AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the "Agreement") is entered into
as of the 17th day of February, 1999, by and between Xxxxxxx X. Xxxxxx (the
"Employee") and ICG PST, Inc. (formerly known as Netcom On-Line Communication
Services, Inc.), a Delaware corporation (the "Corporation").
WHEREAS, Corporation and Employee entered into an Employment Agreement dated
June 1, 1997 as modified by a letter dated November 20, 1998 (the "First
Employment Agreement"), and
WHEREAS, Corporation and Employee desire to amend and restate the First
Employment Agreement.
NOW THEREFORE, the parties agree as follows :
For ease of reference, this Agreement is divided into the following parts, which
begin on the pages indicated:
FIRST PART: TERM OF EMPLOYMENT, DUTIES AND SCOPE, COMPENSATION
AND BENEFITS DURING EMPLOYMENT
(Sections 1-5, beginning on page 2)
SECOND PART: COMPENSATION AND BENEFITS IN CASE OF ACTUAL OR
CONSTRUCTIVE TERMINATION (Sections 6-9,
beginning on page 6)
THIRD PART: PARACHUTE PAYMENTS
(Sections 10-11, beginning on page 8)
FOURTH PART: TRADE SECRETS, SUCCESSORS, MISCELLANEOUS PROVISIONS,
SIGNATURE PAGE (Sections 12-15,
beginning on page 11)
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FIRST PART: TERM OF EMPLOYMENT, DUTIES AND SCOPE, COMPENSATION
AND BENEFITS DURING EMPLOYMENT
Section 1: Term of Employment
(a) Basic Rule: The Corporation agrees to continue the Employee's employment,
and the Employee agrees to remain in employment with the Corporation, from
February 15, 1999, until the earliest of:
(1) The date of the Employee's death; or
(2) The date when the Employee's employment terminates pursuant to
Subsection (b), (c), (d) and (e) below.
(b) Early Termination or Resignation. The Corporation may terminate the
Employee's employment at any time and for any reason by giving the Employee
written notice. The Employee may terminate the Employee's employment for
any reason by giving the Corporation not less than 30 days' advance notice
in writing.
(c) Termination for Cause. The Corporation may terminate the Employee's
employment at any time for Cause shown. For all purposes under this
Agreement, "Cause" shall mean (1) a willful failure by the Employee to
substantially perform the Employee's duties under this Agreement, other
than a failure resulting from the Employee's complete or partial incapacity
due to physical or mental illness or impairment, (2) a willful act by the
Employee that constitutes gross misconduct and that is materially injurious
to the Corporation, (3) a willful breach by the Employee of a material
provision of this Agreement or (4) a material and willful violation of a
federal or state law or regulation applicable to the business of the
Corporation that is materially and demonstrably injurious to the
Corporation. No act, or failure to act, by the Employee shall be considered
"willful" unless committed without good faith and without a reasonable
belief that the act or omission was in the Corporation's best interest.
(d) Termination for Disability. The Corporation may terminate the Employee's
employment for Disability by giving the Employee written notice. For all
purposes under this Agreement, "Disability" shall mean that the Employee,
at the time the notice is given, has been unable to perform the Employee's
duties under this Agreement for a period of not less than three consecutive
months as a result of the Employee's incapacity due to physical or mental
illness. In the event that the Employee resumes the performance of
substantially all of the Employee's duties under this Agreement before the
termination of the Employee's employment under this Section becomes
effective, the notice of termination shall automatically be deemed to have
been revoked.
(e) Termination of Agreement. This Agreement shall expire when all obligations
of the parties hereunder have been satisfied. In addition, either the
Corporation or the Employee may terminate this Agreement for any reason,
and without affecting the Employee's status as an employee, by giving the
other party one year's advance notice in writing. A termination of this
Agreement pursuant to the preceding sentence shall be effective for all
purposes, except that such termination shall not affect the payment or
provision of compensation or benefits under this Agreement on account of a
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termination of employment occurring prior to the termination of this
Agreement.
Section 2: Duties and Scope of Employment
(a) Position. The Corporation agrees to employ the Employee for the term of
employment under this Agreement in the position of Senior Vice President
and General Manager and Chief Operating Officer and the duties associated
with this position.
These duties will include the overall management of the Corporation,
including responsibility for the P&L of the company and product planning,
marketing, operations, engineering, R&D, customer service and support.
Duties also include responsibility of sales in conjunction with the Sales
team managed out of the Telecom Group. The company's business is focused on
the inter-exchange data networking business, supplying ISPs, Telecom and
other end-user customers with network backbone, network related products
that extend outside of the telecom-switch central office, and other value
add data services, including but not limited to Voice over IP (VOIP), and
other IP services. This includes the definition, creation, marketing,
selling, operating and supporting of these services along with the product
road map.
Employee agrees that neither assuming the title nor the duties described in
this Section 2 shall result in a Constructive Termination under this or the
First Employment Agreement.
(b) Obligations. During the term of employment under this Agreement, the
Employee shall devote the Employee's full business efforts and time to the
business and affairs of the Corporation as needed to carry out his duties
and responsibilities hereunder subject to the overall supervision of the
Corporation's Chief Executive Officer or President. The foregoing shall not
preclude the Employee from engaging in appropriate civic, charitable or
religious activities or from devoting a reasonable amount of time to
private investments or from serving on the boards of directors of other
entities, as long as such activities and service do not interfere or
conflict with the Employee's responsibilities to the Corporation.
Section 3: Base Compensation, Employee Bonus
(a) Effective during the term of employment under this Agreement, the
Corporation agrees to pay the Employee as compensation for services a base
salary at the annual rate of $220,000, or at such higher rate as the
authorized Corporation corporate officer(s) may determine from time to
time. Such salary shall be payable in accordance with the standard payroll
procedures of the Corporation. Once the authorized corporate officer(s)
have increased such salary, it thereafter shall not be reduced; provided,
however, that if a Change in Control has not occurred, such salary
(including any increases) may be reduced by the Corporation if (1) the
Employee commits an act or omission that meets the definition of Cause, as
defined in Section 1(c), or (2) the Employee and all other executive
officers of the corporation who are parties to written employment
agreements containing substantially the same provisions as this Agreement
have their salaries (including any increases) reduced by the same
percentage amount for the same time period. The annual compensation
specified in this Section 3(a), together with any increases in such
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compensation that the authorized corporate officer(s) may grant from time
to time, and together with any reductions made in accordance with this
Section 3, is referred to in this Agreement as "Base Compensation".
(b) In addition to the Base Compensation described in Section 3(a), Employee
shall be eligible to receive an incentive bonus not to exceed forty-five
percent (45%) of Employee's base salary (the "Employee Bonus"). Seventy
percent of the Employee Bonus shall be based on the performance of the
Corporation. Thirty percent of the Employee Bonus shall be based on
Employee's individual performance. Specific bonus amounts as well as the
standards to measure the Corporation's performance and the Employee's
performance will defined by the Corporation in writing and agreed to by
Employee. Performance objectives will be set and measured quarterly, and
bonus paid in accordance with the ICG Communications, Inc. ("ICG") bonus
payment schedule.
Section 4: Employee Benefits, Stock Options
(a) In General. During the term of employment under this Agreement, the
Employee shall be eligible to participate in all employee benefit plans and
executive compensation programs maintained by the Corporation, including
(without limitation) savings or profit-sharing plans, deferred compensation
plans, stock option, incentive or other bonus plans, life, disability,
health, accident and other insurance programs, paid vacations, and similar
plans or programs, subject in each case to the generally applicable terms
and conditions of the plan or program in question and to the discretion and
determinations of any person, committee or entity administering such plan
or program.
In the event Corporation adopts a phantom stock plan (or any other similar
compensation or benefit plan for selected employees of the Corporation that
is based upon or calculated with reference to the stock or securities of
ICG, whether or not it actually involves the sale or issuance of
securities), Employee shall participate in such plan. Employee's
Participation in the plan shall include a percentage of stock or
compensation that is no less than any other PST operating executive.
(b) Within thirty (30) days after this Agreement has been executed by both
parties, Corporation shall request that the ICG Board of Directors approve
issuing Employee options for 25,000 shares of ICG common stock pursuant to
the terms and conditions of the 1998 ICG Stock Option Plan.
(c) The parties acknowledge that all stock options granted to Employee under
the Netcon On-Line Communication Services, Inc. 1993 Stock Option Plan
(Amended and Restated as of January 23, 1997) have been vested. If
Employee's employment terminates for any reason including Employee's
resignation, solely for purposes of determining exercisability of the stock
options under the applicable stock option plans, the Employee's termination
date shall be considered to be nine (9) months after the actual date of
termination (the "Stock Option Termination Date"). Employee will be
entitled to exercise his vested stock options on or before the expiration
of 90 days after the Stock Option Termination Date in accordance with the
stock option agreements under which the grants were made. Employee shall
have no rights as to vested options not exercised prior to the expiration
of 90 days after the Stock Option Termination Date.
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(d) In addition, in the event of a Change of Control as defined in Section 9
below, 50% of the original amount of all options (or the remaining unvested
options, if less than 50%) granted to Employee under ICG's stock option
plan(s), shall vest upon the effective date of the Change in Control.
(e) Notwithstanding anything in this Agreement or the applicable stock option
plan(s) to the contrary, in the event Employee's employment with the
Corporation is terminated in a Qualifying Termination as defined in Section
7(a) of the Agreement, then all stock options granted to Employee by the
Corporation, and all options granted to Employee under ICG's stock option
plan, shall become vested and exercisable on the date of such Qualifying
Termination. In addition, solely for purposes of determining exercisability
the stock options under the applicable stock option plans, the Employee's
termination date shall be considered to be nine (9) months after the actual
date of termination (the "Stock Option Termination Date"). Employee will be
entitled to exercise his vested stock options on or before the expiration
of 90 days after the Stock Option Termination Date in accordance with the
stock option agreements under which the grants were made. Employee shall
have no rights as to vested options not exercised prior to the expiration
of 90 days after the Stock Option Termination Date.
Section 5: Business Expenses and Travel
During the term of employment under this Agreement, the Employee shall be
authorized to incur necessary and reasonable travel, entertainment and other
business expenses in connection with the Employee's duties hereunder. The
Corporation shall reimburse the Employee for such expenses upon presentation of
an itemized account and appropriate supporting documentation, all in accordance
with generally applicable policies.
SECOND PART: COMPENSATION AND BENEFITS IN CASE OF ACTUAL OR
CONSTRUCTIVE TERMINATION.
Section 6:
This Second Part of the Agreement, consisting of Sections 6 through 8, describes
the benefits and compensation, if any, payable in case of termination of
employment.
Section 7: Involuntary Actual or Constructive Termination Without Cause or
Disability.
In the event that, during the term of this Agreement, the Employee's employment
terminates in a Qualifying Termination, as defined in Subsection (a), then,
after executing the release of claims described in Section 7(d), the Employee
shall be entitled to receive the payments and benefits described in Subsections
(b) and (c).
(a) Qualifying Termination. A Qualifying Termination occurs if:
(1) The Corporation terminates the Employee's employment for any reason
other than Cause or Disability; or
(2) The Employee separates from employment with the Corporation in
response to a "Constructive Termination" which means a reduction or
material change in salary, benefits, title, positions, duties,
responsibilities, powers and reporting structure, or requirement to
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relocate, except for office locations that would not increase the
Employee's one-way commute distance by more than twenty (20) miles.
(b) Severance (1x payment). The Corporation shall pay to the Employee following
the date of the employment termination and over the succeeding 12 months,
in accordance with standard payroll procedures (or in a single, lump some
payment due at the time of such termination if termination occurs within
six months after a Change in Control as defined in Section 9 below), an
amount equal to the following:
(1) One times the Employee's Base Compensation in effect on the date of
the employment termination; plus
(2) 100% of the greater of the Employee's prior year's annual incentive
bonus or the Employee's annual incentive bonus earned on a quarterly
basis as of the date of the termination, assuming the Employee was
employed on the last day of the quarter in which termination of
employment occurred.
Any other provision of this Agreement or of the Corporation's
incentive Bonus Plan notwithstanding, after the amount described in
this Subsection (b) has been paid to the Employee, the Employee shall
have no further interest in such Plan.
(c) Twelve Months of Life Insurance and Health Plan Coverage. The coverage
described in this Subsection (c) shall be provided for a "Continuation
Period" beginning on the date when the employment termination is effective
and ending on the earlier of (1) the 12-month anniversary of the date when
the employment termination is effective or (2) the date of the Employee's
death. During the Continuation Period, the Employee (and, when applicable,
the Employee's dependents) shall be entitled to continue participation in
the group term life insurance plan and in the health care plan for
employees maintained by the Corporation as if the Employee were still an
employee of the Corporation. The coverage provided under this Subsection
(c) shall run concurrently with and shall be offset against any
continuation coverage under Part 6 of Title I of the Employee Retirement
Income Security Act of 1974, as amended. Where applicable, the Employee's
compensation for purposes of such plans shall be deemed to be equal to the
Employee's compensation (as defined in such plans) in effect on the date of
the employment termination. To the extent that the Corporation finds it
undesirable to cover the Employee under the group life insurance and health
plans of the Corporation, the Corporation shall provide the Employee (at
its own expense) with the same level of coverage under individual policies.
(d) Release of Claims. As a condition to the receipt of the payments and
benefits described in this Section 7, the Employee shall be required to
execute a release of all claims arising out of the Employee's employment or
the termination thereof including, but not limited to, any claim of
discrimination under state or federal law, but excluding claims for
indemnification from the Corporation under any indemnification agreement
with the Corporation, its certificate of incorporation and by-laws or
applicable law or claims for directors and officers' insurance coverage.
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(e) Conditions to Receipt of Payments and Benefits. In view of Employee's
position and his access to Confidential Information, as a condition to the
receipt of payments and benefits described in this Section 7, the Employee
shall not, without the Corporation's written consent, directly or
indirectly, alone or as a partner, joint venture, officer, director,
employee, consultant, agent or stockholder (other than a less than 5%
stockholder of a publicly traded company) (i) engage in any activity which
is in competition with the business, the products or services of the
Corporation (a list of competitors and competitive products and services,
which may be updated, is attached hereto); (ii) solicit any of the
Corporation's employees, consultants or customers, (iii) hire any of the
Corporation's employees or consultants in an unlawful manner or actively
encourage employees or consultants to leave the Corporation, or (iv)
otherwise breach his Confidential Information obligations.
(f) No Mitigation. The Employee shall not be required to mitigate the amount of
any payment or benefit contemplated by this Section 7, nor shall any such
payment or benefit be reduced by any earnings or benefits that the Employee
may receive from any other source.
Section 8: Other Terminations Under This Part
If termination of employment, actual or constructive, is not described in
Section 7, then the Employee is entitled only to the compensation, benefits and
reimbursements payable under the terms of Sections 3, 4 and 5 of this Agreement
for the period preceding the effective date of the termination including any
disability or death benefits to which Employee (or his estate or beneficiary(s))
may be entitled as a result of termination of his employment on account of
Disability or death. The payments under this Agreement shall fully discharge all
responsibilities of the Corporation to the Employee upon termination of the
Employee's employment. This Section 8 applies, without limitation, to any
termination initiated by the Employee (except an Employee-initiated termination
that is described in Paragraph 2 of Section 7(a)), termination of employment
caused by the Employee's death or Disability, termination of the Employee for
Cause, and any constructive termination (not described in Section 7).
Notwithstanding anything in this Section 8 to the contrary, if Employee remains
an employee of the Corporation for a minimum period of twelve months commencing
after the date hereof, then Employee will have the right to voluntarily
terminate his employment with the Corporation anytime thereafter and receive (1)
six months salary and fifty percent (50%) of the greater of the prior year's
incentive bonus or his annual incentive bonus earned on a quarterly basis as of
the date of termination, assuming the Employee was employed on the last day of
the quarter in which the termination occurred, and (2) six months of life
insurance and health care coverage as described in Section 7(c) of the
Agreement.
Section 9: Definition of Change in Control
For all purposes under this Agreement, "Change in Control" shall mean a "Change
in Control" of the Corporation, as defined in the Netcom On-Line Communication
Services, Inc. 1993 Stock Option Plan as in effect on the date this Agreement is
executed, provided, however, that neither the January, 5, 1999 Asset Purchase
Agreement between Netcom On-Line Communication Services, Inc. and MindSpring
Enterprises Inc. regarding the sale of certain assets or the results arising
directly and immediately therefrom shall be considered a Change in Control.
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THIRD PART: PARACHUTE PAYMENTS
Section 10: Gross-Up Payment:
In the event it is determined that any payment or distribution of any type to or
for the benefit of the Employee, pursuant to this Agreement or otherwise, by the
Corporation, any Person who acquires ownership or effective control of the
Corporation, or ownership of a substantial portion of the assets of the
Corporation (within the meaning of section 260G of the Code and the regulations
thereunder) or any affiliate of such Person (the "Total Payments") would be
subject to the exise tax imposed by section 4999 of the Code or any interest or
penalties with respect to such excise tax (such excise tax, together with any
such interest and penalties, are collectively referred to as the "Excise Tax"),
then the Employee shall be entitled to receive an additional payment (a
"Gross-Up Payment") in an amount such that, after payment by the Employee of all
taxes (including any interest or penalties imposed with respect to such taxes),
including any Excise Tax, imposed upon the Gross-Up Payment, the Employee
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Total Payments.
Section 11: Determination by Accountant
All mathematical determinations and determinations as to whether any of the
Total Payments are "parachute payments" (within the meaning of section 280G of
the Code), in each case which determinations are required to be made under this
Section 11, including whether a Gross-Up Payment is required, the amount of such
Gross-Up Payment, and amounts relevant to the last sentence of this Section 11,
shall be made by an independent accounting firm selected by the Employee from
among the largest six accounting firms in the United States (the "Accounting
Firm"). The Accounting Firm shall provide to the Corporation and to the Employee
its determination (the "Determination"), together with detailed supporting
calculations regarding the amount of any Gross-Up Payment and any other relevant
matter, within ten days after termination of the Employee's employment, if
applicable, or at such earlier time following termination of employment as is
requested by the Employee (if the Employee reasonably believes that any of the
Total Payments may be subject to the Excise Tax). If the Accounting Firm
determines that no Excise Tax is payable by the Employee, it shall furnish the
Employee with a written statement that such Accounting Firm has concluded that
no Excise Tax is payable (including the reasons therefor) and that the Employee
has substantial authority not to report any Excise Tax on the Employee's federal
income tax return. If a Gross-Up Payment is determined to be payable, it shall
be paid to the Employee within ten days after the Determination is delivered to
the Corporation or the Employee. Any determination by the Accounting Firm shall
be binding upon the Corporation and the Employee, absent manifest error.
As a result of uncertainty in the application of section 4999 of the Code at the
time of the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments not made by the Corporation and members of the
Corporation should have been made ("Underpayment"), or that Gross-Up Payments
will have been made by the Corporation and members of the Corporation that
should not have been made ("Overpayments"). In either such event, the Accounting
Firm shall determine the amount of the Underpayment or Overpayment that has
occurred. In the case of an Underpayment, the Corporation promptly shall pay, or
cause to be paid, the amount of such Underpayment to or for the benefit of the
Employee. In the case of an Overpayment, the Employee shall, at the direction
and expense of the Corporation, take such steps as are reasonably necessary
(including the filing of returns and claims for refund), follow reasonable
instructions from, and procedures established by the Corporation, and otherwise
reasonably cooperate with the Corporation to correct such Overpayment; provided,
8
however, that (1) Employee shall not in any event be obligated to return to the
Corporation an amount greater than the net after-tax portion of the Overpayment
that he has retained or recovered as a refund from the applicable taxing
authorities and (2) this provision shall be interpreted in a manner consistent
with the intent of Section 13, which is to make the Employee whole, on an
after-tax basis, from the application of the Excise Tax, it being understood
that the correction of an Overpayment may result in the Employee repaying to the
Corporation an amount that is less than the Overpayment.
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FOURTH PART: TRADE SECRETS, SUCCESSORS, MISCELLANEOUS
PROVISIONS, SIGNATURE PAGE
Section 12: Confidential Information
(a) Acknowledgment. The Corporation and the Employee acknowledge that the
services to be performed by the Employee under this Agreement are unique
and extraordinary and that, as a result of the Employee's employment, the
Employee will be in a relationship of confidence and trust with the
Corporation and will come into possession of "Confidential Information" (1)
owned or controlled by the Corporation, (2) in the possession of the
Corporation and belonging to third parties, or (3) conceived, originated,
discovered or developed, in whole or in part, by the Employee. As used
herein "Confidential Information includes trade secrets and other
confidential or proprietary business, technical, personnel or financial
information, whether or not the Employee's work product, in written,
graphic, oral or other tangible or intangible forms, including but not
limited to specifications, samples, records, data, computer programs,
drawings, diagrams, models, customer names, ID's or email addresses,
business or marketing plans, studies, analyses, projections and reports,
communications by or to attorneys (including attorney-client privileged
communications), memos and other materials prepared by attorneys or under
their direction (including attorney work product), and software systems and
processes. Any information that is not readily available to the public
shall be considered to be a trade secret and confidential and proprietary,
even if it is not specifically marked as such, unless the Corporation
advises the Employee otherwise in writing.
(b) Nondisclosure. The Employee agrees that the Employee will not, without the
prior written consent of the Corporation, directly or indirectly use or
disclose Confidential Information to any person, during or after the
Employee's employment, except as may be necessary in the ordinary course of
performing the Employee's duties under this Agreement. The Employee will
keep the Confidential Information in strictest confidence and trust. This
Section 15 shall apply indefinitely, both during and after the term of this
Agreement.
(c) Surrender Upon Termination. The Employee agrees that in the event of the
termination of the Employee's employment for any reason, the Employee will
immediately deliver to the Corporation all property belonging to the
Corporation, including all documents and materials of any nature pertaining
to the Employee's work with the Corporation, and will not take with the
Employee any documents or materials of any description, or any reproduction
thereof of any description, containing or pertaining to any Confidential
Information. It is understood that the Employee is free to use information
that is in the public domain (not as a result of a breach of this
Agreement).
Section 13: Successors
(a) Corporation's Successors. The Corporation shall require any successor
(whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) to all or substantially all of the
Corporation's business and/or assets, by an agreement in substance and form
satisfactory to the Employee, to assume this Agreement and to agree
expressly to perform this Agreement in the same manner and to the same
extent as the Corporation would be required to perform it in the absence of
a succession. The Corporation's failure to obtain such agreement prior to
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the effectiveness of a succession shall be a breach of this Agreement and
shall entitle the Employee to all of the compensation and benefits to which
the Employee would have been entitled hereunder if the Corporation had
involuntarily terminated the Employee's employment without Cause or
Disability, on the date when such succession becomes effective. For all
purposes under this Agreement, the term "Corporation" shall include any
successor to the Corporation's business and/or assets that executes and
delivers the assumption agreement described in this Subsection (a) or that
becomes bound by this Agreement by operation of law.
(b) Employee's Successors. This Agreement and all rights of the Employee
hereunder shall inure to the benefit of, and be enforceable by, the
Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
Section 14: Miscellaneous Provisions
(a) Waiver. No provision of this Agreement shall be modified, waived or
discharged unless the modification, waiver or discharge is agreed to in
writing and signed by the Employee and by an authorized officer of the
Corporation (other than the Employee). No waiver by either party of any
breach of, or of compliance with, any condition or provision of this
Agreement by the other party shall be considered a waiver of any other
condition or provision or of the same condition or provision at another
time.
(b) Whole Agreement. No agreements, representations or understandings (whether
oral or written and whether express or implied) that are not expressly set
forth in this Agreement have been made or entered into by either party with
respect to the subject matter hereof. In addition, the Employee hereby
acknowledges and agrees that this Agreement supersedes in its entirety any
employment agreement between the Employee and the Corporation in effect
immediately prior to the effective date of this Agreement. As of the
effective date of this Agreement, such employment agreement shall terminate
without any further obligation by either party thereto, and the Employee
hereby relinquishes any further rights that the Employee may have had under
such prior employment agreement.
(c) Notice. Notices and all other communications contemplated by this Agreement
shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by U.S. registered or certified mail,
return receipt requested and postage prepaid. In the case of the Employee,
mailed notices shall be addressed to the Employee at the home address that
the Employee most recently communicated to the Corporation in writing. In
the case of the Corporation, mailed notices shall be addressed to its
corporate headquarters, and all notices shall be directed to the attention
of its Chief Executive Officer.
(d) No Setoff. There shall be no right of setoff or counterclaim, with respect
to any claim, debt or obligation, against payments to the Employee under
this Agreement.
(e) Choice Of Law. The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of the State of California,
irrespective of California's choice-of-law principles.
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(f) Severability. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full
force and effect.
(g) Arbitration. Except as otherwise provided in Section 14 and in the
enforcement of Section 15, any dispute or controversy arising out of the
Employee's employment or the termination thereof, including, but not
limited to, any claim of discrimination under state or federal law, shall
be settled exclusively by arbitration in San Jose, California, in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court
having jurisdiction.
(h) No Assignment of Benefits. The rights of any person to payments or benefits
under this Agreement shall not be made subject to option or assignment,
either by voluntary or involuntary assignment or by operation of law,
including (without limitation) bankruptcy, garnishment, attachment or other
creditor's process, and any action in violation of this Subsection (h)
shall be void.
(i) Employment at Will; Limitation of Remedies. The Corporation and the
Employee acknowledge that the Employee's employment is at will, as defined
under applicable law. If the Employee's employment terminates for any
reason, the Employee shall not be entitled to any payments, benefits,
damages, awards or compensation other than as provided by this Agreement.
(j) Employment Taxes. All payments made pursuant to this Agreement shall be
subject to withholding of applicable taxes.
(k) Benefit Coverage Non-Additive. In the event that the Employee is entitled
to life insurance and health plan coverage under more than one provision
hereunder, only one provision shall apply, and neither the periods of
coverage nor the amounts of benefits shall be additive.
Section 15: Effectiveness.
Notwithstanding anything in this Agreement to the contrary, this Agreement shall
only be effective upon the closing of the MindSpring Agreement. In the event the
MindSpring Agreement does not close, then this Agreement shall be null and void
and the First Employment Agreement shall remain in full force and effect
according to its terms and conditions.
Section 16 : Release.
Each party does hereby release, acquit and forever discharge the other party,
its related entities, parents, subsidiaries, agents, employees, predecessors,
successors and assigns and any other person or entity of and from any and all
past, present or future claims for payment, claims or obligations of any nature
whatsoever, whether compensatory or punitive or any other nature, arising from
or in connection with the First Employment Agreement. This Agreement shall
replace the First Employment Agreement and the First Employment Agreement shall
be void and of no effect.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case
of the Corporation by its duly authorized officer, as of the day and year first
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above written. Employee has consulted (or has had the opportunity to consult)
with his own counsel prior to execution of this Agreement.
AGREED AND ACCEPTED
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
---------------------------
ICG PST, Inc.
By Xxxx X. Xxxxxx
----------------------------
Title President
---------------------------
Read, Acknowledged and Agreed to:
ICG Communications, Inc.
By /s/ Xxxxx X. Xxxxxx
-----------------------------
Title EVP, CFO
--------------------------
