EXHIBIT 10.13
EMPLOYMENT AGREEMENT
This AGREEMENT (the "Agreement") is made and entered into as of this
13th day of February 2004, by and between Davel Communications, Inc., (the
"Corporation") and Xxx Xxxxxxxx ("the Executive").
WHEREAS, the Corporation desires to have the Executive provide services
to the Corporation as Chief Financial Officer, having determined that the
services of the Executive are of value to the Corporation, and the Executive
desires to be employed by the Corporation as Chief Financial Officer.
NOW THEREFORE, in consideration of the Executive's performance of the
duties set forth herein, and upon the other terms and conditions hereinafter
provided, the parties agree as follows:
1. Employment and Services.
During the term of this Agreement, the Executive shall be
employed as Chief Financial Officer of the Corporation. As
Chief Financial Officer, the Executive shall render
administrative and management services to the Corporation such
as are customarily performed by persons situated in similar
executive positions, and such other duties as the Chief
Executive Officer ("CEO") may from time to time reasonably
direct. As an employee of the Corporation, the Executive shall
report directly to the CEO of the Corporation.
2. Term of Agreement.
The term of this Agreement shall continue for a period of
twelve (12) months beginning February 13th, 2004 and ending
February 12th, 2005.
3. Obligations of the Executive.
The Executive agrees to devote his best efforts and
substantially all of his business time to the business and
affairs of the Corporation, and to discharge his
responsibilities herein. The Executive may serve on corporate,
civic or charitable boards or committees and may manage
personal investments, so long as such activities do not
interfere in any material respective with the performance of
his responsibilities hereunder.
4. Compensation.
a. Salary. During the term of this Agreement, the
Corporation shall pay the Executive a salary of
$115,000 per annum, which shall be paid at
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EXHIBIT 10.13
regular intervals (no less often than monthly) in
accordance with the Corporation's normal payroll
practices.
b. Retention Compensation. During the term of this
Agreement, the Executive shall receive retention
compensation based upon and in accordance with the
criterion set forth on Exhibit "A" attached hereto
and incorporated herein by reference.
c. Benefit Plans. The Executive shall be entitled to
participate in any plan of the Corporation relating
to pension, deferred compensation, profit-sharing,
stock purchase, group life insurance, medical
insurance or other retirement or employee benefits
that the Corporation may then have in force for the
benefit of its Executive employees, and for which he
is otherwise eligible. At a minimum, the Corporation
shall provide Executive with family medical
insurance, long-term disability insurance, and family
dental insurance. In the event the Corporation
institutes a stock option plan for its executives,
Executive shall be eligible to participate in such
plan at levels consistent with other senior level
executive employees.
d. Expense Reimbursement. In addition to the
compensation provided to the Executive pursuant to
subparagraphs a., b., and c. hereof, and upon receipt
of proper documentation, the Corporation agrees to
reimburse the Executive for reasonable entertainment,
travel, lodging and other miscellaneous expenses,
including the reasonable and customary expenses
related to the operation and maintenance of a home
business office, incurred on its behalf and related
to the performance of his duties hereunder. The
Corporation shall also reimburse Executive for the
reasonable cost of Executive's monthly cellular
telephone expenses.
5. Vacations.
The Executive shall be entitled to an annual paid
vacation as per the vacation policy per year. The
timing of vacations shall be scheduled at a time
mutually agreed upon between the Executive and the
CEO, but in no event shall the Executive take more
than two weeks of vacation at any one time. The
Executive shall not be entitled to receive any
additional compensation for his unused vacation time.
6. Termination of Employment.
a. The Executive's employment under this
Agreement may be terminated by the
Corporation for Cause as hereinafter
defined. Any termination of this Agreement
other than for "Cause" shall not prejudice
his right to receive:
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EXHIBIT 10.13
(i) Compensation in accordance with
Paragraph 4 of this Agreement for
the remaining term hereof, and
(ii) The other benefits provided by this
Agreement for the remaining term
thereof.
b. The Executive shall have no right to receive
compensation or other benefits under this
Agreement for any period after the date of
termination for Cause. For purposes of this
Agreement, termination for "Cause" shall
include termination because of the (a)
Executive's fraud or dishonesty in the
course of Executive's employment with the
Corporation, (b) gross negligence or willful
misconduct committed by Executive in the
course of Executive's employment with the
Corporation which has or might reasonably be
expected to have a material adverse effect
upon the business or operations of the
Corporation, (c) breach of fiduciary duty
involving personal profit, (d) intentional
failure to perform stated duties, (e)
conviction of a felony or other crime or
moral turpitude in the course of employment
(e.g. fraud, theft, embezzlement and the
like, (f) habitual and excessive use of
alcohol or controlled substances other than
for therapeutic reasons, (g) failure to
achieve the minimum performance criterion
set forth on Exhibit "A" or (h) Executive's
material breach of any provision of this
Agreement.
c. This Agreement may be voluntarily terminated
by the Executive at any time upon ninety
(90) days' written notice to the Corporation
or upon such shorter period as may be agreed
upon between the Executive and the CEO of
the Corporation. In the event of such
termination, the Corporation shall be
obligated only to continue to pay the
Executive his salary up to the date of
termination and those retirement and/or
employee benefits which have been earned or
become payable up to the date of
termination.
d. If the Executive's employment terminates by
reason of the Executive's Disability, as
defined in Paragraph 7, the Corporation
shall pay the Executive any benefits which
pursuant to the terms of any compensation or
benefit plan have been earned and have
become payable but which have not yet been
paid to the Executive, together with a pro
rata portion of any additional compensation
that the Executive would have been entitled
to receive in respect of the year in which
the Executive's date of termination occurs
had he continued in employment until the end
of such calendar year; however, there shall
be no incentive bonus payable with respect
to the year during which Executive's
employment is terminated.
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EXHIBIT 10.13
7. Disability.
Executive shall be deemed to be disabled and the Corporation
may terminate this Agreement if Executive shall, as a result
of such Disability, fail to perform the duties hereunder for
any 90 days during a consecutive 120-day period. The
Corporation may terminate the Executive's employment after
having established his Disability, which results in the
Executive becoming eligible for long-term disability benefits.
For purposes of this Agreement, "Disability" means a physical,
or mental infirmity, which prevents the Executive from
performing the essential functions of his position under this
Agreement. In the event the Executive's employment is
terminated by reason of Disability, he shall be entitled to
the compensation and benefits provided for under this
Agreement for any period prior to the establishment of the
Executive's Disability during which is unable to work due to a
physical or mental infirmity.
8. Non-Solicitation and Non-Competition.
a. The Executive agrees that during the term of this
Agreement, and for any period after the termination
of this Agreement during which he continues to
receive compensation under this Agreement, he will
not directly or indirectly:
(i) Solicit, divert or take away any of the
customers, business or patronage of the
Corporation or its subsidiaries or
affiliates; or
(ii) Induce or attempt to influence any employee
of the Corporation or its subsidiaries or
affiliates to terminate his or her
employment therewith.
b. Executive agrees that during the term hereof and for
twelve (12) months from the date of the termination
of Executive's employment hereunder, Executive shall
not compete with the Corporation, on behalf of
himself or any other person, firm, business or
corporation, as follows: he shall not directly or
indirectly (i) engage in the pay telephone business;
or (ii) request or instigate any account or customer
of the Corporation to withdraw, diminish, curtail or
cancel any of its business with the Corporation.
c. In the event of a breach or threatened breach of the
Executive of the provisions of this Paragraph 8, the
Corporation, or any duly
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EXHIBIT 10.13
authorized officer thereof, will be entitled to a
temporary restraining order or injunction.
9. Successors; Binding Agreement.
This Agreement and all rights of the Executive hereunder shall
inure to the benefit of and be enforceable by his personal or
legal representatives, successors, heirs, distributees,
devisees, legatees and permitted assigns. This Agreement and
all rights of the Corporation hereunder shall inure to the
benefit of and be enforceable by its successors and permitted
assigns.
10. No Assignments.
This Agreement is personal to each of the parties hereto and
neither party may assign or delegate any of its rights or
obligations hereunder without first obtaining the written
consent of the other party.
11. Notices.
All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been
duly given if delivered by hand or mailed certified or
registered mail, return receipt requested with postage repaid,
to the following addresses or to such other address as either
party may designate by like notice.
a. If to the Corporation, to:
Davel Communications, Inc.
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Chief Executive Officer
b. If to the Executive, to:
Xxx Xxxxxxxx
00000 Xxxxxxxx Xxxx
Xxxxxx Xxxxx, XX 00000
and to such other or additional person or persons as either
party shall have designated to the other party in writing by
like notice.
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EXHIBIT 10.13
12. Amendments.
No amendments or additions to this Agreement shall be binding
unless in writing and signed by both parties except as herein
otherwise provided.
13. Paragraph Headings.
The Paragraph Headings used in this Agreement are included
solely for convenience and shall not affect, or be used in
connection with, the interpretation of this Agreement.
14. Severability.
The provisions of this Agreement shall be deemed severable and
the invalidity or unenforceability of any provisions shall not
affect the validity or enforceability of the other provisions
hereof.
This space intentionally left blank.
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EXHIBIT 10.13
15. Governing Law.
This Agreement shall, except to the extent that Federal law
shall be deemed to preempt it, be governed by and construed
and enforced in accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
DAVEL COMMUNICATIONS, INC.
By: /s/ XXXXX X. XXXXX
-------------------------------------
Xxxxx X. XxXxx
Chairman and Chief Executive Officer
EXECUTIVE
/s/ XXXXXX X. XXXXXXXX
-------------------------------------
Xxx Xxxxxxxx
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EXHIBIT 10.13
EXHIBIT "A"
KEY EXECUTIVE RETENTION PLAN
DAVEL COMMUNICATIONS, INC. (THE "CORPORATION")
The purpose of this plan is to retain the Executive for efforts in managing the
Corporation and to incent Executive to carry forth certain strategic initiatives
at the direction of the Chairman of the Board and CEO.
In the event the company is acquired and the key executives position is
eliminate or the executive is asked to relocate more that fifty miles from their
primary residence and does not accept or restructuring efforts eliminate the
executives position the key executive will be paid six months severance or the
time remaining on this employment agreement, which ever is greater.
If the executive chooses to leave employment prior to the expiration of this
agreement, there will be no retention payments made.
This agreement may be renewed at the option of the Company.
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