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EXHIBIT 10.25
EMPLOYMENT AGREEMENT
This employment agreement ("Agreement") is made as of December 17, 1998
by and between IXC Communications, Inc., a Delaware corporation (the "Company"),
and Michael W. Vent ("Employee").
BACKGROUND
Employee is now, and has been for several years, employed by the Company
as an "at will" employee. The Company and Employee now desire to enter into a
formal employment contract with a fixed term and certain non-compete and other
provisions, all as set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereto, intending to be
legally bound, hereby agree as follows:
SECTION 1. CAPACITY AND DUTIES
1.1 Employment, Acceptance of Employment Effective December 17, 1998,
the Company employs Employee as President, Network Services, and Employee hereby
accepts such employment with the Company, for the period and upon the terms and
conditions hereinafter set forth.
1.2 Capacity and Duties.
(a) Employee shall be employed by the Company as President, Network
Services, and shall perform such duties and shall have such authority,
consistent with his position, as may from time to time reasonably be specified
by the Board of Directors of the Company (the "Board").
(b) Employee shall devote Employee's full-time attention, energies,
skills, learning and best efforts to the business of the Company and, during the
term of this Agreement, shall not be engaged, directly or indirectly, in any
other business activity or render services of a business, professional or
commercial nature to any other person, firm or corporation, in competition with
the Company, except as otherwise agreed to in writing by the Company.
SECTION 2. TERM OF EMPLOYMENT
2.1 Term. The term of Employee's employment hereunder shall commence on
December 17, 1998, and shall continue until December 31, 2000, unless earlier
terminated as hereinafter provided. Upon the expiration of such term, Employees
employment with the Company shall continue on an at will employment basis until
terminated by either party.
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SECTION 3. COMPENSATION
3.1 Basic Compensation. As compensation for Employee's services
hereunder, the Company shall pay to Employee a salary at the annual rate of
$270K payable in periodic installments in accordance with the Company's regular
payroll practices in effect from time to time, or at such higher annual rate as
the Board shall from time to time determine in its sole discretion. The Board
shall review Employee's salary no less frequently than annually.
3.2 Incentive Compensation. In addition to the base salary provided in
Section 3.1 hereof, Employee shall be eligible to receive an annual bonus in
accordance with the Company's policy, targeted at the same percentage of base
salary as other senior executives of the Company, upon meeting the defined
corporate objectives set by the Board and the personal objectives set by the
CEO.
3.3 Health and Dental Benefits. In addition to the compensation provided
for in Section 3.1 and Section 3.2 hereof, Employee shall be entitled to all
rights and benefits for which Employee is eligible under any health and dental
insurance policies that IXC provides to its employees or officers in comparable
positions during the term of this Agreement.
3.4 Vacation. Employee shall be entitled to paid vacation during the
term of his employment hereunder in accordance with the Company's vacation
policy.
3.5 Reimbursement of Business Expenses. The Company will, upon
submission of appropriate documentation, promptly reimburse employee for
reasonable and authorized business expenses (including travel, entertainment,
business meetings, telephone and similar items) incurred by Employee during the
term of this Agreement in accordance with the Company's policy.
3.6 Stock Options. In consideration of Employee entering into this
Agreement and specifically agreeing to the noncompetition provisions of
paragraph 5.1 below, Employee shall be granted stock options covering 100,000
shares of common stock of IXC Communications, Inc. issued at a strike price
equal to the closing market price on the date Employee commences employment
hereunder. These options will vest equally over four (4) years, twenty-five
percent on each one year anniversary of the commencement of Employees
employment, under the terms of the standard Stock Option Agreement for SLT
members to be subsequently executed between Company and Employee. Such stock
options shall be granted by the Administrative Committee of the Board.
3.7 Loan. The Company will loan Employee $200,000.00. Such loan will
bear interest at the rate of seven percent (7%) per annum, compounded annually,
and will be due and payable one hundred twenty (120) days after termination of
Employee's employment with the company. The loan, including all interest accrued
thereon, will be subject to forgiveness at the time of, and in accordance with,
the following provisions:
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3.7.1 Twenty-five percent (25%) of the outstanding balance of the
loan, including all interest thereon, will be forgiven on each
one year anniversary of the commencement of this Agreement
(December 17th of each year), provided Employee is still
employed by the Company on such date.
3.7.2 The outstanding balance of the loan, including all interest
accrued thereon, will be forgiven upon the termination of
Employee's employment hereunder in accordance with the
provisions of paragraphs 4.1, 4.2, or 4.4 of this Agreement,
or a Change of Control as that term is defined in Section 4:
CHANGE IN CONTROL in Employee's Non-Qualified Stock Option
Agreement under the IXC Communications, Inc. 1998 Stock Plan.
3.8 Other Benefits. In addition to the benefits set forth in this
Section 3, Employee shall be entitled to all other rights and benefits that IXC
provides to its employees or officers in comparable positions during the term of
this Agreement.
SECTION 4. TERMINATION OF EMPLOYMENT
4.1 Death of Employee Employee's employment hereunder shall immediately
terminate upon his death.
4.2 Disability of Employee. If Employee, in the reasonable opinion of a
physician selected by the Board, is materially unable, due to a physical, mental
or emotional illness or condition, to perform his duties hereunder for a period
of three consecutive months, the Board shall have the right to terminate
Employee's employment upon 30 days' prior written notice to Employee at any time
during the continuation of such inability.
4.3 Termination for Cause. The Board may terminate Employee's employment
hereunder for "cause" immediately upon written notice to Employee. As used
herein, "cause" shall mean the following:
(a) fraud committed in connection with Employee's employment, or
theft, misappropriation or embezzlement of the Company's funds or property;
(b) conviction of any felony, crime involving fraud or
misrepresentation, or any other crime the effect of which is likely to
materially adversely affect the Company;
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(c) failure to follow a reasonable lawful directive of the Board or
an authorized Company officer or director following two business days' notice
that such failure shall constitute grounds for termination for cause; or
(d) abuse of alcohol or other drugs which materially interferes with
the performance by Employee of his duties hereunder, provided that Employee has
been given 30 days' prior written notice by the Board of its intent to terminate
Employee pursuant to this provision during which time Employee has not
demonstrated the cessation of such abuse to the reasonable satisfaction of the
Board.
4.4 Termination Without Cause. If the Employee's employment is
terminated by the Company for any reason other than as set forth above,
Employee's termination shall be considered "without cause."
4.5 Payments upon Termination.
(a) If Employee's employment is terminated as a result of his death,
the Company shall not thereafter be obligated to make any further payments under
this Agreement other than amounts payable hereunder accrued as of the date of
Employee's death in accordance with generally accepted accounting principles.
(b) If Employee's employment is terminated by the Company pursuant
to Section 4.2 (disability), the Company shall not thereafter be obligated to
make any further payments under this Agreement other than amounts payable
hereunder accrued as of the date of Employee's termination in accordance with
generally accepted accounting principles.
(c) If Employee's employment is terminated by the Company pursuant
to Section 4.3 (cause), the Company shall not thereafter be obligated to make
any further payments under this Agreement other than amounts payable hereunder
accrued as of the date of Employee's termination in accordance with generally
accepted accounting principles.
(d) If Employee's employment is terminated by the Company pursuant
to Section 4.4 (without cause) the Company shall not thereafter be obligated to
make any further payments under this Agreement other than (i) amounts payable
hereunder accrued as of the date of Employee's termination in accordance with
generally accepted accounting principles, and (ii) severance payments in an
amount equal to the sum of the payments and obligations set forth in Sections
3.1, and 3.3 from the date of such termination until December 31, 2000.
Moreover, if Employee's employment is terminated by the Company pursuant to
Section 4.4 (without cause), it is understood that only for purposes of
Employee's Stock Option Agreement and the provisions of paragraph 3.7,
Employee's termination shall be deemed to have occurred on December 31, 2000.
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4.6 No Mitigation. There shall be no requirement on the part of Employee
to seek other employment or otherwise mitigate damages in order to be entitled
to the full amount of any payments or benefits to be made pursuant to this
Agreement and payments due in respect of periods following the termination of
employment shall not be diminished by any amounts earned by Employee from any
other employment.
SECTION 5. MISCELLANEOUS
5.1 Noncompetition. During the term of Employee's employment hereunder,
and continuing until the earliest to occur of the following: (i) January 1, 2001
provided that Employee continues to be employed by the Company on such date (ii)
six months after termination of Employees employment hereunder in the event that
employee resigns on or before December 31, 2000 or (iii) a Change of Control as
defined in paragraph 3.7.2, Employee shall not, directly or indirectly, engage
in, render services of any nature to, provide financial support for, plan for,
be connected in any manner with or organize any business which is competitive
with or similar to the business of the Company if such other business has
operations or planned operations anywhere in the world where the Company or its
subsidiaries has or plans to have operations, by becoming an owner, officer,
director, shareholder (except for less than 2% of a publicly traded stock for
investment purposes only), partner, creditor, associate, employee, agent,
representative or consultant or serve in any other capacity in connection with
such other business without the Company's prior written consent. Each of the
parties hereto acknowledges that the restrictions, prohibitions and other
provisions hereof are reasonable, fair and equitable in scope, terms and
duration, are necessary to protect the legitimate business interests of the
Company given the current scope of the Companies business and Employees
expertise, and are a material inducement to the Company to enter into this
Agreement. The provisions of this section shall survive the termination of this
Agreement.
5.2 Nonsolicitation. During the term of Employee's employment and
continuing for one year thereafter, Employee shall not, directly or indirectly;
(i) hire or solicit any employee, consultant, sales representative, sales agent
or advisor of the Company or any of its affiliates or encourage any such
employee, consultant, sales representative, sales agent or advisor to leave such
employment for any business whether or not a competitor of the Company; or (ii)
solicit or divert or attempt to divert to any competitor any business of the
Company or solicit or divert or attempt to divert any customers or suppliers of
the Company.
5.3 Confidentiality/Trade Secrets. Since the work for which Employee is
employed and upon which Employee will be engaged will include knowledge and
information of a confidential nature to, and the secret property of, the
Company, or persons, firms, entities or corporations with whom the Company is
affiliated, or customers of the Company or its affiliates (including but not
limited to inventions, improvements, designs systems, ideas, financial and
technical data, trade secrets, business plans, financing systems and techniques,
sales techniques and approaches, and customer and supplier information),
Employee shall receive all knowledge and information in confidence, and shall
not at any time (during or after employment with the Company) except as required
in the conduct of the Company business, or authorized in writing
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by the Company, publish, disclose or use or authorize anyone else to publish,
disclose or make use of any such information or knowledge unless and until such
information or knowledge shall have ceased to be secret or confidential as
evidenced by general public knowledge. In the event that Employee's employment
with the Company shall cease, Employee authorizes the Company to send a copy of
this section in its sole discretion, to any and all future employers which
Employee may have AND TO ANY AND ALL PERSONS, firms, entities and corporations
with whom Employee may become affiliated in a business or commercial enterprise,
and inform any and all such employers, persons, firms, entities or corporations
that the Company intends to exercise its legal rights should Employee breach the
terms of this Agreement or should another party induce a breach by Employee. The
provisions of this section shall survive the termination of this Agreement.
5.4 Property. All results and proceeds of Employee's services hereunder,
and all inventions, improvements, systems, designs, ideas, business plans, sales
techniques and approaches which Employee made or conceived or which Employee may
make or conceive, at any time after the commencement of Employee's employment
with the Company and until the termination thereof, either individually or
jointly with others, or which Employee utilizes in carrying out Employee's
duties hereunder (hereinafter "Property"), shall be the exclusive property of
the Company as a "work for hire", and Employee hereby assigns and agrees to
assign to the Company all of Employee's rights in and to all such Property, and
to all copyrights (statutory and common law), covering any or all of the
Property. The provisions of this section shall survive the termination of this
Agreement.
5.5 Injunction, Confidential Materials. Employee hereby consents and
agrees that for any violation of any of the provisions of Section 5.3
(Confidentiality/Trade Secrets), or Section 5.4 (Property) of this Agreement, a
restraining order and/or an injunction may issue against Employee in addition to
any other rights the Company may have at law or in equity. Employee agrees that
records containing secret or confidential knowledge and information prepared by
Employee or which come into Employee's possession during Employee's employment
by the Company, are and remain the property of the Company, and if and when
Employee's employment with the Company terminates, all such records and all
copies thereof shall be left with the Company.
5.6 Remedies. Employee acknowledges and agrees that the services to be
rendered by Employee hereunder and the rights and privileges herein granted to
the Company are by reason of Employee's skill and experience, of a special,
unique, unusual, extraordinary and intellectual character which gives them a
peculiar value, the loss of which cannot reasonably or adequately be compensated
in damages in an action at law, and that a breach by Employee of any of the
provisions contained herein, including, without limitation, the provisions of
Section 5.1 (Noncompetition), will cause the Company irreparable injury and
damage. Employee expressly agrees that the Company shall be entitled as a matter
of right to injunctive or other equitable relief to prevent a breach of this
Agreement by Employee. Resort to such equitable relief, however, shall not be
construed as a waiver of any other rights or remedies which the Company
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may have for damages or otherwise hereunder. Employee specifically agrees that
the Company may recover by appropriate action the amount of the actual damage
caused the Company by any failure, refusal or neglect of Employee to keep and
perform all of the agreements and warranties herein contained.
5.7 Prior Employment. Employee represents and warrants that he is not a
party to any other employment, non-competition or other agreement or restriction
which could interfere with his employment with the Company or his or the
Company's rights and obligations hereunder; and that his acceptance of
employment with the Company and the performance of his duties hereunder will not
breach the provisions of any contract, agreement, or understanding to which he
is party or any duty owed by him to any other person.
5.8 Severability. The invalidity or unenforceability of any particular
provision or part of any provision of this Agreement shall not affect the other
provisions or parts hereof.
5.9 Assignment. This Agreement shall not be assignable by Employee, and
shall be assignable by the Company only to any person or entity which may become
a successor in interest (by purchase of assets or stock, or by merger, or
otherwise) to the Company. Subject to the foregoing, this Agreement and the
rights and obligations set forth herein shall inure to the benefit of, and be
binding upon, the parties hereto and each of their respective permitted
successors, assigns, heirs, executors and administrators.
5.10 Notices. All notices hereunder shall be in writing and shall be
sufficiently given if hand-delivered, sent by documented overnight delivery
service or registered or certified mail, postage prepaid, return receipt
requested or by facsimile (confirmed by U.S. mail), confirmation received,
addressed as set forth below or to such other person and/or at such other
address as may be furnished in writing by any party hereto to the other. Any
such notice shall be deemed to have been given as of the date received, in the
case of personal delivery, or on the date shown on the receipt of confirmation
therefor, in all other cases. Any and all service of process and any other
notice in any action, suite or proceeding shall be effective against any party
if given as provided in this Agreement; provided that nothing herein shall be
deemed to affect the right of any party to serve process in any other manner
permitted by law.
(a) If to the Company:
IXC Communications, Inc.
1122 South Capital of Texas Highway
Austin, TX 78746
Attention: Contract Administration
Tel: 512-427-4152
Fax: 512-328-7902
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(b) If to Employee:
Mr. Michael W. Vent
5116 Jenkins Cove
Austin, TX
Tel: 512-346-2606
Fax: 512-346-9456
5.11 Entire Agreement and Modification. This Agreement constitutes the
entire agreement between the parties hereto with respect to the matters
contemplated herein and supersedes all prior agreements and understandings with
respect thereto. Any amendment, modification or waiver of this Agreement shall
not be effective unless in writing. Neither the failure nor any delay on the
part of any party to exercise any right, remedy, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege preclude any other or further exercise of
the same or any other right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of any right, remedy, power or privilege
with respect to any other occurrence.
5.12 Binding Arbitration. The parties hereby consent to the resolution
by binding arbitration of all claims or controversies in any way arising out of,
relating to or associated with this Agreement. Any arbitration required by this
Agreement shall be conducted before a single arbitrator in Austin, Texas in
accordance with the commercial arbitration rules of the American Arbitration
Association then existing, and any award, order or judgment pursuant to such
arbitration may be enforced in any court of competent jurisdiction. The
arbitrator shall apply rules of Texas law and the parties expressly waive any
claim or right to an award of punitive damages. All such arbitration proceedings
shall be conducted on a confidential basis. Notwithstanding the foregoing,
either party may seek injunctive or other equitable relief in a court of law
without proceeding through arbitration.
5.13 Amendment. This Agreement may only be amended by an agreement in
writing signed by the Company and Employee.
5.14 Governing Law. This Agreement is made pursuant to, and shall be
construed and enforce in accordance with, the internal laws of the State of
Texas, without giving effect to otherwise applicable principles of law.
5.15 Headings; Counterparts. The headings of paragraphs in this
Agreement are for convenience only and shall not affect its interpretation. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original an all of which, when taken together, shall be deemed
to constitute but one and the same Agreement.
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5.16 Further Assurances. Each of the parties hereto shall execute such
further instruments and take such other actions as any other party shall
reasonably request in order to effectuate the purposes of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
IXC Communications Inc.
By: [SIG]
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Name:
Title:
Employee:
/s/ Michael W. Vent
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Michael W. Vent
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