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Exhibit 10.19
Employment Agreement
THIS EMPLOYMENT AGREEMENT, is made and entered into as of the first
day of April, 1996. by and between Global TeleSystems Group, Inc., a Delaware
corporation (the "Corporation"), and Xxxxxx X. Xxxxxx (the "Executive").
WITNESSETH:
WHEREAS, the Executive has substantial experience operating
international telecommunications ventures; and
WHEREAS, the Corporation desires to employ the Executive, and
the Executive desires to be employed by the Corporation, in accordance with the
terms and provisions herein contained;
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein set forth, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Employment.
(a) The Corporation hereby employs the Executive, and the
Executive hereby accepts such employment, on the terms, and subject to the
conditions herein contained.
(b) The Executive shall be the President and Chief
Executive Officer of the Corporation. In this capacity as President and Chief
Executive Officer, the Executive, subject to the direction of the Board of
Directors of the Corporation, Executive shall supervise, manager and administer
the operations, business and affairs of the Corporation and shall perform such
duties and exercise such power and authority as may from time to time be
delegated to him by the Board of Directors of the Corporation, consistent with
his position as Chief Executive Officer of the Corporation.
(c) The Executive shall devote all of his business time
and attention and his best efforts to the performance of his duties pursuant to
this Employment Agreement. Executive may, with the consent of the Board of
Directors of the Corporation serve on the board of directors of other
businesses or entities provided that Executive is not involved with the
operations of any such business or entity, that serving as a director of such
entity shall not interfere with Executive's performance of his duties under
this Agreement, and that any entity for which Executive shall serve as a
director shall not compete with the Corporation
(d) The Corporation shall, during the Term, nominate the
Executive for election to the Board of Directors of the Corporation at the
annual meeting of the shareholders of the Corporation.
2. Term.
(a) The initial term of the employment of the Executive under this
Employment Agreement shall be three years commencing on April 1, 1996, and
continuing, unless sooner terminated pursuant to Section 9.
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(b) Thereafter this Agreement shall be automatically renewed
annually, unless either party hereto shall deliver written notice in accordance
with Section 15 to the other party at least 180 days prior to the date
termination of the initial term or any extension or renewal there (the "Term")
of its desire to terminate such employment (a "Notice Termination").
3. Compensation.
(a) During the initial Term, the Executive shall be paid a salary
at the rate of three hundred twenty five thousand dollars ($325,000) per annum,
payable in accordance with the Corporation's customary payroll practices for
Executives.
(b) At the end of each fiscal year the Corporation shall review
the salary of the Executive, and shall make such adjustments to base salary as
the Corporation shall, in its sole and absolute discretion, deem appropriate.
(c) For the purposes of this Agreement, "Salary" shall mean any
payment by the Corporation to the Executive pursuant to this Section 3.
4. Bonus Opportunities.
(a) As additional compensation to the Executive hereunder, the
Corporation shall pay to the Executive a bonus (the "Bonus") in respect of each
fiscal year of the Company. Subject to the provisions of Section 4(b), the
initial target for such Bonus, based on 100% achievement of objectives by the
Corporation shall be fifty (50%) of the Salary of the Executive in any fiscal
year. Payment of the Bonus will be subject to and adjusted upwards for
accomplishment of objectives. The Bonus plan will be reviewed and adjusted
upward on an annual basis, if deemed appropriate by the Board of Directors of
the Corporation in its sole and absolute discretion.
(b) The formula or other methods for determining the Bonus for the
Executive in each fiscal year shall be determined by the Corporation in
coordination with the Compensation Committee of the Board of Directors, and
shall be based upon the performance of the Corporation and the Executive in
such fiscal year as compared with the projected expected performance of the
Corporation for such fiscal years. The actual amount of the Bonus paid to the
Executive in respect to the performance of any fiscal year of the Corporation
shall be subject to the sole and absolute discretion of the Board of Directors
of the Corporation.
(c) All bonuses with respect to any fiscal year of the Corporation
shall be paid as soon as practical subsequent to the issuance of the
consolidated financial statements of the Corporation.
5. Stock Option Plan
(a) The Corporation has adopted the 1992 Stock Option Plan, as
amended (the "Plan") for its employees. Subject to the provision of the Plan,
a copy of which is annexed hereto as Exhibit A, and the execution and delivery
of an option agreement (the "Option Agreement"), in the form annexed hereto as
Exhibit B, the Executive is eligible for the Corporation to grant to the
Executive options to purchase Common Stock of the Corporation ("Common Stock").
The specific number and terms of the options are presented in the Plan and the
Option Agreement annexed hereto.
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(b) In the event that the Corporation establishes one or more
additional stock option plans for its Executives, the Executive may be eligible
to receive options under such plans, as determined by the Compensation
Committee of the Board of Directors of the Corporation.
6. Benefits. During the Term, the Executive shall be entitled to
receive such benefits and to participate in such employee group benefit plans
as are generally provided by the Corporation, or made available by the
Corporation, to its Executives, including without limitation, but subject to
the conditions imposed by the carriers, any medical, health, disability and
life insurance policies. In addition, during the Term. the Corporation shall
provide to the Executive use of a late model automobile acceptable to the
Corporation, at the Corporation's expense, in an amount not to exceed $750.00
per month. The Corporation shall insure said automobile for collision, property
damage, medical payment for injury and liability.
7. Expense Reimbursement.
(a) During the Term, the Corporation shall reimburse the Executive
for all reasonable expenditures actually and necessarily paid or incurred by
the Executive in the course of and pursuant to the business of the Corporation.
Such reimbursement shall be subject to the submission to the Corporation by the
Executive of appropriate documentation and/or vouchers, and shall be made in
accordance with the customary procedures of the Corporation for expense
reimbursement, as may from time to time be established.
(b) Should the Corporation provide Executive with a credit card,
Executive acknowledges complete personal responsibility for all charges made on
such credit card. Any charges received by the Corporation for expenses not
documented on an approved expense report may be deducted by the Corporation
from the Executive's payroll check. Upon termination of this Agreement, non
approved charges shall be deducted from the last payroll check issued to the
Executive.
(c) It is contemplated by the parties hereto that Executive may
travel and/or commute extensively in connection with Executive's services under
this Agreement. In connection with such travel, the Corporation shall pay for
or reimburse Executive for such travel expenses, including meals and lodging,
in accordance with the customer practices of the Corporation for such
expenditures.
8. Vacation. In each fiscal year during the Term, the Executive shall be
entitled to 4 weeks vacation time, which shall not be cumulative from year to
year without the prior written consent of the Corporation or unless the
Executive shall be unable to take such vacation due to Executive's duties under
this Agreement; provided, however, that to the extent the Executive cannot take
vacation time during the Term due to his responsibilities under this Agreement,
upon termination, Executive shall be entitled to be compensated for accrued but
unused vacation time.
9. Termination.
(a) Notwithstanding anything to the contrary contained in this
Agreement, the Corporation shall at all times have the right to terminate
immediately this Agreement and the employment of the Executive hereunder for
"Cause" by written notice to the Executive in accordance with Section 15. For
the purpose of this Agreement, the term "Cause" shall mean any action of the
Executive or any failure to act by the Executive which constitutes:
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(i) fraud, embezzlement or any felony in connection with
the Executive's duties as an Executive of the Corporation or any
subsidiary or affiliate of the Corporation, or willful misconduct or
the commission of any other act which causes or may reasonably be
expected to cause substantial economic or reputational injury to the
Corporation or any such subsidiary or affiliate of the Corporation,
including any violation of the Foreign Corrupt Practices Act, as
described in Section 13 of this Agreement;
(ii) a continuing conflict of interest or continuing
failure to follow reasonable directions or instructions of the Board
of Directors or Chief Executive Officer of the Corporation. A conflict
of interest or a failure to follow directions of the Corporation shall
be deemed to be continuing if the Executive shall have received
written notice thereof and shall have not terminated the conflict of
interest or failure to follow directions within thirty days after
receipt of such notice;
(iii) an extended period of absence by the Executive from
the performance of the obligations of the Executive provided
hereunder, which absence shall be for a reason other than a
disability, and which has not been approved in writing in advance by
the Corporation; or
(iv) a failure to meet minimum satisfactory performance
requirements for a performance period. For this purpose, the
Corporation and the Executive will agree in a separate, written
document to the terms of each performance period and the minimum
satisfactory performance requirements applicable to each such
performance period. This document may be modified or extended only by
the mutual consent of both parties.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the Corporation, by written notice to the Executive, shall at all
times have the right to terminate this Agreement and the employment of the
Executive hereunder if the Executive shall experience a "Total Disability".
For the purpose of this Agreement, the term "Total Disability" shall mean any
mental or physical illness, condition, disability or incapacity as shall:
(i) prevent the Executive from reasonably discharging
required services and employment duties hereunder,
(ii) be attested to in writing by a physician or a group
of physicians acceptable to the Corporation; and
(iii) continue during any period of three consecutive
months or for periods aggregating three months in any eighteen month
period.
A Total Disability shall be deemed to have occurred on the last day of
such applicable three month period.
(c) This Agreement shall terminate automatically upon the date of
the death of the Executive
(d) The Executive may terminate the Agreement at any time by
giving 180 days' written notice to the Corporation in accordance with Section
15. Upon giving such notice, the Executive shall be continued in employment
with the Corporation for the full 180 days) of the notice period, be continued
in employment with the Corporation without
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the existence of an employment agreement, or at the discretion of the
Corporation may be paid his/her salary and have applicable benefits hereunder
continued for such 180 day period in lieu of continued employment. Failure of
the Executive to provide the full 180 days notice shall be deemed a breach of
the agreement by the Executive and permit the Corporation to cease immediately
the compensation and benefits provided herein, and if deemed necessary, to take
remedial action to prohibit any further damages as may occur from the breach by
the Executive.
10. Payments Upon Termination.
(a) If the Corporation shall terminate the employment of the
Executive under this Agreement pursuant to Section 9(a) hereof, or if the
employment of the Executive hereunder shall be terminated by the Executive
other than in accordance with Section 2 or Section 9(d), then, in any such
event, the Corporation shall have no obligation to pay to the Executive base
salary or any other compensation or benefits provided under this Agreement for
any period after the date of such termination, or to pay any Bonus for the year
in which such termination occurs; provided, however, that the Corporation shall
pay all Salary earned by the Executive prior to the date of such termination
and the reimbursement of all expenses incurred by the Executive prior to the
date of such termination in accordance with Section 7 hereof. Upon termination
pursuant to Section 9(a) or by the Executive other than in accordance with
Section 2 or Section 9(d), all options granted to the Executive pursuant to
Section 5 shall immediately be canceled and no further options shall vest.
(b) If the employment of the Executive hereunder shall terminate
pursuant to subsections 9(b) or (c) hereof, if the employment of the Executive
shall be terminated by the Corporation in accordance with Section 2 hereof, or
if the Executive shall be terminated by the Corporation other than in
accordance with the provisions of this Agreement, the Corporation shall pay to
the Executive or the Executive's Estate, as the case may be, the Salary and
target Bonus for the fiscal year in which the termination occurs, prorated for
the number of weeks during which the Executive was employed by the Corporation
during such fiscal year.
(c) In the event that the Corporation terminates the employment of
the Executive by delivering notice in accordance with Section 2, or for any
reason other than those set forth in Section 9, the Executive shall receive as
severance an amount equal to number of months/days of the notice period, (e.g.,
twelve months Salary); provided, however, that in the event that the Executive
is subject to the covenants and agreements set forth in Section 11, the amount
of the severance payable to the Executive shall be equal to the number of
months/days during which the Executive remains subject to the covenants and
agreements set forth in Section 11. Such severance pay shall be paid in equal
monthly installments, commencing the month following such termination, and
shall be payable in accordance with the Corporation's customary payroll
practices for Executive officers.
(d) In the event that the employment of the Executive is
terminated due to a Total Disability or the death of the Executive in
accordance with Section 9(b) or 9(c) hereof, then the Executive or his
designated beneficiary, as the case may be, shall receive such amounts as are
provided for in the disability policy or life insurance policy provided by the
Corporation for the benefit of the Executive.
11. Covenants of the Executive. In order to induce the Corporation
to enter into this Agreement and employ the Executive hereunder, the Executive
hereby covenants and agrees as follows:
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(a) During the term and for a period of twelve months thereafter,
the Executive shall not, without the prior written consent of the Corporation:
(i) directly or indirectly, own, acquire in any manner
any interest in any person, firm, partnership, corporation,
association or other entity which competes with the Corporation or any
of its affiliates or subsidiaries; or
(ii) be employed by, or serve as an employee, agent,
officer, director of, any person, firm, partnership, corporation, or
provider of cross-border telecommunications services, including long
distance services, for major international carriers and other
telecommunications operators in Western Europe and independent
operators and developers of telecommunications companies in China,
CIS, India and the Pacific Rim which provides voice and data
telecommunications services to business customers and other
telecommunications operators.
The foregoing provisions of this Section 11(a) shall not prevent the
Executive from acquiring and/or owning not more than nine per cent of the
equity or debt securities of any company which has securities listed for
trading on a recognized securities exchange or are regularly traded in the
National Association of Securities Dealers Automated Quotation System.
(b) The Executive shall not at any time, other than in the
ordinary course of business of the Corporation, when and if required, disclose,
directly or indirectly, to any person, firm, corporation, partnership,
association or other entity, any confidential information concerning the
financial condition, suppliers, customers, lessors, lessees, sources of leads
for and methods of obtaining new business or the methods generally of doing and
operating the respective businesses of the Corporation, its affiliates and
subsidiaries, except that such information is a matter of public knowledge or
is required to be disclosed by law or judicial or administrative process.
(c) During the Term and for a period of twelve months thereafter,
the Executive shall not, without the prior written consent of the Corporation,
directly or indirectly through any other individual or entity:
(i) solicit, entice, persuade or induce any individual
who currently is, or at any time during the Term shall be, an employee
of the Corporation, or any of its affiliates, to terminate or refrain
from renewing or extending such person's employment with the
Corporation or such subsidiary or affiliate, or to become employed by
or enter into contractual relations with any other individual or
entity, and the Executive shall not approach any such employee for any
such purpose or authorize or knowingly cooperate with the taking of
any such actions by any other individual or entity; or
(ii) except in accordance with the Executive's duties
hereunder on behalf of the Corporation, solicit, entice, persuade, or
induce any individual or entity which currently is, or at any time
during the Term shall be, a customer, supplier, lessor or lessee of
the Corporation, or any of its subsidiaries or affiliates, to
terminate or refrain from renewing or extending its contractual or
other relationship with the Corporation or such subsidiary or
affiliate, and the Executive shall not approach any such customer,
supplier, lessor or lessee for such purpose or authorize or knowingly
cooperate with the taking of any such actions by any other individual
or entity.
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(d) In the event that the Corporation terminates the employment of
the Executive by delivering notice in accordance with Section 2, or for any
reason other than those set forth in Section 9, the Corporation may, in its
sole discretion, elect to waive the application of the covenants and agreements
set forth in Section 11 to the Executive.
12. Specific Performance. The Executive acknowledges that a breach
or violation by the Executive of the covenants or agreements contained in
Sections 11 and 13 of this Agreement would cause irreparable harm and damage to
the Corporation if such provisions are not specifically enforced, the monetary
amount of which would be impossible to ascertain. Therefore, the Corporation
shall be entitled to enforce such provisions in a court of equity by a decree
of specific performance and to obtain an injunction from any court of competent
jurisdiction enjoining and restraining any breach or violation of any or all of
the covenants and agreements contained in Sections 11 and 13 of this Agreement
by the Executive and/or his employees, associates, partners or agents, or
entities controlled by one or more of them, either directly or indirectly. Such
remedies shall be cumulative and not exclusive and shall be in addition to
whatever other rights or remedies the Corporation shall have for damages for a
breach by the Executive of the covenants or agreements contained in Section 11
or elsewhere in this Agreement. Notwithstanding anything herein to the
contrary, the Corporation hereby expressly reserves the right to seek damages
and other economic remedies for a breach by the Executive of the covenants or
agreements contained in Section 11 or elsewhere in this Agreement.
13. Foreign Corrupt Practices Act. You agree to comply in all
respects with the U.S. Foreign Corrupt Practices Act of 1977 (FCPA), as
amended, which provides generally that: under no circumstances will foreign
officials, representatives, political parties or holders of public offices be
offered, promised or paid any money, remuneration, things of value, or provided
any other benefit, direct or indirect, in connection with obtaining or
maintaining contracts or orders hereunder. Your failure to comply in all
respects with the provisions of the FCPA shall constitute a material breach by
you of your obligations hereunder and shall entitle Global TeleSystems Group,
Inc. to terminate this Agreement immediately. A copy of the Corporation's FCPA
policy is annexed hereto as Exhibit C.
14. No Delegation. The Executive shall not delegate his
employment obligations under this Agreement to any other person.
15. Notices. Any notice required or permitted must be approved by
the Corporation according to the terms of this Agreement and must be approved
in writing and with appropriate confirmation of receipt, certified mail, return
receipt requested, or overnight courier to the following addresses:
If to the Corporation: Global TeleSystems Group, Inc.
Attn: General Counsel
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx 00xx Xxxxx
XxXxxx, XX 00000 XXX
If to the Executive: Xxxxxx X. Xxxxxx
000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
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with a copy to: Xxxxxxx X. Xxxxxx, Esq.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Either party may change the address to which notices, requests,
demands and other communications to such party shall be delivered personally or
mailed by giving notice thereof to the other party hereto in the manner herein
provided. Renewal notices shall be deemed approved at the time when such are
approved by the Compensation Committee of Board at an official meeting.
16. Binding Effect. This Agreement shall be for the benefit of
and binding upon the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and, where applicable,
assigns.
17. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements, understandings and arrangements, both oral
and written, between the parties hereto with respect to such subject matter.
This Agreement may not be modified, amended, altered or rescinded in any
manner, except by written instrument signed by both of the parties hereto;
provided, however, that the waiver by any party of compliance by any other
party with respect to any provision hereof or of any breach by such other party
need be signed only by the party waiving such provision or breach; provided,
further, that the waiver by either party hereto of a breach or compliance with
any provision of this Agreement shall not operate nor be construed as a waiver
of any subsequent breach or compliance.
18. Severability. In case any one or more of the provisions of
this Agreement shall be held by any court of competent jurisdiction to be
illegal, invalid or unenforceable in any respect, such provision shall be not
force and effect, but the illegality, invalidity or unenforceability of any
other provision of this Agreement, but this Agreement shall be construed as if
such illegal, invalid or unenforceable provision had never been contained
herein.
19. Choice of Laws. The Executive and the Corporation intend and
hereby acknowledge that jurisdiction over disputes with regard to this
Agreement shall be exclusively in the courts of the Commonwealth of Virginia,
and this Agreement shall be governed by the laws of the Commonwealth of
Virginia as to the validity, interpretation, and enforcement thereof.
20. Arbitration. Any and all disputes, controversies and claims
arising out of or relating to this Agreement, shall be settled and determined
by arbitration conducted before a panel of three arbitrators in Virginia in
accordance with the rules of the American Arbitration Association then in
effect. The arbitrators' award shall be final and binding upon the Corporation
and the Executive, and judgement confirming such arbitration may be entered
thereon in any court having jurisdiction over such proceedings.
21. Section Headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any manner
the meaning or interpretation of this Agreement.
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22. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the day and year first above written.
Global TeleSystems Group, Inc.
by: [ILLEGIBLE]
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Title:
/s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
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