Execution Copy
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of the 26th day of February, 2002, by
and between Panther Telecommunications Corporation, a corporation organized
under the laws of Florida ("Employer"), and Xxxxxx Xxxxxxx, a Florida resident
("Employee");
WHEREAS, Employer desires to employ Employee, and Employee desires to
accept such employment, upon the terms and conditions set forth herein;
WHEREAS, Employee acknowledges that he will, though such employment (a) be
exposed to important clients of Employer or its Affiliates, secured through the
efforts and expense of Employer or its Affiliates, and (b) become acquainted
with the precise skills possessed by, and roles played by, various employees of
Employer;
WHEREAS, Employer has and will continue to develop and acquire a body of
information pertaining to various aspects of its business and the business of
its Affiliates, and Employer deems the prior, current, and contemplated or
future designs, plans, specifications, technical, commercial, marketing, and
other information included in said body of information, including, without
limitation, information related to any of its licenses, computer software,
contracting systems, data bases, customer lists, client lists, sources of
supply, pricing formula, patentable or unpatentable inventions, know how, trade
secrets, designs, methods of operation, results of operations, financial
condition, plans or prospects, (collectively, the "Information") to be valuable,
confidential and proprietary that Employer is now providing Employee with access
to as part of this consideration for this Agreement; and
WHEREAS, Employee acknowledges that he will be a "key" employee of
Employer, and as such, has received, will be exposed to, and will develop and
participate in the development of, the Information;
NOW, THEREFORE, in consideration of the recitals, mutual covenants and
agreements contained herein, the parties agree as follows:
Section 1. Definitions.
-----------
"Affiliate" shall mean, with respect to any Person, any other
Person (other than an individual) directly or indirectly controlling, controlled
by, or under direct or indirect common control with, such Person. A Person shall
be deemed to control another Person if such Person possesses, directly or
indirectly, the power to direct or cause the direction of the management and
policies of such other Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agreement" shall mean this Employment Agreement.
"Base Salary" shall have the meaning provided in Section 4(a)
hereof.
"Change of Control" shall mean the occurrence of any of the
following: (i) the sale, lease or transfer, in one or a series of related
transactions, of all or at least 50% of the Employer's assets to any person or
group, other than to an entity in which the Employer beneficially owns over 50%
of the combined voting power; (ii) the adoption of a plan relating to the
reorganization, liquidation or dissolution of the Employer; or (iii) the merger
or consolidation of the Employer with or into another corporation.
"Disability" shall mean a condition which renders Employee
incapable of fully performing his duties pursuant to this Agreement for a period
of 180 days out of any 365-day period and which, in the written opinion of a
physician resident in the State of Florida of recognized ability and reputation
selected by Employer, who has examined Employee after such 180 days, renders
Employee unable to perform his duties under this Agreement at that time.
"Disability Termination" shall have the meaning provided in
Section 7 hereof.
"Employee" shall have the meaning provided in the introductory
paragraph hereof.
"Employer" shall have the meaning provided in the introductory
paragraph hereof.
"Employee Cause" shall mean (i) Employer has defaulted under
the terms of this Agreement and has failed to cure such default within twenty
(20) days after written notice by Employee of such default, (ii) Employee is
required, and is unwilling, to relocate outside Miami-Dade or Broward County,
Florida, (iii) there is a material reduction in Employee's duties, rights or
responsibilities under this Agreement, without his consent, and (iv) there is a
material decrease in the value of Employee's compensation and benefits package
from Employer, without his consent.
"Employee For Cause Termination" shall have the meaning
provided in Section 7 hereof.
"Employer Cause" shall mean (i) Employee has defaulted under
the terms of this Agreement and has failed to cure such default within twenty
(20) days after written notice by Employer of such default, (ii) Employee has
engaged in conduct that is materially injurious to Employer, ___ (iii) Employee
has committed a fraud on, or misappropriation of the assets of, Employer, (iv)
Employee has been convicted of, or entered a plea of nolo contendere to, a crime
that constitutes a felony, or (v) Employee's gross negligence, habitual neglect
or willful misconduct with respect to his duties and responsibilities hereunder.
"For Cause Termination" shall have the meaning provided in
Section 7 hereof.
"Information" shall have the meaning provided in the third
recital hereto.
"Limitation Period" shall mean the period commencing on the
date hereof and ending one year following the expiration of the Term hereof or
termination of Employee's employment with Employer for whatever reason.
"No Cause Termination" shall have the meaning provided in
Section 7 hereof.
2
"Person" shall mean any individual, partnership, corporation,
trust or other unincorporated association or entity.
"Term" shall have the meaning provided in Section 6 hereof.
"Voluntary Termination" shall have the meaning provided in
Section 7 hereof.
Section 2. Employment. Employer hereby employs Employee,
and Employee hereby accepts such employment, upon the terms and conditions set
forth herein.
Section 3. Scope of Employment. Employee shall be the Chief
Executive Officer of Employer and shall, to the best of his ability, perform all
services required and appropriate in connection therewith. Employee shall devote
his full working time to the performance of his responsibilities and duties as
Chief Executive Officer, and shall not, without the prior written consent of
Employer, engage in any other business activity, whether or not for gain, profit
or pecuniary advantage; provided however, that nothing contained herein shall
restrict Employee from managing his personal investments during his non-working
time to the extent that such activity shall not interfere with the performance
of Employee's duties hereunder.
Section 4. Compensation. In consideration for the due and
full performance by Employee of his duties and responsibilities hereunder,
Employee shall be compensated as follows:
(a) Salary. During the Term, Employer shall pay Employee a
gross annual salary in the amount of $180,000 ("Base Salary"), with annual
increases of ten percent (10 %) from the date of this Agreement. The Base Salary
shall be paid in accordance with Employer's payroll practices as in effect from
time to time but not less than monthly, subject to applicable state and federal
employment taxes and income tax withholding requirements.
(b) Reimbursement for Cellular Phone and Certain Out-of-Pocket
Expenses. Employer shall either pay directly for or reimburse the Employee up to
$125 for his monthly cellular phone xxxx charges incurred during the term of
this Agreement. The Employer shall also reimburse the Employee for all
reasonable expenses incurred by him in the performance of his duties hereunder
at the direction of Employer and which are accounted for in accordance with
Employer's expense guidelines and reimbursement procedures and practices as in
effect from time to time (including, without limitation, automobile, travel and
hotel).
(c) Benefit Plan. Employee shall be entitled to participate
in such medical, dental, disability, hospitalization, life insurance, profit
sharing and other benefit plans as Employer shall maintain from time to time for
the benefit of Employee officers of Employer on the terms and subject to the
conditions set forth in such plans.
(d) Bonus. In addition to basic salary, Employer be eligible
to receive yearly cash bonuses and stock options based upon sales growth and/or
net profits, and on a formula to be determined by and at the sole discretion of
the Employer but taking into consideration the Employee's contribution to the
sales growth and net profits.
3
Section 5. Vacation. Employee shall be entitled to four weeks
of paid vacation per year in addition to all Federal and Religious Holidays in
accordance with the Employer's vacation and holiday policy in effect from time
to time.
Section 6. Term of Employment. Except as otherwise provided
herein, the term of employment under this Agreement shall be three years,
commencing on the date this Agrement is executed and may be renewed for an
additional year if Employer so notifies Employee at least 120 days prior to the
commencement of such period (the initial period and any such renewal, the
"Term").
Section 7. Termination. Notwithstanding anything contained
in Section 6 hereof to the contrary, Employee's employment shall terminate upon
the earliest to occur of:
(i) termination by Employer as the result of
Employee's death or Disability ("Disability Termination");
(ii) termination by Employee voluntarily for any
reason other than Employee For Cause Termination upon 30 days
prior written notice to Employer ("Voluntary Termination");
(iii) termination by Employee for Employee Cause
("Employee For Cause Termination");
(iv) termination by Employer for Employer Cause
("For Cause Termination"); or
(v) termination by Employer for any reason
other than a Disability Termination or a For Cause Termination
("No Cause Termination");
Section 8. Results of Termination.
----------------------
(a) Termination As Result of Voluntary Termination or
For Cause Termination. If Employee's employment under this Agreement is
terminated as a result of a Voluntary Termination or a For Cause Termination,
Employee shall not thereafter be entitled to receive any Base Salary for periods
following such termination and shall not be entitled to receive any incentive,
bonus or other special compensation with respect to the year in which such
termination occurs or for any period thereafter; provided, however, that
Employee shall be entitled to receive any Base Salary that may be owed to
Employee but is unpaid as of the date on which Employee's employment is
terminated.
(b) Termination as a Result of No Cause Termination,
Employee For Cause Termination or Disability Termination Event. If Employee's
employment under this Agreement is terminated as a result of a No Cause
Termination, an Employee For Cause Termination or Disability Termination Event,
Employee (or at his death his surviving spouse and children) shall be entitled
to receive (i) any Base Salary that may be owed to Employee but is unpaid as of
the date on which Employee's employment is terminated, (ii) additional
compensation equal to 100% of the annual base salary applicable to the year in
which the Termination occurs, and (iii) for a period of one year from the date
of Employee's termination, such medical, dental and life insurance benefits that
Employee received while employed by the Employer; provided that such benefits
shall continue on the terms and subject to the conditions set forth in such
plans. The compensation referred to in (i) and (iii) above shall be paid in
4
equal installments at the same times Employee would have received salary
payments had he remained an employee, unless Employer elects to make such
payments sooner. The compensation referred to in (ii) above shall be paid in a
lump sum upon termination. The compensation referred to in (i), (ii) and (iii)
above (and any benefits under benefit plans as described in clause (d) below)
shall constitute the sole and exclusive compensation and remedy of Employee for
a No Cause Termination,an Employee For Cause Termination or Disbility
Termination Event hereunder.
(c) Termination as a Result of a Change of Control. If
Employee's employment under this Agreement is terminated as a result of a Change
of Control, Employee shall be entitled to receive (i) a single lump sum payment
equal to 200 % of Employee's Base Salary and (ii) for a period of six months
from the date of Employee's termination, such medical, dental and life insurance
benefits that Employee received while employed by the Employer; provided that
such benefits shall continue on the terms and subject to the conditions set
forth in such plans.
(d) Other Employee Benefit Plans and Arrangements. The
benefits, if any, payable to or on behalf of Employee upon his termination of
employment from Employer under any other employee benefit plans and arrangements
not specifically provided for herein shall be governed by the terms and
conditions for benefit payments set forth in such plans and arrangements.
Section 9. Covenants of Employee.
---------------------
(a) Confidentiality. Employee shall: (i) not use any
Information, however acquired, except for purposes of his employment with
Employer hereunder; (ii) not duplicate or replicate, or cause or permit to be
duplicated or replicated, any document or other material embodying Information
except as necessary for purposes of his employment with Employer; (iii) take all
steps necessary to prevent disclosure or unauthorized use of any Information;
and (iv) report forthwith to Employer any conduct or event coming to his
attention that appears to be a violation of or inconsistent with, the
proprietary rights Employer claims in the Information, and afford to Employer
reasonable cooperation in inquiring into and pursuing any such matter. Nothing
in this clause (a) shall restrain Employee with regard to information that
Employee can show: (x) was published or otherwise available in the industry at
the time of disclosure to Employee; or (y) became generally available in the
industry prior to Employee's unauthorized use or disclosure, in each case other
than by breach of a confidentiality agreement. However, specific information
shall not be deemed within any of the foregoing exceptions merely because it is
embraced by general information within an exception. Further, any combination of
features disclosed shall not be deemed within any such exception merely because
individual features are separately within such exception. Upon the expiration or
earlier termination of his employment for any reason whatsoever, Employee will
immediately deliver and surrender to Employer all materials of any nature
relating to Employer in his possession, including, but not limited to, all books
and records of Employer and other material whatsoever furnished to him by
Employer or produced by him during, and in the scope of, his employment with
Employer.
5
(b) Covenant not to Compete or Solicit. To ensure
the protection of Employer's legitimate business interests, Employee shall not:
(x) during the period commencing on the date
hereof until one year following the
expiration of the Term hereof or termination
of Employee's employment with Employer
for whatever reason, directly or indirectly,
solicit or induce or attempt to induce:
(i)any employee of Employer or any Affiliate
of Employer to leave his or her employment;
(ii) clients or customers of Employer or any
Affiliate of Employer to become clients or
customers of any other Person engaged in a
business similar to or in competition with
Employer or any Affiliate of Employer; or
(iii) suppliers, contractors or agents of
Employer or any Affiliate of Employer to
become suppliers, contractors or agents of
any other Person engaged in a business
similar to or in competition with Employer
or any Affiliate of Employer; or
(y) during the Limitation Period, directly or
indirectly,whether as shareholder, director,
partner, employee, agent or otherwise,
perform services similar to those
contemplated in this Agreement for any
Person that is engaged in a business similar
to or competitive with the business of
Employer or any Affiliate of Employer, in
any jurisdiction in which Employer or any
Affiliate currently or hereafter conducts
business; or
(z) during the Limitation Period, directly or
indirectly, whether as shareholder,
director, partner, employee, agent or
otherwise, engage in the ownership or
operation of any business which is similar
to or in competition with the business
conducted by Employer or by an Affiliate of
Employer engaged in a similar business at
the time of either the termination of
Employee's employment hereunder or the
expiration of this Agreement. For purposes
of this Section 9(b), Employer and its
Affiliates shall be deemed to be engaged, at
the time of termination of Employee's
employment hereunder or the expiration of
this Agreement, in any business in which
Employer has engaged at any time during the
Term of Employee's employment hereunder or
in which Employer proposes to engage at the
time of such termination or expiration.
If Employer retains the services of Employee after the expiration of this
Employment Agreement and the parties do not thereafter enter into another
written agreement, it is hereby mutually agreed that the terms of this Section
9(b) shall continue to govern the relations between Employer and Employee.
6
(c) Reformation of Restrictive Covenants. The covenants set
forth in Sections 9(a) and (b) are a material part of the bargain between the
parties. It is the intention of the parties that the provisions of Sections 9(a)
and (b) shall therefore be enforced to the fullest extent permissible under
Florida law. Thus, if any provision of Sections 9(a) and (b) shall be
adjudicated to be invalid or unenforceable because its duration or scope is
excessive, or the subject matter is excessively broad, such duration, scope or
subject matter shall be reduced or modified to the extent necessary to permit
the enforcement of such covenants to the broadest extent permissible under
Florida law.
(d) Breach of Covenants. Employee acknowledges that, upon any
breach by Employee of any one or more of the covenants set forth in this Section
9, Employer and its Affiliates will be irreparably damaged and entitled to
preliminary and permanent injunctive relief, with or without an allowance for
damages, as well as an accounting of all such earnings, profits and other
benefits arising from such breach, which remedies shall be cumulative and in
addition to any other remedies to which Employer and such Affiliates may be
entitled at law or in equity.
(e) Reasonableness. Employee acknowledges that he has
carefully read and considered the provisions of this Section 9 and, after having
done so, agrees that the restrictions set forth (including, but not limited to,
the time period of restrictions, scope of activity encompassed by the
restrictions and the geographical area restrictions) are fair and reasonable and
are reasonably necessary to protect the legitimate business interests of
Employer and its Affiliates.
Section 10. Employee's Right to Contract. Employee represents
and warrants to Employer (i) that this Agreement constitutes his valid and
binding obligation, enforceable against him in accordance with its terms; (ii)
that neither the execution nor the delivery of this Agreement nor the
performance by him of any of his covenants hereunder will constitute a default
under any contract, agreement or obligation to which he is a party or by which
he or any of his properties is bound; (iii) that there are no lawsuits,
arbitration actions or other proceedings (equitable, legal, administrative or
otherwise) pending or (to the best of his knowledge) threatened which could
adversely affect the validity or enforceability of this Agreement or his
obligation or ability to perform his obligations hereunder; and (iv) that no
consent, approval or authorization of, or notification to, any governmental
entity or any other Person is required in connection with the execution,
delivery or performance of this Agreement by him.
Section 11. Miscellaneous.
-------------
(a) No Assignment. This Agreement may not be assigned
by Employee without the prior written consent of Employer, but may be assigned
by Employer to an Affiliate of Employer without the consent of Employee.
(b) Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the parties hereto, and their respective heirs,
executors, successors, administrators and permitted assigns.
(c) Entire Agreement. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof. This
Agreement supersedes all prior representations, agreements and understandings
among the parties with respect to such subject matter.
7
(d) Governing Law; Jurisdiction. This Agreement shall be
construed and enforced in all respects in accordance with the laws of the State
of Florida. Any court proceeding relating to this Agreement or its subject
matter shall be brought in federal or state court situated in the County of
Miami-Dade, State of Florida. The parties hereby waive any objection they may
have in any such action based on lack of personal jurisdiction, improper venue,
or inconvenient forum.
(e) Notices. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be in writing
and shall be deemed to be duly given when delivered in person, or when sent by
telex or telecopy or other facsimile transmission (with the receipt confirmed),
or on the third business day after posting thereof in the mails, addressed as
follows (or at such other address as the parties may designate by written notice
in the manner aforesaid):
If to Employer:
Panther Telecommunications Corporation
0000 X.X. 00xx Xxx., Xxxxx 000
Xxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Attention: Xxxxxx Xxxxxxxxx
If to Employee:
Panther Telecommunications Corporation
0000 X.X. 00xx Xxx., Xxxxx 000
Xxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Attention: Xxxxxx Xxxxxxx
(f) Amendments. Neither this Agreement nor any of the terms
hereof may be changed, waived, discharged or terminated, unless such change,
waiver, discharge or termination is in writing signed by the parties hereto.
(g) Construction. This Agreement shall be interpreted without
regard to any presumption or rule requiring construction against the party
causing this Agreement to be drafted.
(h) Severability. If any provision of this Agreement shall be
held to be unenforceable in whole or in part, then the invalidity of such
provision shall not be held to invalidate any other provision herein and all
such other provisions shall remain in full force and effect.
8
(i) Counterparts. This Agreement may be executed in one or
more counterparts, including facsimile counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the same
agreement.
(j) Captions. The captions contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit or extend
the scope or intent of this Agreement or any provision hereof.
(k) Survival of Representations, Warranties and Covenants.
All representations, warranties and covenants made by the parties in this
Agreement or pursuant hereto shall survive the termination or expiration of this
Agreement.
(l) No Waiver. The failure to enforce at any time any of the
provisions of this Agreement or to require at any time performance by the other
party of any of the provisions hereof shall in no way be construed to be a
waiver of such provisions or to affect the validity of this Agreement, or any
part thereof, or the right of either party thereafter to enforce each and every
such provision in accordance with the terms of this Agreement.
(m) Attorneys' Fees. In the event any litigation is instituted
by either party arising out of a breach of any provisions of this Agreement,
including but not limited to a breach under Section 9 hereof, the prevailing
party shall be entitled to its reasonable court costs and attorneys' fees at all
trial and appellate levels.
[SIGNATURES FOLLOW ON NEXT PAGE]
9
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first written above.
Employer:
PANTHER TELECOMMUNICATIONS CORPORATION
By:
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director
By:
-----------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Director
By:
-----------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Director
By:
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Director
Employee:
By:
-----------------------------------
Name: Xxxxxx Xxxxxxx
10
