Employment Agreement
Exhibit
10.1
This
EMPLOYMENT AGREEMENT (the
“Agreement”) is made and entered into as of this 1st day of
February 2005, by and between Davel Communications, Inc., (the “Corporation”)
and Xxxxx Xxxxxx (the “Executive”).
WHEREAS, the
Corporation desires to have the Executive provide services to the Corporation as
Chief Administrative Officer and General Counsel, having determined that the
services of the Executive are of value to the Corporation, and the Executive
desires to be employed by the Corporation as Chief Administrative Officer and
General Counsel.
WHEREAS, the
Corporation and the Executive intend this Agreement to supersede and replace
that certain employment agreement between the parties dated on or about February
13, 2004 (the “Previous Agreement”).
NOW
THEREFORE, in
consideration of the Executive’s performance of the duties set forth herein, and
upon the other terms and conditions hereinafter provided, the parties agree as
follows:
1. Employment
and Services.
During
the term of this Agreement, the Executive shall be employed as Chief
Administrative Officer and General Counsel of the Corporation. As Chief
Administrative Officer and General Counsel, the Executive shall render
administrative and management services to the Corporation such as those that are
customarily performed by persons situated in similar executive positions, and
such other duties as the Chief Executive Officer (“CEO”) or Chief Administrative
Officer (“CAO”), in the CEO’s absence, may from time to time reasonably direct.
As an employee of the Corporation, the Executive shall report directly to the
CEO of the Corporation or, in the CEO’s absence, to the CAO, or to such other
person as the CEO or Board of Directors may reasonably direct.
2. Term
of Agreement.
The term
of this Agreement shall continue for a period of fourteen (14) months beginning
February 1, 2005 and ending March 31, 2006 (the “Term”). This Agreement may be
renewed at the Expiration of the Term upon mutual written agreement of the
parties.
3. Obligations
of the Executive.,
The
Executive agrees to devote his best efforts and substantially all of his
business time to the business and affairs of the Corporation, and to discharge
his responsibilities herein. The Executive may serve on corporate (up to two),
civic or charitable boards or committees and may manage personal investments, so
long as such activities do not interfere in any material respect with the
performance of his responsibilities hereunder.
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4. Compensation.
| a. |
Salary.
During the Term of this Agreement, the Corporation shall pay the Executive
a salary of $186,295 per annum, which shall be paid at regular intervals
(no less often than monthly) in accordance with the Corporation’s normal
payroll practices. |
| b. |
Benefit
and Incentive Compensation Plans.
The Executive shall be entitled to participate in any plan of the
Corporation relating to incentive compensation, pension, deferred
compensation, profit-sharing, stock purchase, group life insurance,
medical insurance or other retirement or employee benefits that the
Corporation may then have in force for the benefit of its Executive
employees, and for which he is otherwise eligible. At a minimum, the
Corporation shall provide Executive with family medical insurance,
long-term disability insurance, and family dental insurance. In the event
the Corporation institutes a stock option plan for its executives,
Executive shall be eligible to participate in such plan at levels
consistent with other senior level executive
employees. |
| c. |
Expense
Reimbursement.
In addition to the compensation provided to the Executive pursuant to
subparagraphs (a) and (b) above, and upon receipt of proper documentation
consistent with the Corporation’s practices, the Corporation agrees to
reimburse the Executive for reasonable entertainment, travel, lodging and
other miscellaneous expenses. The Corporation shall also reimburse
Executive for the reasonable cost of Executive’s monthly cellular
telephone expenses for corporate related
calls. |
5. Vacations.
The
Executive shall be entitled to an annual paid vacation in accordance with the
Corporation’s policies. The timing of vacations shall be scheduled at a time
mutually agreed upon between the Executive and the CEO, but in no event shall
the Executive take more than two weeks of vacation at any one time. In the event
the Executive has any unused vacation at the expiration of the Term of this
Agreement the Executive shall not be entitled to receive any cash compensation
for his unused vacation time.
6. Termination
of Employment.
| a. |
The
Executive’s employment under this Agreement may be terminated by the
Corporation for Cause, as hereinafter defined. In the event this Agreement
is terminated by the Corporation other than for Cause the Executive shall
be entitled to receive: |
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| (i) |
Severance
compensation in accordance with Section 4 (a) of this Agreement for the
remaining Term of this Agreement, or for a period equal to six months,
whichever is greater; and |
| (ii) |
Any
other benefits provided under the terms of this Agreement for the
remaining Term. |
| (iii) |
In
the event the Executive is requested by the Corporation to relocate his
primary residence more than fifty miles from his current residence, and
Executive is unwilling or unable to do so, and as a result Executive’s
employment is terminated by the Corporation, such termination shall be
deemed other than for Cause and Executive shall be entitled to the
benefits set forth in this Section 6 (a) (i) and (ii)
above. |
| (iv) |
The
severance compensation paid in accordance with Section 6 (a) (i) shall be
paid in lieu of any other severance benefits offered by the
Corporation. |
| b. |
The
Executive shall have no right to receive compensation or other benefits
under this Agreement for any period after the date of termination for
Cause. For purposes of this Agreement, termination for Cause shall include
termination as a result of the (a) Executive’s fraud or dishonesty in the
course of Executive’s employment with the Corporation, (b) gross
negligence or willful misconduct committed by Executive in the course of
Executive’s employment with the Corporation which has or might reasonably
be expected to have a material adverse effect upon the business or
operations of the Corporation, (c) breach of fiduciary duty involving
personal profit, (d) intentional failure to perform stated duties, (e)
conviction of a felony or other crime of moral turpitude in the course of
employment (e.g. fraud, theft, embezzlement and the like), (f) habitual
and excessive use of alcohol or controlled substances other than for
therapeutic reasons, or (g) Executive’s material breach of any provision
of this Agreement. |
| c. |
This
Agreement may be voluntarily terminated by the Executive at any time upon
ninety (90) days’ written notice to the Corporation or upon such shorter
period as may be agreed upon between the Executive and the CEO of the
Corporation. In the event of such termination, the Corporation shall be
obligated only to continue to pay the Executive his salary up to the date
of termination and those retirement and/or employee benefits which have
been earned or become payable up to the date of
termination. |
| d. |
If
the Executive’s employment terminates by reason of the Executive’s
Disability, as defined in Paragraph 7, the Corporation shall pay the
Executive any benefits which pursuant to the terms of any compensation or
benefit plan have been earned and have become payable but which have not
yet been paid to the Executive, together with a pro rata portion of any
additional compensation that the Executive would have been entitled to
receive in respect of the year in which the Executive’s date of
termination occurs had he continued in employment until the end of such
calendar year; however, there shall be no incentive bonus payable with
respect to the year during which Executive’s employment is
terminated. |
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7. Disability.
Executive
shall be deemed to be disabled and the Corporation may terminate this Agreement
if Executive shall, as a result of such Disability, fail to perform the duties
hereunder for any 90 days during a consecutive 120-day period. The Corporation
may terminate the Executive’s employment after having established his
Disability, which results in the Executive becoming eligible for long-term
disability benefits. For purposes of this Agreement, “Disability” means a
physical or mental infirmity, which prevents the Executive from performing the
essential functions of his position under this Agreement. In the event the
Executive’s employment is terminated by reason of Disability, he shall be
entitled to the compensation and benefits provided for under this Agreement for
any period prior to the establishment of the Executive’s Disability during which
is unable to work due to a physical or mental infirmity.
8. Non-Solicitation
and Non-Competition.
| a. |
The
Executive agrees that during the term of this Agreement, and for three
years thereafter, he will not directly or
indirectly: |
| (i) |
Solicit,
divert or take away any of the customers, business or patronage of the
Corporation or its subsidiaries or affiliates;
or |
| (ii) |
Induce
or attempt to influence any employee of the Corporation or its
subsidiaries or affiliates to terminate his or her employment
therewith. |
| b. |
Executive
agrees that during the term hereof and for any period thereafter during
which the Executive is receiving severance or other compensation from the
Corporation, Executive shall not compete with the Corporation, on behalf
of himself or any other person, firm, business or corporation, as follows:
he shall not directly or indirectly (i) engage in the pay telephone
business; or (ii) request or instigate any account or customer of the
Corporation to withdraw, diminish, curtail or cancel any of its business
with the Corporation. |
| c. |
In
the event of a breach or threatened breach of the Executive of the
provisions of this Paragraph 8, the Corporation, or any duly authorized
officer thereof, will be entitled to a temporary restraining order or
injunction. |
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9. Successors;
Binding Agreement.
This
Agreement and all rights of the Executive hereunder shall inure to the benefit
of and be enforceable by his personal or legal representatives, successors,
heirs, distributees, devisees, legatees and permitted assigns. This Agreement
and all rights of the Corporation hereunder shall inure to the benefit of and be
enforceable by its successors and permitted assigns.
10. No
Assignments.
This
Agreement is personal to each of the parties hereto and neither party may assign
or delegate any of its rights or obligations hereunder without first obtaining
the written consent of the other party.
11. Notices.
All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered by hand or
mailed certified or registered mail, return receipt requested with postage
repaid, to the following addresses or to such other address as either party may
designate by like notice.
| a. |
If
to the Corporation, to: |
Davel
Communications, Inc.
000
Xxxxxx Xxxxxx
Xxxxx
000
Xxxxxxxxx,
XX 00000
Attention:
Chief Executive Officer
| b. |
If
to the Executive, to: |
Xxxxx
Xxxxxx
0000 X.
Xxxxxxxx Xxxx
Xxxxxxxxx
Xxxxxxx, XX 00000
and to
such other or additional person or persons as either party shall have designated
to the other party in writing by like notice.
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12. Amendments.
No
amendments or additions to this Agreement shall be binding unless in writing and
signed by both parties except as herein otherwise provided.
13. Paragraph
Headings.
The
Paragraph Headings used in this Agreement are included solely for convenience
and shall not affect, or be used in connection with, the interpretation of this
Agreement.
14. Severability.
The
provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provisions shall not affect the validity or
enforceability of the other provisions hereof.
15. Governing
Law.
This
Agreement shall, except to the extent that Federal law shall be deemed to
preempt it, be governed by and construed and enforced in accordance with the
laws of the State of Ohio.
IN
WITNESS WHEREOF, the
parties have executed this Agreement on this 28th day of
February, 2005.
| Executive | Davel Communications, Inc. | ||
| /s/ Xxxxx X. Xxxxxx | /s/ Xxxxxxxx X. Xxxxx | ||
|
|
| ||
| Xxxxx Xxxxxx | Xxxxxxxx X. Xxxxx, Executive Vice President |
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