EMPLOYMENT AGREEMENT
AGREEMENT made the 15th day of January, 1997 by and between
TLM Holdings Corp., a Delaware corporation (the "Company"), and Xxx Xxxxxxxxx
(the "Employee").
W I T N E S S E T H :
WHEREAS, the Company wishes to assure itself of the services
of the Employee, and the Employee wishes to serve in the employ of the Company,
upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter set forth, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Employment, Term.
1.1 The Company agrees to employ the
Employee, and the Employee agrees to serve in the employ of the Company, for the
term set forth in Section 1.2, in the position and with the responsibilities,
duties and authority set forth in Section 2 and on the other terms and
conditions set forth in this Agreement.
1.2 The term of the Employee's employment
under this Agreement shall be the period commencing on the date hereof and
continuing through January 14, 2002, unless sooner terminated in accordance with
this Agreement.
1.3 The parties hereto acknowledge that the
Company may designate another direct or indirect wholly owned subsidiary of the
Company to employ the Employee and to perform this Agreement in the same manner
and to the same extent that the Company would be required to perform this
Agreement, so long as the Company remains an unconditional guarantor of its
obligations hereunder.
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2. Position, Duties. The Employee shall serve as President of
the TeleManagement Services Division of the Company and of TLM Acquisition
Corp., a Delaware corporation which is a wholly owned subsidiary of the
Company,and shall have such duties and responsibilities consistent with such
position as are reasonably requested of him by the President of the Company. The
Employee shall perform his duties and responsibilities hereunder faithfully and
diligently. The Employee shall report to the President of the Company. The
Employee shall devote his full business time and attention to the performance of
his duties and responsibilities hereunder. The Employee hereby represents that
he is not bound by any confidentiality agreements or restrictive covenants which
restrict or may restrict his ability to perform his duties hereunder, and agrees
that he will not enter into any such agreements or covenants during the term of
his employment hereunder, except such restrictive covenants or confidentiality
agreements which are required by the Company.
3. Compensation.
3.1 Base Salary. During the term of this Agreement, in
consideration of the performance by the Employee of the services set forth in
Section 2 and his observance of the other covenants set forth herein, the
Company shall pay the Employee, and the Employee shall accept, a base salary at
the rate of $150,000 per annum, payable in accordance with the standard payroll
practices of the Company, but in no event less than semi-monthly. In addition to
the base salary payable hereunder, the Employee may be entitled to receive merit
increases in salary during the term hereof in amounts and at such times as shall
be determined by the President of the Company and the Board of Directors of the
Company in an annual review of the Employee. In no event shall the failure to
grant any such increase (or the amount of any such increase) give rise to a
claim by the Employee under this Agreement.
3.2 Bonus. During the term of the Employee's employment by the
Company pursuant to this Agreement, the Employee shall be eligible to receive an
annual bonus of up to
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25% of his annual salary based upon the achievement of certain performance
objectives established annually by the President of the Company. The performance
objectives for 1997 are set forth in Exhibit A attached hereto. Bonuses, if
earned, shall be paid in accordance with the standard practices of the Company
for the payment of bonuses, but in no event later than March 31 of the following
year.
4. Expense Reimbursement. During the term of the Employee's
employment by the Company pursuant to this Agreement, consistent with the
Company's reasonable policies and procedures as may be in effect from time to
time, the Company shall reimburse the Employee for all reasonable and necessary
out-of-pocket expenses incurred by him in connection with the performance of his
duties hereunder, upon the presentation of proper accounts therefor in
accordance with the Company's policies. The Company agrees that the Employee
shall have an expense account with the Company of up to $2,000 per month
(exclusive of travel) for properly documented business-related expenses.
5. Other Benefits. During the term of the Employee's
employment by the Company pursuant to this Agreement, the Employee shall be
entitled to receive four (4) weeks paid vacation time per annum and such other
benefits and customary medical and life insurance as are from time to time made
available to other similarly situated employees of the Company, on the same
terms as are available to such similarly situated employees, it being understood
that, except for health insurance for the Employee and his family, which the
Company shall pay for in full for the Company's standard plan, the Employee
shall be required to make the same contributions and payments in order to
receive any of such benefits as may be required of such similarly situated
employees.
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6. Termination of Employment.
6.1 Death. In the event of the death of the
Employee during the term of this Agreement, the Company shall pay to the estate
or other legal representative of the Employee (x) the salary provided for in
Section 3.1 (at the annual rate then in effect) accrued to the Employee's date
of death and not theretofore paid, (y) the Bonus, if it has been determined and
earned in accordance with Section 3.2 but not yet paid, and (z) any expense
reimbursement due to the Employee pursuant to Section 4 but not yet paid, and
the estate or other legal representative of the Employee shall have no further
rights under this Agreement. Rights and benefits of the Employee, his estate or
other legal representative under the employee benefit plans and programs of the
Company, if any, will be determined in accordance with the terms and provisions
of such plans and programs.
6.2 Disability. If the Employee shall
become incapacitated by reason of sickness, accident or other physical or mental
disability and shall for a period of ninety (90) consecutive days be unable to
perform his normal duties hereunder, with or without reasonable accommodation,
the employment of the Employee hereunder may be terminated by the Company upon
ten (10) days' prior written notice to the Employee. Within thirty (30) days
after such termination, the Company shall pay to the Employee (x) the salary
provided for in Section 3.1 (at the annual rate then in effect) accrued to the
date of such termination and not theretofore paid, (y) the Bonus, if it has been
determined and earned in accordance with Section 3.2 but not yet paid, and (z)
any expense reimbursement due to the Employee pursuant to Section 4 but not yet
paid. Rights and benefits of the Employee, his estate or other legal
representative under the employee benefit plans and programs of the Company, if
any, will be determined in accordance with the terms and provisions of such
plans and programs. Neither the Employee nor the Company shall have any further
rights or obligations under this Agreement, except as provided in Sections 7, 8
and 9.
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6.3 Due Cause. The employment of the
Employee hereunder may be terminated by the Company at any time during the term
of this Agreement for Due Cause (as hereinafter defined). In the event of such
termination, the Company shall pay to the Employee (x) the salary provided for
in Section 3.1 (at the annual rate then in effect) accrued to the date of such
termination and not theretofore paid to the Employee, (y) the Bonus, if it has
been determined and earned in accordance with Section 3.2 but not yet paid, and
(z) any expense reimbursement due to the Employee pursuant to Section 4 but not
yet paid, and, after the satisfaction of any claim of the Company against the
Employee arising as a direct and proximate result of such Due Cause, neither the
Employee nor the Company shall have any further rights or obligations under this
Agreement, except as provided in Sections 7, 8 and 9. Rights and benefits of the
Employee, his estate or other legal representative under the employee benefit
plans and programs of the Company, if any, will be determined in accordance with
the terms and provisions of such plans and programs. For purposes hereof, "Due
Cause" shall mean (a) a material breach of any of the Employee's obligations
hereunder (it being understood that any breach of the provisions of Sections 7
or 8 hereof shall be considered material); or (b) that the Employee, in carrying
out his duties hereunder, has been guilty of (i) willful or gross neglect or
(ii) willful or gross misconduct, resulting in either case in material harm to
any member of the Company Group (as hereinafter defined); or (c) that the
Employee has been convicted of the commission of or entered a plea of nolo
contendere with respect to (i) a felony or (ii) any crime or offense involving
moral turpitude (provided that the Company may, in its sole discretion, suspend
the Employee during the period from the date of charge or indictment until the
date of conviction or other conclusion of criminal proceedings and provided
further that if the Employee is not convicted or does not enter a plea of nolo
contendere he will be entitled to full back pay). In the event of an occurrence
under this Section 6.3, the Employee shall be given written notice by the
Company that it intends to terminate the Employee's employment for Due Cause
under this Section, which written notice shall specify the act or acts upon the
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basis of which the Company intends so to terminate the Employee's employment. If
the basis for such written notice is an act or acts described in clause (a)
above and not involving moral turpitude, the Employee shall be given thirty (30)
days to cease or correct the performance (or nonperformance) giving rise to such
written notice and, upon failure of the Employee within such thirty (30) days to
cease or correct such performance (or nonperformance), the Employee's employment
by the Company shall automatically be terminated hereunder for Due Cause.
6.4 Other Termination by the Company. The
Company may terminate the Employee's employment at anytime after January 15,
2000 and prior to the expiration of the term of this Agreement for whatever
reason it deems appropriate; provided, however, that in the event that such
termination is not pursuant to Sections 6.1, 6.2 or 6.3, the Company shall pay
to the Employee (or his estate or other legal representative in the case of the
death of the Employee subsequent to such termination), (x) in the same periodic
installments as his annual salary was paid, the salary provided for in Section
3.1 (at the annual rate then in effect) until the earlier of (a) the then
scheduled expiration of the term hereof or (b) six (6) months following the date
of such termination and (y) any expense reimbursement due to the Employee
pursuant to Section 4 but not yet paid. Rights and benefits of the Employee, his
estate or other legal representative under the employee benefit plans and
programs of the Company, if any, will be determined in accordance with the terms
and provisions of such plans and programs. Neither the Employee nor the Company
shall have any further rights or obligations under this Agreement, except as
provided in Sections 7, 8 and 9.
7. Confidential Information.
7.1 (a) The Employee shall, during the
Employee's employment with the Company and for a period of two years thereafter,
treat all confidential material (as hereinafter defined) of the Company or any
of the Company's subsidiaries, affiliates or parent entities (the Company and
the Company's subsidiaries, affiliates and parent entities
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being hereinafter collectively referred to as the "Company Group")
confidentially. The Employee shall not, without the prior written consent of the
President of the Company, disclose such confidential material, directly or
indirectly, to any party, who at the time of such disclosure is not an employee
or agent of any member of the Company Group, or remove from the Company's
premises other than for proper business purposes any notes or records relating
thereto, copies or facsimiles thereof (whether made by electronic, electrical,
magnetic, optical, laser, acoustic or other means), or any other property of any
member of the Company Group. The Employee agrees that all confidential material,
together with all notes and records of the Employee relating thereto, and all
copies or facsimiles thereof in the possession of the Employee (whether made by
the foregoing or other means) are the exclusive property of the Company. The
Employee shall not in any manner use any confidential material of the Company
Group, or any other property of any member of the Company Group, in any manner
not specifically directed by the Company.
(b) For the purposes hereof, the term
"confidential material" shall mean all information in any way concerning the
activities, business or affairs of any member of the Company Group or any of the
customers of any member of the Company Group, including, without limitation,
information concerning trade secrets, together with all sales and financial
information concerning any member of the Company Group and any and all
information concerning projects in research and development or marketing plans
for any products or projects of the Company Group, and all information
concerning the practices and customers of any member of the Company Group, and
all information in any way concerning the activities, business or affairs of any
of such customers, as such, which is furnished to the Employee by any member of
the Company Group or any of its agents or customers, as such, or otherwise
acquired by the Employee in the course of the Employee's employment with the
Company; provided, however, that the term "confidential material" shall not
include information which (i) is or becomes generally available to the public
other than as a result of a disclosure by the Employee, (ii) was available to
the
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Employee prior to his employment with any member of the Company Group, or
(iii) becomes available to the Employee on a non-confidential basis from a
source other than any member of the Company Group or any of its agents or
customers, as such, provided that such source is not bound by a confidentiality
agreement with any member of the Company Group or any of such agents or
customers.
7.2 Promptly upon the request of the
Company, the Employee shall deliver to the Company all confidential material
relating to any member of the Company Group in the possession of the Employee
without retaining a copy thereof (provided, however, that the Employee shall be
entitled to retain a list of such confidential material so long as the form of
such list is reasonably acceptable to the Company), unless, in the written
opinion of counsel for the Company delivered to the Employee, either returning
such confidential material or failing to retain a copy thereof would violate any
applicable Federal, state, local or foreign law, in which event such
confidential material shall be returned without retaining any copies thereof as
soon as practicable after such counsel advises in writing to the Employee that
the same may be lawfully done.
7.3 In the event that the Employee is
required, by oral questions, interrogatories, requests for information or
documents, subpoena, civil investigative demand or similar process, to disclose
any confidential material relating to any member of the Company Group, the
Employee shall provide the Company with prompt notice thereof so that the
Company may seek an appropriate protective order and/or waive compliance by the
Employee with the provisions hereof; provided, however, that if in the absence
of a protective order or the receipt of such a waiver, the Employee is compelled
to disclose confidential material not otherwise disclosable hereunder to any
legislative, judicial or regulatory body, agency or authority, or else be
exposed to liability for contempt, fine or penalty or to other censure, such
confidential material may be so disclosed.
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8. Non-Competition.
8.1 The Employee acknowledges that the
services to be rendered by him to the Company are of a special and unique
character. The Employee agrees that, in consideration of his employment
hereunder, the Employee will not, (a) during the term of this Agreement so long
as he is employed pursuant to this Agreement (provided, however, that (L) if the
Employee's employment pursuant to this Agreement is terminated for due cause (as
defined in Section 6.3), or (M) if the Employee voluntarily resigns his position
under this Agreement prior to the end of its term or (N) if at the end of the
term of this Agreement, there is no renewal of this Agreement or (O) if the
Employee's employment is terminated by the Company pursuant to Section 6.4
hereunder subsequent to January 15, 2000, then the length of this
non-competition covenant shall be for an additional period of two years from the
date of such termination of the Employee's employment), directly or indirectly,
(w) engage, whether as principal, agent, investor, distributor, representative,
stockholder, employee, consultant, volunteer or otherwise, with or without pay,
in any activity or business venture, which is competitive with the Business (as
defined in the Purchase Agreement (as hereinafter defined)) on the date hereof
or any other business of the Company which the Employee has operational or
administrative responsibility for during his employment with the Company, (x)
solicit or entice or endeavor to solicit or entice away from any member of the
Company Group any person who was or is at the time of solicitation, a director,
officer, employee, agent or consultant of such member of the Company Group, on
the Employee's own account or for any person, firm, corporation or other
organization, whether or not such person would commit any breach of such
person's contract of employment by reason of leaving the service of such member
of the Company Group, (y) solicit or entice or endeavor to solicit or entice
away any of the clients or customers of any member of the Company Group, either
on the Employee's own account or for any other person, firm, corporation or
organization, or (z) employ any person who was or is at the time of
solicitation, a director, officer or employee of any
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member of the Company Group or any person who is or may be likely to be in
possession of any confidential information or trade secrets relating to the
business of any member of the Company Group, or (b) at any time take any action
or make any statement the effect of which would be, directly or indirectly, to
impair the goodwill of any member of the Company Group or the business
reputation or good name of any member of the Company Group, or be otherwise
detrimental to the Company, including any action or statement intended, directly
or indirectly, to benefit a competitor of any member of the Company Group.
Notwithstanding anything to the contrary contained in this
Section 8, it is understood and agreed that the Employee shall be permitted,
subsequent to any termination of his employment with the Company, to work in a
managerial, sales and/or marketing position for a pharmaceutical company.
For purposes hereof, the "Company Group" shall mean,
collectively, the Company and the Company's subsidiaries, affiliates and parent
entities operating in the same lines of business.
8.2 The Employee and the Company agree that
if, in any proceeding, the court or authority shall refuse to enforce the
covenants herein set forth because such covenants cover too extensive a
geographic area or too long a period of time or any other reason, any such
covenant shall be deemed appropriately amended and modified in keeping with the
intention of the parties to the maximum extent permitted by law.
8.3 The Employee expressly acknowledges and
agrees that the covenants and agreements set forth in this Section 8 are
reasonable in all respects, and necessary in order to protect, maintain and
preserve the value and goodwill of the Company Group, as well as the proprietary
and other legitimate business interests of the members of the Company Group. The
Employee acknowledges and agrees that the covenants and agreements of the
Employee set forth in this Section 8 constitute a significant part of the
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consideration given by the Employee to the Company in exchange for the salary
and benefits provided for in this Agreement, and are a material reason for such
payment, although in no event shall the Employee be obliged or requested to
return any salary or benefits unless any breach by the Employee of the covenants
and agreements of the Employee set forth in this Section 8 shall include the
Employee's association (as employer, joint venturer, etc.) with any of the
current or former employees of the Company in a competitive endeavor or the
Employee's servicing or doing business with any of the customers or clients of
the Company.
9. Equitable Relief. In the event of a breach or threatened
breach by the Employee of any of the provisions of Sections 7 or 8 of this
Agreement, the Employee hereby consents and agrees that the Company shall be
entitled to pre-judgment injunctive relief or similar equitable relief
restraining the Employee from committing or continuing any such breach or
threatened breach or granting specific performance of any act required to be
performed by the Employee under any of such provisions, without the necessity of
showing any actual damage or that money damages would not afford an adequate
remedy and without the necessity of posting any bond in excess of $50,000. The
parties hereto hereby consent to the jurisdiction of the federal courts located
in the Southern District of Florida and the state courts located in such
District for any proceedings under this Section 9. Nothing herein shall be
construed as prohibiting the Company from pursuing any other remedies at law or
in equity which it may have, other than seeking a return of salary or benefits,
except in the circumstances described in the last sentence of Section 8.3.
10. Successors and Assigns.
10.1 Assignment by the Company. Subject to
the Employee's consent, which shall not be unreasonably withheld, the Company
may assign this Agreement to any member of the Company Group or to any entity
which acquires substantially all the assets and business of the Company. As used
in this Section, the "Company" shall mean
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the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law and this Agreement shall be
binding upon, and inure to the benefit of, the Company, as so defined.
10.2 Assignment by the Employee. The
Employee may not assign this Agreement or any part hereof without the prior
written consent of the President of the Company; provided, however, that nothing
herein shall preclude one or more beneficiaries of the Employee from receiving
any amount that may be payable following the occurrence of his legal
incompetency or his death and shall not preclude the legal representative of his
estate from receiving such amount or from assigning any right hereunder to the
person or persons entitled thereto under his will or, in the case of intestacy,
to the person or persons entitled thereto under the laws of intestacy applicable
to his estate.
11. Governing Law. This Agreement shall be deemed a contract
made under, and for all purposes shall be construed in accordance with, the laws
of the State of Florida applicable to contracts to be performed entirely within
such State.
12. Entire Agreement. This Agreement is entered into pursuant
to an agreement of purchase and sale dated as of January 1, 1997 by and among
the Company, TeleManagement Services, Inc., a Florida corporation, and the
Employee (the "Purchase Agreement"). This Agreement and the other agreements
executed contemporaneously herewith and therewith contain all the understandings
and representations between the parties hereto pertaining to the subject matter
hereof and supersede all undertakings and agreements, whether oral or in
writing, if there be any, previously entered into by them with respect thereto;
provided, however, that Sections 7 and 8 shall not serve as a limitation of the
terms of any other non-competition agreement between the Employee and any member
of the Company Group. No modification of this Agreement shall be effective
unless in writing and signed by the party against which enforcement is sought to
be enforced. Any oral agreements or representations respecting the transactions
contemplated by the Purchase Agreement, not reduced to writing in the Purchase
Agreement or in any of the documents referred to therein (including this
Agreement), are null and void.
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13. Modification and Amendment; Waiver. The provisions of this
Agreement may be modified, amended or waived, but only upon the written consent
of the party against whom enforcement of such modification, amendment or waiver
is sought and then such modification, amendment or waiver shall be effective
only to the extent set forth in such writing. No delay or failure on the part of
any party hereto in exercising any right, power or remedy hereunder shall effect
or operate as a waiver thereof, nor shall any single or partial exercise thereof
or any abandonment or discontinuance of steps to enforce such right, power or
remedy preclude any further exercise thereof or of any other right, power or
remedy.
14. Notices. All notices, requests or instructions hereunder
shall be in writing and delivered personally, sent by telecopier or sent by
registered or certified mail, postage prepaid, as follows:
If to the Company:
c/o Foster Management Company
0000 Xxxx Xxxxx Xxxxxx
Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: President
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
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If to the Employee:
Xxx X. Xxxxxxxxx
4901 Northwest 00 Xxx, Xxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxxx, P.A.
000 Xxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Any of the above addresses may be changed at any time by notice given as
provided above; provided, however, that any such notice of change of address
shall be effective only upon receipt. All notices, requests or instructions
given in accordance herewith shall be deemed received on the date of delivery,
if hand delivered or telecopied, and two business days after the date of
mailing, if mailed.
15. Severability. Should any provision of this Agreement be
held by a court of competent jurisdiction to be enforceable only if modified,
such holding shall not affect the validity of the remainder of this Agreement,
the balance of which shall continue to be binding upon the parties hereto with
any such modification to become a part hereof and treated as though originally
set forth in this
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Agreement. In any event, should one or more of the provisions of this Agreement
be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions hereof, and
if such provision or provisions are not modified as provided above, this
Agreement shall be construed as if such invalid, illegal or unenforceable
provisions had never been set forth herein.
16. Withholding. Anything to the contrary notwithstanding, all
payments required to be made by the Company hereunder to the Employee or his
beneficiaries, including his estate, shall be subject to withholding of such
amounts relating to taxes as the Company may reasonably determine it should
withhold pursuant to any applicable law or regulation. In lieu of withholding
such amounts, in whole or in part, the Company may, in its sole discretion,
accept other provision for payment of taxes as permitted by law, provided it is
satisfied in its sole discretion that all requirements of law affecting its
responsibilities to withhold such taxes have been satisfied.
17. Survivorship. The respective rights and obligations of the
parties hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
18. Expenses. Each of the parties hereto shall bear his or its
own costs and expenses, including attorneys' fees and disbursements, incurred in
connection with this Agreement and the transactions contemplated hereby.
19. Titles. Titles of the sections of this
Agreement are intended solely for convenience and no
provision of this Agreement is to be construed by reference
to the title of any section.
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20. Counterparts. This Agreement may be executed
in counterparts, each of which shall be deemed an original,
but all of which taken together shall constitute one and the
same instrument.
* * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first above written.
TLM HOLDINGS CORP.
By /s/ Xxx X. Xxxxxxxxx
___________________________
Name:
Title:
/s/ Xxx X. Xxxxxxxxx
-----------------------------
Xxx X. Xxxxxxxxx
