EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of April 1, 1993, is
entered into between Redgate Communications Corporation, a Delaware corporation
(the "Company"), and Xxxxxxxx X. Leonsis (the "Employee").
RECITAL
The Company desires to employ the Employee and the Employee is willing to
accept such employment, on the terms and subject to the conditions set forth in
this Agreement.
AGREEMENT
In consideration of the recital and of the mutual promises set forth in
this Agreement, the Company and the Employee agree as follows:
1. Termination of Prior Agreement. The Employment Agreement between the
Company and the Employee, dated April 1, 1991, is hereby superseded and
terminated in its entirety by this Agreement as of the date of this Agreement.
2. Employment. The Company shall employ the Employee and the Employee
accepts such employment, upon the terms and subject to the conditions set forth
in this Agreement.
3. Term and Termination. The Employee understands, acknowledges and
agrees that his employment with the Company is for an unspecified duration and
constitutes "at-will" employment. The Employee acknowledges and agrees that
this employment relationship may be terminated at any time, with or without
cause.
The Employee understands and agrees that his satisfactory performance of
the duties designated by the Company is the sole consideration for the salary
and benefits paid by the Company. The Employee further understands and agrees
that neither his job performance (whether satisfactory or exemplary) nor
promotions, commendations, bonuses, stock, stock rights, or the like from the
Company give rise to or establish an obligation on the part of either the
Company or the Employee to continue his employment or in any way serve as the
basis for modification, amendment, or extension, by implication or otherwise, of
this Employment Agreement. This Employment Agreement cannot be modified,
amended, or extended except in writing executed by the Company and by Employee.
4. Duties. During the term of this Agreement, the Employee shall serve
as the President and Chief Executive Officer of the Company as well as Chairman
of the Board of Directors and shall serve the Company in such other capacities
as may be determined by the Board of Directors of the Company from time to time,
and shall perform such administrative, managerial, development, production,
marketing, research and other duties as are reasonable and commensurate with the
Employee's position with the Company and as may be assigned to him by the Board
of Directors of the Company or a committee thereof from time to time. Except as
set forth in Schedule 4, the Employee shall devote his full time and energies to
the business and affairs of the Company and shall use his best efforts, skills
and abilities to perform his duties under this Agreement.
5. Compensation. During the term of this Agreement, the Employee shall
be compensated as set forth in this Section 5.
(a) Base Compensation. The Company shall pay to the Employee, and
the Employee shall accept from the Company, as compensation for the performance
of his duties under this Agreement, a salary at such rate as may be fixed from
time to time by the Board of Directors of the Company, but in no event less than
rate of $195,000 per year (the "Base Compensation"). The Employee's salary
shall be payable biweekly in substantially equal installments, or at more
frequent, or, in the event that the Company's other executive officers are paid
less frequently, less frequent, intervals, as the Board of Directors may
determine.
(b) Fringe Benefits. For so long as Employee is employed by the
Company, Employee shall be entitled to receive all standard fringe benefits,
including without limitation, vacation benefits, offered by the Company to all
employees. Employee shall further be entitled to continue to receive, and the
Company shall be obligated to continue to provide to Employee at the Company's
expense, all fringe benefits currently being received by Employee from the
Company which are set forth on Schedule 5(b).
6. Representation of Employee. The Employee represents and warrants that
the Employee is not a party to, or bound by, any agreement or commitment, or
subject to any restriction, including but not limited to agreements related to
previous employment containing confidentiality or noncompete covenants, which in
the future may have a possibility of adversely affecting the business of the
Company or the performance by the Employee of his duties under this Agreement.
7. Confidentiality. The Employee reaffirms the terms and conditions of
his Confidential information and Nondisclosure Agreement, of even date herewith,
with the Company.
8. Non-Competition. The Employee agrees that during the term of this
Agreement and for a period of one year following the termination of the
Employee's employment with the Company, the Employee will not, directly or
indirectly as long as the Company is paying Employee his termination benefits:
(a) as an individual proprietor, partner, stockholder, officer,
employee, director, consultant, agent, joint venturer, investor, lender, or in
any other capacity whatsoever, alone or in association with others, own, manage,
operate, control or participate in the ownership, management, operation or
control of, or work for or permit the use of his name by, or be connected in any
manner with, any business activity which is in competition with any business of
the Company or any of its subsidiaries in any state of the United States in
which the Company or any of its subsidiaries transacts business on the date of
the termination of this Agreement;
(b) recruit or otherwise solicit or induce any person (natural or
otherwise) who is at the time an employee of the Company to terminate his or her
employment with, or otherwise cease his or her relationship with, the Company or
any of its subsidiaries, or hire any such employee who has left the employ of
the Company within one year after termination of such employee's employment with
the Company; or
(c) solicit any person (natural or otherwise) who is or who had been
a customer of the Company or any of its subsidiaries at any time during the term
of this Agreement.
The restrictions against competition set forth above are considered by the
parties to be reasonable for the purposes of protecting the business of the
Company. If any such restriction is found by any court of competent
jurisdiction to be unenforceable because it extends for too long a period of
time or over too broad a range of activities or in too large a geographic area,
however, such restriction shall be interpreted to extend only over the maximum
period of time, range of activities or geographic area as to which it may be
enforceable.
9. Remedies. The Employee acknowledges that the Company would be
irreparably harmed and that monetary damages would not provide an adequate
remedy in the event of a breach of the provisions of Sections 7 or 8.
Accordingly, the Employee agrees that, in addition to any other remedies
available to the Company, the Company shall be entitled to specifically enforce
the provisions of Sections 7 or 8. In the event of such a breach, in addition
to any other remedies available to the Company, the Company shall be entitled to
receive from the Employee payment of, or reimbursement for, the Company's
reasonable attorneys' fees and disbursements incurred in enforcing any such
provision.
10. Termination. This Agreement may be terminated by the election of
either party hereto or upon the occurrence of any of the events set forth in and
subject to the terms of this Section 10.
(a) Death. This Agreement will terminate upon the death of the
Employee.
(b) Disability. This Agreement may be terminated at the Company's
option, immediately upon notice to the Employee, if the Employee shall suffer a
permanent disability. For the purposes of this Agreement, the term "permanent
disability" shall mean the Employee's inability to perform the Employee's duties
under this Agreement for a period of any six consecutive months due to illness,
accident or any other physical or mental incapacity.
(c) Without Cause. This Agreement may be terminated at either
party's option for any reason or no reason.
(d) Cause. This Agreement may be terminated at the Company's option,
immediately upon notice to the Employee, upon the Employee's: (i) breach of any
material provision of this Agreement; (ii) willful refusal to perform a duty
directed by the Board of Directors of the Company or a committee thereof which
is reasonably within the scope of the Employee's duties; (iii) substantive
misappropriation for personal use of assets or business opportunities of the
Company; (iv) commission of a felony; (v) gross negligence or willful
malfeasance in discharging the Employee's obligations under this Agreement; or
(vi) the good faith determination by the Board of Directors of the Company that
the Employee has failed or is unable to competently and adequately perform his
duties under this Agreement.
(e) Effect of Termination. In the event of any termination under
this Section 10, the Company shall have no further obligation under this
Agreement to make any payments to, or bestow any benefits on, the Employee from
and after the date of the termination, other than payments or benefits accrued
and due and payable to him prior to the date of the termination; provided,
however, that in the event of a termination under Sections 10(a) (b) or (c), the
Employee shall be entitled to continue to receive salary at his then current
base salary in accordance with the Provisions of Section 5 for the twelve-month
period beginning with the date of termination, and shall be provided the
opportunity to remain covered by any or all (at Employee's option) of the
Company's benefit plans applicable to Employee at the date of such termination,
including without limitation, any of the Company's group or individual insurance
plans, provided the Employee bears all expenses related to such continued
benefit plans (which expenses, at the Company's option, may be offset against
the foregoing severance payment or any other amount owed by the Company for the
account of the Employee), and provided that the terms of any such benefit plans
permit such continued insurance coverage of the Employee after such termination.
The Employee will also continue to receive his car allowance of $800 per month,
which is currently treated as income.
11. Miscellaneous.
(a) Survival. The provisions of Sections 7 and 8 shall survive the
termination of this Agreement.
(b) Entire Agreement. This Agreement sets forth the entire
understanding of the parties and merges and supersedes any prior or
contemporaneous agreements between the parties pertaining to the subject matter
hereof, including the prior employment agreement dated April 1, 1991 which, as
provided above in Section 1, is superseded and terminated in its entirety as of
the date of this Agreement.
(c) Modification. This Agreement may not be modified or terminated
orally, and no modification, termination or attempted waiver of any of the
provisions hereof shall be binding unless in writing and signed by the party
against whom the same is sought to be enforced; provided, however, that
Employee's compensation may be increased at any time by the Company without in
any way affecting any of the other terms and conditions of this Agreement, which
in all other respects shall remain in full force and effect.
(d) Waiver. Failure of a party to enforce one or more of the
provisions of this Agreement or to require at any time performance of any of the
obligations hereof shall not be construed to be a waiver of such provisions by
such party nor to in any way affect the validity of this Agreement or such
party's right thereafter to enforce any provision of this Agreement, nor to
preclude such party from taking any other action at any time which it would
legally be entitled to take.
(e) Successors and Assigns. Neither party shall have the right to
assign this personal Agreement, or any rights or obligations hereunder, without
the consent of the other party; provided, however, that upon the sale of all or
substantially all of the assets, business and goodwill of the Company to another
company, or upon the merger or consolidation of the Company with another
company, this Agreement shall inure to the benefit of, and be binding upon, both
Employee and the company purchasing such assets, business and good will, or
surviving such merger or consolidation, as the case may be, in the same manner
and to the same extent as though such other company were the Company. Subject
to the foregoing, this Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their legal representatives, heirs, successors and
assigns.
(f) Additional Acts. The Employee and the Company each agrees to
execute, acknowledge and deliver and file, or cause to be executed, acknowledged
and delivered and filed, any and all further instruments, agreements or
documents as may be necessary or expedient in order to consummate the
transactions provided for in this Agreement and do any and all further acts and
things as may be necessary or expedient in order to carry out the purpose and
intent of this Agreement.
(g) Communications. All notices, requests, other communications
under this Agreement shall be in writing and shall be deemed to have been given
at the time personally delivered or when mailed in any United States post office
enclosed in a registered or certified postage prepaid envelope and addressed to
the addresses set forth below, or to such other address as any party may specify
by notice to the other party; provided, however, that any notice of change of
address shall be effective only upon receipt.
To the Company: Redgate Communication Corporation
000 Xxxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
To the Employee: Xxxxxxxx X. Leonsis
000 Xxx Xxxxxx Xxxxx
Xxxx of Orchid
Xxxx Xxxxx, Xxxxxxx 00000
(h) Severability. If any provision of this Agreement is held to be
invalid or unenforceable by a court of competent jurisdiction, such invalidity
or unenforceability shall not affect the validity and enforceability of the
other provisions of this Agreement and the provision held to be invalid or
unenforceable shall be enforced as nearly as possible according to its original
terms and intent to eliminate such invalidity or unenforceability.
(i) Jurisdiction; Venue. Any suit, action or proceeding with respect
to this Agreement, or any judgment entered by any court in respect hereof may be
brought in the courts of the State of Florida or in the U.S. District Court for
the Southern District of Florida, and the parties hereby accept the nonexclusive
jurisdiction of those courts for the purpose of any suit, action or proceeding.
In addition, the parties hereto irrevocably waive, to the fullest extent
permitted by law, any objection which they may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Agreement, or any judgment entered by any court in respect hereof brought
in the State of Florida, and further irrevocably waive any claim that any suit,
action or proceeding brought in the State of Florida has been brought in an
inconvenient forum.
(j) Governing Law. This Agreement is made and executed and shall be
governed by the laws of the State of Florida, excluding rules relating to
conflict of laws.
IN WITNESS WHEREOF, each of the parties hereto have duly executed this
Agreement as of the date set forth above.
REDGATE COMMUNICATION CORPORATION
By:/S/XXXX X. XXXXXXXXXX
Its: Director, Chairman Compensation Committee
/S/XXXXXXXX X. LEONSIS 2/12/94
Xxxxxxxx X. Leonsis
