Executive Vice President Marketing and Product Management Employment Agreement - David R. McNeill

EXHIBIT 10.1


Convergent Communications(TM) Proprietary Information


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Employment Services Agreement --------------------------------------------------------------------------------


Employee Information --------------------


David R. McNeill ------------------------------------ ------------------------------------ (Name)
------------------------------------ Effective Date: June 30, 2000 (Address) -------------------------------------


1. Employment. The Company agrees to employ Employee and Employee hereby agrees to be employed by the Company and/or such of its subsidiaries and affiliate corporations as determined by the Company on a full-time basis, for the period and upon the terms and conditions hereinafter set forth. 2. Capacity and Duties. Employee shall be employed in the following capacity for the Company or any of its affiliates in such capacity of equal or greater responsibility. During his employment, Employee shall perform the duties and bear the responsibilities commensurate with his position and shall serve the Company faithfully and to the best of his ability. --------------------------------------------------------------------------------
Title: Executive Vice President--Marketing and Product Management -------------------------------------------------------------------------------- 3. Compensation and Benefits.
3.1 The Company shall pay Employee during the Term of this Agreement (or, if longer, during the term of Employee's employment with the Company or any of its affiliates) an annual base salary, payable semi-monthly as follows. The annual base salary shall be adjustable for merit increases. -------------------------------------------------------------------------------- Annual Base Salary: Two Hundred Twenty Thousand Dollars ($220,000) --------------------------------------------------------------------------------
3.2 In addition to his base salary, the Company, during the Term of this Agreement, shall pay Employee a performance bonus for each fiscal year of the Company after the end of the fiscal year, in an exact amount to be determined by the Board of Directors of the Company. The target bonus will be a percentage of Employee's annual base salary. This bonus may be adjusted based upon performance and as determined by the Board of Directors of the Company. -------------------------------------------------------------------------------- Target Percentage: Seventy-Five Percent (75%) --------------------------------------------------------------------------------
3.3 (Intentionally Deleted)
3.4 In addition to salary as provided above, the Company shall provide Employee during the Term of this Agreement, with the benefits of such insurance plans, hospitalization plans, stock plans, retirement plans and other employee fringe benefits (including sick leave and four (4) weeks annual vacation time) as shall be generally provided to similar positions within the Company and for which Employee may be eligible under the terms and conditions thereof. The Company reserves the right to modify, delete or change its benefits at any time.
3.5 Throughout the Term of this Agreement, the Company shall reimburse Employee for all reasonable out-of-pocket expenses incurred by Employee in connection with the business of the Company and in performance of his duties under this Agreement, upon presentation to the Company by Employee of an itemized accounting of such expenses with reasonable supporting data.


This Employment Services Agreement is further subject to the Employment Agreement Terms ("Agreement Terms") attached hereto, and, if this box is marked, [X] Addendum A attached hereto (collectively the "Agreement"). Employee has read and understands the Agreement Terms and agrees to be bound by those conditions. Acceptance of this Agreement is contingent upon acceptance by a representative of the Company duly authorized to execute this Agreement.


IN WITNESS WHEREOF, the parties have executed this Agreement as of the last date shown below.


CONVERGENT COMMUNICATIONS, INC. DAVID R. MCNEILL (Company) ------------------------------------
(Employee)


By: /s/ Joseph R. Zell /s/ David R. McNeill
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Title: Chief Executive Officer
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Employment Agreement Terms


The following Employment Agreement Terms are in addition to the terms and conditions contained in the Employment Services Agreement cover sheet:


4. Term. The initial term of this Agreement shall commence on the date of
---- this Agreement and shall continue for a period of three (3) years. This Agreement shall continue thereafter from year to year, unless and until either party terminates the Agreement pursuant to Section 5 below ("Term"). The applicable provisions of Sections 6, 7, 8, 9 and 10 shall remain in full force and effect as provided and for the time periods specified in such Sections notwithstanding the termination of this Agreement; all other obligations of either party to the other under this Agreement shall terminate at the end of the Term.


5. Termination.
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5.1 If, during the Term of this Agreement, Employee dies or is prevented from performing his duties by reason of illness or incapacity for one hundred forty (140) days in any one hundred eighty (180) day period, the Company may terminate this Agreement, upon thirty (30) days prior notice thereof to Employee or his duly appointed legal representative.


5.2 The Company or the Employee may terminate this Agreement upon at least thirty (30) days prior notice to Employee upon the happening of any of the following events ("Change of Control Event"):


5.2.1 The sale by the Company of substantially all of its assets to a single purchaser or associated group of purchasers who are not affiliates of the Company. For the purposes of this Agreement, the term "affiliate" means a person, firm or corporation that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the Company.


5.2.2 The sale, exchange or other disposition in one transaction of eighty percent (80%) or more of the outstanding voting stock of the Company to or with a person, firm or corporation not then an affiliate of the Company.


5.2.3 The merger or consolidation of the Company in a transaction not involving an affiliate of the Company in which the shareholders of the Company receive less than fifty percent (50%) of the outstanding voting stock of the new continuing corporation.


5.2.4 A bona fide decision by the Company to terminate its business and liquidate its assets (but only if such liquidation is not part of a plan to carry on the Company's business through its shareholders).


5.2.5 If Employee's employment is terminated prior to the date on which a Change of Control Event occurs, and such termination was at the request of a third party who has taken steps to effect a Change of Control Event or was otherwise caused by the Change of Control Event, then for all purposes of this Agreement, a Change of Control Event shall be deemed to have occurred prior to such termination.


5.3 The Company may terminate this Agreement at any time for gross negligence or willful non-performance by Employee of any duty as an employee of the Company which continues for a period of thirty (30) days after written notice specifying such negligence or non-performance.


5.4 The Company may terminate this Agreement immediately upon the intentional commission of a violation of any federal law, rule or regulation, or any theft, fraud, embezzlement or similar crime involving the commission of any felony, or for a material breach of any obligation or covenant created by or under this Agreement.


5.5 Company or Employee may terminate this Agreement without cause upon at least thirty (30) days prior notice.


5.6 Termination Fees. In the event that this Agreement is terminated
---------------- pursuant to this Section 5, Company shall pay Employee a Termination Fee as described below.


5.6.1 If this Agreement is terminated by (a) the Company under subsections 5.1, 5.2 or 5.5 above, or (b) by the Employee for Good Reason (as defined below) within twelve (12) months following a Change of Control Event as described in subsection 5.2 above, then (1) the Company shall continue to pay Employee's monthly base salary, as shall be in effect on the termination date, for a period of twenty-four (24) months following the date of termination; (2) the Company shall provide Employee with ...