21st Century Telesis, Inc.
EMPLOYMENT CONTRACT
21st Century Telesis, Inc., a Delaware corporation, hereinafter
referred to as the Employer, and Xxxxx X. La Belle, hereinafter
referred to as the Employee, in consideration of the mutual
promises made herein, agree as follows.
ARTICLE 1. TERM OF EMPLOYMENT
Specified Term
1.0.1. The Employer hereby employs Employee and Employee hereby
accepts employment with Employer beginning on October 15,
1997, to serve at the pleasure of the board of directors of
Employer.
ARTICLE 2. DUTIES AND OBLIGATIONS OF EMPLOYEE
Title and Description of Duties
2.01. Employee shall serve as Chief Operating Officer of Employer
and of Employer's affiliate, the 21st Century Telesis Joint
Venture. In that capacity, Employee shall do and perform all
services, acts, or things necessary or advisable to fulfill
the duties of his position. However, Employee shall at all
times be subject to the policies established by the Board of
Directors of Employer.
Loyal and Conscientious Performance of Duties
2.02. Employee agrees that to the best of his ability and
experience he will at all times loyally and conscientiously
perform all of the duties and obligations required of him
either expressly or implicitly by the terms of this
agreement.
Devotion of Time to Employer's Business
2.03. Employee shall devote such portion of his productive time,
ability, and attention to the business of Employer during the
term of this contract as shall reasonably be required by the
nature of Employer's business.
Competitive Activities
2.04. During the term of this contract Employee shall not, directly
or indirectly, either as an employee, employer, consultant,
agent, principal, partner, controlling stockholder, corporate
officer, director, or in any other individual or
representative capacity, engage or participate in any
business that is in competition in any manner whatsoever with
the business of Employer.
Trade Secrets
2.05. (a) The parties acknowledge and agree that during the term
of this agreement and in the course of the discharge of
his duties hereunder, Employee shall have access to and
become acquainted with information concerning the
operation of Employer and its affiliates, including
without limitation, financial, personnel, sales, planning,
and other information that is owned by Employer and its
affiliates and regularly used in the operation of their
businesses and that this information constitutes trade
secrets.
(b) Employee agrees that he shall not disclose any such
trade secrets, directly or indirectly, to any other person
or use them in any way, either during the term of this
agreement or at any other time thereafter, except as his
employment may require.
ARTICLE 3. OBLIGATIONS OF EMPLOYER
General Description
3.01. Employer shall provide Employee with the compensation,
incentives, benefits, and business expense reimbursement
specified elsewhere in this agreement.
Office and Staff
3.02. Employer shall provide Employee with a private office,
stenographic help, office equipment and supplies, and other
facilities and services suitable to Employee's position and
adequate for the performance of his duties. The office
premises will be located in Indianapolis, Indiana, or in such
other location as the parties shall agree.
Indemnification of Losses of Employee
3.03. To the extent permitted by Delaware law, Employer shall
indemnify Employee for all losses sustained by Employee in
direct consequence of the discharge of his duties on
Employer's behalf.
ARTICLE 4. COMPENSATION OF EMPLOYEE
Annual Salary
4.01. As compensation for the services to be rendered by Employee
hereunder, Employer shall pay Employee an annual salary of
$171,600 effective the dates specified in Par. 1.01 above.
Such salary will be payable in periodic installments in
accordance with Employer's customary practice.
Incentive Compensation
4.02. (a) Employee will be paid a cash bonus of $25,000 upon
completion of the build-out of an operational PCS system
in each Basic Trading Area in which Employer or its
affiliates possesses licenses to offer PCS service. For
these purposes, the build-out of an operational system
shall be considered to be complete, and the above
mentioned bonus shall be due and owing, when such system
produces its first operating revenues from customers.
(b) In addition to the foregoing, for each full fiscal year
for which the earnings before income taxes, depreciation
and amortization ("EBITDA") of Employer and Employer's
affiliates from the operation of PCS systems shall be a
positive number, as reflected in the annual audited
financial statements of Employer and affiliates, Employee
shall receive a cash bonus equal to 0.25% of EBITDA for
such year. The bonus will be due and payable 150 days
after the close of the fiscal year to which the bonus is
attributable.
Fringe Benefits
4.03. Employee will be entitled to receive medical and dental
insurance benefits as part of the insurance plans maintained
by Employer. Employee will also be entitled to receive a cash
allowance of $500 per month as an automobile allowance.
Stock Options
4.04. Employer expects in due course to request its stockholders to
approve the establishment of a stock option plan pursuant to
which shares of Employer's capital stock equal in number to
5-10% of its then issued and outstanding shares will be set
aside and authorized for issuance pursuant to options granted
to key employees. If such a plan is approved by Employer's
stockholders, Employee will be entitled to participate
therein at a level commensurate with his position.
Tax Withholding
4.05. Employer shall have the right to deduct or withhold from the
compensation due to Employee hereunder any and all sums
required for federal income and Social Security taxes and all
state or local taxes now applicable or that may be enacted
and become applicable in the future.
ARTICLE 5. BUSINESS EXPENSES
Business Expenses
5.01. (a) Employer shall promptly reimburse Employee for all
reasonable business expenses incurred by Employee in
promoting the business of Employer, including expenditures
for entertainment, gifts, and travel.
(b) Each such expenditure shall be reimbursable only if it
is of a nature qualifying it as a proper deduction on the
federal and state income tax return of Employer.
(c) Each such expenditure shall be reimbursable only if
Employee furnishes to Employer adequate records and other
documentary evidence required by federal and state
statutes and regulations issued by the appropriate taxing
authorities for the substantiation of that expenditure as
an income tax deduction.
ARTICLE 6. GENERAL PROVISIONS
Termination
6.01. This agreement may be terminated (a) by Employer, with or
without cause, or (b) by the resignation or death of
Employee. In any such event,
- Employee (or Employee's estate) will be entitled to
receive the salary and fringe benefits called for by Para.
4.01 and Para. 4.03 above, respectively, paid to the
effective date of termination;
- The bonus payments mentioned in Para. 4.02 (a) above shall
be payable only respecting any BTA' s for which no such
bonus has been paid and which first receive operating
revenues from customers prior to the effective date of the
termination of this agreement;
- The bonus payments mentioned in Para. 4.02 (b) above shall
be payable only if the effective date of such termination
shall fall on a day less than 150 days after the close of
a fiscal year of Employer for which a bonus is payable
pursuant to the terms of Para. 4.02 (b), and the bonus for
such year shall not have been previously paid.
For purposes of this Article 6, the effective date of the
termination of this agreement shall be the date the terminating
party gives notice of termination to the other party, or the date
of Employee's decease, in the event that this agreement shall be
terminated by Employee's death.
Involuntary Termination After Change in Control
6.02. (a) Notwithstanding the foregoing, if Employee's
employment hereunder shall be terminated involuntarily
following a change in control of Employer, Employee, as
his sole and exclusive remedy therefor, shall be entitled
to receive, within three months following such
termination, a termination indemnity in cash as follows:
- If such involuntary termination occurs during the first 12
months next following such change in control, the
termination indemnity payable to Employee shall be equal
to three times the total compensation paid and payable to
Employee under Paragraphs 4.0 1, 4.02 and 4.03 above for
the fiscal year of Employer last ended before such
termination;
- If such involuntary termination occurs during the 13th
through 24th months next following such change in control,
the termination indemnity payable to Employee shall be
equal to two times the total compensation paid and payable
to Employee under Paragraphs 4.0 1, 4.02 and 4.03 above
for the fiscal year of Employer last ended before such
termination; and
- If such involuntary termination occurs during the 25th
through 36th months next following such change in control,
the termination indemnity payable to Employee shall be
equal to the total compensation paid and payable to
Employee under Paragraphs 4.01,4.02 and 4.03 above for the
fiscal year of Employer last ended before such
termination;
- No cash termination indemnity will be payable to Employee
hereunder if his employment is thereafter involuntarily
terminated.
(b) For purposes of this Para. 6.02, a change in control
shall be deemed to have occurred at the close of the first
full business day on which those individuals identified in
documentation filed with the Federal Communications
Commission as the Control Group of the 21st Century
Telesis Joint Venture shall cease to have the collective
power to elect a majority of the board of directors of
Employer.
(c) For purposes of this Para. 6.02, the involuntary
termination of Employee's employment shall be deemed to
include Employee's termination of his employment hereunder
as a consequence of acts by Employer so radically changing
Employee's duties, compensation or working conditions as
to amount to a constructive termination at law.
(d) Notwithstanding anything to the contrary in the
foregoing, no termination indemnity in any amount will
be payable to Employee under the provisions of this
Para. 6.02 in the event that his employment shall be
terminated by reason of (a) persistent and willful
neglect of his duties by Employee; (b) the commission of
acts of moral turpitude by Employee; or (c) the
commission by Employee of acts tending to bring Employer
into public disrepute.
Notices
6.03. Any notices to be given by either party to the other shall be
in writing and may be transmitted either by personal delivery
or by mail, registered or certified, postage prepaid with
return receipt requested. Notices delivered personally shall
be deemed communicated as of the date of actual receipt;
mailed notices shall be deemed communicated as of the date of
mailing.
Jurisdiction, Attorneys' Fees and Costs
6.04. (a) Any action at law or inequity brought to enforce or
interpret the terms of this agreement shall be brought and
maintained exclusively in the Superior Court of the State
of California for the County of Orange, to the
jurisdiction of which the parties hereby consent, waiving
all objections to venue and to the exercise by such Court
of jurisdiction over their persons.
(b) In any such action, the prevailing party shall be
entitled to reasonable attorneys' fees, costs, and
necessary disbursements in addition to any other relief to
which that party may be entitled. This provision shall be
construed as applicable to the entire contract.
Entire Agreement
6.05. This agreement supersedes any and all other agreements,
either oral or in writing, between the parties hereto with
respect to the employment of Employee by Employer, and
contains all of the covenants and agreements between the
parties with respect to that employment in any manner
whatsoever. Each party to this agreement acknowledges that no
representations, inducements, promises, or agreements, orally
or otherwise, have been made by any party, or anyone acting
on behalf of any party, which are not embodied herein, and
that no other agreement, statement, or promise not contained
in this agreement shall be valid or binding.
Modifications
6.06. Any modifications of this agreement will be effective only if
it is in writing signed by the party to be charged.
Effect of Waiver
6.07. The failure of either party to insist on strict compliance
with any of the terms, covenants, or conditions of this
agreement by the other party shall not be deemed a waiver of
that term, covenant, or condition, nor shall any waiver or
relinquishment of any right or power at any one time or times
be deemed a waiver or relinquishment of that right or power
for all or any other times.
Partial Invalidity
6.08. If any provision in this agreement is held by a court of
competent jurisdiction to be invalid, void, or unenforceable,
the remaining provisions shall nevertheless continue in full
force without being impaired or invalidated in any way.
Law Governing Agreement
6.09. This agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, exclusive
of its choice of law provisions.
In witness whereof, and intending to be bound hereby, the parties
have hereunto set their seals.
EMPLOYER EMPLOYEE
21st Century Telesis, Inc.
Xxxxxx X. Xxxxxxx Xxxxx X. XxXxxxx
Dated: 10-13-97 Dated: 10-14-97
Executive Vice President Chief Operating Officer
& Secretary
