Exhibit 10.10
EMPLOYMENT AND NON-COMPETE AGREEMENT
This Employment and Non-Compete Agreement ("Employment Agreement") is made
this 16th day of December, 1997 by and between ACT Financial Corp., a Delaware
corporation, with its principal office located at Xxxxx Xxxxx Xxxxxxxxxxxx
Xxxxxx, Xxxxx 0, Xxxx, XX 00000 (the "Employer") and Xxxxxx X. Xxxxxxxxxx (the
"Employee").
WHEREAS, Employer is in the business of providing financing to the various
Applied Cellular Technology, Inc. ("ACT") subsidiaries; and
WHEREAS, Employer desires to retain the services of the Employee; and
WHEREAS, Employee is willing to be employed by the Employer.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties agree as follows:
1. Capacity. Employee shall serve the Employer as its President.
2. Best Efforts of Employee. During the Term of this Employment Agreement, the
Employee shall, subject to the direction and supervision of the Chairman and
Board of Directors, devote his full business time, best efforts, business
judgment, skill and knowledge to the advancement of the Employer's interests and
to the discharge of his duties and responsibilities hereunder. Such duties shall
be provided at Kensington, New Hampshire and other such places as the needs,
business or opportunities of the Employer may require from time to time.
Employee also is aware of the possibility of relocation to a new corporate
headquarters in West Palm Beach, Florida. Employer may, at its sole option,
determine that Employee's duties would best be performed in the new corporation
location. Provided however, that such relocation shall not occur for at least
one year from the date of the commencement of this Employment Agreement. In the
event that Employee is asked to relocate, Employer shall offer to Employee the
same or similar relocation package available to other similarly situated
executives. He shall not engage in any other business activity, except as may be
approved by the Board of Directors; provided, however, that nothing herein shall
be construed as preventing the Employee from:
a. investing his assets in a manner which shall not require any material
services on his part in the operations or affairs of the companies or other
entities in which such investments are made;
b. serving on the Board of Directors of any company, provided he receives
the approval in writing from the Chief Executive Officer and Board of Directors,
and further provided that he shall not be required to render any material
services with respect to the operations or affairs of any such company; or
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c. engaging in religious, charitable or other community or non-profit
activities which does not impair his ability to fulfill his duties and
responsibilities under this Employment Agreement.
3. Compensation of Employee. As compensation for the services provided by
Employee, Employer will pay Employee an annual salary of eighty-five thousand
dollars ($85,000.00) in accordance with the Employer's usual payroll procedures.
Separate incentive and stock option plans will be developed by the Employer,
together with key management, and that these plans will reflect company goals
and performance objectives. Such performance objectives and criteria shall be
mutually agreed upon on or before January 5 of each year of this Employment
Agreement, reduced to a writing and executed by both parties.
Employee shall also be eligible to receive a bonus, if performance criteria
are met, in the amount of twenty-five thousand dollars ($25,000.00). Such bonus
shall be payable within a reasonable period of time after the close of each
fiscal year.
Employee shall also receive, upon date of the effectiveness of this
Employment Agreement, stock options subject to a Side Agreement of even date.
The Employee shall also be entitled to participate in any and all employee
benefit plans, medical insurance plans, life insurance plans, disability income
plans and other benefit plans, from time to time, in effect for executives of
the Employer. Such participation shall be subject to the terms of the applicable
plan documents, generally applicable Corporation policies and the discretion of
the Board of Directors or any administrative or other committee provided for in,
or contemplated by, such plan. In addition, the Employee shall be entitled to
receive benefits which are the same or substantially similar to those which are
currently being provided to the other Executives by the Employer.
4. Reimbursement for Expenses. In accordance with the Employer's policy, the
Employee will be reimbursed for all "out-of-pocket" and other direct business
expenses (exclusive of commuting costs), upon presentation of appropriate
receipts and documentation.
5. Proprietary Information. The Employer possesses, and will continue to
possess, information that has been created, discovered or developed by, or
otherwise become known to, the Employer (including, without limitation,
information created, discovered, developed or made known to me during the period
of or arising out of Employee's employment by the Employer, whether before or
after the date hereof) or in which property rights have been or may be assigned
or otherwise conveyed to the Employer, which information has commercial value in
the business in which the Employer is engaged and is treated by the Employer as
confidential. All such information is hereinafter called "Proprietary
Information" which term, as used herein, shall also include, but shall not be
limited to, systems, processes, formulae, data, functional specifications,
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computer programs, blueprints, know-how, improvements, discoveries,
developments, designs, inventions, techniques, marketing plans, strategies,
forecasts, new products, unpublished financial statements, budgets, projections,
licenses, prices, costs and customer and supplier lists; provided, however, that
the term "Proprietary Information" shall not include any of the foregoing which
is in the public domain.
All existing lists of customers of the Employer and all lists of customers
of the Employer developed during the course of Employee's employment by the
Employer are and shall be the sole and exclusive property of the Employer and
that Employee neither has nor shall have any right, title or interest therein;
such lists of customers are and must continue to be confidential; such lists of
customers are not readily accessible to competitors of the Employer; and the
Employer's present and future business relationship with its customers is and
will continue to be of a type which normally continues unless interfered with by
others.
In the event of a breach, or threatened breach, by Employee of his
obligations under this Section, the Employee hereby acknowledges and stipulates
that the Employer shall not have an adequate remedy at law, shall suffer
irreparable harm and, therefore, it is mutually agreed and stipulated by the
parties hereto that, in addition to any other remedies at law or in equity which
Employer may have, the Employer shall be entitled to obtain in a court of law
and/or equity (i) a temporary and/or permanent injunction from disclosing in
whole or in part such Confidential Information or (ii) from providing any
services to any party to whom such Confidential Information has been disclosed,
or may be disclosed. Employer shall not be prohibited by this Section from
pursuing other remedies, including a claim for losses and damages.
6. Ownership of Proprietary Information. All Proprietary Information shall be
the sole property of the Employer and its assigns and the Employer and its
assigns shall be the sole owner of all patents, copyrights, trademarks and other
rights in connection therewith. Employee hereby assign to the Employer any
rights he may have or acquire in such Proprietary Information. Employee hereby
acknowledges that all Proprietary Information is and must continue to be
confidential and that the same is not readily accessible to competitors of the
Employer. At all times, both during Employee's employment by the Employer and
after his termination, Employee will keep in strictest confidence and trust all
Proprietary Information and Employee will not use or disclose any Proprietary
Information without the written consent of the Employer except as may be
necessary in the ordinary course of performing Employee's duties as an employee
of the Employer.
7. Vacation. The Employee shall be entitled to two (2) weeks of paid vacation.
Such vacation shall be taken at a time mutually convenient to Employer and
Employee. Unused vacation may not be accumulated.
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8. Sick Days/Personal Business. The Employee shall be entitled to five (5) paid
sick or personal days off due to illness or personal business each year of
employment beginning on the first day of the Employee's employment.
9. Holidays. The Employee shall be entitled to the standard company holidays.
10. Term. This Employment Agreement shall have an initial term of one (1) year,
beginning at the commencement date so indicated at the end of this Employment
Agreement. This Employment Agreement may be extended, by mutual agreement in
writing signed by both parties, an additional two (2) years.
11. Termination of Employment. Notwithstanding the provisions of Paragraph 10,
the Employee's employment hereunder shall terminate under the following
circumstances:
a. Death or Permanent Disability. In the event of the Employee's death
during the Employee's employment hereunder, the Employee's employment shall
terminate on the date of his death or Permanent Disability (as defined below).
Permanent Disability. For the purposes of this Employment Agreement, the
term "permanent disability" shall mean the Employee's inability to perform his
duties as prescribed in this Employment Agreement, which, following a written
request by either the Employer or the Employee, shall be determined by agreement
between the parties and, if they cannot agree, by a panel of three (3)
physicians, one of whom will be selected by the Employer, one by the Employee
and the third by the first two so selected. Said panel shall also fix the date
of the occurrence of the permanent disability. Said panel's determination shall
be conclusive. Notwithstanding anything to the contrary set forth herein, the
Employee shall be presumed to be permanently disabled as of the date he is
receiving payments for permanent disability under any disability insurance
policies or under the Social Security Act.
b. Temporary Disability. If, due to physical or mental illness, disability
or injury, the Employee shall be disabled so as to be unable to perform
substantially all of his duties and responsibilities hereunder, the Board of
Directors may designate another person to act in his place during the period of
such disability. Notwithstanding any such designation, the Employee shall
continue to receive his full salary and benefits under Paragraph 3 of this
Employment Agreement until he becomes eligible for disability income under the
Employer disability income plan. In the absence of a disability income plan at
the time of such disability, the Employer shall pay the Employee benefits equal
to those the Employee would have received if the Employer's current disability
income plan were in effect at such time; provided however, that the Employer's
obligations hereunder shall cease twelve (12) months from the onset of such
disability.
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c. Termination by the Employer for Cause. The Employee's employment
hereunder may be terminated for cause, without further liability on the part of
the Employer, by a majority vote of all of the members of the Board of
Directors. Termination for cause includes, but is not limited to:
(i) Deliberate dishonesty of the Employee with respect to the
Employer.
(ii) Conviction of the Employee of a crime involving moral
turpitude.
(iii) Gross and willful failure to perform a substantial
portion of his duties and responsibilities hereunder.
(iv) Employee's unexcused abandonment of his duties hereunder
for a period of more than thirty (30) days. Abandonment by the Employee of
duties hereunder shall be deemed to have occurred if: the Employee ceases to
function and perform duties hereunder, leaves the geographic area in which the
Employer engages in its business, or conducts himself with intentional disregard
of the Employer's interests and its business.
(v) Any other willful act that has or will have a smilar
negative impact on the financial success of the Employer.
d. After the first anniversary date, Employee may, upon thirty (30) days
written notice, terminate this Employment Agreement. Notwithstanding such
termination, the provisions of Section 14 shall remain in effect for the
additional one (1) year beyond the date of resignation.
e. Upon termination of this Employment Agreement, any and all payments
and/or obligations under Section 3 of this Employment Agreement shall cease;
provided, however, that the Employee shall be entitled to payments for periods
or partial periods that occurred prior to the date of termination and for which
the Employee has not yet been paid.
12. Termination Without Good Cause. In the event that the Employee terminates
the Employment Agreement with good cause or Employer terminates the Employment
Agreement without good cause, Employee shall continue to receive payments and
benefits, including vesting of options issued by Applied Cellular Technology,
Inc. for the remaining term of the Employment Agreement.
13. Resignation as Officer and Director. In the event that the Employee's
employment with the Employer is terminated for any reason whatsoever, the
Employee agrees to immediately resign as an Officer and Director of the
Employer.
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14. Non-Competition. The Employee acknowledges that he has gained, and will
gain, extensive and valuable experience and knowledge in the business conducted
by Employer and has had, and will have, extensive contacts with customers of
Employer. Accordingly, the Employee covenants and agrees with Employer that he
shall not compete directly or indirectly with Employer, either during the term
of his employment or during the three (3) year period immediately thereafter and
shall not, during such period, make public statements in derogation of Employer.
For the purposes of this Section 14, the term "Employer" shall be deemed to
include subsidiaries, parents and affiliates of Employer. Competing directly or
indirectly with Employer shall mean engaging or having a material interest,
directly or indirectly, as owner, employee, officer, director, partner,
venturer, stockholder, capital investor, consultant, agent, principal, advisor
or otherwise, either alone or in association with others, in the operation of
any entity engaged in the business of providing financing to the various ACT
subsidiaries. Competing directly or indirectly with Employer, as used in this
Employment Agreement, shall be deemed not to include an ownership interest as an
inactive investor, which, for purposes of this Employment Agreement, shall mean
the beneficial ownership of less than one percent (1%) of the outstanding shares
of any series or class of securities of any competitor of Employer, which shares
are publicly traded in the securities markets.
In the event that one or more of the provisions contained herein shall, for
any reason, be held too excessively broad as to duration, geographical scope
activity or such provision shall be construed as limiting and reducing its as
determined by a court of competent jurisdiction and shall be enforceable to the
extent compatible with applicable law. Further the restriction set forth herein
are not intended to prevent Employee from earning a living or fostering his
career in a manner consistent with his past abilities and background.
15. Restriction on Authority of Employee. Notwithstanding anything set forth in
this Employment Agreement to the contrary, the Employee, in the performance of
his duties hereunder, shall not take any of the following actions without the
written consent of the Board of Directors:
a. Enter into negotiations or execute documents which would effect the
existing debt and/or structure or alter, modify or change any banking relations
after such Closing Date.
16. Representations and Warranties. The Employee hereby represents and warrants
that he is free to enter this Employment Agreement and to render his services
pursuant hereto and that neither the execution and delivery of this Employment
Agreement, nor the performance of his duties hereunder, violates the provisions
of any other agreement to which he is a party or by which he is bound.
17. Date of Commencement. This Employment Agreement is effective January 5,
1998.
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18. Notices. All notices required or permitted under this Employment Agreement
shall be in writing and shall be deemed delivered when delivered in person or
deposited in the United States mail, postage paid, addressed as follows:
Employer: ACT Financial Corp.
Xxxxx River Professional Center, Xxxxx 0
X. X. Xxx 0000
Xxxx, XX 00000
Employee: Xxxxxx X. Xxxxxxxxxx
00 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Such addresses may be changed from time to time by either party by
providing written notice in the manner set forth above.
19. Arbitration. Any and all disputes between the parties with respect to the
construction or performance of the terms of this Employment Agreement (except
with respect to the equitable remedies available under Section 13) which cannot
be resolved amicably shall be resolved by arbitration in accordance with the
rules of the American Arbitration Association and such arbitration shall occur
in the state in which Employers principal office is located.
20. Entire Agreement. This Employment Agreement contains the entire agreement of
the parties and there are no other promises or conditions in any other
agreement, whether oral or written. This Employment Agreement supersedes any
prior written or oral agreements between the parties.
21. Amendment. This Employment Agreement may be modified or amended, if the
amendment is made in writing and is signed by both parties.
22. Assignment. This Employment Agreement may not be assigned by Employee.
23. Section Headings. The headings contained in this Employment Agreement are
for reference only and shall not in any way affect the meaning or interpretation
of this Employment Agreement.
24. Severability. If any provision of this Employment Agreement shall be held to
be invalid or unenforceable for any reason, the remaining provisions shall
continue to be valid and enforceable. If a court finds that any provision of
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this Employment Agreement is invalid or unenforceable, but that by limiting such
provision it would become valid and enforceable, then such provision shall be
deemed to be written, construed and enforced as so limited.
25. Waiver of Contractual Right. The failure of either party to enforce any
provision of this Employment Agreement shall not be construed as a waiver or
limitation of that party's right to subsequently enforce and compel strict
compliance with every provision of this Employment Agreement.
26. Applicable Law. This Employment Agreement shall be governed by the laws
(other than the law governing conflict of law questions) of the state in which
the Employer's principal office is located.
27. Counterparts. This Employment Agreement may be executed 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 and, in pleading or
proving any provision of this Employment Agreement, it shall not be necessary to
produce more than one of such counterparts.
28. The parties have executed this Employment Agreement the day and year first
above written.
EMPLOYER
ACT FINANCIAL CORP.
By: /S/ Xxxxxxx X. Xxxxxxxx
_________________________________
Xxxxxxx X. Xxxxxxxx
Chairman of the Board
EMPLOYEE
By: /S/ Xxxxxx X. Xxxxxxxxxx
_________________________________
Xxxxxx X. Xxxxxxxxxx
