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EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made this 17th day of June, 1996, by and
between XXXXXXX XXXXXXXX (the "EMPLOYEE") and 2CONNECT EXPRESS, INC., a
Florida corporation ("Company").
WHEREAS, the Company is a specialty retailer offering
Internet, satellite and communication services; and,
WHEREAS, the Company desires to obtain the services of the
Employee, and Employee desires to be employed by the Company.
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein, the parties agree as follows:
1. Employment The Company shall employ the Employee as its
Director of Operations. The Employee shall be responsible for such duties as
are customary for a Director of Operations, subject to the direction of the
Chief Executive Officer, President and the Board of Directors of the Company.
The Employee shall diligently, faithfully, and competently perform all duties
of the office of Director of Operations and shall devote his full productive
time and abilities to the performance of such duties and will not render his
services to any other person or entity without the prior written consent of the
Board of Directors.
2. Compensation.
(a) Salary. In consideration of and as compensation for
performance of the services under this Agreement, the Company will pay the
Employee a salary of $100,000 per year, payable in equal installments once
every two weeks or such frequency as is consistent with Company practices.
Subsequent to the first year of this Agreement, the salary paid to the Employee
shall be reviewed to determine whether it should be increased to an amount that
is greater than the amount paid to him during the immediately preceding year.
(b) Stock Option. In addition to the above salary, the
Company has granted, and may additionally grant, in its discretion, certain
options to purchase shares of the Company's common stock, pursuant to the terms
and conditions contained in the Option Agreement between the parties and the
Company's stock option plan.
3. Benefits. While this Agreement is in effect, the Employee
shall receive any and all health and medical benefits, insurance, pension and
profit sharing plans, paid vacation time, sick leave and other benefits on a
similar basis as is offered to other similarly situated Company employees.
4. Expenses. The Company shall reimburse the Employee for all
necessary and reasonable expenses incurred and paid by the Employee in
connection with the performance of services hereunder upon presentation of
supporting documentation.
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5. Term. The term of the Employee's employment with the Company
shall commence on June 17, 1996 and shall continue thereafter until June 15,
1997 (the "Term"), unless earlier terminated as provided in Section 6 below.
The term of the Employee's employment shall automatically renew for successive
one-year terms thereafter, unless either the Employee or the Company provides
the other with written notice of his or its intent not to continue the
employment.
6. Termination For Cause. The Company may terminate this
Agreement, and the Employee's employment hereunder, for "cause". For purposes
of this Agreement, "cause" shall be defined as any act, which in the opinion of
the Board of Directors, in their sole discretion, constitutes:
(a) theft, dishonesty, fraud or embezzlement;
(b) failure or non-performance by the Employee to carry
out his duties or responsibilities pursuant to this Agreement or the lawful
instructions of the Board of Directors, the CEO or the President, which such
instructions relate to the conduct of the Company's business;
(c) willful refusal to continue his employment with the
Company, failure to comply with the Company's policies then in effect, or any
act that is otherwise a material breach or default of this Agreement.
Upon such acts of "cause", the Company may immediately terminate this
Agreement by written notice and shall have no further liability hereunder
except for compensation accrued to the date of such termination notice or the
first date of willful refusal by the Employee to continue his employment, as
the case may be.
7. Confidentiality and Non-Disclosure.
(a) The Employee acknowledges that the Company has
organized and created a new form of retail establishment to sell Internet,
satellite, cellular, paging, long-distance, local phone, and other
communication services and related hardware in a format aimed at mass market
consumers (as adjusted by the Company from time-to-time, referred to herein as
the "Company's Business"). The Company has invested substantial capital, time,
expertise, effort and other resources to develop this unique specialty retail
concept; these resources contain certain confidential and proprietary
information and analysis. For purposes of this Agreement, confidential and
proprietary information ("Confidential Information") shall be defined as any
information relating to the Company's confidential or proprietary business
affairs, whether communicated orally or in writing, including without
limitation, concepts, techniques, lists, designs, cost data, management
information, and other know-how, financial, marketing, and other business
information disclosed by the Company to the Employee or obtained by the
Employee through observation or examination of the Company's customers or
suppliers, including the identity of such customers and suppliers, and any
information the Company has received from others which the Company is obligated
to treat as confidential or proprietary.
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(b) The Employee acknowledges that irreparable injury and
damage will result from the Employee's disclosure to third parties or from any
use of Confidential Information for purposes other than those connected with
Employee's employment hereunder.
(c) Employee agrees that he will not, during the course
of his employment, and at all times thereafter, without the Company's prior
written consent, disclose any Confidential Information to any third party and
shall not use any Confidential Information except pursuant to and in the course
of his association with the Company. The Employee shall have no liability for
reasonable disclosure of any Confidential Information that the Employee can
establish (i) has become publicly known without breach of this Agreement, or
(ii) had become known by or available prior to disclosure of such information
to the Employee or to such third party, without any breach of any obligation of
confidentiality by the Employee to the Company.
(d) Without limiting any other obligations contained in
this Agreement, the Employee agrees to take reasonable security precautions, at
least as great as the Employee uses to protect his own confidential
information, to protect from disclosure and to keep confidential the
Confidential Information, including without limitation, protection of documents
from discovery of contents, theft, unauthorized duplication, and access by
other persons to Confidential Information.
(e) Upon reasonable request by the Company and immediately
upon termination of the Employee's employment, the Employee will return to the
Company all materials, including but not limited to written materials,
photographs, equipment, art work, prototypes, advertising materials, customer
lists, service user lists, access lists, prospect lists, hardware, computers,
programs in whatever form, and all other documentation made available or
supplied by the Company, and all copies and reproductions thereof.
(f) The Employee will not make use any copies of, or
summaries of, oral or written material, photographs or any other documentation
or information made available or supplied by the Company, except such as are
necessary to accomplish the purpose of his employment hereunder.
(g) The Company retains all rights and remedies afforded
it under the copyright, trademark and other laws of the United States and the
states thereof, including without limitation any laws designed to protect
proprietary or confidential information.
8. Non-Competition.
(a) In addition to, and separate from the provisions
regarding Confidential Information stated in Section 7 above, the Employee
agrees that for one (1) year after the termination of employment for any reason
(excluding termination of the Employee by the Company without cause), the
Employee will not, in any geographic area where the Company operates a retail
establishment, for its own account or as agent, servant or employee, nor as a
shareholder of any
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corporation or member of any firm: (a) accept employment from, or directly or
indirectly take any action for the benefit of, any individual or entity that
conducts a business that is in competition with the Company's Business, without
the consent of the Board of Directors of the Company; (b) contact or accept any
business with any of the Company's vendors or customers with the intention of
engaging in competition with the Company's Business; (c) engage, hire, employ
or solicit the employment of, for the purpose of engaging in competition with
the Company's Business, any of the Company's employees whose duties require
that employee to be familiar with the operation of the Company's Business or
the employees or agents of any vendor or customer of the Company. For purposes
of this Section 8, an entity or individual is "in competition with the
Company's Business" if it or any division thereof derives more than 50% of its
annual gross revenues from the sale of Internet, satellite, cellular, paging,
long-distance, local phone, and/or other communication services and/or related
hardware in a format aimed at mass market consumers.
(b) In the event of the Employee's actual or threatened
breach of any of the preceding paragraph of this Section 8, the Company shall
be entitled (without the need to post bond) to an injunction restraining
Employee from the prohibited conduct. If the court should hold that the
duration and/or scope (geographic or otherwise) of the covenants contained in
this Section 8 are unreasonable, then, to the extent permitted by law, the
court may prescribe a duration and/or scope (geographic or otherwise) that is
reasonable, and both the Company and Employee agree to accept such
determination, subject to rights of appeal. Nothing herein stated shall be
construed as prohibiting the Company or any third party from pursuing any other
remedies available to it for such breach or threatened breach, including the
recovery of damages.
(c) The Employee agrees that if he is in violation of any of
the aforementioned restrictive covenants, then the time limitation for the
covenant shall be extended for a period of time equal to the period of time
during which the Employee was in breach of the covenant.
(d) The Employee agrees that the existence of any claim or
cause of action which he may have against the Company, whether predicated upon
this Agreement or otherwise, shall not constitute a defense to the Company's
enforcement of the foregoing restrictive covenants, but shall be litigated
separately.
9. Notices. All claims, notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given or made when delivered by hand or mailed, first
class certified mail, return receipt requested, with postage paid:
(i) If to Employee: XXXXXXX XXXXXXXX
000 X. XXXXXXXXX XX.
XXXXXXX XXXXX, XX. 00000
or to such other person or address as Employee shall furnish to the Company in
writing.
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(ii) If to the Company, to: 2CONNECT EXPRESS, INC.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
with a copy to: XXXXXX X. XXXXXX, ESQ.
Xxxxxx & Zeder, P.A.
0000 X. Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
or to such other person or address as the Company shall furnish to Employee in
writing.
10. Binding Effect. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of The Company.
11. Governing Law. This Agreement shall be governed by
and construed in accordance with the law of the State of Florida. Venue for any
proceedings shall be in Dade or Broward Counties, Florida and the parties agree
to submit to the jurisdiction thereof.
12. Entire Agreement. This Agreement contains the entire
agreement concerning the subject matter and supersedes all prior written and
oral understandings of the parties with respect thereto. This Agreement may
not be changed except by a writing signed by the party against whom the
enforcement of any waiver, change, extension, modification or discharge is
sought.
13. Severability. In the event any term, paragraph or
provision of this Agreement or its application to any circumstances shall to
any extent be deemed invalid or unenforceable, the remainder of this Agreement
shall be valid and enforceable to the fullest extent permitted by law.
14. Consultation of Attorneys. The Company and the
Employee acknowledge that they each have had the opportunity to consult its or
his respective attorney with respect to this Agreement, and that they each
understand its contents.
15. Gender. References in this Agreement to any of the
masculine, feminine, or neuter genders shall refer to the others as the context
may reasonably require, and references to the singular or plural shall refer to
the other as the context may reasonably require.
16. Paragraph Headings. This paragraph headings
contained herein are for reference only and shall not in any way affect the
meaning and interpretation of this Agreement.
17. Counterparts. This Agreement may be executed in
counterparts, each of which when so executed shall be an original, but both of
which shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement is made and entered into on the date first
above written.
2CONNECT EXPRESS, INC.
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Title: President
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EMPLOYEE
/s/ Xxxxxxx Xxxxxxxx
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XXXXXXX XXXXXXXX
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