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EXHIBIT 10.23
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as the
"Agreement") is made this 3rd day of January, 1995, effective as of ______
__, 199_ (the "Effective Date"), by and between DCR COMMUNICATIONS, INC., a
Maryland corporation (hereinafter referred to as the "Employer"), and
Xxxxxxx X. Xxxxxxxx (hereinafter referred to as the "Employee").
WITNESSETH
WHEREAS, the Board of Directors of the Employer has determined
that it is to the advantage and interest of the Employer to avail itself of the
Employee's services in connection with the business of the Employer; and
WHEREAS, the Employee desires to accept employment with the
Employer upon the terms and conditions contained herein.
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein set forth, the parties do hereby covenant and agree as
follows:
1. AGREEMENT.
This Agreement constitutes the entire understanding
of the parties relating to the transactions outlined herein and conclusively
supersedes all prior writings and understandings, whether oral or written, with
respect hereto.
2. DEFINITIONS.
Unless otherwise expressly stated herein, the
following words or phrases shall be defined as set forth below:
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A. Good Cause. "Good Cause" shall be deemed to
exist upon written notice from the Board of Directors to the Employee of the
occurrence of any of the following, as determined in the sole and absolute
discretion of the Board of Directors:
(1) Employee's negligence or willful
misconduct which is injurious to the Employer's business affairs;
(2) Employee's breach of any material
provision of this Agreement;
(3) Employee's conviction of or guilty plea
to a criminal act, potentially punishable by imprisonment of one (1) year or
more;
(4) Employee's failure to satisfactorily
perform the duties as required by the terms hereof; or
(5) Employee's failure to follow directions,
policies, rules or procedures established from time to time by the Board of
Directors of the Employer.
Notwithstanding anything herein to the contrary, for purposes
of subsections (2), (4) and (5) of this Section 2.A., Good Cause shall be
deemed to exist only upon thirty (30) days prior written notice from the
Employer of the occurrence of such events and the Employee's failure to cure
the same to the satisfaction of the Board of Directors within the thirty (30)
day period. Notwithstanding the foregoing, no such prior notice shall be
required to be given where to do so would be impractical, such as where the
action giving rise to Good Cause is not reasonably capable of being cured.
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B. Disability. For purposes of this Agreement,
"Disability" shall be defined as Employee's inability to perform the duties he
is required to perform under the terms of this Agreement by reason of illness
or incapacity, as determined by the Board of Directors of the Employer in its
sole and absolute discretion; provided that Employee shall be considered
disabled for purposes hereof as of the onset of the illness or incapacity if he
is reasonably anticipated, as of such date of onset, to be unable, by reason of
such illness or incapacity, to perform full-time services for a period in
excess of thirty (30) consecutive days.
3. EMPLOYMENT AND DUTIES.
The Employer hereby employs Employee and Employee hereby
accepts employment upon the terms and conditions hereinafter set forth.
Employee agrees to devote his best efforts and full business time to rendering
services as ____________ of the Employer or in such other positions as he may
hold with the Employer. Employee agrees that he will not engage in any other
gainful occupation during the term of this Agreement without the prior written
consent of the Employer. Nothing contained herein shall be construed, however,
to prevent Employee from trading, for his own account and benefit, in stocks,
bonds, securities, real estate, commodities or other forms of investments. The
Employee shall perform assigned work in a competent, professional and timely
manner. Employee, in the discharge of his responsibilities, will at all times
act in good faith. In addition, Employee agrees to comply with the Employer's
policies, rules and regulations, as
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determined from time to time by the Board of Directors of the Employer.
4. TERM.
The initial term of this Agreement shall begin on the
Effective Date hereof and shall continue for a period of ____ (_) years
thereafter ("Initial Term"), or until terminated as provided herein (including
as set forth in Section 11 hereof). This Agreement shall be subject to
automatic renewal for successive one (1) year periods, subject to the terms and
conditions set forth in this Agreement, unless either party notifies the other
in writing at least __________________ (__) days prior to termination of the
then current term of the party's desire to terminate this Agreement. The
Initial Term and each renewal of this Agreement shall be collectively referred
to as the "Term."
5. COMPENSATION.
In consideration of and for the services rendered by
the Employee under this Agreement, the Employer shall pay the Employee a base
salary of _______________________________ Dollars ($_______.00) per annum, as
well as such additional salary and bonuses as may be determined in accordance
with the policies for determination of salary and bonuses established by the
Employer's Board of Directors from time to time.
6. FRINGE BENEFITS.
During the Term of this Agreement, the Employee shall
be entitled to all fringe benefits offered generally to the Employer's
employees, as determined by the Board of Directors from time to
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time, subject to the rules and regulations in effect regarding participation in
such benefit plans.
7. BUSINESS EXPENSES.
The Employee is authorized to incur reasonable
expenses in connection with the business of the Employer, including dues and
subscriptions for professional organizations and periodicals, travel and
entertainment expenses. Any such expenses shall be subject to any requirements
or limitations imposed by the Board of Directors of the Employer.
The Employer will reimburse Employee for the expenses
incurred pursuant to this Section 7, unless such expenses have been paid
directly by the Employer, upon presentation by the Employee of an itemized
account of such expenditures in a manner prescribed and authorized by the
Employer.
9. VACATION.
The Employee shall be entitled to ______ (__) working
days per calendar year paid vacation, to be taken at such times as determined
by the Employee and approved by the Board of Directors of the Employer;
provided that if the Employee fails to fully take such vacation in any calendar
year, any unused vacation time may only be carried forward from year to year
with the prior written approval of the Employer's Board of Directors. Upon
termination of the Employee's employment, Employee shall be paid for any
accrued but unused vacation time except in the event that Employee terminates
his employment with Employer or fails to renew this Agreement or the Employer
terminates the employment of the Employee
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due to circumstances or for reasons constituting Good Cause. For purposes of
this Section 9, Good Cause shall be deemed to exist only if the Board of
Directors reasonably determines that any of the events listed in Section 2.A.
above have occurred. Attendance at seminars approved in advance by the Board
of Directors shall not be chargeable against the vacation time provided for
hereinabove.
9. DISABILITY.
If the Employee is unable to perform his services by
reason of Disability, as defined in Section 2.B. hereof, he shall be entitled
to receive salary continuation payments (but only for so long as he shall
remain so disabled) as follows:
(a) During the first ______ (__) days of
Disability, the Employee shall receive an amount equal to ___________ Percent
(___%) of the compensation to which he would have otherwise been entitled as
hereinabove provided in Section 5, reduced by any insurance benefits received
by the Employee from disability insurance purchased by the Employer.
b. After ______ (__) days of Disability, the
Employee shall no longer receive any compensation from the Employer.
If the Employee is unable to perform the services
required hereunder by reason of Disability for a period exceeding ______ (__)
continuous days, this Agreement may be terminated at the end of such ______
(__) day period in the sole and absolute discretion of the Board of Directors
without further liability on the part of either of the parties hereto;
provided, however, that for purposes of this Section 9, the restrictions set
forth in
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Section 11 hereinbelow shall remain in full force and effect.
10. TERMINATION.
(a) Notwithstanding any provision of this Agreement
to the contrary, this Agreement may be terminated by the Employer (acting
through its Board of Directors) effective immediately for Good Cause, as
defined herein.
(b) Upon the termination of this Agreement for
Good Cause or otherwise, the Employee shall return all records, files,
documents and other written materials of the Employer and shall have no further
involvement in or access to the Employer's customer files, records or affairs.
He shall thereafter have no further professional duties to perform for the
Employer or any of its customers. Employee shall thereupon immediately remove
himself and his personal effects from the Employer's premises.
(c) If Employee's employment is terminated as
provided for herein, Employee shall not be entitled to any sums other than
those expressly provided for hereunder or under the terms of any employee
benefit plan or other agreement to which Employee is a party or participant.
11. RESTRICTIVE COVENANT.
(a) Covenant Not to Compete. During the Term of
this Agreement, and for a period of two (2) years after termination of
employment (with or without cause), Employee will not, directly or indirectly,
either as an individual or as a proprietor, stockholder, partner, officer,
director, employee, agent, consultant or independent contractor of any
individual,
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partnership, corporation or other entity (excluding an ownership interest of
one percent (1%) or less in the stock of a publicly traded company):
(i) participate in any way in hiring or
otherwise engaging, or assist any other person or entity in hiring or otherwise
engaging, on a temporary, part-time or permanent basis, any individual who was
employed by the Employer during the one (1) year period immediately prior to
the termination of the Employee's employment; or
(ii) assist, advise, or serve in any
capacity, representative or otherwise, any third party in any action against
the Employer or transaction involving the Employer; or
(iii) sell, offer to sell, provide
communication or telephone services, assist any other person in selling or
providing communication or telephone services, or solicit or otherwise compete
for, either directly or indirectly, any orders, contracts, or accounts for
services of a kind or nature like or substantially similar to the services
performed or products sold by the Employer (the preceding hereinafter referred
to as "Services"), to or from any person or entity from whom Employee or the
Employer provided telephone or communication services, sold, offered to sell or
solicited orders, contracts or accounts for Services during the one (1) year
period immediately prior to the termination of the Employee's employment; or
(iv) divulge, disclose, or communicate to any
person, firm or corporation in any manner whatsoever, except such
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disclosures to the Employer or its agents and employees as may be necessary in
the performance of the Employee's duties for the Employer, any information
concerning any matters affecting or relating to the business of the Employer,
including without limiting the generality of the foregoing, products,
processes, know-how, designs, formulas, methods, developmental or experimental
work, improvements, discoveries, plans for research or new products; any of its
customers or clients, past, present or prospective; past, present or future
research done by the Employee respecting the business or operations of the
Employer or customers or clients or potential customers or clients of the
Employer; the Employee's work performed for any customer or client of the
Employer; any method and/or procedure developed by or on behalf of the Employer
relating or pertaining to projects or other work of the Employer or
contemplated by the Employer to be developed; the prices it obtains or has
obtained from the sale of its services or the method of setting prices;
purchasing history and sources of supply; earnings or any other information
concerning the business of the Employer, its manner of operation, its plans,
processes, or other data without regard to whether all of the foregoing matters
will be deemed confidential, material, or important, the parties hereto
stipulating that as between them, the same are important, material, and
confidential and gravely affect the effective successful conduct of the
business of the Employer and the Employer's good will, and that any breach of
the terms of this paragraph shall be a material breach of this Agreement. The
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restrictions contained in this paragraph apply to all confidential information
regarding the Employer's business regardless of the source who provided or
compiled such information and regardless of the person or entity who prepared
any documents containing such information, provided that the information was
obtained during the Employee's period of employment with the Employer.
Further, upon leaving the employ of the Employer for any reason whatsoever, the
Employee shall not, without the prior written consent of the Employer, take
with him, or make or retain any copies of, any drawings, reproductions, data,
reports, pricing information, programs, tapes, card decks, listings and/or any
other written, printed, graphic or recorded information relating or pertaining
to the Employer. Unless otherwise agreed upon, all such property shall be the
sole and exclusive property of the Employer and the Employee shall have no
interest therein. Notwithstanding anything to the contrary contained herein,
the terms of this subparagraph (iv) shall not be limited to the two (2) year
restriction set forth above and the Employer's confidential information
protected pursuant to this paragraph (iv) shall not include any information
which is known, or available to, the general public or generally to those
people working within the personal communication services or cellular telephone
industry or any other industry with which the Employee is restricted from
dealing pursuant to the terms of this Agreement.
(b) Remedies. In the event of a breach or
a threatened breach by the Employee of any provision of these restrictions, the
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Employee recognizes the substantial and immediate harm that a breach or
threatened breach will impose upon the Employer, and further recognizes that in
such event monetary damages may be inadequate to fully protect Employer.
Accordingly, in the event of a breach or threatened breach of this Agreement,
Employee consents to the Employer's entitlement to such ex parte, preliminary,
interlocutory, temporary or permanent injunctive, or any other equitable
relief, protecting and fully enforcing Employer's rights hereunder and
preventing Employee from further breaching any of his obligations set forth
herein. Employee expressly waives any requirement, based on any statute, rule
of procedure, or other source, that Employer post a bond as a condition of
obtaining any of the above-described remedies. Nothing herein shall be
construed as prohibiting Employer from pursuing any other remedies available to
the Employer at law or in equity for such breach or threatened breach,
including the recovery of damages from the Employee. Employee expressly
acknowledges and agrees that: (i) the restrictions set forth in this Section
11 are reasonable, in terms of scope, duration, geographic area, and otherwise,
(ii) the protections afforded Employer in this Section 11 are necessary to
protect its legitimate business interest, (iii) the restrictions set forth in
this Section 11 will not be materially adverse to the Employee's ability to
obtain gainful employment comparable to the Employee's employment with the
Employer, and (iv) his agreement to observe such restrictions forms a material
part of the consideration for this Agreement.
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(c) Overbreadth of Restrictive Covenant. It is the
intention of the parties that if any restrictive covenant in this Agreement is
determined by a court of competent jurisdiction to be overly broad, then the
court should enforce such restrictive covenant to the maximum extent permitted
under the law as to area, breadth and duration.
12. EMPLOYEE COVENANT.
Employee shall not during the Term of this Agreement
or at any time thereafter divulge, disclose or communicate to others in any
manner whatsoever, information or statements which disparage or are intended to
disparage the Employer and its business reputation.
13. INSURANCE.
The Employer may purchase life insurance and/or
disability insurance on the Employee to protect its interests hereunder. All
policies so purchased shall name the Employer as beneficiary. The Employee
shall cooperate with the Employer in obtaining such insurance, including, but
not limited to, by completing such applications and documents as are required
by the insurers and submitting to physical examinations, if necessary.
14. ENFORCEMENT OF PROVISIONS.
The failure of the Employer or the Employee at any
time to enforce any of the provisions of this Agreement, or any right with
respect thereto, will in no way be construed to be a waiver of such provisions
or rights or in any way to affect the validity of this Agreement. The exercise
by either party hereto of any rights
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under the terms or covenants herein shall not preclude or prejudice the
exercising thereafter of the same or any other rights under this Agreement.
15. RECORDS.
All records pertaining to customers of the Employer,
including but not limited to work papers, receipts, financial reports and
statements, applications, statements, records of fees, xxxxxxxx and payment of
fees and all personnel records pertaining to compensation and expenses of the
Employee within the scope of his employment shall at all times be the property
of the Employer.
16. NOTICES.
All communications or notices required or permitted
by this Agreement shall be in writing and shall be deemed to have been given at
the earlier of the date when actually delivered to an individual party or to an
executive officer of a corporate party or when deposited in the United States
mail, certified or registered mail, postage prepaid, return receipt requested,
and addressed as follows, unless and until any of such parties notifies the
others in accordance with this Section 16 of a change of address:
If to Employer: Xxxxx Xxxxx
DCR Communications, Inc.
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
With a copy to: Xxxxxx X. Xxxxxxx, Esquire
Levan, Schimel, Xxxxxx & Xxxxxxxx, P.A.
Woodmere I, Suite 400
0000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
If to Employee: _____________________
_____________________
_____________________
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17. INVALID PROVISION.
The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
the Agreement shall be construed in all respects as though such invalid or
unenforceable provisions were omitted.
18. INTERPRETATION.
This Agreement shall be interpreted in accordance
with the laws of the State of Maryland, exclusive of its conflicts of law
provisions.
19. MODIFICATION.
This Agreement may be changed, modified or amended
only by an agreement in writing signed by the parties.
20. HEADINGS.
The section headings herein are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
21. ASSIGNMENT.
The rights and obligations of the Employer under this
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Employer. This Agreement being for the personal services of the
Employee, shall not be assignable nor delegable by him.
22. COUNTERPARTS.
This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original,
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but all of which shall together constitute one and the same document.
23. ARBITRATION.
Any question or controversy arising under this
Agreement shall be settled by arbitration, except any action seeking equitable
relief initiated by the Employer pursuant to Section 11 above, under the then
existing rules of the American Arbitration Association, and the decision of the
arbitrator shall be final and binding upon the parties (including an award of
costs of the arbitration which shall be paid by the non-prevailing party, as
determined by the arbitrator). The arbitration shall be conducted by a single
arbitrator in Xxxxxx County, Maryland.
24. COSTS OF BREACH.
The parties agree that the non-breaching party shall
be entitled to all attorneys' fees, court costs and other expenses incurred by
the non-breaching party as a result of any breach by the Employer or the
Employee of any covenant, agreement, term, condition or obligation contained in
this Agreement.
25. WITHHOLDING FUNDS; RIGHT TO OFFSET AND APPLY
PAYMENTS.
In the event that Employee shall owe an obligation of
any type whatsoever to the Employer at any time during the Term or after
termination hereof, and shall not have paid such obligation as and when the
same became due and payable, Employee hereby expressly authorizes Employer to
withhold or deduct an amount equal to said obligation from any wages due to the
Employee from the Employer. For purposes of this provision, wages shall mean
any
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remuneration, compensation, bonus, commission, and/or fringe benefit provided
in return for services provided by the Employee. In addition, notwithstanding
the terms of any other agreement or obligation between Employer and Employee,
any amounts due under any agreement or obligation to the Employee, including
under the terms set forth herein, including wages shall first be applied and
offset against any money owed by the Employee to the Employer.
26. SURVIVAL.
Except as otherwise expressly set forth herein, the
provisions of Sections 11, 12, 13, 23, 24 and 25 of this Agreement shall
survive the termination of this Agreement for any reason.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement under seal the day and year first above written.
WITNESS/ATTEST: DCR COMMUNICATIONS, INC.
By: (SEAL)
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WITNESS:
---------------------------- (SEAL)
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