Exhibit 10.1.3
EMPLOYMENT AGREEMENT
BY AND BETWEEN
Z-TEL COMMUNICATIONS, INC
AND
XXXX XXXXXXXX
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of October 1, 1999, by and between Z-TEL COMMUNICATIONS, INC., a Delaware
corporation (the "Company"), and XXXX XXXXXXXX ("Employee").
1. Employment and Title. The Company hereby employs Employee, and
Employee hereby accepts such employment, as Senior Vice-President
- Chief Financial Officer, all upon the terms and conditions set
forth herein.
2. Services. During the Term (as defined herein) hereof, Employee
agrees to perform diligently and in good faith the duties of
Senior Vice President - Chief Financial Officer of the Company
under the direction of the Company's Chief Executive Officer.
Employee agrees to devote his best efforts and all of his business
time, energies and abilities to the services to be performed
hereunder and for the exclusive benefit of the Company. In such
capacity, Employee shall have full responsibility for and
oversight of all audit and accounting functions of the Company and
shall assist the Chief Executive Officer in corporate finance
functions.
3. Location. The principal place of employment and the location of
Employee's principal office shall be in Tampa, Florida.
4. Term. The term of Employee's employment hereunder (the "Term")
shall commence on the date hereof (the "Commencement Date") and
continue through the third anniversary of the Commencement Date
(the "Scheduled Termination Date"), unless earlier terminated
pursuant to the terms of this Agreement.
5. Base Salary. As compensation for the services to be rendered by
Employee hereunder, the Company shall pay Employee, during the
Term of this Agreement, an annual base salary of not less than One
Hundred Fifty Thousand Dollars ($150,000.00), which base salary
shall accrue monthly (prorated for periods less than a month) and
shall be paid in equal bi-monthly installments, in arrears. The
Company will increase Employee's base salary 10% on October 1 in
each of 2000, 2001 and 2002.
6. Bonus Compensation. Commencing in FY00, Employee shall be eligible
to participate in all bonus compensation programs generally
available to members of the senior management team, subject to the
discretion of the Compensation Committee of the Company's Board of
Directors.
7. Equity Participation. Subject to the terms of The 1998 Equity
Participation Plan of Z-Tel Technologies, Inc. and the incentive
stock option agreements issued thereunder, Employee shall be
granted options to purchase 150,000 shares of the common stock of
Z-Tel Technologies, Inc. at $4.00 per share.
8. Benefits. Employee shall be entitled, during the Term hereof, to
the following benefits: (a) comprehensive medical and dental
insurance, including dependent coverage, paid fully by the
Company, with coverage commencing three months after the date
hereof and COBRA coverage reimbursed by the Company, (b) two weeks
paid vacation per year, and (c) an officers and directors
indemnity agreement in the form prescribed by the Company from
time to time.
9. Confidentiality. During the term of this Agreement and thereafter,
Employee shall maintain the confidential nature of the Company's
confidential and proprietary trade secrets, including, without
limitation, development ideas, acquisition strategies and plans,
financial information, records, "know-how," methods of doing
business, customer, supplier and distributor lists and all other
confidential information of the Company. Employee shall not use
(other than in connection with his employment) in any way
whatsoever, such trade secrets except as authorized in writing by
the Company. Employee shall, upon the termination of his
employment, deliver to the Company any and all records, books,
documents or any other materials whatsoever (including all copies
thereof) containing such trade secrets which shall be and remain
the sole and exclusive property of the Company. Employee shall, as
a condition of this Agreement, execute a copy of the Company's
Confidential Information and Inventions Agreement.
10. Termination. This Agreement and the employment of Employee may be
terminated "For Cause" in any of the following circumstances: (a)
Employee has committed any fraud, dishonesty, misappropriation or
similar act against the Company; (b) Employee has willfully
disregarded the written or oral instructions of the Chief
Executive Officer of the Company concerning the conduct of his
duties hereunder and, following written notice by the Company, has
failed to comply with such instructions, or has breached of any
other material provision of this Agreement; (c) Employee has been
negligent or has engaged in willful misconduct in the performance
of his duties hereunder; or (d) Employee has engaged in illegal
activities or other wrongful conduct which individually, or in the
aggregate, has a material adverse effect on the Company, its
prospects, earnings or financial condition. A termination "For
Cause" hereunder shall be effective upon the date set forth in a
written notice of termination delivered to the Employee. In the
event Employee is terminated other than "For Cause" prior to the
Scheduled Termination Date, the Company shall pay Employee one
years' base salary in full settlement of all of Employee's claims,
if any, against the Company arising out of or in connection with
such termination.
11. Non-Competition. Employee agrees that during the Term hereof and
for a period of one (1) year thereafter, Employee will nor,
directly, indirectly, or as an agent on behalf of or in
conjunction with any person, firm, partnership, corporation or
other entity, own, manage, control, join, or participate in the
ownership, management, operation, or control of, or be financially
interested in or advise, lend money to, or be employed by or
provide consulting services to, or be connected in any manner with
any similar business located within the United States of America;
provided that the foregoing restriction regarding financial
interest shall not apply to ownership of less than 5% of the
common equity of any entity whose common equity is registered
under the Securities Exchange Act of 1934, as amended. In the
event of a termination other "For Cause" hereunder, the provisions
of this Section 11 shall not survive the termination of this
Agreement.
12. Non-Interference. Employee agrees that during the Term hereof and
for a period of one (1) year thereafter, Employee will not
directly, indirectly, or as an agent on behalf of or in
conjunction with any person, firm, partnership, corporation or
other entity, hire any employee of the Company whose employment
was not already terminated or cause anyone else to do so, provided
that general advertisements and executive recruiting searches
shall not in any event violate this Section 12.
13. Severability. If any covenant or provisions contained in Section
11 or 12 is determined to be void or unenforceable in whole or in
part, it shall not be deemed to affect or impair the validity of
any other covenant or provision. If, in any arbitral or judicial
proceeding, a tribunal shall refuse to enforce all of the separate
covenants deemed included in Section 11 or 12, then such
unenforceable covenants shall be deemed eliminated from the
provisions hereof for the purpose of such proceedings to the
extent necessary to permit the remaining separate covenants to be
enforced in such proceedings.
14. Equitable Remedies. Employee and the Company agree that the
services to be rendered by Employee pursuant to this Agreement,
and the rights and interests granted and the obligations to be
performed by Employee to the Company pursuant to this Agreement,
are of a special, unique, extraordinary and intellectual
character, which gives them a peculiar value, the loss of which
cannot be reasonably or adequately compensated in damages in any
action at law, and that a breach by Employee of any of the terms
of this Agreement will cause the Company great and irreparable
injury and damage. Employee hereby expressly agrees that the
Company shall be entitled to the remedies of injunction, specific
performance and other equitable relief to prevent a breach of
Section 12 or 13 of this Agreement, both pendente lite and
permanently, against Employee, as such breach would cause
irreparable injury to the Company and a remedy at law would be
inadequate and insufficient. Therefore, the Company may, in
addition to pursuing its other remedies,
obtain an injunction from any court having jurisdiction in the
matter restraining any further violation.
15. Rights and Remedies Preserved. Nothing in this Agreement shall
limit any right or remedy the Company or Employee may have under
this Agreement or pursuant to law for any breach of this Agreement
by the other party. The rights granted to the parties herein are
cumulative and the election of one shall not constitute a waiver
of such party's right to assert all other legal remedies available
under the circumstances.
16. No Waivers. The failure of either party to enforce any provision
of this Agreement shall not be construed as a waiver of any such
provision, nor prevent such party thereafter from enforcing such
provision or any other provision of this Agreement.
17. Notices. Any notice to be given to the Company and Employer under
the terms of this Agreement may be delivered personally, by
telecopy, telex or other form of written electronic transmission,
or by registered or certified mail, postage prepared, and shall be
addressed as follows:
If to the Company: Z-Tel Technologies, Inc.
000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Chief Legal Officer
If to Employee: Xxxx Xxxxxxxx
Either party may hereafter notify the other in writing of any
change in address. Any notice shall be deemed duly given (i) when
personally delivered, (ii) when telecopied, telexed or transmitted
by other form of written electronic transmission (upon
confirmation of receipt), or (iii) on the third day after it is
mailed by registered or certified mail, postage prepared, as
provided herein.
18. Severability. The provisions of this Agreement are severable and
if any provision of this Agreement shall be held to be invalid or
otherwise unenforceable, in whole or in part, the remainder of the
provisions, or enforceable parts thereof, shall not be affected
thereby.
19. Successors and Assigns. The rights and obligations of the Company
under this Agreement shall inure to the benefit of and be binding
upon the successors and assigns of the Company, including the
survivor upon any merger, consolidation, share exchange or
combination of the Company with any other entity. Employee shall
not have the right to assign, delegate or
otherwise transfer any duty or obligation to be performed by him
hereunder to any person or entity.
20. Entire Agreement. This Agreement supersedes all prior and
contemporaneous agreements and understandings between the parties
hereto, oral or written, and may not be modified or terminated
orally. No modification, termination or attempted waiver shall be
valid unless in writing, signed by the party against whom such
modification, termination or waiver is sought to be enforced. This
Agreement was the subject of negotiation by the parties hereto and
their counsel. The parties agree that no prior drafts of this
Agreement shall be admissible as evidence (whether in any
arbitration or court of law) in any proceeding which involves the
interpretation of any provisions of this Agreement.
21. Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Florida
without reference to the conflict of law principles thereof.
22. Section Headings. The section headings contained herein are for
the purposes of convenience only and are not intended to define or
limit the contents of said sections.
23. Further Assurances. Each party hereto shall cooperate and shall
take such further action and shall execute and deliver such
further documents as may be reasonably requested by the other
party in order to carry out the provisions and purposes of this
Agreement.
24. Gender. Whenever the pronouns "he" or "his" are used herein, they
shall also be deemed to mean "she" or "hers" or "it" or "its"
whenever applicable. Words in the singular shall be read and
construed as though in the plural and words in the plural shall be
read and construed as though in the singular in all cases where
they would so apply.
25. Counterparts. This Agreement may be executed in counterparts, all
of which taken together shall be deemed one original.
26. Confidential Aribtration. The parties hereto agree that any
dispute concerning or arising out of the provisions of this
Agreement shall be resolved by confidential arbitration in
accordance with the rules of the American Arbitration Association.
Such confidential arbitration shall be held in Tampa, Florida, and
the decision of the arbitrator(s) shall be conclusive and binding
on the parties and shall be enforceable in any court of competent
jurisdiction. The arbitrator may, in his or her discretion, award
attorneys fees and costs to such party as he or she sees fit in
rendering his or her decision. Notwithstanding the foregoing, if
any dispute arises hereunder as to which the Company desires to
exercise any rights or remedies under Section 11 or 12
hereof, the Company may, in its discretion, in lieu of submitting
the matter to arbitration, bring an action thereon in any court of
competent jurisdiction in Florida, which court may grant any and
all relief available in equity or at law. In any such action, the
prevailing party shall be entitled to reasonable attorneys' fees
and costs as may be awarded by the court.
27. Survival. The provisions of Sections 9, 11 (except in the case of
a termination other than "For Cause"), 12, 13, 14 and 26 of this
Agreement shall survive the termination of this Agreement whether
upon, or prior to, the Scheduled Termination Date hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
Z-TEL COMMUNICATIONS, INC.,
a Delaware corporation
By:
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Xxxxxxx X. Xxxx
Chief Legal Officer and Senior Vice
President - Business Development
EMPLOYEE
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XXXX XXXXXXXX
Address:
