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EXHIBIT 10.24
EMPLOYMENT AGREEMENT
This employment agreement ("Agreement") is made as of April 8,
1999, by and between IXC Communications, Inc., a Delaware corporation (the
"Company"), and Valerie G. Walden ("Employee").
BACKGROUND
Employee is now, and has been, 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 April 8,
1999, the Company employs Employee as Senior Vice President Customer Operations
and Corporate Marketing, 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 Senior Vice
President Customer Operations and Corporate Marketing, and shall perform such
duties and shall have such authority, consistent with her position, as may from
time to time reasonably be specified by the Company or 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 April 8, 1999, and shall continue until August 7, 2001, 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
$215,792.00 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 her 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.
3.7 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 her 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 her 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.
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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;
(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 her 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
her 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, (ii) a
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severance payment in an amount equal to the sum of the payments and obligations
set forth in Section 3.1 from the date of such termination until August 7, 2001,
but in no event shall such payment exceed one years payments under Sections 3.1,
and (iii) COBRA payments, if applicable, for Employee's health benefits for a
maximum of six months. Moreover, if Employee's employment is terminated by the
Company pursuant to Section 4.4 (without cause), it is understood that solely
for purposes of Employee's Stock Option Agreements 7, Employee's termination
shall be deemed to have occurred on August 7, 2001.
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)
February 7, 2002 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 August 7, 2001 (iii) a Change of
Control as defined in Employee's Stock Option Agreement dated as of 12/29/1997,
or (iv) a termination of Employees employment by the Company pursuant to Section
4.4 (without cause), 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.
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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 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
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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 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 her employment with the Company or her or
the Company's rights and obligations hereunder; and that her acceptance of
employment with the Company and the performance of her 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.
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(a) If to the Company:
IXC Communications, Inc.
1122 South Capital of Texas Highway
Austin, TX 78746
Attention: General Counsel
Tel: 512-427-3959
Fax: 512-328-7902
.
(b) If to Employee:
Valerie G. Walden
11 Pascal Lane
Austin, TX 78746
Tel: 512-347-0586
Fax: 512-347-0587
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.
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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.
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: /s/ Benjamin L. Scott
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Name: Benjamin L. Scott
Title: Chairman
Employee: /s/ Valerie G. Walden
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Valerie G. Walden
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