or related positions on the boards of
directors and in the senior management of the Company's subsidiaries and
affiliates, which may also provide Executive with compensation for such
additional responsibilities and obligations with prior approval by the Company's
Board of Directors.
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3. SALARY
Executive shall receive a minimum base salary of $275,000 per annum
during the term hereof. Salary payments shall be made in equal installments in
accordance with Company's then prevailing payroll policy. It is expressly
acknowledged that the level of Executive's salary and overall compensation
hereunder may be increased from time to time by action of the Compensation
Committee in respect of the operating performance of the Company, the increasing
complexity and scope of Company's activities and the increasing participation
and importance of Executive's services and position.
4. BONUS
For each full year of the Term completed by Executive, Executive will
be eligible for an annual discretionary bonus which will be determined by the
Compensation Committee of the Board of Directors. Pursuant to Company's
applicable bonus policies or bonus plan as in effect from time to time, such
bonus may be determined according to criteria intended to qualify under Section
162(m) of the Internal Revenue Code, as amended (the "Code").
5. STOCK OPTIONS
(a) Executive shall be entitled to be granted stock options to purchase
common stock of Company pursuant to Company's 1995 Stock Incentive Plan as
amended from time to time and related rules, or pursuant to such stock option
plan as may hereafter be duly adopted by Company and related rules (the
applicable plan and rules pursuant to which such options shall be granted being
hereinafter referred to as the "Plan") in such amounts and on such terms as
shall be determined by the Stock Option Committee of the Company.
(b) The Company and Executive agree that in the event that the
Executive's employment with the Company is terminated by the Company on any
basis other than as specified in Section 9(a)(iii) hereunder, all unvested stock
options issued and outstanding to the Executive as of the date of notice of
termination shall vest upon such date that written notice of termination is
delivered to Executive. The parties also agree that with respect to any stock
options granted by the Company which are outstanding as of the date that written
notice of termination is provided to Executive, the expiration date of any and
all such stock options shall be the corresponding December 31st effective date
of termination of the Agreement as established under Section 1 hereof. All stock
option agreements outstanding between the Company and Executive as of the date
of the execution of this Agreement, and all stock option agreements which may be
executed hereafter by and between such parties, are hereby amended and modified
to conform and shall conform to the text of this Section 5(b) as if the text
hereof were fully set forth in the text of each such stock option agreement.
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6. BENEFITS AND PERQUISITES
At any given time during the Term of this Agreement, Executive shall be
entitled to receive the benefits and perquisites then currently made available
to senior executives of Company and such other arrangements as may from time to
time be appropriate for Executive's position, as designated by the Compensation
Committee.
7. REIMBURSEMENT FOR EXPENSES
Executive shall be expected to incur various business expenses customarily
incurred by persons holding like position, including but not limited to
traveling, entertainment and similar expenses, all of which are to be incurred
by Executive for the benefit of Company. Subject to Company's policy regarding
the reimbursement and non-reimbursement of such expenses (which policy does not
necessarily provide for reimbursement of all such expenses but which shall be
applied to Executive in a manner consistent with the application of such policy
to other senior executives of the Company), Company shall reimburse Executive
for such expenses from time to time, at Executive's request, and Executive shall
account to Company for such expenses.
8. PROTECTION OF COMPANY'S INTERESTS
(a) During the term of Executive's employment by Company, Executive
will not compete in any manner, directly or indirectly, whether as a principal,
employee, consultant, agent, owner or otherwise, with Company or any affiliate
thereof, except that the foregoing will not prevent Executive from holding at
any time less than 5% of the outstanding capital stock of any company whose
stock is publicly traded.
(b) Any confidential and/or proprietary information of Company or any
affiliate thereof (including, without limitation, any information relating to
the identities, capabilities, compensatory and contractual arrangements and/or
general personnel data of employees of Company and its affiliates to which
Executive has access) shall not be used by Executive or disclosed or made
available by Executive to any person except as required in the course of his
employment, and upon expiration or earlier termination of the term of this
Agreement, Executive shall return to Company all such information that exists in
written or other physical form (and all copies thereof) under his control.
9. TERMINATION BY COMPANY
(a) Company shall have the right to terminate Executive's employment
with Company under the following circumstances:
(i) Upon death of Executive.
(ii) Upon notice from Company to Executive in the event of
illness or other disability which has totally and permanently incapacitated him
from performing his duties for six consecutive months as determined in good
faith by the Board of Directors.
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(iii) For good cause, effective (A) immediately upon notice
from Company if Company shall reasonably determine that the conduct or cause
specified in such notice is not curable; or (B) upon thirty days' notice from
Company, if Company shall determine that the conduct or cause specified in such
notice is curable, unless Executive has, within ten days after the date such
notice has been given by Company, commenced in good faith to cure the conduct or
cause specified in such notice and has completed such cure within 30 days
following the date of such notice. Termination by Company of Executive's
employment for "good cause" or "fault" as used in this Agreement shall be
limited to: (a) conviction of a felony or a crime of moral turpitude which, in
the reasonable good faith judgment of the Board, materially damages the
reputation of the Company or would materially interfere with the Executive's
performance of duties under this Agreement, (b) gross negligence, gross
malfeasance or gross non-feasance by Executive in the performance of his duties
under this Agreement (excepting where arising from temporary inability to
perform arising from a short term illness and/or recovery therefrom), (c)
willful misconduct of Executive intended to have, and having, a material adverse
affect on the Company, (d) sustained refusal of Executive to follow specific
written directions of the Board within the normal scope of the duties of
Executive established consistent with Section 2 hereof, and (e) material breach
of Executive's obligations under Section 8 hereof.
(b) Whenever compensation is payable to Executive hereunder during a
time when he is partially or totally disabled and such disability would entitle
him to disability income or to salary continuation payments from Company
according to the terms of any plan now or hereafter provided by Company or
according to any Company policy in effect at the time of such disability, the
compensation payable to him hereunder shall be inclusive of any such disability
income or salary continuation and shall not be in addition thereto. If
disability income is payable directly to Executive by any insurance company
under an insurance policy paid for by Company, the amounts paid to him by said
insurance company shall be considered to be part of the payments to be made by
Company to him pursuant to this Section 11(b) and shall not be in addition
thereto.
10. TERMINATION BY EXECUTIVE
(a) Executive shall have the right to terminate his employment under
this Agreement upon 30 days' notice to Company given within 60 days following
the occurrence of any of the following events, provided that Company shall have
20 days after the date such notice has been given to Company in which to cure
the conduct or cause specified in such notice:
(i) Executive is not elected or retained in accordance with
Section 2 hereof as Chairman and Chief Executive Officer and a director of
Company.
(ii) Company shall assign duties to Executive hereunder which
are materially inconsistent with his position as Chairman and Chief Executive
Officer.
(iii) Company shall reduce Executive's salary or shall deny
his eligibility for annual discretionary bonuses, or Company shall fail to make
any compensation payment required hereunder.
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(b) Additionally, following the Initial Term of this Agreement,
Executive shall have the right to terminate this Agreement on three (3) months'
advance written notice to Company, and in such event Company shall not be
obligated to pay Executive the Non-Fault Payment, the Termination Payment or the
Change of Control Termination Payment specified hereunder.
11. SEVERANCE: NON-FAULT PAYMENT, CONTRACT TERMINATION PAYMENT, CHANGE OF
CONTROL TERMINATION PAYMENT
(a) In the event that this Agreement with Executive is terminated on
any basis other than as specified in Section 9(a)(iii) or Section 10 (b) hereof,
Executive or his estate may elect to receive a lump sum payment equal to the
present value (based on Company's then current cost of borrowing) of three
years' compensation at 100% of Executive's highest base salary in effect at the
time of or prior to the Non-Fault Termination of Executive's employment (the
"Non-Fault Payment").
(b) In the event that this Agreement with Executive is terminated
pursuant to Section 10 (a)(i), (ii), or (iii) hereof, Company shall pay to
Executive a cash contract termination payment of the greater of $1,000,000 or
the sum of three years' compensation at 100% of Executive's highest base salary
in effect at the time of or prior to such termination (the "Termination
Payment").
(c) In the event that this Agreement with Executive is terminated by
the Company following a change of control of the Company, Company shall pay to
Executive a cash contract termination payment in an amount equal to equal to
that calculated under Section 11(b) hereof (the "Change of Control Termination
Payment"). "Change of control" for purposes hereof shall be deemed to have
occurred as of the time of any of the following events: (i) the consolidation,
merger or other business combination with or into another person or entity
(other than pursuant to a migratory merger effected solely for the purpose of
changing the jurisdiction of the Company) involving the issuance, exchange or
sale of more than 49.9% of the shares of the Company's Common Stock then
outstanding, (ii) the sale or transfer of all or substantially all of the
Company's assets, or (iii) a purchase, tender or exchange offer made to the
holders of more than 49.9% of the outstanding shares of the Company's Common
Stock.
(d) Company may purchase insurance to cover all or any part of its
obligations set forth in this Section, and Executive agrees to take a physical
examination to facilitate the obtaining of such insurance. The Non-Fault
Payment, the Termination Payment (if applicable) and the Change of Control
Termination Payment (if applicable) shall be made to Executive (or to his
estate, if applicable) not later than the earlier of (i) 30 days after the date
that such payment shall not be subject to Section 162(m) of the Code, or (ii)
four months after the end of the last fiscal year of Company during which
Executive was employed by Company.
12. EXCLUSIVE REMEDY
Executive acknowledges and agrees that the Non-Fault Payment,
Termination Payment (if applicable) and the Change of Control Termination
Payment (if applicable) payable in the event of a Non-Fault Termination, and the
provisions relating to any Non-Fault Termination set forth in
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Section 5 hereof regarding stock options (including, if applicable, any
alternative provisions which might be subsequently agreed to in accordance with
Section 5 hereof) are fair and reasonable and shall constitute Executive's sole
ant exclusive remedy, in lieu of all rights and claims of Executive, at law or
in equity, for a Non-Fault Termination, including, expressly, for termination of
his employment by Company in a manner which shall constitute a breach of this
Agreement, and for all other rights and claims of any nature whatsoever related
to any such termination, and Executive hereby irrevocably waives all rights and
claims of any nature whatsoever in respect of any such termination except for
such Non-Fault Payment, Termination Payment (if applicable), Change of Control
Termination Payment (if applicable) and provisions relating to stock options.
Such payments shall not be limited or reduced by amounts Executive might earn or
be able to earn from any other employment or ventures following a Non-Fault
Termination.
13. ASSIGNMENT
Company may assign this Agreement or all or any part of its rights
hereunder to any entity that succeeds to all or substantially all of Company's
assets or that holds, directly or indirectly, all or substantially all of the
capital stock of Company or that is otherwise a successor in interest to Company
generally, and this Agreement shall inure to the benefit of, and be binding
upon, such assignee or successor in interest. This Agreement is personal to
Executive and Executive may not, without the express written permission of
Company, assign or pledge any rights or obligations hereunder to any person,
firm, corporation or other entity.
14. CERTAIN PAYMENTS
The parties believe that the payments to Executive and the vesting of
stock options under certain circumstances specified hereunder do not constitute
"Excess Parachute Payments" under Section 280G of the Code. Notwithstanding such
belief, if any payment or benefit under this Agreement, including but not
limited to those under Sections 5 or 9 hereof, is determined to be an "Excess
Parachute Payment" Company shall pay Executive an additional amount ("Tax
Payment") such that (x) the excess of all Excess Parachute Payments (including
payments under this sentence) over the sum of excise tax thereon under Section
4999 of the Code and income tax thereon under Subtitle A of the Code and under
applicable state law is equal to (y) the excess of all Excess Parachute Payments
(excluding payments under this sentence) over income tax thereon under Subtitle
A of the Code and under applicable state law.
15. KEY MAN INSURANCE
Company shall have the right to secure, in its own name or otherwise,
and at its own expense, life, disability, accident or other insurance covering
Executive and Executive shall have no right, title or interest in or to such
insurance. Executive shall assist Company in procuring such insurance by
submitting to reasonable examinations and signing such applications and other
instruments as may be required by the insurance carriers to which application is
made for any such insurance.
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16. INDEMNIFICATION
Executive is entitled to the maximum indemnification rights provided
under the Certificate of Incorporation of the Company, as amended from time to
time. The Company agrees to maintain directors and officers liability insurance
covering Executive to the full extent that the Company provides such coverage to
its other senior executives, including but not limited to indemnification
effective during post-employment status of Executive.
17. ENTIRE AGREEMENT; AMENDMENTS, WAIVER; GOVERNING LAW; ARBITRATION, ETC.
(a) This Agreement supersedes all prior and/or contemporaneous
agreements and/or statements, whether written or oral, concerning the terms of
Executive's employment, and no amendment or modification of this Agreement shall
be binding unless set for in a writing signed by Company and Executive. No
waiver by either party of any breach by the other party of any provision or
condition of this Agreement shall be effective unless in writing and signed by
the party effecting the waiver, and no such waiver shall be deemed a waiver of
any similar or dissimilar provision or condition at the same or any prior or
subsequent time.
(b) In the event of any conflict between my provision of this Agreement
and any present or future statute law, ordinance or regulation, the latter shall
prevail, but in such event the provision of this Agreement affected shall be
curtailed and limited only to the extent necessary to bring it within legal
requirements.
(c) Any dispute arising out of the terms and conditions of this
Agreement or the breach hereof shall be settled by binding arbitration in the
City of Houston in accordance with the laws of the State of Texas. The
arbitration shall be conducted accordance with the rules of the American
Arbitration Association then in effect. Each party shall bear its own attorney's
fees and shall share equally the cost of arbitration. However, if Executive
prevails in a challenge as to the Company's determination of good cause,
Executive shall be reimbursed by the Company for any reasonable costs or
expenses incurred in such challenge including reasonable attorney's fees and
cost of arbitration.
(d) This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas.
18. NOTICES
All notices that either party is required or may desire to give the
other shall be in writing shall be effective (i) upon personal delivery or (ii)
three business days after deposit of same with the United States Postal Service
for delivery by certified mail, return receipt requested, addressed to the party
to be given notice as follows:
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To Company: Intelect Communications, Inc
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
Attn: Board of Directors
With copy to: Xxxx & Sudan, L.L.P.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx Xxxxx 00000-0000
To Executive: Xxxxxx X. Xxxxxxxx
0000 Xxxxxx
Xxxxxxx, Xxxxx 00000
Either party may by written notice designate a different address for the other
party's delivery of notices.
19. HEADINGS
The headings set forth herein are included solely for the purpose of
identification and shall not be used for the purpose of construing the meaning
of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
"COMPANY"
INTELECT COMMUNICATIONS, INC.
/s/ Xx Xxxxxxx
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Xx Xxxxxxx, Chief Financial Officer
"EXECUTIVE"
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
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