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Exhibit 10.6
EMPLOYMENT AGREEMENT
AGREEMENT executed as of the 2nd day of February, 1998, by and between
PROGRESSIVE TELECOMMUNICATIONS CORPORATION, a Florida corporation with
executive offices at 000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000
(the "Company"), and XX. XXXXXX XXXXXXX, residing at 0000 Xxxx Xxxx.,
Xxxxxxxxxx, XX 00000 (the "Employee").
W I T N E S S E T H
WHEREAS, the Employee is currently employed by the Company under an
oral agreement and has served the Company in various executive capacities; and
WHEREAS, the Company acknowledges and recognizes the value of the
Employee's services, which services are of special, unique and extraordinary
character; and
WHEREAS, the Company desires to employ, retain and make secure for
itself the experience, abilities and services of the Employee for a period of
not less than five (5) years from the effective date of this Agreement; and
WHEREAS, both the Company and the Employee desire to embody the terms
and conditions of employment of the Employee into a written agreement;
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the adequacy and receipt of which is hereby
acknowledged, the Company and the Employee do hereby agree as follows:
1. EMPLOYMENT.
The Company hereby employs the Employee and the Employee hereby
accepts such employment upon the terms and conditions hereinafter set forth.
2. TERM.
Subject to the provisions of this Paragraph and Paragraphs 8 and 9
hereof the term of Employee's employment shall commence on February 2, 1998
("Commencement Date") and continue for an initial period of five (5) years from
the Commencement Date (the "Initial Term"). During the 45 days commencing on
the Commencement Date ("Trial Period"), the Company projects that certain
financial events will occur which are critical to the success of the Company.
Accordingly, during the Trial Period either party may terminate this Agreement
on three (3) days written notice. Following the completion of the Initial
Term, the Employee's term of employment shall be renewed automatically for
additional one year terms ("Annual Terms") in
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the absence of written notice of termination given by either party at least one
hundred eighty (180) days prior to the date of any such renewal.
3. COMPENSATION AND CERTAIN OTHER BENEFITS.
For services rendered by the Employee hereunder, the Company shall pay
to the Employee the following compensation:
3.1 Fixed Compensation.
(a) Fixed compensation, payable in weekly installments during
the first year of this Agreement shall be broken down as
follows:
i. Initial 17 weeks of the first year fixed compensation
shall be based on an Forty Thousand ($40,000) Dollar
base salary or $769.23 per week;
ii. The second 18 weeks of the first year fixed
compensation shall be based on a Fifty Five Thousand
($55,000) Dollar annual base salary or $1,057.69 per
week; and
iii. The last 17 weeks of the first year fixed compensation
shall be based on a Seventy Thousand ($70,000) Dollar
annual salary or $1,346.15 per week.
(b) Fixed compensation, payable in weekly installments during
the second year of this Agreement shall be at a rate equal
to or greater than Eighty Five Thousand ($85,000) Dollars
per annum. Any increase above Eighty Five Thousand ($85,000)
Dollars shall be determined by the Company's Board of
Directors in its sole discretion.
(c) Fixed compensation for the remainder of the Term of this
Agreement and all increases of fixed compensation shall be
determined by the Company's Board of Directors. However, in
no event shall fixed compensation be less than the previous
year.
3.2 Incentive Compensation.
Such incentive compensation ("Incentive Compensation") may be
paid to Employee in the form of a cash bonus, profit sharing or
otherwise as the Board of Directors of the Company or the Board's
Compensation Committee may grant to executive employees of the
Company from time to time. Additionally, the Employee shall be a
participant in the Company's executive bonus pool (the "Bonus
Pool"). Pursuant to the Bonus Pool, the Company's Board of
Directors, at its sole discretion, is authorized to distribute up
to an aggregate of $100,000 and 100,000 shares of the Company's
Common Stock divided amongst the participants, at such time the
Company achieves each of the following milestones:
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(a) One Million ($1,000,000) Dollars in sales in any given
calendar month;
(b) Two Million ($2,000,000) Dollars in sales in any given
calendar month;
(c) Three Million ($3,000,000) Dollars in sales in any given
calendar month;
(d) Four Million ($4,000,000) Dollars in sales in any given
calendar month; and
(e) Five Million ($5,000,000) Dollars in sales in any given
calendar month.
3.3 Other.
In addition to the Fixed Compensation and Incentive Compensation
which Employee shall receive pursuant to subparagraphs 3.1 and
3.2 of this paragraph 3, the Employee shall receive the following
items of reimbursement, compensation or benefits:
(a) Expenses. Employee is authorized hereunder to incur
reasonable expenses for promoting the business and affairs
of the Company, including, without limitation by
specification, expenses for entertainment, travel and
similar items. The Company shall promptly reimburse Employee
for all such expenses upon presentation from time to time by
Employee to the Company of an itemized account of such
expenditures.
(b) Life Insurance. The Company shall maintain either a
whole-life life insurance policy or policies or a minimum
deposit life insurance policy or policies (or the equivalent
thereof) on the life of the Employee having an aggregate
face value of not less than $250,000 Dollars (collectively,
the "Policy"). In the event that the Company purchases
minimum deposit life insurance and this Agreement is
terminated without Cause as defined herein prior to the time
that the insurance policy has been fully paid, the Company
agrees to continue to make the premium payments on the
policy until it is fully paid. The proceeds of the policy
shall be payable to any beneficiary or beneficiaries
designated at any time and from time to time by the
Employee, provided however, that upon the death of the
employee, the aggregate amount of premiums paid on the
Policy shall be repaid to the Company by the beneficiary or
beneficiaries designated in the Policy. Employee, if
requested by the Company, shall take all necessary steps,
including if requested, the naming of the Company as a
Co-Beneficiary of the Policy to the extent of the total
amount of premiums paid thereon, in order to insure
Employee's compliance with this covenant. In no event shall
the premiums on any policy or policies aggregate more than
$10,000 per year. The Policy shall be in addition to any key
man policy or group term policy or policies insuring the
life of the Employee maintained by the Company.
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(c) Medical Benefits. The Company shall provide Employee with
such family health and medical benefits as the Company
normally accords its executive officers.
(d) Vacations. Employee shall be entitled during each fiscal
year during the period of his employment hereunder to such
vacation time as the Company normally accords its executive
officers who have been employed by it for a length of time
similar to the length of Employee's employment, but not less
than two weeks per year. Employee may take such vacation
over such period or periods of time as Employee in his
discretion shall select. Vacation time shall not accrue from
year to year. While on vacation, the compensation to which
Employee is entitled shall be paid in full.
(e) Working Facilities. The Company shall furnish Employee with
a private office, secretarial help and such other
facilities, services and staff as are suitable to his
position and adequate for the performance of his duties
hereunder.
3.3 The Company agrees that nothing contained in this Agreement is
intended to or shall be deemed to be granted to the Employee in
lieu of, or as a limitation upon, any rights and privileges which
the Employee may otherwise be entitled to as an executive
employee of the Company under any retirement, pension, insurance,
hospitalization or other employee benefit plan of any type
(including, without limitation by specification, any incentive,
profit sharing, bonus or stock option plan), which may now be in
effect or which may hereafter be adopted by the Company, it being
understood that the Employee shall have the same rights and
privileges to participate in such Company benefit plans as any
other executive employee of the Company.
4. DUTIES; TIME AND EFFORT.
4.1 During the term of his employment hereunder, Employee, subject to
the supervision and control of the Board of Directors of the
Company, shall supervise the operations of the Company. Employee
shall serve as Vice President of the Company and the Company and
Employee contemplate that Employee shall continue to serve in
such capacity throughout the period of his employment hereunder.
4.2 Employee agrees to devote his full-time and effort to the
business of the Company during the term of his employment
hereunder and to serve as a member of the Company's Board of
Directors. The Employee shall perform his duties faithfully,
diligently and to the best of his ability. Employee, at all
times, shall use his best efforts to preserve, protect, enhance
and maintain the trade, business and goodwill of the Company.
5. COVENANTS AND RESTRICTIONS.
Subject to the provisions of Paragraph 8.6 hereof, Employee covenants
that, except in carrying out his duties hereunder, during the term of
his employment and for a period of one (1)
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year following the date of termination of employment hereunder (unless
such longer period of time is specifically set forth herein):
5.1 Without the express written consent of the Board of Directors,
Employee shall not directly or indirectly, own any interest in,
participate or engage in, assist, render any services (including
advisory services) to, become associated with, work for, serve
(in any capacity whatsoever, including, without limitation, as an
employee, consultant, advisor, agent, independent contractor,
officer or director) or otherwise become in any way or manner
connected with the ownership, management, operation, or control
of, any business, firm, corporation, partnership or other entity
(collectively referred to herein as a "Person") that engages in,
or assists others in engaging in or conducting any business,
which deals, directly or indirectly, in products or services
similar to or competitive with the Company's product line or
services in the United States; provided, however, the above shall
not be deemed to exclude Employee from acting as director of
another corporation with the consent of the Company's Board of
Directors; provided further, however, that the above shall not be
deemed to prohibit Employee from owning or acquiring securities
issued by any corporation whose securities are listed with a
national securities exchange or are traded in the
over-the-counter market, provided that Employee at no time owns,
directly or indirectly, beneficially or otherwise, five (5%)
percent or more of any class of any such corporation's
outstanding capital stock.
5.2 Employee shall not knowingly provide or solicit to provide to any
Person or individual (i) any goods or services which are
competitive with those provided by the Company or which would be
competitive with the goods or services that the Company has
planned to provide; or (ii) any goods or services to any customer
of the Company. The term "customer" shall mean any person or
individual to whom the Company has provided goods or services
within the twenty-four (24) month period prior to the termination
of Employee's employment hereunder. Notwithstanding anything
herein to the contrary, no limitation shall be imposed on
Employee hereunder with respect to any goods and services that
the Company has planned to provide and which are not actually
being provided at the time of the termination of Employee's
employment hereunder.
5.3 Employee agrees that he shall not divulge to others, nor shall he
use to the detriment of the Company or in any business or process
of manufacture competitive with or similar to any business or
process of manufacture engaged in by the Company or any of its
subsidiary or affiliated companies, at any time during his
employment with the Company or thereafter, any confidential or
trade secret information obtained by him during the course of his
employment with the Company relating to sales, salesmen, sales
volume or strategy, customers, formulas, processes, methods,
machines, manufactures, compositions, ideas, improvements or
inventions belonging to or relating to the business of the
Company, or its subsidiary or affiliated companies.
5.4 Employee shall neither solicit, seek to solicit any of the
Company's personnel in any capacity whatsoever nor shall Employee
induce or attempt to induce any of the Company's personnel to
leave the employ of the Company to work for Employee or
otherwise.
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5.5 Employee acknowledges that his breach of any of the restrictive
covenants contained in this Paragraph 5 may cause irreparable
damage to the Company for which remedies at law would be
inadequate. Accordingly, if Employee breaches or threatens to
breach any of the provisions of this Paragraph 5, the Company
shall be entitled to appropriate injunctive relief, including,
without limitation, preliminary and permanent injunctions in any
court of competent jurisdiction, restraining Employee from taking
any action prohibited hereby. This remedy shall be in addition to
all other remedies available to the Company at law or equity. If
any portion of this Paragraph 5 is adjudicated to be invalid or
unenforceable, this Paragraph 5 shall be deemed amended to delete
there from the portion so adjudicated, such deletion to apply
only with respect to the operation of this Paragraph 5 in the
jurisdiction in which such adjudication is made.
6. PROPRIETARY PROPERTY.
Subject to the provisions of Paragraph 8.6 hereof:
6.1 The Employee agrees that any and all inventions or improvements
as will as any and all ideas, creations, know-how and methods of
applying and putting into practice any inventions or improvements
(all of the foregoing being hereinafter called "Proprietary
Property" and being more fully defined in subparagraph 6.2 below)
that are created, developed, conceived of or discovered either
(i) by the Employee (solely or jointly with others) either in the
course of his employment, on the Company's time, with the
Company's materials or facilities, relating to any subject matter
with which his work for the Company is or may be concerned, or
relating to any business in which the Company or any of its
subsidiaries or affiliated companies is involved; or (ii) by or
for the Company; or (iii) by any independent individual or person
and thereafter acquired by the Company, and which are within the
Employee's knowledge or possession in the case of (i) above or
that come into the Employee's knowledge or possession during and
in the course of the Employee's employment hereunder in the case
of (ii) or (iii) above, shall be, if created, developed,
conceived of or discovered by the Employee, promptly disclosed to
the Company, or shall be, if otherwise developed or acquired by
the Company, received by the Employee as an employee of the
Company and not in any way for his own benefit. Employee shall
neither have nor obtain any right, title or interest in or to
such Proprietary Property unless and until the Company shall
expressly and in writing waive, the rights that it has therein
and thereto with respect to any and all Proprietary Property that
is invented, created, written, developed, furnished or Produced
by the Employee, or suggested by the Employee to the Company,
during the term of the Employee's employment under this
Agreement, Employee does hereby agree that all such Proprietary
Property shall be the exclusive property of the Company, and that
the Employee shall neither have nor retain any right, title or
interest, of any kind therein and thereto or in and to any of the
benefits or proceeds therefrom. At any time, whether during or
after the term of this Agreement, the Employee shall, upon the
request and at the expense of the Company, (A) obtain patents or
copyrights on, or (B) permit the Company to patent or Copyright,
any such Proprietary Property, whichever (A) or (B) is
appropriate, and/or (C) execute, acknowledge and deliver any and
all assignments, instruments of transfer, or other documents,
that the Company deems necessary or appropriate to transfer to
and in the Company all right, title and interest in and to such
Proprietary Property and to evidence the Company's
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ownership of such Proprietary Property, including, without
limitation, taking all steps necessary to enable the Company to
publish or protect said Proprietary Property by patents or
otherwise in any and all countries and to render all such
assistance as the Company may require in any patent office
proceeding or litigation involving said Proprietary Property. The
Employee shall not, without limitation as to time or place, use
any Proprietary Property except on Company business, during or
after his period of employment, nor disclose the same to any
other Person or individual except for disclosure on Company
business or as may be required by law.
6.2 As used in this Agreement, "Proprietary Property" means
proprietary technical information not generally known in the
Company's industry and which is disclosed to Employee or known or
developed by Employee as a consequence of or through his
employment with the Company.
6.3 During or subsequent to the Employee's employment by Company,
Employee shall not, directly or indirectly, lecture upon, publish
articles concerning, use, disseminate, disclose, sell or offer
for sale any Proprietary Property without the Company's prior
written permission.
7. DISABILITY.
7.1 Subject to the terms of this subparagraph 7.1, in the event
Employee becomes temporarily disabled during the term of this
Agreement, he shall continue to receive sixty (60%) percent of
the Fixed Compensation to which he was entitled at the time he
became disabled for any period of disability not in excess of
three (3) consecutive calendar months. Following the third
consecutive calendar month of temporary disability, the
compensation to be received by Employee shall be reduced to fifty
(50%) percent of the amount he received during the first three
(3) months of such disability after the third consecutive
month and for a period of five years thereafter. For the purpose
of this subparagraph 7.1, the terms "disabled" and "disability"
shall mean disability which, in the opinion of a doctor
reasonably satisfactory to the Company, renders the Employee
unable to perform his duties hereunder. The date such disability
commences shall be the date Employee first absents himself from
work during a continuous period of disability as so determined by
the doctor hereinabove set forth. The term "temporary disability"
shall mean a disability which is not a permanent disability (as
such term is defined in subparagraph 7.2 below).
7.2 Notwithstanding anything to the contrary set forth in this
Agreement, the Company may terminate this Agreement upon no less
than ninety (90) days prior written notice to Employee after six
(6) full continuous calendar months following the "permanent
disability" (as defined below) of Employee and the payment to
Employee of all unpaid compensation which the Company owes to the
Employee for the period of employment prior to termination. In
such event, the Employee shall be entitled to receive from the
Company or from the Company's disability insurance carrier
disability compensation in an amount which shall, when added to
all social security benefits received or to be received by
Employee as a result of the permanent disability, equal Fifty
Thousand ($50,000) Dollars per annum; provided, however, in no
event
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shall the premiums paid by the Company for maintaining the
disability policy (as such term is defined below) exceed Five
Thousand ($155,000) Dollars per annum. The Employee's entitlement
to disability benefits shall be pursuant to the terms of this
Agreement and the disability insurance policy (the "Disability
Policy") to be obtained and maintained by the Company, naming the
Employee as the insured thereunder. Notwithstanding the
foregoing, in the event Employee's disability is either not
covered under the Disability Policy or Employee is covered for
less than Fifty Thousand ($50,000) Dollars per annum or if
coverage under the Disability Policy terminates during the Period
of disability for any reason whatsoever, then for the balance of
Employee's then current term of employment the Company will pay
Employee Fifty Thousand ($50,000) Dollars per annum or, if
Employee is receiving benefits under the Disability Policy, the
Company will supplement the insurance payments which Employee is
entitled to receive so that Employee receives a total of Fifty
Thousand ($15500,000) Dollars per annum and, thereafter, the
Company will pay to Employee, or supplement the benefits Employee
receives under said Disability Policy, so that Employee receives
the lesser of (i) Fifty Thousand ($50,000) Dollars per annum; or
(ii) fifty (50%) percent of Employee's Fixed Compensation until
Employee attains the age of sixty-five (65). Once Employee
attains age sixty-five (65), the Company shall have no further
obligations to make disability payments to Employee or to
otherwise supplement the amounts Employee receives under the
Disability Policy except to the extent that it is the Company's
then current policy to continue to cover or provide benefits to
permanently disabled executive officers beyond age sixty-five
(65). Notwithstanding anything to the contrary set forth in this
Paragraph 7.2, in the event the Employee reassumes the full
Performance of his duties hereunder prior to such termination
notice, the Employee shall be entitled to one hundred (100%)
percent of his total compensation from the date of his return. In
no event shall Employee be entitled to renew the term of his
employment for the Extension Term or any Annual Term if Employee
becomes permanently disabled during either the Initial Term or
the Extension Term. Employee shall be deemed "Permanently
Disabled" for purposes hereof if either: (i) Employee has been
temporarily disabled for a period in excess of 730 consecutive
days; or (ii) the insurance company issuing the Disability Policy
determines that the Employee is Permanently Disabled and will
make payments pursuant to the Disability Policy; or (iii) a
physician, mutually acceptable to both the Company and the
Employee, determines on the basis of medical evidence that
Employee is totally disabled, mentally or physically, so as to
be, prevented from engaging in further employment by the Company
in the capacity in which Employee was engaged prior to such
disability and that such disability will be permanent and
continuous during the remainder of the life of Employee. In the
event a physician cannot be selected who is acceptable to both
the Company and the Employee, each party shall select a physician
who shall together select a third physician whose decision shall
be final. In the event of a dispute or the inability of the
physicians selected by the Company and the Employee to select a
third physician, a physician shall be selected by the American
Arbitration Association and the decision of such physician shall
be final.
7.3 Payments of disability compensation under subparagraphs 7.1 and
7.2 above shall be reduced by the amounts actually received by
the Employee under any policy or policies of disability, health,
accident, or wage continuation insurance paid for by the Company.
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8. TERMINATION; SEVERANCE; DEATH.
8.1 The Employee's employment shall terminate upon his death, and may
be terminated, at the option of (i) the Employee, (A) upon the
conclusion of the Initial Term, or any Annual Term upon proper
written notice to the Company, or (B) for breach of this
Agreement, or (ii) the Company upon proper written notice to the
Employee, (A) at the conclusion of the Initial Term or any Annual
Term, (B) as a result of his permanent disability as defined in
Paragraph 7.2 hereof, or (C) for cause. Termination "for cause"
shall mean termination only in the event the Employee is guilty
of (i) intentional or reckless failure to perform his duties
hereunder, or (ii) any act of intentional dishonesty by the
Employee which adversely effects the Company's business or its
reputation.
8.2 If Employee's employment is terminated by the Company for cause,
the Company shall have no further obligation to pay compensation
or benefits to Employee, other than those accrued through the
date of such termination.
8.3 If Employee's employment is terminated by Employee's decision to
act as a consultant to the Company or as a result of the
Employee's permanent disability, the Company shall remain
obligated to pay Employee the entitlements set forth in Paragraph
7 of this Agreement.
8.4 If Employee's employment is terminated by the Company's
determination not to renew the employment term at the conclusion
of either the Initial Term or any Annual Term, the company shall
be obligated to pay Employee, within sixty (60) days of such
termination, a lump sum severance payment in an amount equal to
the product derived by multiplying each year of the Employee's
employment with the Company (commencing with the calendar year
1998) times Ten Thousand ($10,000) Dollars.
8.5 If Employee's employment is terminated by the Company during the
Initial Term or any Annual Term, the Company shall be obligated
to pay Employee, within sixty (60) days of such termination, a
lump sum severance payment in an amount equal to the aggregate
amount of the Employee's Base Salary for the remainder of the
Initial Term or any Annual Term as the case may be, plus the
product derived by multiplying each year of the Employee's
employment with the Company (commencing with the calendar year
1998) times Ten Thousand ($10,000) Dollars.
8.6 If Employee dies during the term of his employment hereunder, the
Company shall promptly pay to the Employee's estate or promptly
distribute to the beneficiary or beneficiaries named by Employee
all life insurance proceeds under the Policy referred to in
paragraph 3.3(b) hereof (if received by the Company for any
reason) as well as any term life insurance policy or policies
with the exception of any key-man policy which the Company
maintained on the life of and for the benefit of the Employee;
provided, however, all other Company fringe benefits shall cease
upon Employee's death.
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8.7 Notwithstanding anything to the contrary set forth in this
Agreement, the Employee's covenants set forth in Paragraphs 5 and
6 hereof shall not apply with respect to and shall not be
enforceable against Employee, in the event the Employee's
employment is terminated by the Company for any reason other than
those reasons expressly set forth in Paragraph 8.1 hereof.
9. ARBITRATION.
Any dispute, controversy or claim arising out of or pursuant to this
Agreement or the breach hereof shall be settled by arbitration in the City of
Clearwater, County of Pinellas and State of . Such arbitration shall be
effected by arbitrators selected as hereinafter provided and shall be conducted
in accordance with the Rules, existing at the date thereof, of the American
Arbitration Association. The dispute, controversy or claim shall be submitted
to three arbitrators, one arbitrator to be selected by the Company, one
arbitrator to be selected by the Employee and the third arbitrator to be
selected by the two so selected by the Company and Employee, or if they cannot
agree on a third, by the American Arbitration Association. In the event that
either the Company or Employee within one (1) month after notification of any
demand for arbitration hereunder, shall not have selected its arbitrator and
given notice thereof to the other party, the arbitrator for such party shall be
selected by the American Arbitration Association. Meetings of the arbitrators
shall be held in Clearwater, Florida at such place or places as may be agreed
upon by the arbitrators. The results of final determination of any such
arbitration proceedings shall be binding on the parties hereto and a judgment
may be entered in any court having jurisdiction.
10. SEVERABILITY OF PROVISIONS.
In the event any court of competent jurisdiction determines that any
term or provision of this Agreement shall be unenforceable, the invalidity of
such term or provision shall not affect the validity of the remainder hereof.
11. NOTICES.
Any notice required or permitted to be given pursuant to the
provisions hereof shall be deemed given when sent by registered or certified
mail, return receipt requested, to the Company or Employee at their respective
addresses set forth above or to such other address as may be given by similar
notice by the Company or Employee.
12. WAIVER OF BREACH.
The waiver by the Company or Employee of a breach of any provision
hereof by the other shall not operate or be construed to operate as a waiver by
such party of any subsequent breach by the other of the same or any other
provision hereof.
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13. ENTIRE AGREEMENT, MODIFICATION AND CONSTRUCTION.
This Agreement contains the entire understanding between the Company
and Employee with respect to the subject matter hereof. The terms and
conditions hereof may be changed only by an agreement in writing signed by the
Company and Employee. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, applicable to contracts made
and to be performed therein, without giving effect to the principles thereof
relating to conflicts of law.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
and its seal affixed by a duly authorized officer and the Employee has signed
this Agreement as of the day and year first above written.
PROGRESSIVE TELECOMMUNICATIONS
CORPORATION
[Corporate Seal]
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, CEO
EMPLOYEE
/s/ Xx. Xxxxxx Xxxxxxx
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Xx. Xxxxxx Xxxxxxx
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