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EXHIBIT 10.10
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 27 day of June, 1997,
by and between Let's Talk Cellular & Wireless, Inc., a Florida corporation f/k/a
Let's Talk Cellular of America, Inc. (the "Company"), and Xxxxx Xxxxxxxxx, an
individual residing at 0000 X.X. 000xx Xxxxxx, Xxxxx, Xxxxxxx 00000 (the
"Executive").
WITNESSETH THAT:
WHEREAS, the Company desires to employ the Executive in the capacity
hereinafter stated, and the Executive 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
Executive as follows:
1. Employment Period. The Company hereby agrees to continue to
employ the Executive as its President and the Executive, 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 fifth
anniversary of the Commencement Date (the "Employment Period").
2. Performance of Duties. During the Employment Period, the
Executive shall serve as the President of the Company. In such capacity, the
Executive, in conjunction with the Chief Executive Officer, shall have the full
authority to actively manage, control, administer and operate the business and
affairs of the Company, including but not limited to authority for choosing
markets and site locations, choosing wireless, paging, internet, long distance
and other providers, choosing product lines and merchandise, store designs and
personnel decisions, subject to the ultimate authority of the Board of Directors
of the Company. The Executive 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 President 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 Executive 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 Executive to perform his duties hereunder.
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3. Compensation. Subject to the terms and conditions of this
Agreement, during the Employment Period, the Executive shall be compensated by
the Company for his services as follows:
(a) He 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 $210,000 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,
plus an annual bonus of not less than $50,000
(payable semiannually within 30 days after the
delivery to the Board of Directors of financial
statements for the applicable August 1 - January 31
and February 1 - July 31 periods) as approved by the
Board of Directors and subject to the achievement by
the Company of reasonable financial performance
targets set by the Board of Directors at the
commencement of each fiscal year for the ensuing
12-month period, except that for the Company's fiscal
year ending July 31, 1997, the Executive shall be
entitled to a bonus of $25,000.
(b) He shall be entitled to receive the following
perquisites which shall not be less favorable to the
Executive during the Employment Period than the
perquisites provided by the Company to the Executive
immediately prior to the Employment Period in
addition to such other executive benefit plans or
perquisites which may be established by the Company
from time to time:
Auto Lease (1 car)
Auto Insurance
Health Insurance
Country Club-Dues
Life Insurance
Disability Insurance
401(K) Plan
(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
Executive 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.
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4. Compensation Due Upon Termination. Except as otherwise
provided under the executive benefit plans maintained by the Company in which
the Executive participates in accordance with subparagraph 3(b), the Executive'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 Executive's employment under this
Agreement without cause, the Executive shall be
entitled to receive the greater of (i) the
Executive's salary and bonus set forth in Section
3(a) hereof (less applicable taxes) for the remainder
of the Employment Period payable in accordance with
the Company's payroll procedures and prorated for
periods less than a full month, or (ii) two years'
salary and bonus (determined as of the date of such
termination), payable monthly (less applicable taxes)
for the twenty four (24) months following the date of
termination in accordance with the Company's payroll
procedures and prorated for periods less than a full
month; provided however, that any amounts due to the
Executive under this Section 4(a) shall be reduced by
the Company or refunded by the Executive by 100% of
any amounts of earned income the Executive may be
receiving from any new employer if the Company has
completed an initial public offering of its common
stock at the time of such termination. In addition,
(i) any amounts payable to the Executive pursuant to
this Section 4(a) shall accrue interest, payable
quarterly, at the prime rate of NationsBank, N.A.
plus 1% per annum, (ii) in the event any payment due
to the Executive pursuant to this Section 4(a)
remains unpaid for a period of 30 days, then the
entire amount owed to the Executive shall become
immediately due and payable, (iii) the Executive
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 Executive's
termination by the Company without cause, and (iv)
any unvested options to purchase the Company's Common
Stock held by the Executive shall automatically vest
on the date of such termination without cause.
(b) Voluntary Resignation. The Company 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 Company terminates due to the
Executive'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 Executive 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
Executive's authority or duties as specified in Section 2 hereof or title
against the will of the Executive (other than discharge for
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cause, disability or death), (ii) the relocation of the Executive's office
outside Dade County or to a site other than the Company's headquarters against
the will of the Executive or (iii) if the Company has not completed an initial
public offering of its Common Stock, the removal of Executive from his position
as Chairman of the Board of the Company against his will.
(c) Discharge for Cause. The Company 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
Company is terminated on account of the Executive's
discharge for cause. For purposes of this
subparagraph 4(c), in addition to the right to
terminate the Executive's employment for fraud, the
Executive 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 Executive discloses material
confidential information in violation of
paragraph 5 which could reasonably be
foreseen to have a material adverse effect
on the Company;
(ii) the Executive engages in competition in
violation of paragraph 6 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 Executive or the Executive
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 Executive 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 Executive intentionally disregards his
duties under this Agreement after (A) notice
has been given to the Executive by the Board
of Directors of the Company that it views
the Executive to be intentionally
disregarding his duties under this Agreement
and (B) the Executive has been given a
period of 15 days after such notice to cure
such misconduct.
(d) Disability. The Company may terminate the Executive's
employment after the Executive 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
Executive in accordance with the
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provisions of paragraph 3 at any time after the date
the Executive begins to receive total disability
payments under the Company's disability insurance for
its executives.
(e) Death. The Company shall have no obligation to make
payments to the Executive in accordance with the
provisions of paragraph 3 for periods after the date
of the Executive's death. Any sums or amounts owed to
the Executive 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
Executive.
5. Confidential Information. Except as may be required by legal
process or the lawful order of a court or agency of competent jurisdiction, the
Executive 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 Executive 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 Executive by independent third parties who were not bound by an obligation
of confidentiality; and provided further, that the Company recognizes that the
Executive 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 Executive further agrees that he will not make any
statement or disclosure which would be prohibited by applicable Federal or state
laws.
6. Non-competition. The Executive agrees that for the
Non-competition Period, the Executive 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 Executive 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
Executive 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 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
Executive's employment (the "Termination Date"). The "Noncompetition Period"
shall mean the period commencing on the Commencement Date and terminating on (i)
the second anniversary of the Termination Date if the Company terminates the
Executive's employment for cause or the Executive resigns or otherwise leaves
the Company's employment on
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his own accord (excluding Construction Termination), or (ii) the first
anniversary of the Termination Date if the Executive's employment terminates for
any reason other than (i) above. The Executive 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.
7. 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.
8. Nonalienation. The interests of the Executive 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
Executive's spouse or estate under Section 4.
9. Remedies. The Executive acknowledges that the Company would be
irreparably injured by a violation of paragraphs 5 or 6, and agrees that the
Company 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.
10. Waiver of Breach. The waiver by either the Company 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 Company or the
Executive.
11. 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:
0000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
(b) to the Company addressed as follows:
Let's Talk Cellular & Wireless, Inc.
0000 X.X. 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Board of Directors
12. 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 Executive lives, no person, other than the parties thereto, shall
have any rights under or interest in this Agreement or the subject matter
hereof.
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13. 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.
14. Termination. All of the provisions of this Agreement shall
terminate after the expiration of the Employment Period, except that paragraph 5
shall only terminate upon the expiration of the Confidentiality Period and
paragraph 6 shall terminate upon the expiration of the later of Non-competition
Period or the Nonsolicitation Period.
15. 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.
16. 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 Executive's employment
hereunder shall be determined by binding arbitration applying the laws of
Florida as set forth in Section 13 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 Executive and the Company have executed this
Employment Agreement as of the day and year first written above.
EXECUTIVE:
/s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
Let's Talk Cellular & Wireless, Inc.
By:/s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Its: Chief Executive Officer
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