EXHIBIT 10.6
Form of Employment Agreement to be entered into by and among Thrucomm, Inc.
and Messrs.Xxxxxxx and Gianinni
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of this day of 1997 (the "Agreement"), by
and between Thrucomm, Inc., a Florida corporation ("Employer"), and
("Employee").
WITNESSETH:
WHEREAS, Employer desires to employ Employee and Employee desires to be
employed by Employer as Chairman of the Board of Employer; and
WHEREAS, Employer recognizes the need of the knowledge, talents and
assistance of Employee and desires to enter into this Agreement to secure the
foregoing.
NOW, THEREFORE, in consideration of the promises herein contained, the
parties covenant and agree as follows:
1. EMPLOYMENT. Employer agrees to employ Employee and Employee agrees to be
employed by Employer and to perform work as determined by Employer, as Chairman
of the Board of Employer, on the terms and conditions set forth in this
Agreement. This Agreement shall be effective as of the date hereof (the
"Effective Date").
2. COMPENSATION. Employer agrees to employ Employee at the base rate of
compensation of per year. Compensation is to be paid on the
15th and last day of each month.
In addition to the base compensation, Employer agrees to pay or provide
Employee with the following:
A. Other Benefits. Employer shall provide Employee with other benefits
as are set forth on Exhibit A attached hereto and incorporated herein by
reference.
B. EXPENSES. Reimbursement for reasonable expenses actually incurred
by Employeee in the furtherance of Employer's business, including, but not
limited to, telephone calls (including business related calls on Employee's
cellular phone and business related long distance calls), entertainment,
attendance at conferences, conventions and institutes, provided proper
itemization of said expenses is furnished Employer by Employee. All such
expenditures shall be subject to the reasonable control of Employer.
C. MEDICAL AND DISABILITY BENEFITS. Employee shall be entitled to
participate in Employer's medical program, Employer-paid disability and
other benefit programs as other executives of Employer are entitled to
participate in, as is in place from time to time. If Employee desires to
include any family members in the medical plan, Employee shall be
responsible for all additional costs.
D. ADDITIONAL BENEFITS. Employee shall be entitled to participate in
and receive such additional benefits as Employer shall from time to time
make available to its executive employees including, without limitation,
profit sharing, stock purchase, stock option and other incentive plans.
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3. DUTIES. Employee agrees to perform work as determined by Employer,
subject to the direction of Employer and agrees to subject himself at all times
during the Term (as hereinafter defined) to the direction and control of
Employer in respect to the work to be performed. Employee shall devote his full
business time and attention to the furtherance of Employer's best interests. In
that regard, and as further consideration for this Agreement, Employee agrees to
comply with, and abide by, such rules and directives of Employer as may be
reasonably established from time to time, and recognizes the right of Employer,
in its reasonable discretion, to change, modify or adopt new policies and
practices affecting the employment relationship, not inconsistent with this
Agreement, as deemed appropriate by Employer. During the term of Employee's
employment, Employee will not undertake any new business ventures, partnerships
consulting arrangements or other enterprise or business other than those on
behalf of Employer, without Employer's prior written consent.
Employee's typical responsibilities include, but are not limited to, those
set forth on Exhibit B attached hereto and incorporated by reference herein.
4. WORKING FACILITIES. Employee shall be furnished with office space,
secretarial services, and such other facilities and services suitable to
Employee's position and adequate for the performance of Employee's duties.
5. AGENCY. Employee shall have no authority to enter into any contracts
binding upon Employer, except as authorized in writing, in advance, by Employer.
6. TERM OF EMPLOYMENT; SEVERANCE.
A. Employee's employment hereunder shall commence as of the Effective
Date hereof and continue for a period of five (5) years thereafter (the
"Term").
B. Anything herein to the contrary notwithstanding, Employee's
employment hereunder may be termninated at any time and for any reason by
either party upon not less than one hundred twenty (120) days' prior
written notice to the other party. It is understood and acknowledged that
Employer shall have the right to effectuate such termination at will, with
or without Reasonable Cause (as hereinafter defined). Any such termination
shall be effective as of the end of such one hundred twenty (120) day
period (the "Final Date").
C. If Employee's employment hereunder shall be terminated by Employer
without Reasonable Cause pursuant to paragraph 6.B. or because of
Employee's disability, as determined by Employer in good faith, or if
Employee voluntarily terminates employment hereunder for Good Reason or if
this Agreement is not renewed by Employer for any reason at the end of the
Tenn, then Employee shall be entitled to (i) severance compensation equal
to Employee's then-current base salary and benefits (which for purposes
hereof shall include all compensation payable hereunder, of any type) for a
period equal to the Severance Period (as defined below) and (ii)
outplacement services at Employer's expense if Employee actually utilizes
such services (collectively, the "Severance Benefits"). Such severance
compensation payments consisting of cash shall be paid in a lump sum on or
before the Final Date. The Severance Benefits are intended to be in lieu of
all other payments to which Employee might otherwise be entitled in respect
of termination of Employee's employment without Reasonable Cause or in
respect of any action by Employer constituting Good Reason for voluntary
termination.
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D. If Employee's employment hereunder shall be terminated for
Reasonable Cause pursuant to paragraph 6.C., or if Employee voluntarily
terminates Employee's employment without Good Reason, Employee shall be
entitled to receive Employee's base salary as accrued through the effective
date of such termination, but shall not be entitled to any Severance
Benefits or other amounts in respect of such termination.
E. "Reasonable Cause," as used herein, shall mean Employee's
involvement in any action or inaction involving fraud resulting in a
personal benefit in excess of any payments to which Employee is entitled
hereunder, dishonesty, or material violation of Corporation policy and
procedures. Employee shall vacate the offices of Employer on such effective
date.
F. "Good Reason," as used herein, means the occurrence of any of the
following events without Employee's consent:
i. a material diminution in Employee's duties and
responsibilities;
ii. a reduction in Employee's base salary;
iii. a forced relocation; or
iv. a Change of Control (as defined below) if Successor Employer
(as defined in paragraph 21 below) fails to assume this Agreement in
its entirety.
G. "Severance Period," as used herein, means twenty four (24) months.
H. "Change of Control" means a sale outside the ordinary course of
business of more than fifty percent (50%) of the assets of or equity
interests in Employer to any person or entity.
7. COMPLIANCE WITH LAWS. Employee will comply with all federal and state
laws, rules and regulations relating to any of Employee's responsibilities and
duties with Employer and will not violate any such laws, rules and regulations.
8. COVENANT NOT TO COMPETE. Employee agrees to conform to the following
concerning non-competition.
A. Employer undertakes to train Employee and to give Employee
confidential information and knowledge about Employer's business policies,
accounts procedures and methods. For the purposes of this Agreement, the
term "confidential information" shall include but is not limited to any
list of suppliers, customers, investors, stockholders, including their
names, addresses, phone numbers, amount of investments and similar
information. In addition, any operational information of Employer,
including but not limited to information on Employer's methods of
conducting business, profits and/or losses of Employer, marketing material
and any information that would reasonably be considered proprietary or
confidential in nature. Employer has established a valuable and extensive
trade in its products and services, which business has been developed at a
considerable expense to Employer. The nature of the business is such that
the relationship of its customers with Employer must be maintained through
the close personal contact of its employees.
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B. Employee desires to enter into or continue in the employ of
Employer and by virtue of such employment by Employer, Employee will become
familiar with the manner, methods, secrets and confidential information
pertaining to such business. During the Term, Employee will continue to
receive additional confidential information of the same kind. Through
representatives of Employer, Employee will become personally acquainted
with the business of Employer and its methods of operation.
C. In consideration of the employment or continued employment of
Employee as herein provided, the training of Employee by Employer, and the
disclosure by Employer to employee of the knowledge and confidential
information described above, Employer requests and Employee makes the
covenants hereinafter set forth. Employee understands and acknowledges that
such covenants are required for the fair and reasonable protection of the
business of Employer carried on in the area to which the covenants are
applicable and that without the limited restrictions on Employee's
activities imposed by the covenants, the business of Employer would suffer
irreparable and immeasurable damage. The covenants on the part of Employee
shall be construed as an agreement independent of any other provision of
this Agreement, and existence of any claim or course of action whether
predicated on this Agreement or otherwise, shall not constitute a defense
to the enforcement by Employer of the covenants.
D. Employee agrees that during the term of Employee's employment and
for the period of twelve (12) months immediately following the termination
of employment (which said time period shall be increased by any time during
which Employee is in violation of this Agreement) Employee will not, within
the territory hereinafter defined, directly or indirectly, for Employee, or
on behalf of others, as an individual on Employee's own account, or as an
employee, agent, or representative for any other person, partnership, firm
or corporation:
i. Compete with the business of Employer by engaging or
participating in or furnishing aid or assistance in competition with
the business of Employer.
ii. Engage, in any capacity, directly or indirectly, in or be
employed by any business similar to the kind or nature of business
conducted by Employer during the employment.
iii. For the purposes of this paragraph 8, the business of
Employer shall be limited to the wireless data transfer business,
which means any business primarily involving the wireless transfer of
data on behalf of third parties, but does not include any business
involving the wireless transfer of data in which Employee has a
substantial proprietary interest to third parties whose primary
purpose is acquiring the content of such data from such Employee
rather than obtaining from such Employee the means of transferring
wirelessly such data.
E The territory referred to in this paragraph 8 shall be the United
States.
F. Each restrictive covenant is separate and distinct from any other
covenant set forth in this paragraph. In the event of the invalidity of any
covenant, the remaining obligation shall be deemed independent and
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divisible. The parties agree that the territory set forth is reasonable and
necessary for the protection of Employer. In the event any term or
condition is deemed to be too broad or unenforceable, said provision shall
be deemed reduced in scope to the extent necessary to make said provision
enforceable and binding.
G. The provisions of this paragraph 8 shall not apply if Employee's
employment is terminated by Employer without Reasonable Cause or by
Employee for Good Reason.
9. INDUCING EMPLOYEE OF EMPLOYER TO LEAVE. Any attempt on the part of
Employee to induce others to leave Employer's employ or any efforts by Employee
to interfere with Employer's relationship with other employees would be harmful
and damaging to Employer. Employee expressly agrees that during the term of
Employee's employment and for a period of twelve (I 2) months thereafter
(provided said time period shall be increased by any time during which Employee
is in violation of this Agreement), Employee will not in any way directly or
indirectly:
A. Induce or attempt to induce an employee to sever his or her
employment with Employer;
B. Interfere with or disrupt Employer's relationship with other
employees; and
C. Solicit, entice, take away or employ any person employed with
Employer, excluding people Employee brings to Employer.
10. CONFIDENTIAL INFORMATION. It is understood between the parties hereto
that during the term of employment, Employee will be dealing with confidential
information, as defined above, which is Employer's property, used in the course
of its business. Employee will not disclose to anyone, directly or indirectly,
any of such confidential information or use such information other than in the
course of Employee's employment. All documents that Employee prepares, or
confidential information that might be given to Employee in the course of
employment, are the exclusive property of Employer and shall remain in
Employer's possession on the premises. Under no circumstances shall any such
information or documents be removed without Employer's written consent first
being obtained.
11. RETURN OF EMPLOYER'S PROPERTY. On termination of employment, regardless
of how termination is effected, or whenever requested by Employer, Employee
shall immediately return to Employer all of Employer's property used by Employee
rendering services hereunder or otherwise that is in Employee's possession or
under Employee's control.
12. VACATION. Employee shall be entitled to a vacation period of four (4)
weeks per calendar year. The vacation shall be taken by Employee at such time
during the year and for such period as determined by the Executive Committee of
Employer. All vacations must be taken in the year earned. No vacations will be
accrued.
13. REFERENCES. Employer agrees that, upon termination of this Agreement,
it will, upon written request of Employee, furnish references to third parties,
including prospective employers, regarding Employee. However, Employee
acknowledges that it is Employer's policy to confirm employment only and not to
release any additional information without a written release from Employee.
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14. NOTICES. All notices, requests, consents, and other communications
under this Agreement shall be in writing and shall be deemed to have been
delivered on the date personally delivered or the date mailed, postage prepaid
by certified mail, return receipt requested, or taxed and confirmed, if
addressed to the respective parties as follows:
If to Employer: Thrucomm, Inc.
0000 Xxxxxxxx Xxxxxx Xxxxx Xx.
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx, President
If to Employee:
Either party may change its address for the purpose of receiving notices,
demands, and other communications by giving written notice to the other party of
the change.
15. VOLUNTARY AGREEMENT. Employee represents that he has not been
pressured, misled or induced to enter this Agreement based upon any
representation by Employer not contained herein.
16. PROVISIONS TO SURVIVE. The parties hereto acknowledge that many of the
terms and conditions of this Agreement are intended to survive the employment
relationship. Therefore, any terms and conditions that are intended by the
nature of the promises or representations to survive the termination of
employment shall survive the term of employment regardless of whether such
provision is expressly stated as so surviving.
17. MERGER. This Agreement represents the entire Agreement between the
parties and shall not be subject to modification or amendment by any oral
representation, or any written statement by either party, except for a dated
written amendment to this Agreement signed by Employee and an authorized officer
of Employer.
18. VENUE AND APPLICABLE LAW. This Agreement shall be enforced and
construed in accordance with the laws of the State of Florida, and venue to any
action or arbitration under this Agreement shall be Pinellas County, FL.
19. SUBSIDIARIES AND AFFILIATED ENTITIES. Employee acknowledges and agrees
that Employer has or may have various subsidiaries and affiliated entities. In
rendering services to Employer, Employee will have considerable contact with
such subsidiaries and affiliates. Therefore, Employee agrees that all provisions
of paragraphs 7, 8, 9 and 10 shall apply to all such subsidiaries and
affiliates.
20. PERSONNEL INFORMATION. Employee shall not divulge or discuss personnel
information such as salaries, bonuses, commissions and benefits relating to
Employee or other employees of Employer or any of its subsidiaries with any
other person except the Executive Committee and the Board of Directors of
Employer.
21. ASSIGNMENT. This Agreement shall not be assignable by either party
without the written consent of the other party; provided, however, that this
Agreement shall be assignable to any corporation or entity which purchases the
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assets of or succeeds to the business of Employer (a "Successor Employer").
Subject to the foregoing, this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Employer
THRUCOMM, INC.
By:
Xxxx X. Xxxxxxxx
President
Employee
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EXHIBIT A
Other Benefits
Employer shall provide Employee with a car allowance in the amount of $400.00
per month, which can be in the form of reimbursement for lease payments,
debt service and/or expenses of maintenance and operation.
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