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Exhibit 10.1
EMPLOYMENT AGREEMENT
This AGREEMENT (the "Agreement") is made and entered into as of this
1ST day of September, 1996, by and among PhoneTel Technologies, Inc.(the
"Corporation") and Xxxxxxx Xxxxxx (the "Executive").
WHEREAS, the Corporation desires to have the Executive provide services
to the Corporation as Chief Financial Officer, having determined that the
services of the Executive are of value to the Corporation, and the Executive
desires to be employed by the Corporation as Chief Financial Officer.
NOW THEREFORE, in consideration of the Executive's performance of the
duties set forth herein, and upon the other terms and conditions hereinafter
provided, the parties agree as follows:
1. Employment and Services.
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During the term of this Agreement, the Executive shall be employed as
Chief Financial Officer of the Corporation. As Chief Financial Officer, the
Executive shall render administrative and management services to the Corporation
such as are customarily performed by persons situated in similar executive
positions, and such other duties as the Chief Executive Officer ("CEO") and/or
Chief Administrative Officer ("CAO") of the Corporation may from time to time
direct. As an employee of the Corporation, the Executive shall report directly
to the CEO and/or CAO of the Corporation.
2. Term of Agreement
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The term of this Agreement shall continue for eighteen (18) months
beginning September 3, 1996 and ending on March 3, 1998. The Agreement shall
automatically be extended for an additional one-year period, unless the
Executive is notified that it shall not be extended one hundred twenty (120)
days prior to the expiration of the term or extended term of this Agreement.
3. Obligations of the Executive
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The Executive agrees to devote his best efforts and his entire business
time to the business and affairs of the Corporation, and to discharge his
responsibilities hereunder. The Executive may serve on corporate, civic or
charitable boards or committees and may manage personal investments, so long as
such activities do not interfere in any material respect with the performance of
his responsibilities hereunder.
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4. Compensation.
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a. SALARY. During the term of this Agreement, the Corporation
shall pay the Executive a salary of $120,000 per annum, which shall be paid at
regular intervals in accordance with the Corporation's normal payroll practices.
b. INCENTIVE BONUS. During the Term of this Agreement, the
Executive shall receive such annual bonus amount as the CEO of the Corporation
may determine; provided, however, that the annual bonus of Executive shall not
be less than $15,000 for any full calendar year of service hereunder. Such bonus
shall be paid within thirty (30) days after the completion of the annual audit
of the financial statements of the Corporation for such year, as evidenced by
the issuance of the written opinion of the auditors with respect thereto.
c. BENEFIT PLANS. The Executive shall be entitled to
participate in any plan of the Corporation relating to pension, deferred
compensation, profit-sharing, stock purchase, group life insurance, medical
insurance or other retirement or employee benefits that the Corporation may then
have in force for the benefit of its executive employees, and for which he is
otherwise eligible, including but not limited to paid family medical insurance,
paid long-term disability insurance, and paid family dental insurance. In the
event the Corporation institutes a stock option plan for its executives,
Executive shall be eligible to participate in such plan.
d. EXPENSE REIMBURSEMENT. In addition to the compensation
provided to the Executive pursuant to subparagraphs a., b. and c. hereof, and
upon receipt of proper documentation, the Corporation agrees to reimburse the
Executive for reasonable entertainment, travel, lodging and other miscellaneous
expenses incurred on its behalf and related to the performance of his duties
hereunder. The Corporation further agrees during the term of this Agreement to
provide the Executive with an automobile allowance of $400 per month. The
Corporation will provide and pay for Executive's monthly garage parking
expenses.
5. Vacations.
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The Executive shall be entitled to an annual paid vacation of three (3)
weeks per year. The timing of vacations shall be scheduled at a time mutually
agreed upon between the Executive and the CEO and/or CAO, but in no event shall
the Executive take more than two (2) weeks of vacation at any one time. The
Executive shall not be entitled to receive any additional compensation for his
unused vacation time.
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6. Termination of Employment.
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a. The Executive's employment under this Agreement may be
terminated by the Corporation for Cause. Any termination of the Executive other
than for "Cause" shall not prejudice his right to receive:
(i) compensation in accordance with Paragraph 4 of
this Agreement for the remaining term thereof, and
(ii) the other benefits provided by this Agreement
for the remaining term thereof.
b. the Executive shall have no right to receive compensation
or other benefits under this Agreement for any period after the date of
termination for Cause. For purposes of this Agreement, termination for "Cause"
shall include termination because of the Executive's personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful violation of any
law, rule, or regulation (other than traffic violations or similar offenses),
habitual and excessive use of alcohol or controlled substances other than for
therapeutic reasons, or material breach of any provision of this Agreement.
c. The CEO shall have the authority to make the determinations
with respect to termination for Cause provided for under Subsections 6(a) and
(b) above.
d. This Agreement may be voluntarily terminated by the
Executive at any time upon ninety (90) days' written notice to the Corporation
or upon such shorter period as may be agreed upon between the Executive and the
CEO of the Corporation. In the event of such termination, the Corporation shall
be obligated only to continue to pay the Executive his salary up to the date of
termination and those retirement and/or employee benefits which have been earned
or become payable up to the date of termination.
e. If the Executive's employment terminates by reason of the
Executive's Disability, as defined in Paragraph 7, the Corporation shall pay the
Executive any benefits which pursuant to the terms of any compensation or
benefit plan have been earned and have become payable, but which have not yet
been paid to Executive, together with a pro rata portion of any additional
compensation that the Executive would have been entitled to receive in respect
of the year in which the Executive's date of termination occurs had he continued
in employment until the end of such calendar year; however, there shall be no
incentive bonus payable with respect to the year during which Executive's
employment is terminated.
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7. Disability.
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Executive shall be deemed to be disabled and the Corporation
may terminate this Agreement if Executive shall, as a result of such Disability,
fail to perform the duties required hereunder for any two (2) months during a
consecutive three (3) month period. The Corporation may terminate the
Executive's employment after having established his Disability which results in
the Executive becoming eligible for long-term disability benefits. For purposes
of this Agreement, "Disability" means a physical or mental infirmity which
prevents the Executive from performing the essential functions of his position
under this Agreement. In the event the Executive's employment is terminated by
reason of Disability, he shall be entitled to the compensation and benefits
provided for under this Agreement for any period prior to the establishment of
the Executive's Disability during which he is unable to work due to a physical
or mental infirmity.
8. Non-Solicitation and Non-Competition.
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a. The Executive agrees that during the term of this
Agreement, and for any period after the termination of this Agreement during
which he continues to receive compensation under this Agreement, he will not
directly or indirectly:
(i) Solicit, divert or take away any of the
customers, business or patronage of the Corporation or its subsidiaries or
affiliates; or
(ii) Induce or attempt to influence any employee of
the Corporation or its subsidiaries or affiliates to terminate his or her
employment therewith.
b. Executive agrees that during the term hereof and for six
(6) months from the date of the termination of Executive's employment hereunder,
Executive shall not compete with the Corporation, on behalf of himself or any
other person, firm, business or corporation, as follows: he shall not directly
or indirectly (i) engage in the pay telephone business; or (ii) request or
instigate any account or customer of the Corporation to withdraw, diminish,
curtail or cancel any of its business with the Corporation. The scope of this
agreement not to compete shall include any and all customers of the Corporation
and any state served by the Corporation which operates 500 or more pay
telephones at any time during the term hereof.
c. In the event of a breach or threatened breach of the
Executive of the provisions of this Paragraph 8, the Corporation, or any duly
authorized officer thereof, will be entitled to a temporary restraining order or
injunction.
9. Successors; Binding Agreement.
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This Agreement and all rights of the Executive hereunder shall
inure to the benefit of and be enforceable by his personal or legal
representatives, successors, heirs,
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distributees, devisees, legatees and permitted assigns. This Agreement and all
rights of the Corporation hereunder shall inure to the benefit of and be
enforceable by its successors and permitted assigns.
10. No Assignments.
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This Agreement is personal to each of the parties hereto and
neither party may assign or delegate any of its rights or obligations hereunder
without first obtaining the written consent of the other party.
11. Notices.
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All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed, certified or registered mail, return receipt
requested with postage prepaid, to the following addresses or to such other
address as either party may designate by like notice.
a. If to the Corporation, to:
PhoneTel Technologies, Inc.
000 Xxxxxxx Xxxxxx Xxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Chief Executive Officer and/or
Chief Administrative Officer
b. If to the Executive, to:
Xxxxxxx Xxxxxx
00000 Xxxxxxx Xxxxx
Xxxxxx Xxxx, Xxxx 00000
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
12. Amendments.
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No amendments or additions to this Agreement shall be binding
unless in writing and signed by both parties, except as herein otherwise
provided.
13. Paragraph Headings.
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The Paragraph headings used in this Agreement are included
solely for convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
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14. Severability.
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The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.
15. Governing Law.
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This Agreement shall, except to the extent that Federal law shall be
deemed to preempt it, be governed by and construed and enforced in accordance
with the laws of Ohio.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
PHONETEL TECHNOLOGIES, INC.
By /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx,
Chairman and Chief Executive Officer
EXECUTIVE:
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
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