1
EXHIBIT 10.9
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 27 day of June, 1997,
by and between Let's Talk Cellular & Wireless, Inc., a Florida corporation
f/k/a Let's Talk Cellular of America, Inc. (the "Company"), and Xxxx Xxxxxx, an
individual residing at 0000 X.X. 00xx Xxxxx, Xxxxx, Xxxxxxx 00000 (the
"Executive").
WITNESSETH THAT:
WHEREAS, the Company desires to employ the Executive in the capacity
hereinafter stated, and the Executive desires to enter into the employ of the
Company in such capacity for the period and on the terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth below, it is hereby covenanted and agreed by the Company
and the Executive as follows:
1. Employment Period. The Company hereby agrees to continue to employ
the Executive as its Chief Executive Officer and the Executive, in such
capacity, agrees to provide services to the Company for the period beginning on
the date first above written (the "Commencement Date") and ending on the fifth
anniversary of the Commencement Date (the "Employment Period").
2. Performance of Duties. During the Employment Period, the Executive
shall serve as the Chief Executive Officer of the Company. In such capacity,
the Executive, in conjunction with the President of the Company, shall have the
full authority to actively manage, control, administer and operate the business
and affairs of the Company, including but not limited to authority for choosing
markets and site locations, choosing wireless, paging, internet, long distance
and other providers, choosing product lines and merchandise, store designs and
personnel decisions, subject to the ultimate authority of the Board of
Directors of the Company. The Executive agrees that during the Employment
Period, while he is employed by the Company, he shall devote his full time,
energies and talents exclusively to serving in the capacity of Chief Executive
Officer of the Company in the best interests of the Company, and to perform the
duties described above faithfully, efficiently and in a professional manner;
provided that, without the Board's consent (which consent shall not be
unreasonably withheld), the Executive shall not:
(a) serve as or be a consultant to or employee, officer,
agent or director of any competing corporation,
partnership or other entity other than the Company
and its affiliates (other than civic, charitable, or
other public service organizations or as a
consultant or director for a company in an industry
outside the Business for up to fifteen hours in any
calendar month); or
(b) have more than a three percent (3%) ownership
interest in any enterprise other than the Company if
such ownership interest could reasonably be foreseen
to have a material adverse impact upon the ability
of the Executive to perform his duties hereunder.
2
3. Compensation. Subject to the terms and conditions of this
Agreement, during the Employment Period, the Executive shall be compensated by
the Company for his services as follows:
(a) He shall receive, for each 12-consecutive month
period beginning on the Commencement Date and
each anniversary thereof, a rate of salary which
is not less than $210,000 per year (as adjusted
annually for the greater of (i) for the increase
in the Consumer Price Index, All Urban Wage
Earners as published by the U.S. Department of
Labor or (ii) five percent (5%)), payable in
substantially equal installments in accordance
with the regular payroll practices of the
Company, plus an annual bonus of not less than
$50,000 (payable semiannually within 30 days
after the delivery to the Board of Directors of
financial statements for the applicable August 1
- January 31 and February 1 - July 31 periods) as
approved by the Board of Directors and subject to
the achievement by the Company of reasonable
financial performance targets set by the Board of
Directors at the commencement of each fiscal year
for the ensuing 12-month period, except that for
the Company's fiscal year ending July 31, 1997,
the Executive shall be entitled to a bonus of
$25,000.
(b) He shall be entitled to receive the following
perquisites which shall not be less favorable to
the Executive during the Employment Period than
the perquisites provided by the Company to the
Executive immediately prior to the Employment
Period in addition to such other executive
benefit plans or perquisites which may be
established by the Company from time to time:
Auto Lease (1 car)
Auto Insurance
Health Insurance
Country Club-Dues
Life Insurance
Disability Insurance
401(K) Plan
(c) He shall be reimbursed by the Company for all
reasonable business, promotional, travel and
entertainment expenses incurred or paid by him
during the employment period in the performance
of his services under this Agreement provided
that the Executive furnishes to the Company
appropriate documentation in a timely fashion
required by the Internal Revenue Code in
connection with such expenses and shall furnish
such other documentation and accounting as the
Company may from time to time reasonably request.
(d) He shall be eligible to participate in any stock
option plans established by the Company from time
to time and approved by the Board of Directors.
-2-
3
4. Compensation Due Upon Termination. Except as otherwise provided
under the executive benefit plans maintained by the Company in which the
Executive participates in accordance with subparagraph 3(b), the Executive's
right to compensation for periods after the date his employment with the
Company terminates shall be determined in accordance with the following:
(a) Discharge Without Cause. In the event the Company
terminates the Executive's employment under this
Agreement without cause, the Executive shall be
entitled to receive the greater of (i) the
Executive's salary and bonus set forth in Section
3(a) hereof (less applicable taxes) for the
remainder of the Employment Period payable in
accordance with the Company's payroll procedures
and prorated for periods less than a full month,
or (ii) two years' salary and bonus (determined
as of the date of such termination), payable
monthly (less applicable taxes) for the twenty
four (24) months following the date of
termination in accordance with the Company's
payroll procedures and prorated for periods less
than a full month; provided however, that any
amounts due to the Executive under this Section
4(a) shall be reduced by the Company or refunded
by the Executive by 100% of any amounts of earned
income the Executive may be receiving from any
new employer if the Company has completed an
initial public offering of its common stock at
the time of such termination. In addition, (i)
any amounts payable to the Executive pursuant to
this Section 4(a) shall accrue interest, payable
quarterly, at the prime rate of NationsBank, N.A.
plus 1% per annum, (ii) in the event any payment
due to the Executive pursuant to this Section
4(a) remains unpaid for a period of 30 days, then
the entire amount owed to the Executive shall
become immediately due and payable, (iii) the
Executive shall be entitled to continue to
receive the benefits provided pursuant to Section
3(b) hereof for a period of one year from the
date of the Executive's termination by the
Company without cause, and (iv) any unvested
options to purchase the Company's Common Stock
held by the Executive shall automatically vest on
the date of such termination without cause.
(b) Voluntary Resignation. The Company shall have no
obligation to make payments to the Executive in
accordance with the provisions of paragraph 3 for
periods after the date on which the Executive's
employment with the Company terminates due to the
Executive's voluntary resignation; provided,
however, that the Company shall be obligated to
pay the amount and provide the benefits set forth
in Section 4(a) of this Agreement if the
Executive voluntarily resigns due to Constructive
Termination (as hereinafter defined).
For purposes of this Agreement, "Constructive Termination" shall mean any one
or more of the following: (i) a material change in the nature or scope of the
Executive's authority or duties as specified in Section 2 hereof or title
against the will of the Executive (other than discharge for
-3-
4
cause, disability or death) or (ii) the relocation of the Executive's office
outside Dade County or to a site other than the Company's headquarters against
the will of the Executive.
(c) Discharge for Cause. The Company shall have no obligation
to make payments to the Executive in accordance with the
provisions of paragraph 3 for periods after the Executive's
employment with the Company is terminated on account of the
Executive's discharge for cause. For purposes of this
subparagraph 4(c), in addition to the right to terminate
the Executive's employment for fraud, the Executive shall
be considered discharged for "cause" if he is discharged by
the Company on account of the occurrence of one or more of
the following events:
(i) the Executive discloses material confidential
information in violation of paragraph 5 which
could reasonably be foreseen to have a material
adverse effect on the Company;
(ii) the Executive engages in competition in violation
of paragraph 6 which could reasonably be foreseen
to have a material adverse effect on the Company;
(iii) the Company is directed by regulatory or
governmental authorities after exhaustion of all
avenues of appeal to terminate the employment of
the Executive or the Executive engages in
activities that cause actions to be taken by
regulatory or governmental authorities that have
a material adverse effect on the Company;
(iv) the Executive is convicted of a felony which has
or reasonably could have a material adverse
effect on the Company or the reputation of the
Company (other than a felony resulting from a
traffic violation or minor tax disputes); or
(v) The Executive intentionally disregards his duties
under this Agreement after (A) notice has been
given to the Executive by the Board of Directors
of the Company that it views the Executive to be
intentionally disregarding his duties under this
Agreement and (B) the Executive has been given a
period of 15 days after such notice to cure such
misconduct.
(d) Disability. The Company may terminate the Executive's
employment after the Executive has become totally disabled
as determined in accordance with the Company's long term
disability plan. The Company shall have no obligation to
make payments to the Executive in accordance with the
provisions of paragraph 3 at any time after the date the
Executive begins to
-4-
5
receive total disability payments under the Company's
disability insurance for its executives.
(e) Death. The Company shall have no obligation to
make payments to the Executive in accordance with
the provisions of paragraph 3 for periods after
the date of the Executive's death. Any sums or
amounts owed to the Executive on the date of
death shall be paid in full on the next regular
payroll date to his then spouse, or if not
married, then to the estate of the Executive.
5. Confidential Information. Except as may be required by legal
process or the lawful order of a court or agency of competent jurisdiction, the
Executive agrees to keep secret and confidential for a period of two (2) years
all non-public information concerning the Company and its affiliates which was
acquired by or disclosed to the Executive during the course of his employment
by the Company, any of its affiliates, including information relating to
customers (including, without limitation, credit history, repayment history,
financial information and financial statements), costs, and operations,
financial data and plans, whether past, current or planned and not to disclose
the same, either directly or indirectly, to any other person, firm or business
entity, or to use it in any way; provided, however, that the provisions of this
paragraph 6 shall not apply to information which is in the public domain or
that was disclosed to the Executive by independent third parties who were not
bound by an obligation of confidentiality; and provided further, that the
Company recognizes that the Executive shall, during the course of his
employment with the Company, acquire certain general information regarding the
financial condition, and borrowing trends of the Company's customers and agrees
that the provisions of this paragraph 6 shall not apply to the use of such
general information provided the use thereof does not violate applicable
Federal or state laws or the provisions of paragraph 7 hereof. The Executive
further agrees that he will not make any statement or disclosure which would be
prohibited by applicable Federal or state laws.
6. Non-competition. The Executive agrees that for the Non-competition
Period, the Executive agrees not to directly or indirectly serve as or be a
consultant to or employee, officer, agent, director or owner of more than three
percent (3%) of another corporation, partnership or other entity which engages
in the business of selling cellular or wireless communication services or
products (the "Business") in the Restricted Area, provided, however, that the
Executive may serve as or be a consultant to or employee, officer, agent or
director of another corporation, partnership or other entity in the Restricted
Area, if such entity's primary business is not the Business, and Executive
serves in such capacity only with respect to matters unrelated to any Business
conducted by such entity. The "Restricted Area" shall include any metropolitan
area or proposed metropolitan area (as reflected in the written business plans
of the Company in effect at such time) in which the Company is doing or will do
business within six months of the date of termination of the Executive's
employment (the "Termination Date"). The "Noncompetition Period" shall mean the
period commencing on the Commencement Date and terminating on (i) the second
anniversary of the Termination Date if the Company terminates the Executive's
employment for cause or the Executive resigns or otherwise leaves the Company's
employment on his own accord (excluding Construction Termination), or (ii) the
first anniversary of the Termination Date if the Executive's employment
terminates for any reason other than (i) above.
-5-
6
The Executive further agrees that for the Non-competition Period, he will not
solicit for employment or endeavor to entice away from employment with the
Company or its affiliates any employee of the Company or its affiliates who is
an officer or a manager of any department.
7. Successors. This Agreement shall be binding on, and inure to the
benefit of, the Company and its successors and assigns and any person
acquiring, whether by merger, consolidation, purchase of assets or
otherwise, all or substantially all of the Company's assets and business.
8. Nonalienation. The interests of the Executive under this Agreement
are not subject to the claims of his creditors, other than the Company, and may
not otherwise be voluntarily or involuntarily assigned, alienated or
encumbered, except to the extent that payments are owed to the Executive's
spouse or estate under Section 4.
9. Remedies. The Executive acknowledges that the Company would be
irreparably injured by a violation of paragraphs 5 or 6, and agrees that the
Company shall be entitled to an injunction restraining the Executive from any
actual or threatened breach of paragraph 5 or 6, or to any other appropriate
equitable remedy.
10. Waiver of Breach. The waiver by either the Company or the
Executive of a breach of any provision of this Agreement shall not operate as
or be deemed a waiver of any subsequent breach by either the Company or the
Executive.
11. Notice. Any notice to be given hereunder by a party hereto shall
be in writing and shall be deemed to have been given when received or, when
deposited in the U.S. mail, certified or registered mail, postage prepaid:
(a) to the Executive addressed as follows:
0000 X.X. 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
(b) to the Company addressed as follows:
Let's Talk Cellular & Wireless, Inc.
0000 X.X. 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Board of Directors
12. Amendment. This Agreement may be amended or cancelled by mutual
agreement of the parties in writing without the consent of any other person
and, so long as the Executive lives, no person, other than the parties thereto,
shall have any rights under or interest in this Agreement or the subject matter
hereof.
-6-
7
13. Applicable Law and Venue. The provisions of this Agreement shall
be construed in accordance with the internal laws of the State of Florida.
Venue for all actions brought pursuant to this Agreement shall be in either the
Federal or state courts located within Dade County, Florida.
14. Termination. All of the provisions of this Agreement shall
terminate after the expiration of the Employment Period, except that paragraph
5 shall only terminate upon the expiration of the Confidentiality Period and
paragraph 6 shall terminate upon the expiration of the later of Non-competition
Period or the Nonsolicitation Period.
15. Attorneys' Fees. In the event any action at law or in equity or
other proceeding is brought to interpret or enforce this Agreement, or in
connection with any provision of this Agreement, the prevailing party shall be
entitled to its reasonable attorney's fees and other costs reasonably incurred
in such action or proceeding.
16. Arbitration. Any controversy, claim or dispute arising between
the parties hereto, including, but not limited to, those arising out of or
related to this Agreement or in any way connected to Executive's employment
hereunder shall be determined by binding arbitration applying the laws of
Florida as set forth in Section 13 above. Any arbitration pursuant to this
Agreement shall be conducted in metropolitan Dade County, Florida under the
employment arbitration rules of the American Arbitration Association. The
arbitration and any award rendered therein shall be final and binding upon the
parties and may be entered in any court of competent jurisdiction. Nothing in
this Section will prevent either party from resorting to judicial proceedings
of interim injunctive relief under the laws of the State of Florida from a
court of competent jurisdiction if it is necessary to prevent a serious and
irreparable injury to one of the parties.
* * *
-7-
8
IN WITNESS WHEREOF, the Executive and the Company have executed this
Employment Agreement as of the day and year first written above.
EXECUTIVE:
/s/ Xxxx Xxxxxx
------------------------------------
Xxxx Xxxxxx
Let's Talk Cellular & Wireless, Inc.
By:/s/ Xxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxxx
Its President
-8-
