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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 7th day of
July, 1998, by and between Let's Talk Cellular & Wireless, Inc., a Florida
corporation (the "Company"), and Xxxxxx X. Xxxxxxxxx, an individual residing at
0000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx 00000 (the "Employee").
WITNESSETH THAT:
WHEREAS, the Company desires to employ the Employee in the
capacity hereinafter stated, and the Employee desires to enter into the employ
of the Company 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 Company
and the Employee as follows:
1. EMPLOYMENT PERIOD. The Company hereby agrees to continue
to employ the Employee as its Chief Financial Officer and the Employee, in such
capacity, agrees to provide services to the Company for the period beginning on
the date first above written (the "Commencement Date") and ending on the second
anniversary of the Commencement Date (the "Employment Period").
2. PERFORMANCE OF DUTIES. During the Employment Period, the
Employee shall serve as the Chief Financial Officer of the Company. In such
capacity, the Employee, shall perform such tasks and carry out such duties as
are customarily performed by one holding such position in other, same or
similar businesses as that engaged in by the Company. The Employee agrees that
during the Employment Period, while he is employed by the Company, he shall
devote his full time, energies and talents exclusively to serving in the
capacity of Chief Financial Officer of the Company in the best interests of the
Company, and to perform the duties described above faithfully, efficiently and
in a professional manner; provided that, without the Board's consent (which
consent shall not be unreasonably withheld), the Employee shall not:
(a) serve as or be a consultant to or employee, officer,
agent or director of any competing corporation, partnership or other entity
other than the Company and its affiliates (other than civic, charitable, or
other public service organizations or as a consultant or director for a company
in an industry outside the Business for up to fifteen hours in any calendar
month); or
(b) have more than a three percent (3%) ownership interest in
any enterprise other than the Company if such ownership interest could
reasonably be foreseen to have a material adverse impact upon the ability of
the Employee to perform his duties hereunder.
3. COMPENSATION. Subject to the terms and conditions of this
Agreement, during the Employment Period, the Employee shall be compensated by
the Company for his services as follows:
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(a) The Employee shall receive, for each 12-consecutive month
period beginning on the Commencement Date and each anniversary thereof, a rate
of salary which is not less than $150,000 per year (as adjusted annually for
the greater of (i) for the increase in the Consumer Price Index, All Urban Wage
Earners as published by the U.S. Department of Labor or (ii) five percent (5%))
payable in substantially equal installments in accordance with the regular
payroll practices of the Company). Such salary may be upwardly adjusted at the
end of the calendar year in the sole discretion of the Company. In addition to
payments made to the Employee pursuant to this Section 3(a), the Company, in
its sole and absolute discretion, may pay bonuses to the Employee in an amount
no greater than 20% of his annual salary.
(b) He shall be entitled to receive the following perquisites
which shall not be less favorable to the Employee during the Employment Period
than the perquisites provided by the Company to the Employee immediately prior
to the Employment Period in addition to such other Employee benefit plans or
perquisites which may be established by the Company from time to time:
Health Insurance
Health Club-Dues
Life Insurance
Disability Insurance
401(K) Plan
Free Cell Phone and its services
(c) He shall be reimbursed by the Company 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 Employee furnishes to the Company 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 Company may from time to time reasonably request.
(d) He shall be eligible to participate in any stock option
plans established by the Company from time to time and approved by the Board of
Directors.
4. COMPENSATION DUE UPON TERMINATION. Except as otherwise
provided under the Employee benefit plans maintained by the Company in which
the Employee participates in accordance with subparagraph 3(b), the Employee's
right to compensation for periods after the date his employment with the
Company terminates shall be determined in accordance with the following:
(a) DISCHARGE WITHOUT CAUSE. In the event the Company
terminates the Employee's employment under this Agreement without cause, the
Employee shall be entitled to receive $300,000 (less applicable taxes) payable
over a twelve (12) month period. In addition, any unvested options to purchase
the Company's Common Stock held by the Employee shall automatically vest on the
date of such termination without cause. In addition, the Employee shall be
entitled to continue to receive the benefits provided pursuant to Section 3(b)
hereof for a period of one year from the date of the Employee's termination by
the Company without cause.
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(b) VOLUNTARY RESIGNATION. The Company shall have no
obligation to make payments to the Employee in accordance with the provisions
of paragraph 3 for periods after the date on which the Employee's employment
with the Company terminates due to the Employee's voluntary resignation;
provided, however, that the Company shall be obligated to pay the amount and
provide the benefits set forth in Section 4(a) of this Agreement if the
Employee voluntarily resigns due to Constructive Termination (as hereinafter
defined).
For purposes of this Agreement, "Constructive Termination" shall mean any one
or more of the following: (i) a material change in the nature or scope of the
Employee's authority or duties as specified in Section 2 hereof or title
against the will of the Employee (other than discharge for cause, disability or
death), and (ii) the relocation of the Employee's office outside Dade County or
to a site other than the Company's headquarters against the will of the
Employee.
(c) DISCHARGE FOR CAUSE. The Company shall have no obligation
to make payments to the Employee in accordance with the provisions of paragraph
3 for periods after the Employee's employment with the Company is terminated on
account of the Employee's discharge for cause. For purposes of this
subparagraph 4(c), in addition to the right to terminate the Employee's
employment for fraud, the Employee shall be considered discharged for "cause"
if he is discharged by the Company on account of the occurrence of one or more
of the following events:
(i) the Employee discloses material confidential
information in violation of paragraph 6 which could
reasonably be foreseen to have a material adverse effect on
the Company;
(ii) the Employee engages in competition in
violation of paragraph 7 which could reasonably be foreseen
to have a material adverse effect on the Company;
(iii) the Company is directed by regulatory or
governmental authorities after exhaustion of all avenues of
appeal to terminate the employment of the Employee or the
Employee engages in activities that cause actions to be taken
by regulatory or governmental authorities that have a
material adverse effect on the Company;
(iv) the Employee is convicted of a felony which has
or reasonably could have a material adverse effect on the
Company or the reputation of the Company (other than a felony
resulting from a traffic violation or minor tax disputes); or
(v) the Employee (A) intentionally disregards his
duties under this Agreement after (I) notice has been given
to the Employee by the President or the Board of Directors of
the Company that it views the Employee to be intentionally
disregarding his duties under this Agreement and (II) the
Employee has been given a period of 15 days after such notice
to cure such misconduct or (B) fails to perform up to
reasonable standards set by the Board of Directors.
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(d) DISABILITY. The Company may terminate the Employee's
employment after the Employee has become totally disabled as determined in
accordance with the Company's long term disability plan. The Company shall have
no obligation to make payments to the Employee in accordance with the
provisions of paragraph 3 at any time after the date the Employee begins to
receive total disability payments under the Company's disability insurance for
its Employees.
(e) DEATH. The Company shall have no obligation to make
payments to the Employee in accordance with the provisions of paragraph 3 for
periods after the date of the Employee's death. Any sums or amounts owed to the
Employee on the date of death shall be paid in full on the next regular payroll
date to his then spouse, or if not married, to the estate of the Employee.
5. CHANGE IN CONTROL PROVISIONS
(a) SALARY AND BONUS: In the event the Employee's employment
with the Company is terminated within 12 months following the occurrence of a
"Change in Control" of the Company then the Employee shall be entitled to
receive from the Company $300,000 (less applicable taxes). In addition, all of
his stock options shall automatically vest as of the date three business days
prior to the Change in Control.
(b) CHANGE IN CONTROL. For purposes of this Agreement, the
term "Change in Control" shall mean:
(i) The acquisition, other than from the Company, by any
individual, entity or group (within the meaning of Section 13(d)(3) or Section
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) (any of the foregoing described in this Section
10(b)(1) hereafter a "Person") of 51% or more of either (a) the then
outstanding shares of Capital Stock of the Company (the "Outstanding Capital
Stock") or (b) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of the
directors (the "Voting Securities"); PROVIDED, HOWEVER, that any acquisition by
(x) the Company or any of its subsidiaries, or any employee benefit plan (or
related trust) sponsored or maintained by the Company or any of its
subsidiaries shall not constitute a Change of Control; or
(ii) Individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board, provided that any individual becoming a director
subsequent to the date hereof whose election or nomination for election by the
Company's shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though
such individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office is in
connection with an actual or threatened election contest relating to the
election of the Directors of the Company (as such terms are used in Rule 14a-11
of Regulation 14A, or any successor section, promulgated under the Exchange
Act); or
(iii) Approval by the shareholders of the Company of a
reorganization, merger or consolidation (a "Business Combination"), in each
case, with respect to which all or
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substantially all holders of the Outstanding Capital Stock and Voting
Securities immediately prior to such Business Combination do not, following
such Business Combination, beneficially own, directly or indirectly, more than
51% of, respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities entitled to
vote generally in election of directors, as the case may be, of the corporation
resulting from Business Combination; or
(iv) a sale or other disposition of all or substantially all
of the assets of the Company other than to a corporation with respect to which,
following such sale or disposition, more than 60% of, respectively, the then
outstanding shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the election of
directors is then owned beneficially, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Capital Stock and Voting Securities
immediately prior to such sale or disposition in substantially the same
proportion as their ownership of the Outstanding Capital Stock and Voting
Securities, as the case may be, immediately prior to such sale or disposition.
6. CONFIDENTIAL INFORMATION. Except as may be required by
legal process or the lawful order of a court or agency of competent
jurisdiction, the Employee agrees to keep secret and confidential for a period
of two (2) years all non-public information concerning the Company and its
affiliates which was acquired by or disclosed to the Employee during the course
of his employment by the Company, any of its affiliates, including information
relating to customers (including, without limitation, credit history, repayment
history, financial information and financial statements), costs, and
operations, financial data and plans, whether past, current or planned and not
to disclose the same, either directly or indirectly, to any other person, firm
or business entity, or to use it in any way; provided, however, that the
provisions of this paragraph 6 shall not apply to information which is in the
public domain or that was disclosed to the Employee by independent third
parties who were not bound by an obligation of confidentiality; and provided
further, that the Company recognizes that the Employee shall, during the course
of his employment with the Company, acquire certain general information
regarding the financial condition, and borrowing trends of the Company's
customers and agrees that the provisions of this paragraph 6 shall not apply to
the use of such general information provided the use thereof does not violate
applicable Federal or state laws or the provisions of paragraph 7 hereof. The
Employee further agrees that he will not make any statement or disclosure which
would be prohibited by applicable Federal or state laws.
7. NON-COMPETITION. The Employee agrees that for the
Non-competition Period, the Employee agrees not to directly or indirectly serve
as or be a consultant to or employee, officer, agent, director or owner of more
than three percent (3%) of another corporation, partnership or other entity
which engages in the business of selling cellular or wireless communication
services or products (the "Business") in the Restricted Area, provided,
however, that the Employee may serve as or be a consultant to or employee,
officer, agent, or director of another corporation, partnership or other entity
in the Restricted Area, if such entity's primary business is not the Business,
and Employee serves in such capacity only with respect to matters unrelated to
any Business conducted by such entity. The "Restricted Area" shall include any
metropolitan area or proposed metropolitan area (as reflected in the written
business plans of
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the Company in effect at such time) in which the Company is doing or will do
business within six months of the date of termination of the Employee's
employment (the "Termination Date"). The "Noncompetition Period" shall mean the
period commencing on the Commencement Date and terminating on (i) the first
anniversary of the Termination Date if the Company terminates the Employee's
employment for cause or the Employee resigns or otherwise leaves the Company's
employment on his own accord (excluding Constructive Termination), or (ii) the
first anniversary of the Termination Date if the Employee's employment
terminates for any reason other than (i) above. The Employee further agrees
that for the Non-competition Period, he will not solicit for employment or
endeavor to entice away from employment with the Company or its affiliates any
employee of the Company or its affiliates who is an officer or a manager of any
department.
8. SUCCESSORS. This Agreement shall be binding on, and inure
to the benefit of, the Company and its successors and assigns and any person
acquiring, whether by merger, consolidation, purchase of assets or otherwise,
all or substantially all of the Company's assets and business.
9. NONALIENATION. The interests of the Employee under this
Agreement are not subject to the claims of his creditors, other than the
Company, and may not otherwise be voluntarily or involuntarily assigned,
alienated or encumbered, except to the extent that payments are owed to the
Employee's spouse or estate under Section 4.
10. REMEDIES. The Employee acknowledges that the Company
would be irreparably injured by a violation of paragraphs 6 or 7, and agrees
that the Company shall be entitled to an injunction restraining the Employee
from any actual or threatened breach of paragraph 6 or 7, or to any other
appropriate equitable remedy.
11. WAIVER OF BREACH. The waiver by either the Company or the
Employee 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 Company or the
Employee.
12. 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 Employee addressed as follows:
Xxxxxx X. Xxxxxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
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(b) to the Company addressed as follows:
Let's Talk Cellular & Wireless, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
13. AMENDMENT. This Agreement may be amended or canceled by
mutual agreement of the parties in writing without the consent of any other
person and, so long as the Employee lives, no person, other than the parties
thereto, shall have any rights under or interest in this Agreement or the
subject matter hereof.
14. APPLICABLE LAW AND VENUE. The provisions of this
Agreement shall be construed in accordance with the internal laws of the State
of Florida. Venue for all actions brought pursuant to this Agreement shall be
in either the federal or state courts located within Dade County, Florida.
15. TERMINATION. All of the provisions of this Agreement
shall terminate after the expiration of the Employment Period, except that
paragraph 6 shall only terminate upon the expiration of the Confidentiality
Period and paragraph 7 shall terminate upon the expiration of the later of
Non-competition Period or the Nonsolicitation Period.
16. ATTORNEYS' FEES. In the event any action at law or in
equity or other proceeding is brought to interpret or enforce this Agreement,
or in connection with any provision of this Agreement, the prevailing party
shall be entitled to its reasonable attorney's fees and other costs reasonably
incurred in such action or proceeding.
17. ARBITRATION. Any controversy, claim or dispute arising
between the parties hereto, including, but not limited to, those arising out of
or related to this Agreement or in any way connected to Employee's employment
hereunder shall be determined by binding arbitration applying the laws of
Florida as set forth in Section 14 above. Any arbitration pursuant to this
Agreement shall be conducted in metropolitan Dade County, Florida under the
employment arbitration rules of the American Arbitration Association. The
arbitration and any award rendered therein shall be final and binding upon the
parties and may be entered in any court of competent jurisdiction. Nothing in
this Section will prevent either party from resorting to judicial proceedings
of interim injunctive relief under the laws of the State of Florida from a
court of competent jurisdiction if it is necessary to prevent a serious and
irreparable injury to one of the parties.
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IN WITNESS WHEREOF, the Employee and the Company have
executed this Employment Agreement as of the day and year first written above.
EMPLOYEE:
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Xxxxxx X. Xxxxxxxxx
Chief Financial Officer
Let's Talk Cellular & Wireless, Inc.
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Name:
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Title
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