Exhibit 10.23
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment is made effective as of February 28, 2002, to that certain
Employment Agreement by and between PhoneTel Technologies, Inc. (the
"Corporation") and Xxxx X. Xxxxxxxxxx (the "Executive") as of April 1, 2000 (the
"Agreement").
In consideration of the continued employment of the Executive pursuant to the
Employment Agreement and for other good and valuable consideration, the receipt
and sufficiency of which is acknowledged, the Corporation and the Executive
hereby agree as follows:
1. DEFINED TERMS. Capitalized terms used but not otherwise defined in this
Amendment shall have the meanings given them in the Agreement.
2. EXTENDED TERM. Section 2 of the Agreement is hereby amended to replace the
one-year Extended Term with successive ninety (90)-day renewal terms which shall
commence upon the expiration of the Initial Term and each renewal term, unless
the Executive is notified by the Board at least thirty (30) days prior to the
expiration of the Initial Term or renewal term then in effect that the Agreement
shall not be further extended. References in the Agreement to the "Extended
Term" are intended, and shall be construed as, a reference to any ninety
(90)-day renewal term then in effect.
3. 2002 BONUS. Section 4(b) of the Agreement shall not apply during the Extended
Term. Effective April 1, 2002, the Executive shall be eligible to earn a cash
bonus based upon the financial performance of the Corporation (the "Incentive
Bonus"), which shall be calculated as set forth in this paragraph. The Incentive
Bonus shall be an amount equal to (A) the Bonus Percentage set forth in the
table below corresponding to the Corporation's financial performance, as
measured by a comparison of actual EBITDA (cumulative for the period beginning
April 1, 2002 through the date on which the Incentive Bonus is calculated) to
projected EBITDA (cumulative) for the same period, multiplied by (B) the maximum
Incentive Bonus amount prorated for the number of months elapsed between April
1, 2002 and the expiration or other termination of the Employment Agreement
(other than for cause). The Incentive Bonus shall be calculated on the earlier
to occur of the expiration or other termination of the Employment Agreement
(other than for cause) or March 31, 2003, and shall be due and payable promptly
to the Executive promptly upon such calculation being completed. The maximum
amount of the Incentive Bonus that may be earned is $100,000 if the Employment
Agreement were to continue for four Extended Terms through March 31, 2003. No
Incentive Bonus shall be payable to the Executive in the event his employment by
the Corporation is terminated for cause.
PERCENTAGE OF PROJECTED
EBITDA ACHIEVED BONUS PERCENTAGE
Less than 80% 0%
80.0% to 84.9% 80%
85.0% to 89.9% 85%
90.0% to 94.9% 90%
95.0% to 99.9% 95%
100% or higher 100%
4. The Corporation's projected EBITDA for the months April 2002 through December
2002 are set forth in Exhibit A hereto.
5. TERMINATION WITHOUT CAUSE. Section 6(e) of the Agreement is hereby amended as
follows:
a. In the first sentence of the first paragraph, the words "three (3)
months" are hereby deleted and replaced with the words "thirty (30)
days."
b. The second paragraph is hereby deleted in its entirety and replaced
with the following:
In the event the Corporation terminates the Executive without cause during
the Extended Term, the amount of the severance payment shall be equal to
the Executive's salary for the remaining months in the Extended Term (the
"Extended Term Severance Payment"). The amount of the Extended Term
Severance Payment shall additionally be increased by a factor of twenty
percent (20%) to account for the Executive's loss of benefits. The
Executive shall also be entitled to receive the Incentive Bonus pursuant
to Section 3 of this Amendment upon such a termination.
6. TERMINATION UPON TRIGGER EVENT. Section 6(f) of the Agreement is hereby
amended as follows: The reference in the second paragraph to "a remaining period
of not less than one (1) year" is hereby deleted and replaced with the words "a
remaining period of not less than ninety (90) days."
7. OTHER TERMS CONTINUE. The Agreement shall continue in full force and effect
according to its terms except as expressly modified and amended in this
Amendment.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year firstset forth above.
PHONETEL TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxxxxxxxxx By: /s/ Xxxx X. Xxxxxxxxxx
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Xxxxx Xxxxxxxxxxxxx Xxxx X. Xxxxxxxxxx
Chairman, Compensation Committee
of the Board of Directors
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