EMPLOYMENT AGREEMENT
Exhibit 10.8
EMPLOYMENT AGREEMENT made as of this May 31, 2007, by and between Centennial Puerto Rico
Operations Corp., a corporation organized and subsisting under the laws of Delaware and whose
address for the purposes of this Agreement is 0000 Xxxxx 000, Xxxx, Xxx Xxxxxx 00000 (the
“Company”), and Xxxxxx Xxxxxx (“Employee”).
RECITALS
| A. | The Company desires to employ the Employee as its President, Puerto Rico Operations and in such other capacities as may be permitted by this Agreement, and under all of the terms, provisions and conditions set forth herein. | |
| B. | Employee is willing to accept such employment, and such other employment as may be provided for herein, all under the terms, provisions and conditions set forth herein. |
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein set forth and other
good and valuable consideration, the receipt and adequacy of which is mutually acknowledged, it is
agreed by and between the parties as follows:
1. Representations and Warranties
Employee represents and warrants that he is not subject to any restrictive covenants or other
agreements or legal restrictions (including any non-compete agreement) in favor of any person which
would in any way preclude, inhibit, impair or limit his employment by the Company or the
performance of his duties, all as contemplated herein.
2. Employment
The Company hereby employs Employee and Employee accepts such employment as its President,
Puerto Rico Operations. In such capacity, Employee shall be responsible for managing the Puerto
Rico operations, subject to the direction and control of the Chief Executive Officer of Centennial
Communications Corp. (“Parent”) . The Employee shall devote his full time and attention to
the performance of his duties hereunder. In addition, Employee shall perform such duties and
functions as are consistent with his status as a senior executive officer of the Company. The
Company, in its sole discretion, may change the Employee’s duties from time to time upon notice to
the Employee. At the direction of the Chief Executive Officer of Parent or the Board of Directors
of Parent, Employee shall also serve in such other senior executive and/or other administrative
capacities with any subsidiaries of Parent (“Subsidiaries” or individually a
“Subsidiary,” as hereafter defined), as they may determine.
3. Place of Employment
Employee shall render his services where and as required by the Company, it being understood
and agreed, however, that employee’s base of operations shall be the offices of the Company in
Puerto Rico, and that Employee shall not be required to render services on a permanent basis
outside of said region unless Employee otherwise agrees.
4.
Term
4.1 Unless earlier terminated as provided in this Agreement, the term of Employee’s employment
under this Agreement shall be for a period beginning on the date hereof and ending on the one (1)
year anniversary of the date hereof (the “Initial Term”).
4.2 The term of the Employee’s employment under this Agreement shall be automatically renewed
for additional one-year terms (each a “Renewal Term”) upon the expiration of the Initial
Term or any Renewal Term unless the Company or the Employee delivers to the other, at least ninety
(90) days prior to the expiration of the Initial Term or the then current Renewal Term, as the case
may be, a written notice specifying that the Term of the Employee’s employment will not be renewed
at the end of the Initial Term or such Renewal Term, as the case may be. The Initial Term or, in
the event that the Employee’s employment hereunder is earlier terminated as provided herein or
renewed as provided in this Section 4.2, such shorter or longer period, as the case may be, is
hereinafter called the “Term”.
5. Compensation
5.1 Subject to prior termination, as compensation for all services rendered and to be rendered
by Employee hereunder and the fulfillment by Employee of all of his obligations herein, the Company
shall pay Employee a base salary at the rate equal to U.S. $300,000 per year for each year of the
Term on such days as the Company normally pays its employees and subject to such withholdings as
may be required by law (said amount, together with any changes thereto as may be determined from
time to time by Parent and/or the Company in their sole discretion, being hereinafter referred to
as “Base Salary”).
5.2 Nothing herein shall prevent or preclude the Company or the Board of Directors of Parent
or the applicable committee of the Board of Directors, in its sole discretion, and from time to
time, from awarding a bonus or bonuses to Employee for his service as an Employee and/or from
awarding or granting Employee (i) options to acquire shares of stock in Parent, (ii) shares of
stock in Parent or (iii) any other incentive or stock related awards in addition to Base Salary.
In exercising its discretion with respect to whether a bonus should be awarded and the amount
thereof, the Company, Parent, the Board or the applicable Committee may consider, among other
factors, the contribution of Employee (x) to the growth in revenues, cash flow and subscribers of
the Company and those Subsidiaries to or for which Employee renders service, (y) in connection with
acquisitions and financings, and (z) to the operations of the Company, Parent and its various
Subsidiaries as an entity.
2
6. Reimbursement for Business Expenses; Fringe Benefits
6.1 The Company agrees that all reasonable expenses actually incurred by Employee in the
discharge and fulfillment of his duties for the Company, as set forth in Section 2, will be
reimbursed or paid by the Company upon written substantiation therefor signed by Employee,
itemizing said expenses and containing all applicable vouchers or other substantiation consistent
with Company policy in effect from time to time.
6.2 The Company agrees that it will cause Employee to be insured under such group life,
medical, and insurance that the Company may maintain and keep in force from time to time during the
Term for the benefit of all the Company’s employees, subject to the terms, provisions and
conditions of such insurance and the agreements with underwriters relating to same. It is
understood and agreed that in its discretion the Company from time to time may terminate or modify
any or all of such insurance without obligation or liability to Employee.
7. Exclusivity; Non Solicitation; Disparaging Remarks. In exchange for the consideration
to be received by the Employee hereunder and in light of the high-level position that Employee will
occupy within the Company, the Employee agrees as follows:
7.1 During the Term, Employee agrees to devote his services and his best energies and
abilities, exclusively, to the business and activities of the Company, including any Subsidiaries,
and not engage or have an interest in or perform services for any other business or entity of any
kind or nature; provided, however, that nothing herein shall prevent Employee from investing in
(but not rendering services to) other businesses which are not competitive in any manner with the
business then being conducted by Parent, the Company or any of their respective Subsidiaries, or
investing in (but not rendering services to) other businesses (other than for charitable
organizations, provided same does not interfere with Employee’s performance of his duties
hereunder) which are competitive in any manner with the business then being conducted by Parent,
the Company or any of their respective Subsidiaries, provided in the latter instance, that (i) the
shares of such business are listed and traded over either a national securities exchange or in the
over-the-counter market, and (ii) stock interest or potential stock interest (based on grants,
options, warrants or other arrangements or agreements then in existence) in any such business which
is so traded (together with any and all interest, actual and potential, of all members of
Employee’s immediate family) is not a controlling or substantial interest and specifically does not
exceed one percent of the issued and outstanding shares or a one percentage interest of or in such
business.
7.2 During the Term and during the one year period following the end of the Term for any
reason whatsoever, Employee will not directly or indirectly, recruit or otherwise solicit or induce
or attempt to induce any employee of Parent, the Company or any of their respective Subsidiaries to
leave the employ of Parent, the Company or any such Subsidiary, or in any way interfere with the
relationship between Parent, the Company and any of its Subsidiaries and any employee thereof.
7.3
During the Term, and during the one year period following the end of the Term, Employee agrees that he will not, directly or indirectly (whether for compensation or without
compensation), own, manage, operate, control, participate in, consult with, render services for or
in any manner engage in any business in the Territory (as defined below) which is engaged in any
business then being conducted by the Company during the Term. For purposes of this covenant, the
term Territory means the Commonwealth of Puerto Rico.
3
7.4 During the Term and thereafter, Employee agrees that he will not, directly or indirectly,
make any disparaging statements concerning Parent, the Company or any of their respective
Subsidiaries.
8. Uniqueness
8.1 Employee agrees that his services hereunder are special, unique and extraordinary and that
in the event of any material breach or attempted material breach of this Agreement by Employee
including, without limitation, the provisions of Section 7, 9 and/or 10, the Company will sustain
substantial injury and damage, and Employee hereby consents and agrees that, in the event of such
breach hereof, the Company shall be entitled to any equitable remedies to enforce the performance
against Employee or any third party to prevent or in respect of any such breach, in addition to
such other rights or remedies available to it.
9. Confidential Information; Return of Company Documents and Property
9.1 Employee acknowledges that his employment hereunder will necessarily involve his
understanding of and access to certain trade secrets and confidential information pertaining to the
businesses and activities of the Company, Parent and their respective Subsidiaries. Accordingly,
Employee agrees that during the period of employment and at all times thereafter, he will not
disclose to any unauthorized third party any such trade secrets or confidential information and
will not (other than in connection with carrying out his duties) for any reason remove or retain
without the express consent of the Company any confidential information or documents. For
purposes of this Agreement, the term “confidential information” shall include, without limitation,
trade secrets, proprietary information, company documents, records and other information which
relates to the business or operations of the Company, Parent or any of their respective
Subsidiaries or affiliates. The provisions of this section shall survive the termination, for any
reason, of this Agreement or the Employee’s employment.
9.2 Upon termination of Employee’s employment with the Company whether by reason of the
termination or expiration of this Agreement, the Employee shall return to the Company (i) all
documents within his possession, custody, or control relating to the business and affairs of the
Company, or its products or customers; and (ii) all other Company property within his possession,
custody, or control including, but not limited to, credit cards issued to him by the Company,
office keys or card keys, office passes or badges, office equipment, supplies, facsimile machines,
copiers, computers and peripheral equipment, answering machines, or any other property or equipment
furnished to him or paid for by the Company. The Employee hereby authorizes the Company to
withhold payment of any amount payable by the Company to the Employee until the Employee shall have
returned all documents and property in accordance with this Section.
4
10. Inventions; Creations
10.1 All right, title and interest of every kind and nature whatsoever in and to inventions,
patents, trademarks, copyrights, films, scripts, ideas, creations, intellectual property and
literary, intellectual and other properties furnished to the Company or any of its Subsidiaries
and/or used in connection with any of the activities of the Company or any of its Subsidiaries, or
with which Employee is connected or associated in connection with the performance of his service,
shall as between the parties hereto be, become and remain the sole and exclusive property of the
Company or any of its Subsidiaries, as the case may be, for any and all purposes and uses
whatsoever, regardless of whether the same were invented, created, written, developed, furnished,
produced or disclosed by Employee or by any other party, and Employee shall have no right, title of
interest of any kind or nature therein or thereto, or in any results and proceeds therefrom.
Employee agrees during and after the term hereof to execute any and all documents which the Company
may deem necessary and appropriate to effectuate the provisions of this Section 10.1 and, further,
that the provisions of this Section shall survive the termination, for any reason, of this
Agreement or Employee’s employment.
11. Death; Permanent Incapacity
11.1 The death of the Employee shall result in the immediate termination of this Agreement.
11.2 In the event Employee suffers a disability which prevents him from performing his
services hereunder (herein called “Disability”), and in the event such Disability continues
for longer than 90 consecutive days or 120 days in any 12-month period, Employee shall be deemed to
have suffered a Permanent Incapacity, in which event the Company shall have the right to terminate
this Agreement upon not less than fifteen days’ notice to Employee, and this Agreement shall
terminate on the date set forth therefor in said notice.
11.3 Notwithstanding anything to the contrary expressed or implied in this Agreement, except
as required by applicable law, the Company (and its affiliates and Subsidiaries) shall not be
obligated to make any payments to Employee or on his behalf of whatever kind or nature by reason of
the Employee’s cessation of employment as described in Sections 11.1 and 11.2 above other than (i)
such amounts, if any, of his Base Salary as shall have accrued and remained unpaid as of the date
of said cessation, (ii) a pro rata portion of any incentive target bonus payable with respect to
the fiscal year during which such cessation of employment occurred if Employee’s relevant
performance targets for such fiscal year are achieved (such pro rata bonus to be payable within
thirty (30) days after the close of such fiscal year) and (iii) such other amounts, if any, which
may be then otherwise payable to Employee pursuant to the terms of the Company’s benefits plans or
pursuant to Section 6.1 above.
5
12. Termination
12.1 In addition to termination pursuant to Section 11, Employee’s employment hereunder may be
terminated for “cause.” “Cause” for purposes of this Agreement shall mean the following:
| (i) | chronic use of alcohol or drugs materially affecting Employee’s performance, | ||
| (ii) | conviction of, or plea of nolo contendere to, a felony or crime involving moral turpitude, | ||
| (iii) | failure to comply within a period of ten business days with a reasonable directive of the Employee’s direct supervisor and/or the Chief Executive Officer of Parent relating to Employee’s duties or Employee’s performance and consistent with Employee’s position, after written notice that such failure will be deemed to be “cause,” to the extent such failure can be cured within ten business days and if not so curable, fails to commence curing during said ten-day period and diligently pursue the curing of same until cured, | ||
| (iv) | gross neglect or gross misconduct of Employee in carrying out his duties under this Agreement, resulting, in either case, in material economic harm to the Company, unless Employee believed in good faith that such act or non-act was in the best interests of the company, | ||
| (v) | fraud on or misappropriation of corporate assets or corporate opportunity, and | ||
| (vi) | acts of dishonesty or breach of fiduciary obligation to the Company or violation of any Company rule, regulation, procedure or policy, including any breach of this Employment Agreement. |
12.2 In the event the Company terminates this Agreement and Employee’s employment other than
for “cause,” and other than for death or disability, the Company shall pay to Employee, as
severance pay or liquidated damages or both, (i) monthly payments at the rate per
annum of his Base Salary at the time of such termination for a period from the date of such
termination to the date which is twelve (12) months after such termination and (ii) continue to
provide the Employee with life insurance and medical and health insurance coverage at levels
comparable to those in effect prior to such termination for a period from the date of such
termination to the earlier to occur of (x) the date which is twelve (12) months after such
termination and (y) the date upon which the Employee becomes eligible to be covered for similar
benefits through his employment with another employer.
13. Vacation
13.1 Employee shall be entitled to a vacation of four (4) weeks duration in the aggregate
during each year of the Term at times reasonably agreeable to both Employee and the
6
Company, it being understood that any portion of such vacation not taken in such year shall not be
available to be taken during any other year.
14. Insurance
14.1 In addition to insurance referenced in Section 6.2, Employee agrees that the Company or
any Subsidiary may apply for and secure and/or own and/or be the beneficiary of insurance on the
Employee’s life or disability insurance (in each instance in amounts determined by the Company),
and Employee agrees to cooperate fully in the applying and securing of same, including the
submission to various physical and other examinations and the answering of questions and furnishing
of information as may be required by various insurance carriers. However, nothing contained herein
shall require the Company to obtain any such life or disability insurance.
15. Miscellaneous
15.1 The Company shall have the right to assign this Agreement and to delegate all duties and
obligations hereunder to any successor, affiliated or parent company or to any person, firm or
corporation which acquires the Company or substantially all of its assets, or with or into which
the Company may consolidate or merge. This Agreement shall be binding upon and inure to the
benefit of the permitted successors and assigns of the Company. Employee agrees that this
Agreement is personal to him and may not be assigned by him.
15.2 This Agreement is being delivered in the State of New Jersey and shall be construed and
enforced in accordance with the laws of such State applicable to contracts made and fully to be
performed therein, and without any reference to any rules of conflicts of laws.
15.3 Except as may herein otherwise be provided, all notices, requests,
demands and other communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally or if mailed, first class postage prepaid, registered or
certified mail, return receipt requested, of if sent by telecopier or overnight express delivery
service, (a) to Employee at his address set forth on the facing page hereof or at such other
address as Employee may have notified the Company sent by registered or certified mail, return
receipt requested, or by telecopier or overnight express delivery service, or (b) if to the
Company, at its address set forth on the facing page hereof, Attention: Legal Department, or at
such other address as the Company may have notified Employee in writing sent by registered or
certified mail, return receipt requested, or by telecopier or overnight express delivery service.
Notice shall be deemed given (i) upon personal delivery, or (ii) on the second business day
immediately succeeding the posting of same, prepaid, in the U.S. mail, (iii) on the date sent by
telecopy if the addressee has compatible receiving equipment and provided the transmittal is made
on a business day during the hours of 9:00 A.M. to 6:00 P.M. of the receiving party and if sent on
other times, on the immediately succeeding business day, or (iv) on the first business day
immediately succeeding delivery to the express overnight carrier for the next business day
delivery.
7
15.4 This Agreement may be executed simultaneously in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument. Each party shall deliver such further instruments and take such further action as may
be reasonably requested by the other in order to carry out the provisions and purposes of this
Agreement. This Agreement represents the entire understanding of the parties with reference to the
transaction set forth herein, supercedes any prior agreement or understanding between the parties
with respect to the employment of the Employee by the Company and the rights and obligations of the
Employee and the Company relating thereto, and neither this Agreement nor any provision thereof may
be modified, discharged or terminated except by an agreement in writing signed by the party against
whom the enforcement of any waiver, change, discharge or termination is sought. Any waiver by
either party of a breach of any provision of this Agreement must be in writing and no waiver of a
particular breach shall operate as or be construed as a waiver of any subsequent breach thereof. If
any covenant in this Agreement should be deemed to be invalid, illegal or unenforceable because its
scope is considered excessive or for any similar reason, such covenant shall be modified so that
the scope of the covenant is reduced only to the minimum extent necessary to render the modified
covenant valid, legal or enforceable.
15.5 “Subsidiaries” or “Subsidiary” shall include and mean any corporation,
partnership or other entity 50% or more of the then issued and outstanding voting stock is owned
directly or indirectly by Parent in the instance of a corporation, and 50% or more of the interest
in capital or in profits is owned directly or indirectly by Parent in the instance of a partnership
and/or other entity, or any corporation, partnership, venture or other entity, the business of
which is managed by Parent or any of its Subsidiaries.
15.6 Employee acknowledges that he fully understands the scope and meaning of the restrictive
covenants contained in this Agreement and agrees that such provisions are reasonable in light of
the circumstances and are necessary to protect Employer’s legitimate interests.
15.7 The Employee and the Company agree that any claim or dispute that may arise between them
relating to this Agreement or the termination of the Employee’s employment with the Company
(including any claim of constructive termination) shall be determined exclusively by final and
binding arbitration. The arbitration proceeding will be conducted at a place selected by the
Company and before a single arbitrator under the National Rules for the Resolution of Employment
Disputes of the American Arbitration Association. The demand for arbitration must be submitted
within one year of the date that the Employee is advised of his or her termination or the date that
the Employee advises Company of his or her decision to resign from employment; provided, however,
that no demand for arbitration may be made until thirty (30) days after a written notice, stating
with particularity the nature of the claim or dispute, has first been forwarded by certified mail
to the opposing party. The arbitration proceeding shall be private and all information disclosed
in the course of the arbitration, as well as the arbitration award, shall be treated as
confidential by the parties. The award of the arbitrator shall be final and binding upon the
Employee and the Company and judgment upon the award rendered may be entered in any court having
jurisdiction. Each of the parties hereto expressly waives any right to trial by jury. The costs
of the arbitrator will be borne equally by the parties, except that each party will pay its own
attorney’s fees and costs.
8
The claims or disputes that are subject to this arbitration provision include, but are not limited
to, any claim of discriminatory discharge, retaliatory discharge or wrongful discharge under any
state, federal or foreign statute, breach of contract, lost wages, emotional distress, claims under
Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in
Employment Act, as amended, the Americans with Disabilities Act, Employee Retirement Income
Security of 1974, as amended, the Family and Medical Leave Act, the Equal Pay Act of 1963, claims
of unjustified dismissal (Law 80 of May 30, 1976), discrimination on account of sex, religion,
race, age, political ideas, social condition or origin, national origin, disability or any other
reason, any common law claims, including, but not limited to, claims for wrongful discharge, public
policy claims, claims for breach of an express or implied contract, claims for breach of an implied
covenant of good faith and fair dealing, intentional and/or negligent infliction of emotional
distress, defamation or damage to name or reputation, invasion of privacy, and tortious
interference with contract or prospective economic advantage. By agreeing to submit these claims
to arbitration, the Employee is giving up any right to a jury trial or court trial with regard to
these claims or disputes.
Nothing in this section concerning arbitration shall prevent the Company from seeking equitable
remedies in court for purposes of enforcing the performance of, or enjoining the breach of, any
provisions of Sections 7, 9 or 10. For this limited purpose, the Employee hereby agrees to submit
to personal jurisdiction in any court in the state or commonwealth in which the Employee was last
employed by Company.
IN WITNESS WHEREOF, the parties hereto have executed and have caused this Agreement to be executed
as of the day and year first above written.
| CENTENNIAL PUERTO RICO OPERATIONS CORP. | XXXXXX XXXXXX | |||||||||
By:
|
/s/ Xxxxxxx Xxxxx | By: | /s/ Xxxxxx Xxxxxx | |||||||
Name:
|
Xxxxxxx Xxxxx | Name: | Xxxxxx Xxxxxx | |||||||
Title:
|
CEO | |||||||||
9
