EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered as of this 1st
day of January, 2000 by and between Ursus Telecom Corporation, a Florida
corporation ("Employer"), and Xxxxxx X. Xxxxx ("Employee").
WITNESSETH:
WHEREAS, the Employer is engaged in the operation of a telecommunications
business (the "business') and desires to employ the Employee as the Chief
Accounting Officer.
WHEREAS, the Employee desires to accept such employment under the terms and
conditions provided herein,
NOW, THEREFORE, in consideration of the promises, and mutual promises
hereinafter set forth, and other good and valuable consideration in hand and
received, the parties hereto hereby agree as follows:
1. Employment. Upon and subject to the terms, conditions and other
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provisions of this Agreement, the Employer hereby employs the Employee and the
Employee hereby accepts employment and agrees to exercise and perform
faithfully,
exclusively and to the best of his ability on behalf of the Employer, those
duties described on the Job Description Memorandum attached hereto and made a
part hereof as Exhibit A. Employee shall likewise perform such other duties for
Employer, or any subsidiary, affiliate, or division of the Employer as the
Employer may reasonably request.
2. Employees Services and Duties. During the term of this Agreement,
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the Employee shall observe and conform to the policies and directions
promulgated
from time to time by the Employer and devote his full business time, energy,
ability, attention and skill to his employment hereunder. The services to be
performed by the Employee hereunder may be changed, expanded or adjusted from
time to time at the reasonable request of the Employer, provided that such
services shall at all times be consistent with those described in Section 1
hereof. The Employee shall perform the services contemplated under this
Agreement at such location or locations as the Employer may from time to time
reasonably direct, but, Employee shall primarily be based in Sunrise Florida.
Employee shall, however, travel to other locations at such time as may be
appropriate for the performance of his duties and as reasonably directed by
Employer.
3. Term. Unless sooner terminated or extended as provided in this
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Agreement, the term of the Employees employment by the Employer pursuant to this
Agreement shall commence on January 1, 2000 and shall continue until December
31, 2000 (the "Termination Date").
4. Compensation and Other Matters. As compensation in full for the
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services to be rendered by the Employee hereunder, the Employer shall pay, and
the Employee shall accept, the compensation set forth in Exhibit B, which
compensation shall be subject to all applicable federal, state and local
withholding taxes. Employee will not accept any rebates, "kickbacks" or other
third party payments unless all such amounts are immediately remitted in full
to Employer upon receipt by Employee. Employer may elect to provide Employee
with additional benefits or compensation as Employer may determine in its sole
and absolute discretion, but, Employer shall not be obligated to provide any
such benefits or compensation to Employee during the term hereof.
5. Certain Business Expenses. The Employer shall reimburse the
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Employee for all ordinary, necessary and reasonable expenses incurred by
Employee in the course of performing his duties and obligations hereunder and
paid by the Employee on behalf of the Employer, to the extent reasonable and
necessary in the
good faith judgment of Employer. Such reimbursement shall be made upon the
prompt presentation by the Employee of an itemized written request for
reimbursement thereof. The itemized request shall be supported by documentation
and be submitted on forms approved by Employer.
6. Covenant of Non-Disclosure. The Employee acknowledges that,
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because of his employment hereunder, he will be in a confidential relationship
with the Employer and will have access to confidential information and trade
secrets of Employer concerning the Business. The parties recognize and
acknowledge that the Business is very sophisticated and technical, and that
Employer has developed, and over the course of time, will develop, substantial
goodwill, valuable relationships with customers, trade secrets and particular
means or methods of conducting the Business, all of which are worthy of
protection. Employee recognizes and acknowledges that during the term of his
employment with the Employer he may acquire knowledge of valuable trade secrets,
confidential matters, and proprietary information concerning the Business and
its existing and potential customers (collectively, the "Confidential
Information"). Such Confidential Information includes, without limitation,
lists of the Employer's customers and potential customers, lists of the
Employer's suppliers and potential suppliers, lists of the Employer's agents and
potential agents, information contained within the Employer's books and records,
the methods of operating the Business, information concerning the
telecommunications industry as
same relates to the Employer, the names of other business contacts of the
Employer, the Employer's pricing practices and information concerning prices at
which the Employer purchases supplies and services. The Employee hereby agrees
to maintain the confidentiality of all Confidential Information to which
Employee is exposed while employed by the Employer and at all times thereafter,
and agrees that he will not, directly or indirectly, at any time (a) disclose
such Confidential Information to any natural or legal person (collectively,
"Persons"), other than authorized employees or agents of the Employer, for any
reason or purpose whatsoever, or (b) under any circumstances make use of any
Confidential Information for his own purposes or for the benefit of any Person
other than the Employer or its affiliates. To this effect, Employee agrees that
none of the Employer's written Confidential Information, including, but not
limited to any printed material, material in process and customer lists or
records, may be copied or removed from the Employer's premises by Employee or
any other Person at the direction of or with the permission of Employee, unless
authorized by the Chief Executive Officer of the Employer.
7. Covenant of Non-Competition.
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7.1 During the term of this Agreement Employee shall not directly or
indirectly, including, without limitation, through entities he controls,
solely or jointly with others, (i) carry on or engage or participate in any
business the same as or substantially similar to or in competition with the
Business, (ii) render any services to or, directly or indirectly, have any
interest (other than an interest of 5% or less of a publicly traded company) as
a shareholder, owner, partner (general or limited), agent, consultant, lender or
guarantor or any other interest, in any entity or business engaged in the
rendering of services which are similar to those rendered by Employer in its
operation of the Business, or (iii) otherwise engage in competition with the
Business.
7.2 It is the intent of the parties hereto that this Section 7 be
enforced to the fullest extent permissible under the laws of Florida or any
other applicable jurisdiction. Each of the parties hereto recognizes that the
duration of the covenants contained in this Section 7 are properly required for
the adequate protection of the Business being established by Employer and
Employer's conduct of the Business thereafter. Accordingly, to the extent that
any covenant in this Section 7 or portion thereof or other provision contained
in this Section 7 shall be deemed to be illegal, unenforceable, or unreasonable
such covenant shall be reformed such that the restrictions imposed upon Employee
is equal to the maximum restriction that would be permissible under applicable
law.
Moreover, each provision of this Section 7 is intended to be severable, and in
the event that any one or more of the provisions contained in this Section 7
shall for any reason be adjudicated to be illegal, invalid or unenforceable, the
same shall not affect the legality, validity or enforceability of any other
provision of this Section 7, but this Section 7 shall be construed as if such
illegal, invalid or unenforceable provision had not been contained therein. The
provisions of this Section 7 shall be interpreted in a reasonable manner to
effect the intentions of the parties and this Section 7.
8. Enforcement of Covenants. The parties hereto acknowledge that (i) the
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covenants and the restrictions contained in Sections 6 and 7 are necessary,
fundamental, and required for the protection of the Business; (ii) such
covenants relate to matters which are of a special, unique, and extraordinary
character that gives each of such covenants a special, unique and extraordinary
value; and (iii) a breach of any of such covenants or any other provisions of
said Sections 6 and 7 will result in loss of goodwill, other irreparable harm
and damages to the Employer which cannot be adequately compensated by a monetary
award.
Accordingly, it is expressly agreed that in addition to all other remedies
available at law or in equity, Employer shall be entitled to the immediate
remedy
of a temporary restraining order, preliminary injunction, or such other form of
injunctive or equitable relief as may be used by any court of competent
jurisdiction to restrain or enjoin any of the parties hereto from a breach or
threatened breach of any such covenants or provisions or to specifically enforce
the provisions of Sections 6 and 7. Said remedies may be obtained without proof
of the actual damages that have been or will be caused to the Employer by such
breach. Furthermore, nothing contained is Sections 6 and 7 , or in this Section
8 shall be construed to limit in any way the remedies of Employer whether
hereunder or under applicable law.
9. Employee Representation and Warranty. The Employee warrants and
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represents to the Employer, and covenants with the Employer that the execution,
delivery and performance of this Agreement by the Employee does not
conflict with or violate any provision of, or constitute a default under, any
agreement, judgement, award or decree to which the Employee is a party or by
which the Employee is bound.
10. Death; Permanent Disability. In the event of the death of the
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Employee during the term of this Agreement, this Agreement shall terminate. If
during the term of this Agreement the Employee fails because of illness or other
incapacity to perform the services required to be performed by him hereunder for
any consecutive period of more than 120 days, or for shorter periods aggregating
more than 180 days in any consecutive twelve-month period (any such illness or
incapacity being hereinafter referred to as a "permanent disability"), then the
Company, in its discretion, may at any time thereafter terminate this Agreement
upon not less than 10 days' written notice thereof to the Employee, and this
Agreement shall terminate and come to an end upon the date set forth in said
notice as if said date were the termination date of this Agreement; provided,
however, that no such termination shall be effective if prior to the date when
such notice is given, Employee's illness or incapacity shall have terminated and
he shall be physically and mentally able to perform the services required
hereunder and shall have taken up and be performing such duties.
If the Employee's employment shall be terminated by reasons of his death or
permanent disability, the Employee or his estate, as the case may be, shall be
entitled to receive (i) any earned and unpaid salary accrued through the date of
termination, (ii) subject to the terms thereof, any benefits which may be due to
the Employee on the date of termination under the provisions of any employee
benefit plan, program or policy.
11. Termination for Cause. The Company may at any time during the term of
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this Agreement, by written notice, terminate the employment of the Employee for
cause, the cause to be specified in the notice. For purposes of this Agreement,
"cause" shall mean (i) any willful misconduct of the Employee in connection with
the performance of any of his duties hereunder, including without limitation
misappropriation of funds or property of the Company, securing or attempting to
secure personally any profit in connection with any transaction entered into on
behalf of the Company or any willful and intentional act having the effect of
injuring the reputation, business or business relationships of the Company; (ii)
willful failure, neglect or refusal to perform material duties hereunder that is
not cured within 20 days after the Company notifies Relis thereof; (iii) breach
of any material covenants contained in this Agreement that is not cured within
20 days after the Company notifies the Employee thereof; and (iv) conviction (or
nolo contendere plea) in connection with a felony relating in any way to the
business or affairs of the Company, or which would be required to be
disclosed in
any filing or report with the U.S. Securities and Exchange Commission. The
determination of whether "cause" exists shall only be made at a meeting of the
Board of Directors of which the Employee receives notice and an opportunity to
address the Board on such matter. Termination for cause shall be effective upon
the giving of such notice and the Employee shall be entitled to receive (i) any
earned and unpaid salary accrued through the date of termination and (ii)
subject
to the terms thereof, any benefits which may be due to the Employee on such date
under the provisions of any employee benefit plan, program or policy. Employee
hereby disclaims any right to receive a pro rata portion of any annual bonus
with
respect to the fiscal year in which such termination occurs.
12. Resignation for Good Reason. Employee may at any time during the term
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of this Agreement, by written notice, terminate his employment for good reason,
the reason to be specified in the notice. For purposes of this Agreement, "good
reason" shall exist if (i) the Company materially fails to comply with any of
the provisions of this Agreement, other than isolated, insubstantial or
inadvertent failures not occurring in bad faith and which are remedied by the
Company promptly after receipt of notice thereof given by the Employee, or
(ii) the Company shall diminish the Employee's title, duties, base salary or
benefits.
13. Payments Upon Termination. If during the term of this Agreement,
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employment is terminated (i) by the Company without "cause" or (ii) by Employee
for any "good reason," the Company shall pay to the Employee the Base Salary at
the rate in effect at the time notice of termination is given and other rights
and benefits the Employee may have under employee benefits plans and programs of
the Company in existence as of the date of such termination, all for the greater
of (x) the balance of the term of this Agreement or (y) the six month period
following the date of such termination.
14. Payments Upon Change of Control. During the term of this Agreement, if
there is a Change of Control (as hereinafter defined) and the Company takes any
action which would entitle The Employee to terminate his employment for "good
reason," as such term is defined in Section 13 hereof (a "Triggering Event"),
then the Employee may at his election, at any time during the remainder of this
Agreement, terminate this Agreement (a "Voluntary Termination"), and the
Employee
shall be entitled to the following compensation, in addition to the other
compensation provided for herein:
(a) in lieu of any further salary payments to the Employee for periods
subsequent to the date of Voluntary Termination, the Company shall pay as
severance payment to the Employee, no later than the fifth day following the
date of Voluntary Termination, a lump-sum severance payment of one years' base
compensation.
(b) the Company shall provide the Employee with all employee benefits
and programs of the Company which the Employee was entitled to receive or
participate in immediately prior to the effective date of the Voluntary
Termination for the twelve month period following the date of such Voluntary
Termination.
(c) All unvested stock options held by the employee shall become
immediately vested.
For the purposes of this Agreement, "Change of Control" shall mean the
occurrence of any of the following events:
(i) any "person" or "group" (as such terms are used under
Sections 13(d) and 14(d) of the Securities & Exchange Act of 1934, as amended
("Exchange Act"), whether or not such Sections are applicable) is or becomes,
whether by means of any issuance or direct or indirect transfer of securities,
merger, consolidation, liquidation, dissolution or otherwise, the "beneficial
owner" (as that term is used under Rules 13d-3 and 13d-5 under the Exchange Act,
whether or not such rules are applicable, except that a "person" or
"group" shall be deemed to have "beneficial ownership" of all shares that he or
it has the right to acquire, whether such right is exercisable immediately or
only after the passage of time or otherwise), directly or indirectly through one
or more intermediaries, of 35% or more of the total voting power represented by
all of the voting stock of the Company; or
(ii) directly or indirectly, a transfer, sale, lease or other
disposition of all or substantially all of the assets of the Company and its
subsidiaries taken as a whole to any "person" or "group" (as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act, whether or not such sections
are applicable), excluding any disposition to or among the Company and or one or
more of its subsidiaries; or
(iii) any "person" or "group" (as such terms are used under
Sections 13(d) and 14(d) of the Exchange Act, whether or not such sections are
applicable) otherwise obtains the right or power (through any arrangement,
contract, proxy or other means) to elect or designate a majority of the members
of the Board of Directors of the Company then in office, without regard to
whether such right or power is exercised or invoked and without taking into
account the necessity of a special or annual stockholders meeting or the taking
of other procedural actions to exercise or invoke such right or power.
15. Notice of Intent. Both Parties agree that it is in their mutual best
interest to provide 120 days of written notice in the event that either the
Employer or Employee intends not to renew this contract. If no written notice of
such intent is received, then this contract shall remain in force until a notice
is received and then for a period of 120 days subsequent to receipt of that
written notice.
16. Notices. All notices, requests, demands, communications, statements or
other documents which one party shall be required or shall desire to give to
another hereunder shall be in writing and shall be given by the parties by
personal delivery, by nationally recognized overnight courier, or by certified
mail, return receipt requested, with all postage or other charges prepaid. Each
such notice, demand, communication, statement, or other document shall, be
conclusively deemed to have been given when personally delivered by hand or by
courier, or seventy-two (72) hours after the date of mailing, as the case may
be. The addresses of the parties shall be the following until such time as
written notice of any change is provided to either party as aforesaid.
If to the Employer: Ursus Telecom Corporation
000 Xxxxxxxx Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: CEO / PRESIDENT
If to the Employee: Xx. Xxxxxx Xxxxx
00000 Xxxxxxxx Xxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
17. Headings. The headings herein are for convenience only, do not
constitute a part of this Agreement, and shall not be deemed to limit or affect
any of the provisions hereof.
18. Entire Understanding. This Agreement constitutes the entire agreement
and understanding between the parties with respect to the employment of the
Employee by the Employer, and supersedes all prior agreements, representations
and understandings, both written and oral, between the parties hereto with
respect to the subject matter hereof.
19. Amendments. This Agreement may not be modified or changed except by a
written instrument signed by all of the parties hereto.
20. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Florida.
21. Assignment. This Agreement shall not be assigned or assignable by
operation of law or otherwise, without the prior written consent of the other
party, except that, without such consent from Employee, Employer may assign this
Agreement or any interest therein, by operation of law or otherwise, to any
successor to all or substantially all of its stock or assets, or any direct or
indirect subsidiary.
22. Severability. If any provision of this Agreement shall be deemed
invalid, unenforceable or illegal, then notwithstanding such invalidity,
unenforceability or illegality the remainder of this Agreement shall continue in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
EMPLOYEE:
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EMPLOYER:
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URSUS TELECOM CORPORATION
By:
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Title:
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EXHIBIT A
JOB DESCRIPTION MEMORANDUM
Employee shall be employed as the Company's Chief Accounting Officer, which
shall include but shall not be limited to the following duties:
Supervise the Company's Accounting Department.
Responsible for developing, implementing and maintaining accounting policies, as
necessary.
Responsible for the timely filings of all financial statements in accordance
with generally accepted accounting principals.
Responsible for the timely filings of compliance forms with the Securities and
Exchange Commission.
EXHIBIT B
COMPENSATION
Employee shall be compensated at the rate of Ninety Five Thousand dollars
($95,000) per year payable in 26 installments of $3,653.85, exclusive of any
bonuses that may be awarded on a discretionary basis. Further on April 1, 2000
the above salary will be adjusted to reflect an annual review by the
compensation committee.
Employee shall be entitled to such other benefits as are offered on a non-
discriminatory basis to others on a group basis such as life, health, disability
insurance and retirement.
Employee shall be awarded options for 12,000 shares (in accordance with the
Company's 1998 Stock Incentive Plan, a copy of which has been delivered to
Employee), at a strike price equal to the UTCC closing price on October 20,
1999. The Grant Date is October 20, 1999 with a vesting date 12 months after
the grant date, and an exercise date 90 days after the vesting date.
