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EXHIBIT 10.12
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 27th day of June, 1997, by
and between Telephone Warehouse, Inc., a Delaware corporation f/k/a HIG
Cellular Acquisition Corporation (the "Corporation"), and Xxxxxx X. Xxxxxxxx,
an individual residing at 0000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx 00000 (the
"Executive").
WITNESSETH THAT:
WHEREAS, the Corporation and the Executive have previously entered into
that certain Employment Agreement, dated as of December 31, 1996 (the "Original
Employment Agreement");
WHEREAS, the Corporation desires to amend and restate the Original
Employment Agreement to continue to employ the Executive in the capacity
hereinafter stated, and the Executive desires to continue in the employ of the
Corporation 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 Corporation and the
Executive as follows:
1. Employment Period. The Corporation hereby agrees to employ the
Executive as its President and the Executive, in such capacities, agrees to
provide services to the Corporation for the period beginning on the date first
above written (the "Commencement Date") and ending on December 31, 1998 (the
"Employment Period).
2. Performance of Duties. The Executive agrees that during the Employment
Period, while he is employed by the Corporation, he shall devote his full time,
energies and talents exclusively to serving in the capacity of President of the
Corporation and to perform the duties assigned to him by the Board of Directors
in a professional manner.
3. Compensation. Subject to the terms and conditions of this Agreement,
during the Employment Period, the Executive shall be compensated by the
Corporation for his services as follows:
(a) He shall receive, (i) for the six-month period beginning July
1, 1997 , a salary of $50,000, and (ii) for the 12-month period
beginning on January 1, 1998, a salary of $100,000, each payable in
substantially equal installments in accordance with the normal
payroll practices of the Corporation.
(b) He shall receive a bonus of $950,000, which shall be payable
on or before December 31, 1997; provided that the Adjusted EBIT (as
defined in that certain Amended and Restated Subordinated Note
dated as of the date hereof) for the 12 months ended December 31,
1997 equals or exceeds $4 million.
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(c) He shall be a participant in the standard executive benefit
plans maintained by the Corporation. The Corporation shall pay for
life insurance policies naming the Executive's designee as the
beneficiary in the amount of (i) $3 million for the year ended
December 31, 1997, and (ii) $2 million for the year ended December
31, 1998.
(d) He shall be reimbursed by the Corporation 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 Corporation 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 Corporation may from time to time reasonably request.
4. Compensation Due Upon Termination. Except as otherwise provided under
the executive benefit plans maintained by the Corporation in which the
Executive participates in accordance with subparagraph 3(c), the Executive's
right to compensation for periods after the date his employment with the
Corporation terminates shall be determined in accordance with the following:
(a) Discharge Without Cause. The Corporation may terminate the
Executive's employment under this Agreement at any time after the
six month anniversary of the Commencement Date without cause for any
reason whatsoever. Upon such termination, the Executive shall be
entitled to receive all payments of his compensation in accordance
with the provisions of subparagraphs 3(a) and 3(b) for the remainder
of the Employment Period.
(b) Voluntary Resignation. The Corporation 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 Corporation terminates due to the
Executive's voluntary resignation. If the Executive resigns because
of (i) a change in his office location of more than fifty (50)
miles, (ii) the removal of him from senior management of the
Corporation or (iii) a requirement that he perform nonexecutive
duties, he shall be deemed to have been discharged without cause
under paragraph 4(a).
(c) Discharge for Cause. The Corporation 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
Corporation is terminated on account of the Executive's discharge
for cause. For purposes of this subparagraph 4(c), the Executive
shall be considered discharged for "cause" if he is discharged by
the Corporation on account of the Executive committing a material act
of fraud against the Corporation.
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(d) Death. The Corporation shall have no obligation to make
payments to the Executive in accordance with the provisions of
paragraph 3 after the death of the Executive.
5. Confidentiality. All information, knowledge and data relating to or
concerned with the operations, business and affairs of either the Executive or
the Corporation, as the case may be, which are exchanged by the parties hereto
in connection with the performance by the Executive of his duties hereunder
shall be the property of the Corporation and be treated as confidential
information and shall be held in a fiduciary capacity by the parties hereunder.
The Executive shall not disclose or divulge such information to any firm,
person, corporation or other entity other than in connection with the
performance of its duties hereunder. Notwithstanding anything to the contrary
contained herein, the covenants contained herein shall not apply to information
which (a) is or becomes public knowledge without breach of this agreement, (b)
which is or becomes publicly available without a confidentiality restriction
and without breach of this agreement from a source other than the disclosing
party, (c) the recipient can demonstrate was known by the recipient without a
confidentiality restriction at the time of the receipt of such information or
(d) was independently developed by the recipient by persons who did not have
access to the disclosed information.
6. Non-competition. During the period commencing on the date hereof and
ending on December 31, 2000 (the "Restricted Period"), the Executive agrees not
to, directly or indirectly, alone or as a partner, officer, director, employee,
consultant, agent, independent contractor, member or stockholder of any company
or Person, engage in any business activity, including but not limited to any
business activity related to selling cellular or wireless communication
services or products, in any metropolitan area or proposed metropolitan area in
which the Corporation or its affiliates is doing or will do business within six
(6) months from the date of termination of this agreement (the "Restricted
Area"), which is directly or indirectly in competition with the products or
services being developed, manufactured, marketed, sold or otherwise provided by
the Corporation or its affiliates or which is directly or indirectly
detrimental to the business of the Corporation or its affiliates; provided,
however, that the record or beneficial ownership by the Executive of five
percent (5%) or less of the outstanding publicly traded capital stock of any
such company or Person for investment purposes shall not be deemed to be in
violation of this section so long as the Executive is not an officer, director,
employee or consultant of such company or Person. The Executive further agrees
that, during the Restricted Period, the Executive shall not in any capacity,
either separately, jointly or in association with others, directly or
indirectly employ or seek to employ any Person or agent who is then employed or
retained by the Corporation or its affiliates (or who was so employed or
retained at any time within the six month period prior to the date the
Executive employs or seeks to employ such person); and (c) solicit, induce, or
influence any proprietor, partner, stockholder, lender, director, joint
venturer, investor, lessor, supplier, customer or any other Person which has a
business relationship with the Corporation or any of its affiliates, at any
time during the Restricted Period, to discontinue or reduce or modify the
extent of such relationship with the Corporation.
7. Successors. This Agreement shall be binding on, and inure to the
benefit of, the Corporation and its successors and assigns and any person
acquiring, whether by merger,
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consolidation, purchase of assets or otherwise, all or substantially all of the
Corporation's assets and business.
8. Remedies. The Executive acknowledges that the Corporation would be
irreparably injured by a violation of paragraphs 5 or 6, and agrees that the
Corporation 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 without bond or other security being required.
9. Waiver of Breach. The waiver by either the Corporation 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 Corporation or the
Executive.
10. 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:
Xx. Xxxxxx X. Xxxxxxxx
0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx 00000
(b) to the Corporation addressed as follows:
Telephone Warehouse, Inc.
0000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxx 00000
11. Amendment. This Agreement may be amended or canceled by mutual
agreement of the parties in writing.
12. Applicable Law. The provisions of this Agreement shall be construed in
accordance with the internal laws of the State of Texas.
13. Termination. All of the provisions of this Agreement shall terminate
after the expiration of the Employment Period, except that paragraph 5 shall
not terminate and paragraph 6 shall terminate upon the expiration of the
Restricted Period.
14. Conflict. To the extent a conflict exists between this Agreement and
the Stock Purchase Agreement, the terms and conditions of the Stock Purchase
Agreement shall govern.
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IN WITNESS WHEREOF, the Executive and the Corporation have executed this
Employment Agreement as of the day and year first above written.
XXXXXX X. XXXXXXXX
/s/ Xxxxxx X. Xxxxxxxx
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TELEPHONE WAREHOUSE, INC.
By: /s/ Xxxxxxx Xxxxx
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Its: Vice President
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