EXHIBIT 2.7.6
EXHIBIT A
FORM OF
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and
entered into as of this 5th day of November, 1999 by and between SES Acquisition
Corp., a Delaware corporation to be renamed Specialty Electronic Systems, Inc.
as a result of the Merger described below ("SES"), and C. Xxxxxxx Xxxxxx (the
"Employee").
RECITALS:
WHEREAS, as of the date hereof, SES Acquisition Corp. ("SES
Acquisition"), a wholly-owned subsidiary of Able Telcom Holding Corp. ("Able"),
is merging, pursuant to an Agreement and Plan of Merger, dated November 5, 1999,
with and into SES (the "Merger");
WHEREAS, Employee will sell all of his ownership interest in SES to
Able in connection with the aforementioned merger;
WHEREAS, Employee is currently employed by SES;
WHEREAS, Able, in connection with its review of SES, has considered
Employee's services important to the business of SES and, following the merger
with SES Acquisition, Able and SES desire for SES to continue to employ the
Employee;
WHEREAS, in order to protect fully SES's and its affiliates' trade
secrets and confidential information and the goodwill of the business of SES
which Able has acquired by virtue of the merger described above and to ensure
that Able enjoys the benefits of such goodwill and business, SES and the
Employee desire to provide for Employee's agreement of confidentiality and
agreement not to compete with SES or its affiliates as specified herein; and
WHEREAS, SES and the Employee desire to set forth herein the terms and
conditions on which the Employee will continue to be employed by SES including
the terms of Employee's agreement not to compete.
NOW, THEREFORE, in consideration of the mutual promises, agreements and
mutual covenants set forth herein and for other good and valuable consideration
the parties hereto hereby agree as follows:
1. EMPLOYMENT. SES hereby agrees to continue to employ the Employee, and
the Employee hereby accepts such continuation of employment with SES, upon the
terms and subject to the conditions set forth in this Agreement.
2. POSITION AND DUTIES. Subject to the authority of the Board, the
Employee shall continue to perform the duties historically performed by Employee
as President of SES and such other duties as are appropriate for such position
and are assigned to such position in the future. The Employee shall also serve
in such additional capacities as may be requested of him from time to time by
the Board of Directors of SES (the "Board"). The Employee shall devote
substantially all of his business time, attention, skill and best efforts to the
diligent performance of his duties hereunder. On all matters not delegated to
the Employee, the Employee shall report to the Chairman of the Board of SES and
such other officers of SES as shall be assigned to supervise Employee from time
to time.
3. TERM. The term of employment hereunder shall commence as of the date
hereof (the "Commencement Date") and shall continue thereafter for a period of
four years through and including November 5, 2003 (the "Term") unless earlier
terminated in accordance with the provisions hereof. Notwithstanding the above,
the covenants set forth in
(i) Section 5 hereof shall survive for the periods set forth therein
notwithstanding any termination of employment hereunder including any
termination pursuant to this Section 3 upon the expiration of the Term; and
(ii) Section 6 hereof shall survive for the periods set forth therein
notwithstanding any termination of employment hereunder other than termination
without cause as set forth in Section 10 hereof, including any termination
pursuant to this Section 3 upon the expiration of the Term.
4. COMPENSATION. As compensation for all services rendered by the Employee
under this Agreement, SES shall pay the Employee compensation as follows:
(a) ANNUAL COMPENSATION. For all services rendered by the Employee
during his employment under this Agreement, beginning on the Commencement Date,
SES shall pay the Employee an annual salary in an amount not less than $150,000,
payable bi-weekly, or at such other intervals as Able executives may be paid, in
substantially equal installments. The Employee's salary shall be eligible for
increases granted by the Board in its sole discretion.
(b) BENEFITS. The Employee shall be entitled to participate in those
perquisites and benefits generally available to employees of Able and its
affiliates of similar status and rank as the Employee in accordance with Able's
regular policies.
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(c) BONUSES. The Employee shall be eligible for merit bonuses based on
management's and the Board of Director's discretion and their evaluation of
Employee's performance and the financial performance of the consolidated Able
group.
(d) TAXES AND WITHHOLDINGS. All taxes and governmentally required
withholdings shall be deducted from any amount paid by SES to the Employee
hereunder in conformity with applicable laws.
5. CONFIDENTIALITY. The Employee acknowledges and agrees that the Trade
Secrets (as defined below) and the Confidential Information (as defined below)
of SES and its affiliates (including any parent, subsidiaries or commonly
controlled entities) and all physical embodiments thereof (collectively referred
to as the "Proprietary Information") are valuable, special and unique assets of
the business of SES and its affiliates and have been developed by SES and its
affiliates and will continue to be developed by SES and its affiliates following
Able's purchase of SES at considerable time and expense. Employee further
acknowledges that access to such Proprietary Information is essential to
performance of Employee's duties and responsibilities under this Agreement.
Therefore, in order to obtain access to such Proprietary Information, Employee
agrees that except with respect to those duties assigned to him by SES, Employee
shall hold in strictest confidence all Proprietary Information, regardless of
whether such Proprietary Information was received prior to, on or subsequent to
the date of this Agreement, will not reproduce, use, distribute, disclose,
publish or otherwise disseminate any Proprietary Information, in whole or in
part, and will take no action causing, or fail to take any action necessary to
prevent causing, any Proprietary Information to lose its character as
Proprietary Information, nor wilfully make use of such information for
Employee's own purposes or for the benefits of any person, firm, corporation,
association or other entity (except SES and its affiliates) under any
circumstances, except that Employee may disclose such Proprietary Information
pursuant to a court order, subpoena or other legal process, provided that, at
least ten days in advance of any legal disclosure, the Employee shall furnish
SES with a copy of the judicial or administrative order requiring that such
information be disclosed together with a written description of the information
to be disclosed (which description shall be in sufficient detail to allow SES
and its affiliates to determine the nature and scope of the information proposed
to be disclosed), and the Employee covenants and agrees to cooperate with SES
and its affiliates to deliver the minimum amount of information necessary to
comply with such order.
For purposes of this Agreement, the term "Trade Secrets" means
information, including but not limited to, any technical or nontechnical data,
formula, pattern, compilation, program, device, method, technique, drawing,
process, financial data, financial plan, product plan, list of actual or
potential customers or suppliers, or other information similar to any of the
foregoing, which derives economic value, actual or
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potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can derive economic value
from its disclosure or use. For purposes of this Agreement, the term "Trade
Secrets" does not include information that Employee can show by competent proof
(i) was known to Employee and reduced to writing prior to disclosure by SES or
its affiliates (but only if Employee promptly notifies SES of Employee's prior
knowledge); (ii) was generally known to the public at the time SES or its
affiliates disclosed the information to Employee; (iii) became generally known
to the public after disclosure to the Employee through no act or omission of
Employee; or (iv) was disclosed to Employee by a third party having a bona fide
right both to possess the information and to disclose the information to
Employee.
The term "Confidential Information" means any data or information of
SES (including information of SES or SES's affiliates), other than Trade
Secrets, regarding the business of SES and its affiliates or their policies and
operations which is valuable to SES and not generally known to competitors of
SES and its affiliates. For purposes of this Agreement, the term "Confidential
Information" does not include information that Employee can show by competent
proof (i) was known to Employee and reduced to writing prior to disclosure by
SES or its affiliates (but only if Employee promptly notifies SES of Employee's
prior knowledge); (ii) was generally known to the public at the time SES or its
affiliates disclosed the information to Employee; (iii) became generally known
to the public after disclosure to the Employee through no act or omission of
Employee; or (iv) was disclosed to Employee by a third party having a bona fide
right both to possess the information and to disclose the information to
Employee.
The provisions of this Section 5 will apply to Trade Secrets for so
long as such information remains a Trade Secret and to Confidential Information
during Employee's employment with SES and for a period of three years following
any termination of Employee's employment with SES for whatever reason.
6. COVENANT NOT TO COMPETE.
(a) AGREEMENT NOT TO COMPETE. SES designs, fabricates, installs and
integrates ITS systems (the "Business"). In order to fully protect SES's and its
affiliates' Confidential Information and Trade Secrets and the goodwill of the
Business of SES purchased by Able on the date hereof, and to ensure that SES
enjoys the benefits of that Business, for a period of five years from the date
hereof (the "Non-Competition Period"), Employee shall not, except as authorized
in writing by SES, directly or indirectly, be employed by, render services to,
assist, participate in the affairs of, invest in, or otherwise be connected
with, any person or enterprise which person or enterprise is engaged in, or is
planning to engage in, and shall not personally engage in, any business that is
in any respect competitive with the Business of SES or any of its affiliates,
whether relating to
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products or services of the Business, within any state in which SES is
conducting Business or reasonably expects to conduct business at the time the
Employee's employment is terminated and any state in which SES conducted
Business within the two years preceding the termination of the Employee's
employment (the "Territory"); provided that Employee may hold investments
representing a less than 5% interest in any publicly held entity competing with
SES. In furtherance of such covenant not to compete, Employee hereby
acknowledges that SES currently does business, and following the purchase
described herein, SES shall continue to do business in a growing number of
locales throughout the United States and that in his capacity as an employee of
SES his responsibilities have involved and will continue to involve the conduct
of business throughout such Territory.
(b) NON-SOLICITATION COVENANT. Employee agrees that for the
Non-Competition Period, he will not, nor will he assist any of his affiliates
to, directly or indirectly, recruit or otherwise solicit or induce any agent,
non-employee sales representative, customer, subscriber or supplier of SES or
any affiliate of SES to terminate its employment or other arrangement with SES
or any affiliate of SES, otherwise change its relationship with SES or any
affiliates of SES, or establish any relationship with Employee or any of his
affiliates for any business purpose deemed materially competitive with the
Business.
(c) NON-INTERFERENCE WITH EMPLOYEES. Employee agrees that for the
Non-Competition Period, he will not, nor will he assist any of his affiliates
to, directly or indirectly, recruit or otherwise solicit or induce employee of
SES or any affiliate of SES to terminate or otherwise negatively affect his or
her employment relationship with SES or any affiliate of SES, or establish an
employment relationship directly or indirectly with Employee or any entity other
than SES or its affiliate with whom Employee is affiliated, absent the express
written consent of SES's Board of Directors.
(d) REMEDIES. The parties recognize, acknowledge and agree that (i) any
breach or threatened breach of the provisions of this Section 6 shall cause
irreparable harm and injury to SES and that money damages alone will not provide
an adequate remedy for such breach or threatened breach, (ii) the duration,
scope and geographical application of this Section 6 are fair and reasonable
under the circumstances of the business of SES, and are reasonably required to
protect the legitimate business interests of SES and the goodwill of the
business purchased by Able, (iii) the restrictions contained in this Section 6
will not prevent the Employee from earning or seeking a livelihood, and (iv) the
restrictions contained in this Section 6 shall apply in all areas where such
application is permitted by law. Accordingly, the Employee agrees that SES shall
be entitled to have the provisions of this Section 6 specifically enforced by
any court having jurisdiction, and that such a court may issue a temporary
restraining order, preliminary
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injunction or other appropriate equitable relief, without having to prove the
inadequacy of available remedies at law, having to post any bond or any other
undertaking. In addition, SES shall be entitled to avail itself of all such
other actions and remedies available to it or any of its affiliates under law or
in equity and shall be entitled to such damages as it sustains by reason of such
breach or threatened breach. It is the express desire and intent of the parties
that the provisions of this Section 6 be enforced to the full extent possible.
(e) SEVERABILITY. In light of the fact that the covenants set forth in
Section 6 are reasonably required to protect the legitimate interests of SES, if
any provision of this Section 6 hereof is held to be unenforceable because of
the duration of such provision, the area covered thereby or the scope of the
activity restrained, the parties hereby expressly agree that the court making
such determination shall have the power to reduce the duration and/or areas of
such provision and/or the scope of the activity to be restrained contained in
such provision and, in its reduced form, such provision shall then be
enforceable. The parties hereto intend and agree that the covenants contained in
Section 6(a) shall be construed as a series of separate covenants, one for each
municipality, community or county included within the area designated by Section
6(a). Except for geographic coverage, the terms and conditions of each such
separate covenant shall be deemed identical to the covenant contained in Section
6(a). Furthermore, if any court shall refuse to enforce any of the separate
covenants deemed included in Section 6(a), then such unenforceable covenant
shall be deemed eliminated from the provisions hereof to the extent necessary to
permit the remaining separate covenants to be enforced in accordance with their
terms. The prevailing party in any action arising out of a dispute in respect of
any provision of this Section 6 shall be entitled to recover from the
non-prevailing party reasonable attorneys' fees and costs and disbursements
incurred in connection with the prosecution or defense, as the case may be, of
any such action.
7. RESPONSIBILITIES UPON TERMINATION. Upon the termination of his
employment by SES for whatever reason and irrespective of whether or not such
termination is voluntary on his part:
(a) The Employee shall advise SES of the identity of his new employer
within ten days after accepting new employment and further agrees to keep SES so
advised of any change in employment during the Non-Competition Period;
(b) SES in its sole discretion may notify any new employer of the
Employee that the Employee has the obligations set forth in paragraph 6 to SES
during the Non-Competition Period;
(c) The Employee shall deliver to SES immediately upon termination of
his employment all proprietary information and all other records, forms,
contracts,
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memoranda, work papers, customer data and any other proprietary documents of SES
which have come into his possession by reason of his employment with SES and
which contain Trade Secrets or Confidential Information, and any other documents
necessary for the consistent operation by SES of its business, irrespective of
whether or not any of said documents were prepared for him, and he shall not
retain memoranda in respect of or copies of any of said documents; and
(d) The Employee shall participate in an exit interview with SES.
8. SEPARATE AGREEMENTS. The covenants of the Employee contained in
Sections 5 and 6 of this Agreement shall be construed as separate agreements
independent of any other agreement, claim, or cause of action of the Employee
against SES, whether predicated on this Agreement or otherwise. In particular,
the covenants of the Employee contained in Sections 5 and 6 of this Agreement
shall be independent of the corresponding covenants of Employee set forth in
that certain Non-Competition Agreement dated of even date herewith by and
between SES and the Employee (the "Non-Competition Agreement"). In no event
shall the termination of Employee's responsibilities under this Agreement result
in the termination of Employee's responsibilities under the Non-Competition
Agreement. The covenants contained in this Agreement are necessary to protect
the legitimate business interests of SES.
9. TERMINATION FOR CAUSE. SES shall have the right at any time to
terminate the employment of the Employee for cause by delivering to him a
written notice specifying such cause. If SES exercises such right, SES's
obligation under this Agreement to make any further payments to the Employee
shall thereupon cease and terminate. This Section 9 of this Agreement in no way
limits SES's right to terminate Employee's employment without cause pursuant to
Section 10 of this Agreement. As used herein, the term "cause" shall include but
not be limited by:
(a) misappropriating any funds or any material property of SES or its
affiliates, customers, suppliers or other related entities;
(b) obtaining or attempting to obtain any material personal profit from
any transaction, other than as contemplated by this Agreement, in which the
Employee has an interest which is adverse to the interest of SES unless SES
shall first give its written consent to such transaction;
(c) (i) neglecting or refusing to perform the duties contemplated by
this Agreement, (ii) the willful taking of actions which directly impair the
Employee's ability to perform his duties contemplated by this Agreement; (iii)
breaching any term of this Agreement; or (iv) taking any action detrimental to
SES's goodwill or damaging to SES's
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relationships with its customers, suppliers or employees; provided that such
neglect or refusal, action or breach shall have continued for a period of or is
not remedied within 10 days following written notice thereof;
(d) being convicted of or pleading guilty or NOLO CONTENDERE to any
crime or offense constituting a felony under applicable law or any crime or
offense involving fraud or moral turpitude;
(e) acting or refraining from acting in respect of any of the duties
contemplated by this Agreement and the Board determines in good faith that such
action or inaction constituted gross negligence or a willful act of malfeasance
or misfeasance; or
(f) any material intentional failure to comply with laws or
governmental regulations applicable to SES or the conduct of SES's business.
10. TERMINATION WITHOUT CAUSE. SES shall have the right at any time to
terminate the employment of the Employee and this Agreement without cause
effective upon 30 days prior written notice to the Employee. Upon termination of
this Agreement pursuant to this Section 10, the Employee shall be entitled to
receive, in full settlement and discharge of SES's obligation to the Employee,
(i) a lump sum amount equal to all compensation accrued and unpaid as of the
date of termination; and (ii) in equal semi-monthly installments an amount equal
to the base salary to which Employee would have been entitled under Section 4(a)
hereof if this Agreement had not been terminated.
11. TERMINATION UPON DEATH OR DISABILITY. SES may terminate the employment
of the Employee and this Agreement effective upon notice to the Employee (or his
heirs or legal representatives, as the case may be) if the Employee either dies
or is incapacitated or disabled by accident, sickness or otherwise and has been
rendered mentally or physically incapable with or without reasonable
accommodation of performing the services and duties required to be performed by
him under this Agreement for a period of at least 90 consecutive days or 120
days within any 12 month period. Upon termination of this Agreement pursuant to
this Section 11, the Employee (or his heirs or legal representatives, as the
case may be) shall be entitled to receive, in full settlement and discharge of
SES's obligation to the Employee, a lump sum amount equal to all compensation
unpaid as of the date of termination.
12. SEVERABILITY. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws, such provision shall be
fully severable, this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part of this
Agreement, and the remaining provisions of
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this Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance from this
Agreement.
13. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the law of the State of Florida, without giving effect to the
principles of conflicts of laws of such state.
(b) COUNTERPARTS. This Agreement may be executed in several
counterparts each of which is an original. This Agreement and any counterpart so
executed shall be deemed to be one and the same instrument. It shall not be
necessary in making proof of this Agreement or any counterpart hereof to produce
or account for any of the other counterparts.
(c) CONTENTS OF AGREEMENT; PARTIES IN INTEREST, ETC. This Agreement
sets forth the entire understanding of the parties. Any previous agreements or
understandings between the parties regarding the subject matter hereof are
merged into and superseded by this Agreement. All representations, warranties,
covenants, terms, conditions and provisions of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective heirs,
legal representatives, successors and permitted assigns of SES and the Employee.
Neither this Agreement nor any rights, interests or obligations hereunder may be
assigned by any party without the prior written consent of the other party
hereto.
(d) SECTION HEADINGS. The section headings herein have been inserted
for convenience of reference only and shall in no way modify or restrict any of
the terms or provisions hereof.
(e) NOTICES. All notices, requests, demands and other communications
which are required or permitted hereunder shall be sufficient if given in
writing and delivered personally or by registered or certified mail, postage
prepaid, by a nationally recognized overnight courier service, or by facsimile
transmission (with a copy simultaneously sent by registered or certified mail,
postage prepaid), as follows (or to such other address as shall be set forth in
a notice given in the same manner):
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(1) If to SES, to:
Specialty Electronic Systems, Inc.
c/o Able Telcom Holding Corp.
0000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: President
Copies to:
Xxxx Xxxxxxxx Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxxxx X. Xxx, Esq.
(2) If to the Employee, to:
C. Xxxxxxx Xxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Telephone:
Facsimile:
(f) MODIFICATION AND WAIVER. Any of the terms or conditions of this
Agreement may be waived in writing at any time by the party which is entitled to
the benefits thereof, and this Agreement may be modified or amended at any time
by SES and the Employee. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by each of the parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision hereof nor shall such waiver
constitute a continuing waiver.
(g) THIRD PARTY BENEFICIARIES. Except as otherwise expressly set forth
herein, no individual or entity shall be a third-party beneficiary of the
representations, warranties, covenants and agreements made by any party hereto.
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(h) MEDIATION. SES and the Employee shall attempt in good faith to
mediate any claim or controversy arising out of or relating to this Agreement or
any breach thereof if either of them requests mediation and gives written notice
to the other (the "Mediation Notice"). Any notice given pursuant to the
preceding sentence shall include a brief statement of the claim or controversy.
If SES and the Employee do not resolve the claim or controversy within twenty
days after the date of the Mediation Notice, SES and the Employee shall then use
reasonable efforts to agree upon an independent mediator. If SES and the
Employee do not agree upon an independent mediator within ten days after the
date of the Mediation Notice, either party may request that JAMS/Endispute
("JAMS"), or a similar mediation service of a similar national scope if JAMS no
longer then exists, appoint an independent mediator. SES and the Employee shall
share the costs of mediation equally and shall pay such costs in advance upon
the request of the mediator or any party. Within ten days after selection of the
mediator, the mediator shall set the mediation. If SES and the Employee do not
resolve the dispute within 30 days after the date of the Mediation Notice, the
dispute shall be decided by arbitration as set forth in Section 14(i) hereof.
(i) ARBITRATION. Any claim or controversy arising out of or relating to
this Agreement or any breach thereof shall be settled by arbitration if such
claim or controversy is not settled pursuant to Section 14(h) hereof. The venue
for any such arbitration shall be Atlanta, Georgia. Except as expressly set
forth herein, all arbitration proceedings under this Section 14(i) shall be
undertaken in accordance with the Commercial Arbitration Rules of the American
Arbitration Association (the "AAA") then in force. Only individuals who are (i)
lawyers engaged full-time in the practice of law and (ii) on the AAA register of
arbitrators shall be selected as an arbitrator. There shall be one arbitrator
who shall be chosen in accordance with the rules of the AAA. Within 20 days of
the conclusion of the arbitration hearing, the arbitrator shall prepare written
findings of fact and conclusions of law. Judgment on the written award may be
entered and enforced in any court of competent jurisdiction. It is mutually
agreed that the written decision of the arbitrator shall be valid, binding,
final and non-appealable; provided however, that the parties hereto agree that
the arbitrator shall not be empowered to award punitive damages against any
party to such arbitration. The arbitrator shall require the non-prevailing party
to pay the arbitrator's full fees and expenses or, if in the arbitrator's
opinion there is no prevailing party, the arbitrator's fees and expenses will be
borne equally by the parties thereto. In the event action is brought to enforce
the provisions of this Agreement pursuant to this Section 14(i), the
non-prevailing parties shall be required to pay the reasonable attorneys' fees
and expenses of the prevailing parties, except that if in the opinion of the
court or arbitrator deciding such action there is no prevailing party, each
party shall pay its own attorneys' fees and expenses.
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IN WITNESS WHEREOF, the parties hereto have executed or have caused
this Agreement to be duly executed as of the date first above written.
EMPLOYEE
_____________________________________
C. Xxxxxxx Xxxxxx
SES
SPECIALTY ELECTRONIC SYSTEMS, INC.
By:__________________________________
Name:________________________________
Title:_______________________________
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