**Exhibit 10.1**
EMPLOYMENT AGREEMENT
     THIS EMPLOYMENT AGREEMENT (this “Agreement”), is dated as of June 19,2003, by and between IPC Acquisition Corp., a Delaware corporation (the“Employer”), and Lance Boxer (the “Employee”).
     WHEREAS, the Employee possesses skills, experience and knowledge that areof value to the Employer; and
     WHEREAS, the Employer desires to enlist the services and employment of theEmployee on behalf of the Employer as its Chief Executive Officer, and theEmployee is willing to render such services on the terms and conditions setforth herein.
     NOW, THEREFORE, in consideration of the mutual covenants contained herein,the sufficiency of which is hereby acknowledged, the parties hereto agree asfollows:
     1.     Employment Term. Subject to the terms and conditions of thisAgreement, the Employer hereby agrees to employ the Employee hereunder, and theEmployee hereby agrees to be employed by the Employer hereunder, for the periodcommencing on July 16, 2003 (the “Effective Date”) and ending on the thirdanniversary of the Effective Date, unless terminated sooner as hereinafterprovided (such period, the “Employment Term”).
     2.     Duties.
     (a)  During the Employment Term, the Employee shall serve as the ChiefExecutive Officer of the Employer, and in such capacity shall use his bestenergies and abilities in the performance of such duties, services andresponsibilities customarily associated with such position as determined fromtime to time by the Board of Directors of the Employer (the “Board”) and suchother duties as reasonably requested by the Board. In performing such duties,services and responsibilities, the Employee will report directly to the Board.
     (b)  During the Employment Term, the Employee shall devote his fullbusiness time, attention and best efforts to the performance of his dutieshereunder; provided, however, that subject to the prior approval of the Board,the Employee shall be permitted to serve on corporate, civic, religious,educational or charitable boards or committees, so long as the Board determinesthat such activities do not interfere with the performance of the Employee’sduties hereunder.
     (c)  During the Employment Term, the Employee shall serve as a member ofthe Board. Upon a termination of the Employee’s employment with the
 

 

 Employer for any reason, the Employee shall be deemed to have resignedfrom all positions with the Board without any further action required by theparties hereto.
     3.     Compensation. In full consideration of the performance by the Employeeof the Employee’s obligations during the Employment Term (including any serviceas a member of the Board and in any position with any affiliate of the Employeror otherwise on behalf of the Employer), the Employee shall be compensated asfollows:
     (a)  Base Salary. During the Employment Term, the Employee shall receive abase salary (the “Base Salary”) at an annual rate of $350,000, payable inaccordance with the normal payroll practices of the Employer in effect fromtime to time. During the Employment Term, the Base Salary shall be subject toannual increase (but not decrease) as determined in the sole discretion of theBoard.
     (b)  Annual Target Bonus. For each fiscal year of the Employer in effectduring the Employment Term, the Employee shall be eligible to receive a cashbonus of up to 50% of his Base Salary (the “Target Bonus”) upon the attainmentof performance goals set in advance by mutual agreement between the Board (orcompensation committee of the Board, if applicable) and the Employee. Any suchbonus shall be pro-rated for any partial fiscal year during the EmploymentTerm. All such bonuses shall be paid after the completion of the Employer’sfinancial statements for the applicable fiscal year as and when bonuses arepaid to members of senior management generally.
     (c)  Signing Bonus. The Employer shall pay the Employee a signing bonus of$50,000 within 30 days following the Effective Date.
     (d)  Equity Awards.
     (i)  Subject to the last sentence of this Section 3(d)(i), within 30 daysfollowing the Effective Date, the Employer shall grant the Employee an optionto purchase 500,000 shares of common stock of the Employer, par value $0.01 pershare (the “Common Stock”), pursuant to the Employer’s Amended and Restated2002 Stock Option Plan (the “Option Plan”), at an exercise price equal to thefair market value (as determined by the Board) on the date of grant (suchoption, the “Option”). The Option shall have a 10-year term (subject toearlier termination as set forth in this Agreement). The Option shall beevidenced by an agreement containing the terms described in this Section 3(d)and in all other respects substantially in the form of agreement entered intowith other members of senior management prior to the date hereof. Theeffectiveness of the Option and the Employee’s continued obligations under thisAgreement shall be conditioned on and subject to the Employer obtaining theapproval of the Option by its shareholders in accordance with Section 280G oftheInternal Revenue Code of 1986, as amended (the “Code”), which approval (i)shall be
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requested in writing by the Employer within 4 weeks following theEffective Date and (ii) shall be obtained by the Employer as soon aspracticable thereafter.
     (ii)  The Option shall become vested and exercisable (x) as to 2.083% ofthe shares subject thereto on each of the first twelve one-month anniversariesof the Effective Date, and (y) as to 6.25% of the shares subject thereto oneach three-month anniversary of the first anniversary of the Effective Date, ineach case so long as the Employee has continued to be employed by the Employerfrom the Effective Date through each such date. In the event of a “Change inControl” (as defined in the Option Plan), 50% of the then unvested portion ofsuch Option will immediately become vested and exercisable. In the event theEmployee’s employment is terminated by the Employee with Good Reason (asdefined below) or by the Employer for any reason other than Cause (as definedbelow) or “Disability” (as defined in the Option Plan), in each case during theChange in Control Protection Period (as hereinafter defined), the Option willimmediately become fully vested and exercisable and remain exercisable for 180days. For purposes of this Agreement, the “Change in Control ProtectionPeriod” shall mean the period beginning 90 days prior to the execution of adefinitive agreement pursuant to which a Change in Control will occur andcontinuing until the first anniversary of the Change in Control (and anyexercise of the Option pursuant to the preceding sentence prior to a Change inControl shall be conditioned upon the consummation thereof).
     (iii)  Subject to the last sentence of Section 3(d)(ii) above and theremaining provisions of this Section 3(d)(iii), upon any termination of theEmployee’s employment, (x) any unvested and unexercisable portion of the Optionshall automatically terminate, and (y) the Employee shall be permitted toexercise the vested and exercisable portion of the Option for (A) 90 daysfollowing the Termination Date (as hereinafter defined), if clause (B) hereofdoes not apply to such termination of employment, or (B) 12 months followingthe Termination Date, if such termination of employment is by the Employee withGood Reason or by the Employer other than for Cause; provided, however, thatthe right of the Employee to exercise any portion of the Option following theTermination Date shall be conditioned upon the Employee’s continued compliancewith Section 8 hereof from the Termination Date through the date of suchexercise. In addition, if such termination of employment is by the Employeefor Good Reason or by the Employer other than for Cause, then on any dateduring the 12-month period following the Termination Date on which the Employeewould have vested in a portion of the Option had he continued to be employedduring such period, the Employee shall vest in such portion of the Option. Inaddition, upon termination of the Employee’s employment for Cause or upon anybreach of Section 8 hereof following the Termination Date, any unexercisedportion of the Option shall automatically terminate.
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     (iv)  The provisions of this Section 3(d) shall apply to all option grantsmade to the Employee by the Employer whether contemporaneous herewith orthereafter; provided, however, that nothing in this Agreement shall beconstrued to require any specific share number as to any subsequent grant.
     (e)  The Employee shall be solely responsible for federal, state and localtaxes imposed on the Employee by reason of any compensation and benefitsprovided under this Agreement, and all such compensation and benefits shall besubject to all applicable withholding taxes.
     4.     Benefits.
     (a)  During the Employment Term, the Employee shall be entitled toparticipate in the employee benefit plans, policies, programs and arrangements,as may be amended from time to time, that are provided generally to seniorexecutives of the Employer to the extent the Employee meets the eligibilityrequirements for any such plan, policy, program or arrangement.
     (b)  Upon the presentation of proper documentation, the Employer shallreimburse the Employee for all reasonable attorneys’ fees incurred inconnection with the negotiation and preparation of this Agreement, up to amaximum of $12,000.
     (c)  In addition to the benefits described above, during the EmploymentTerm, the Employer shall reimburse the Employee for the premium rate on theEmployee’s $2 million term life insurance policy, up to an annual amount equalto the annual premium rate as in effect on the Effective Date.
     5.     Vacations. During the Employment Term, the Employee shall be entitledto four weeks of paid vacation per each full calendar year. Such vacation timeshall be provided in accordance with the Employer’s policies with respect tocarry-over of vacation days.
     6.     Termination of the Employment Term. The Employment Term shallterminate upon the earliest of:
     (a)  The third anniversary of the Effective Date;
     (b)  The death of the Employee;
     (c)  The Disability of the Employee;
     (d)  The termination of the Employee’s employment by the Employer for Causeor without Cause (and, in the case of a termination without Cause, followingthirty (30) days prior written notice to the Employee); and
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     (e)  The termination of the Employee’s employment by the Employee with GoodReason or without Good Reason, in either case following thirty (30) days priorwritten notice to the Board.
     For purposes of this Agreement, the term “Cause” means the Employee’s (i)continued intentional failure or refusal to perform reasonably assigned duties,(ii) material and willful misconduct or material gross negligence in theperformance of the Employee’s duties, (iii) involvement in a transaction inconnection with the performance of the Employee’s duties to the Employer or anyof its subsidiaries which transaction is materially adverse to the interests ofthe Employer or any of its subsidiaries and which is engaged in for personalprofit, (iv) material and willful violation of any law, rule or regulation inconnection with the performance of the Employee’s duties (other than trafficviolations or similar offenses), (v) conviction or plea of no contest to anyfelony or other crime involving moral turpitude or (vi) breach of theEmployee’s covenants contained in Section 8 of this Agreement. A terminationfor Cause determination may only be made by a majority of the Board at aproperly noticed meeting after the Employee has been given a reasonableopportunity to be heard. If the Cause is reasonably curable, the Employer mustprovide the Employee with explicit written notice of the Cause for terminationand provide the Employee a reasonable time within which to cure such Cause.The foregoing definition of Cause shall be effective for all purposes relatedto the compensation, benefits and equity rights available to the Employeerelated to his employment with the Employer and supersedes other definitions.
     For purposes of this Agreement, the term “Good Reason” means any of thefollowing, in each case without the Employee’s consent: (i) a materiallyadverse reduction in the Employee’s title, duties and responsibilities; (ii) areduction by the Employer in the Employee’s Base Salary or annual target cashbonus opportunity; (iii) the relocation by the Employer of the principalworksite of the Employee to a location more than fifty (50) miles from suchworksite, except for required travel on the business of the Employer or (iv) amaterial breach of this Agreement. If the Good Reason is reasonably curable,the Employee must provide the Employer a reasonable time within which to curesuch Good Reason.
     7.     Termination Payments.
     (a)  Subject only to Section 7(b), upon termination of the Employee’semployment during the Employment Term, the sole obligation of the Employer tomake any cash payment to the Employee shall be to pay the Employee(i) any portion of the Base Salary and bonus which has been earned butunpaid as of the date of the Employee’s termination of employment with theEmployer (the “Termination Date”) and (ii) reimbursement of reasonable andnecessary business expenses incurred by the Employee in connection with theEmployee’s employment on behalf of the Employer on
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or prior to the TerminationDate but not previously paid to the Employee (collectively, the “AccruedCompensation”).
     (b)  If the employment of the Employee is terminated during the EmploymentTerm by the Employer pursuant to Section 6(d) other than for Cause, or by theEmployee with Good Reason, the sole obligation of the Employer to make any cashpayment to the Employee other than the payment of the Accrued Compensationshall be to pay the Employee an amount of severance pay equal to the sum of100% of the Base Salary and 100% of the Target Bonus, each as in effect as ofthe Termination Date. Such severance pay shall be paid in twelve substantiallyequal monthly installments commencing within 30 days of the Termination Date;provided, however, that in the event the Employee breaches any of the covenantsset forth in Section 8 hereof following the Termination Date, all severancepayments shall cease and the Employer shall have no further obligations underthis Section 7(b). The Employee shall also receive the additional vesting ofthe Option as set forth in Section 3(d)(iii) hereof. The obligation of theEmployer to pay the severance pay pursuant to this Section 7(b) shall beconditioned on the Employee’s execution of a general release in form reasonablysatisfactory to the Employer.
     8.     Employee Covenants.
     (a)  Unauthorized Disclosure. The Employee agrees and understands that inthe Employee’s position with the Employer, the Employee has been and will beexposed to and has and will receive information relating to the confidentialaffairs of the Employer and its affiliates, including, without limitation,technical information, intellectual property, business and marketing plans,strategies, customer information, software, other information concerning theproducts, promotions, development, financing, expansion plans, businesspolicies and practices of the Employer and its affiliates and other forms ofinformation considered by the Employer and its affiliates to be confidentialand in the nature of trade secrets (including, without limitation, ideas,research and development, know-how, formulas, technical data, designs,drawings, specifications, customer and supplier lists, pricing and costinformation and business and marketing plans and proposals) (collectively, the“Confidential Information”). The Employee agrees that at all times during theEmployee’s employment with the Employer and thereafter, the Employee shall notdisclose such Confidential Information, either directly or indirectly, to anythird person or entity without the prior written consent of the Employer. Thisconfidentiality covenanthas no temporal, geographical or territorial restriction. Upontermination of the Employee’s employment with the Employer, the Employee shallpromptly supply to the Employer all property, keys, notes, memoranda, writings,lists, files, reports, customer lists, correspondence, tapes, disks, cards,surveys, maps, logs, machines, technical data and any other tangible product ordocument which has been produced by, received by or otherwise submitted to
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theEmployee during or prior to the Employee’s employment with the Employer, andany copies thereof in his (or capable of being reduced to his) possession.
     (b)  Non-competition. By and in consideration of the Employer’s enteringinto this Agreement and the payments to be made and benefits to be provided bythe Employer hereunder, and in further consideration of the Employee’s exposureto the Confidential Information of the Employer and its affiliates, theEmployee agrees that the Employee shall not, during the Employee’s employmentwith the Employer and thereafter during the one-year period following theTermination Date (the “Non-competition Term”), directly or indirectly, own,manage, operate, join, control, be employed by, or participate in theownership, management, operation or control of, or be connected in any mannerwith, including, without limitation, holding any position as a shareholder,director, officer, consultant, independent contractor, employee, partner, orinvestor in, any Restricted Enterprise (as defined below); provided, that in noevent shall ownership of 1% or less of the outstanding equity securities of anyissuer whose securities are registered under the Securities Exchange Act of1934, as amended, standing alone, be prohibited by this Section 8(b). Forpurposes of this paragraph, “Restricted Enterprise” shall mean any person,corporation, partnership or other entity that is engaged, directly orindirectly, in (a) the design, manufacture, installation, servicing,consultation and other professional services and applications of Turret Systems(as defined below); (b) the design and implementation of the in-buildingcabling and infrastructure necessary for customers of the type serviced by theEmployer; (c) the design, provisioning, installation or servicing oftelecommunication services for trading floors; or (d) managed services inconnection with trading organizations as provided by the Employer during theEmployee’s employment with the Employer, in each case in the United States orin any other geographic location where the Employer or any of its affiliates dobusiness. For purposes of this Agreement, the term “Turret Systems” shall meantelecommunications equipment and software to enable communications (includingvoice, video and data) primarily among traders, counterparties and associatedsupport personnel. During the one-year period following the Termination Date,upon request of the Employer, the Employee shall notify the Employer of theEmployee’s then-current employment status.
     (c)  Non-solicitation. During the Non-competition Term, the Employee shallnot (1) contact, induce or solicit (or assist any person to contact, induceor solicit) any person which has a business relationship with the Employeror of any of its affiliates to terminate, curtail or otherwise limit suchbusiness relationship, or (2) contact, induce or solicit (or assist any personto contact, induce or solicit) for employment any person who is, or within sixmonths prior to the date of such action was, an employee of the Employer or anyof its affiliates. The provisions of this Section 8(c) shall not prevent theEmployee from soliciting for employment any individual who served him directlyin the role of secretary and/or assistant during his employment with theEmployer. In addition, the provisions of this Section 8(c) shall not preventthe Employee from utilizing
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business contacts and information in his possessionbefore his employment with the Employer, so long as such utilization does notviolate Section 8(b) hereof or the first sentence of Section 8(c) hereof.
     (d)  Remedies. The Employee agrees that any breach of the terms of thisSection 8 would result in irreparable injury and damage to the Employer forwhich the Employer would have no adequate remedy at law; the Employee thereforealso agrees that in the event of said breach or any threat of breach, theEmployer shall be entitled to an immediate injunction and restraining order toprevent such breach and/or threatened breach and/or continued breach by theEmployee and/or any and all persons and/or entities acting for and/or with theEmployee, without having to prove damages, in addition to any other remedies towhich the Employer may be entitled at law or in equity. The terms of thisparagraph shall not prevent the Employer from pursuing any other availableremedies for any breach or threatened breach hereof, including, withoutlimitation, the recovery of damages from the Employee. The Employee and theEmployer further agree that the provisions of the covenants contained in thisSection 8 are reasonable and necessary to protect the businesses of theEmployer and its affiliates because of the Employee’s access to ConfidentialInformation and his material participation in the operation of such businesses.Should a court or arbitrator determine, however, that any provision of thecovenants contained in this Section 8 is not reasonable or valid, either inperiod of time, geographical area, or otherwise, the parties hereto agree thatsuch provision should be interpreted and enforced to the maximum extent whichsuch court or arbitrator deems reasonable or valid.
     The existence of any claim or cause of action by the Employee against theEmployer or any of its affiliates, whether predicated on this Agreement orotherwise, shall not constitute a defense to the enforcement by the Employer ofthe covenants contained in this Section 8; provided, however, that thissentence shall not apply to any claim or cause of action by the Employee forany payment or benefit which is required to be paid or provided to him if thepayment or provision thereof is not the subject of a good faith dispute betweenthe Employer and the Employee.
     9.     Proprietary Rights. The Employee shall disclose promptly to theEmployer any and all inventions, discoveries, improvements and patentable orcopyrightable works initiated, conceived or made by him, either alone or inconjunction with others, during the Employee’s employment with the Employer andrelated to the business or activities of the Employer and its affiliates, andhe assigns all of his interest therein to the Employer or its nominee.Whenever requested to do so by the Employer, the Employee shall execute any andall applications, assignments or other instruments which the Employer shalldeem necessary to apply for and obtain trademarks, patents or copyrights of theUnited States or any foreign country or otherwise protect the interests of theEmployer and its affiliates therein. These obligations shall continue beyondthe end
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of the Employee’s employment with the Employer with respect toinventions, discoveries, improvements or copyrightable works initiated,conceived or made by the Employee while employed by the Employer relating tothe Employer’s business, and shall be binding upon the Employee’s employers,assigns, executors, administrators and other legal representatives.
     10.     Employee Representations. The Employee represents and warrants that(i) he is not subject to any contract, arrangement, policy or understanding, orto any statute, governmental rule or regulation, that in any way limits hisability to enter into and fully perform his obligations under this Agreementand (ii) he is not otherwise unable to enter into and fully perform hisobligations under this Agreement.
     11.     Indemnification. During the Employee’s employment and thereafter, theEmployer agrees to indemnify, including, without limitation, advancement of allcosts and fees, the Employee from and against any liability and expensesarising by reason of the Employee’s acting as an officer or director of theEmployer or any of its subsidiaries, in accordance with and to the fullestextent permitted by law. During the Employment Term, the Employer shallmaintain commercially reasonable Directors and Officers liability insurance,under which the Employee will be a covered person. Such liability insuranceshall have such terms and policy limits of coverage as are determinedappropriate by the Board.
     12.     Additional Payment. In the event that the Employee shall be requiredto pay an excise tax imposed by Section 4999 of the Code (or successorprovision having the same effect) (“Excise Tax”) solely by reason of anypayment made pursuant to this Agreement (exclusive, however, of any paymentmade pursuant to this Section 12), the Employer shall pay the Employee anamount of cash equal to such Excise Tax.
     13.     Non-Waiver of Rights; Disputes.
     (a)  The failure to enforce at any time the provisions of this Agreement orto require at any time performance by any other party of any of the provisionshereof shall in no way be construed to be a waiver of such provisions or toaffect either the validity of this Agreement or any part hereof, or the rightof any party to enforce each and every provision in accordance with its terms.
     (b)  No dispute relating to or arising under this Agreement shall besubject to mediation or arbitration, and, if such dispute is subject to atrial, such trial shall be a jury trial.
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     14.     Notices. Every notice relating to this Agreement shall be in writingand shall be given by personal delivery or by registered or certified mail,postage prepaid, return receipt requested.
     15.     Binding Effect/Assignment.
     (a)  This Agreement shall inure to the benefit of and be binding upon theparties hereto and their respective heirs, executors, personal representatives,estates, successors (including, without limitation, by way of merger) andassigns. Notwithstanding the provisions of the immediately preceding sentence,the Employee shall not assign all or any portion of this Agreement without theprior written consent of the Employer.
     (b)  The Employer will require any successor (whether direct or indirect,by purchase, merger, consolidation or otherwise) to all or substantially all ofthe business or assets of the Employer, to expressly assume and agree toperform this Agreement in the same manner and to the same extent that theEmployer would be required to perform it if no such succession had taken place,unless such assumption occurs automatically by operation of law.
     16.     Entire Agreement; Modification. This Agreement sets forth the entireunderstanding of the parties hereto with respect to the subject matter hereofand supersedes and replaces all prior agreements, negotiations and/orrepresentations, written or oral, between them as to such subject matter. ThisAgreement may not be amended, nor may any provision hereof be modified orwaived, except by an instrument in writing duly signed by the parties.
     17.     Severability. If any provision of this Agreement, or any applicationthereof to any circumstances, is invalid, in whole or in part, such provisionor application shall to that extent be severable and shall not affect otherprovisions or applications of this Agreement.
     18.     Governing Law. This Agreement shall be governed by and construed inaccordance with the laws of the State of New York, without reference to theprinciples of conflict of laws.
     19.     Headings. The headings contained herein are solely for the purposesof reference, are not part of this Agreement and shall not in any way affectthe meaning or interpretation of this Agreement.
     20.     Counterparts. This Agreement may be executed in two or morecounterparts, each of which shall be deemed to be an original but all of whichtogether shall constitute one and the same instrument.
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[signature page follows]
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     IN WITNESS WHEREOF, the Employer has caused this Agreement to be executedby authority of the Board, and the Employee has hereunto set his hand,effective as of the Effective Date.    IPC Acquisition Corp.       By:/s/ Timothy Whelan    Name:Timothy Whelan         Its:Chief Financial Officer          /s/ Lance Boxer     Lance Boxer
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