March 19, 1997
Page 1
EXHIBIT 10.1
March 19, 1997
Xxxxxxx X. Xxxxx
000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX
Dear Xxxxxxx:
This letter is to set forth the terms that have been freely
and mutually agreed upon by us in connection with your separation
from employment with the Company, effective March 19, 1997.
In satisfaction of all of its obligations under your
Employment Agreement dated December 16, 1993, as amended May 16,
1996, and your Change of Control Agreement, the Company will (i)
pay in full to you all salary, wages, and other compensation or
remuneration owed and due to you arising out of or related to
your employment with the Company through March 19, 1997, less
applicable withholding for taxes; (ii) pay to you in a lump sum
of $363,000 less applicable withholding for taxes; (iii) for a
period of 12 months from March 19, 1997, reimburse you for the
health insurance premiums paid by you for health insurance under
your COBRA elections made to continue the coverage that the
Company maintains; (iv) continue the lease payments, insurance,
etc. that the Company has been paying with respect to, and permit
you to continue to use, the Company automobile you are currently
using for the duration of the current lease; and (v) permit you
to retain your office computer and other small items of a
personal nature in your office.
The Company acknowledges that you will remain a director of
the Company until your resignation, removal or non-reelection and
that for purposes of compensation of directors, you will be a
non-employee director.
The Company will also enter into with you a consulting and
non-competition agreement (the "Agreement") in the form attached.
In exchange for the above, you will enter into the Agreement
and you voluntarily release the Company and its affiliates,
officers, agents, directors, employees, shareholders and insurers
from any and all claims of whatsoever nature and kind which may
have arisen from any act done, or not done, relating in any way
to your employment with the Company and its affiliates,
including, but not limited to, the Employment Agreement and any
alleged violation of Title VII of the Civil Rights Act of 1964,
the Age Discrimination Act of 1967, the Employee Retirement
Income Security Act (ERISA), the Fair Labor Standards Act, the
American with Disabilities Act, and any other federal, state, or
local law, regulation or ordinance.
You and the Company both agree that neither party will
display, discuss or publicize this letter agreement, its
underlying terms or the facts and circumstances leading to the
separation of your employment with the Company except as
necessary to comply with applicable laws and legal process. You
understand that disclosure of the terms is required by federal
securities laws.
This letter agreement further supersedes any and all other
agreements, either oral or in writing, between us with respect to
your employment with the Company and contains all the agreements
between us with respect to such employment, except that you will
continue to comply with Paragraph 9 of the Employment Agreement
in accordance with its terms.
The construction and interpretation of this agreement shall
be governed by and construed and enforced in accordance with the
laws of the State of Louisiana.
Very truly yours,
CAMPO ELECTRONICS, APPLIANCES,
AND COMPUTERS, INC.
By: /s/ XXX XXXXXX
AGREED TO AND ACCEPTED THIS
19th DAY OF MARCH, 1997.
/s/ XXXXXXX X. XXXXX
March 19, 1997
Page 1
PERSONAL SERVICES CONTRACT AND NON-COMPETITION AGREEMENT
Agreement between Campo Electronics, Appliances and
Computers, Inc. (the "Company") and Xxxxxxx X. Xxxxx
("Consultant") dated March 19, 1997.
1. Definitions. The following terms shall have the
meanings set forth below:
(a) "Associate" and "Affiliate" - the meanings
specified in Rule 12b-2 under the Securities Exchange Act of
1934, as amended ("Rule 12b-2").
(b) "Business" - the business in which the Company is
currently engaged, including but not limited to the retail sale
and installation of (i) major home appliances such as microwave
ovens, washing machines, dryers, air conditioners, dishwashers,
refrigerators, freezers, ranges and vacuum cleaners; (ii)
consumer electronics, such as televisions, video cassette
recorders, camcorders, audio components, audio systems, portable
audio equipment, car stereos, mobile telephones and automobile
anti-theft devices; and (iii) home office products, such as
personal computers, telephones, answering machines, fax machines,
copiers, calculators and computer software.
(c) "Competitive Business" - any business or line of
business that (i) in whole or in part, as of the date of this
Agreement, is the same as, substantially similar to, or
competitive with, any facet of the Business and (ii) operates,
sells, markets, competes or derives revenue in the Restricted
Market.
(d) "Person" - any natural person, any entity, and any
enterprise of any kind, including governmental or political
subdivisions, agencies or instrumentalities thereof
(e) "Restricted Market" - (i) During the term of this
Agreement, the parishes in Louisiana of Orleans, East Baton
Rouge, St. Tammany, Caddo, Bossier, Ouachita, Calcasieu and
Rapides, and all parishes, counties and municipalities within the
other states within which the Company is then engaged in its
Business and (ii) following termination of this Agreement for the
periods of time in subsections 3(c) and 3(d), the above parishes
of Louisiana, any parish of Louisiana in which the Company is
engaged in its Business at the time of such termination, and such
additional jurisdictions, as are specified in writing to
Consultant at such time.
2. Personal Services to be Performed; Term; Compensation.
(a) The Company hereby engages Consultant to serve as its
consultant and Consultant agrees to so serve for a period
commencing as of the date hereof and ending on the second
anniversary of the date hereof, unless sooner terminated as
provided herein. Consultant agrees to perform services on such
matters and at such times as and when requested by the management
or Board of Directors of the Company upon reasonable notice.
Consultant agrees to devote such of his time, skill, labor and
attention to the performance of such services as may be necessary
or desirable to render the prompt and effective performance of
his duties hereunder.
(b) Consultant shall not be precluded by this Section
from pursuing other employment or occupational or vocational
activities, provided that he complies with the covenants in
Sections 2(a) and 3.
(c) In exchange for his services and his covenants in
Section 3, the Company shall pay Consultant $5,000 per month,
payable monthly. Consultant shall also be entitled to
reimbursement for all travel and other out-of-pocket expenses
reasonably incurred by him in the performance of his duties,
subject to Company policies with respect thereto, after receipt
of Consultant's written expense voucher (with copies of bills
attached) indicating the amount, nature and purpose of the
expenses incurred, all of which shall be in such form and detail
as to enable the Company to substantiate its federal income tax
deductions for such expenses.
3. Covenant Not to Compete. (a) Consultant xxxxxx agrees
that, he will not, and will cause his Affiliates and Associates
not to, directly or indirectly:
(i) own, manage, operate, control, consult,
advise, promote, invest or acquire an interest in (other than
investments not exceeding 4% of voting or equity), be employed
by, act as an agent on behalf of, allow his skill, knowledge,
experience or reputation to be used by, or otherwise engage or
participate in (whether as a proprietor, partner, shareholder,
director, officer, employee, consultant, advisor, sales agent,
joint venturer, investor, promoter or other participant in) any
Competitive Business within the Restricted Market; provided that
he may own an interest in Mobile-One and he may also be employed
by Mobile-One as long as Mobile-One's business is not expanded to
include any other Competitive Business (It is agreed that Mobile-
One's business currently is the retail sale and installation of
car stereos, mobile communication devices, automobile anti-theft
devices and other electronic devices designed for use in
automobiles);
(ii) solicit, induce, influence or attempt to
influence any customer, supplier, distributor, sales agent,
lender, lessor or any other person who has a business
relationship with the Company, or who on the date of this
Agreement had a business relationship with the Company or had in
the past year engaged in discussions or negotiations to enter
into a business relationship with the Company, to discontinue or
reduce the extent of such relationship with the Company;
(iii) recruit, solicit or otherwise induce,
influence or attempt to influence any employee or agent of the
Company to discontinue such employment or relationship with the
Company, or employ or seek to employ, or cause or permit any
Competitive Business to employ or seek to employ, any person who
is then (or was at any time within one year prior to the date
Consultant, his Affiliates or Associates, or the Competitive
Business employs or seeks to employ such person) employed by the
Company; or
(iv) use the Campo name in any Competitive
Business.
(b) Each of the covenants in subsection (a) of this
Section shall be binding for the lesser of two years from the
date hereof or the maximum period of time under applicable law
for which a natural person or corporation may agree not to
compete in connection with the provision of consulting services.
4. Status of Consultant. (a) The parties agree that
Consultant is an independent contractor and not an employee of
the Company. Accordingly, Consultant acknowledges that he will
(i) not be eligible or entitled to participate in any employee
benefit plans, arrangements, distributions, insurance or other
similar benefits that may be provided by the Company to its
employees, (ii) not be treated as an employee for purposes of any
law regarding income tax withholding or for purposes of
contributions required by any unemployment, insurance or
compensatory program, and (iii) be solely responsible for the
payment of, and will pay when due, any taxes or assessments
imposed on account of the compensation to or the services by him
pursuant hereto, including, without limitation, any unemployment
insurance tax, federal, state or local income taxes, federal
social security payments, state disability insurance taxes and
foreign taxes. Consultant agrees to indemnify and hold harmless
the Company from any liabilities, claims, losses or expenses
arising out of his breach of this Section 4, which obligation
shall survive the termination of this Agreement.
(b) Consultant will not, and has no authority to,
represent to others that he is an employee or agent of the
Company. Except as expressly authorized in writing by the
Company, Consultant has no authority to bind or obligate the
Company, to use the name of the Company or any of its Affiliates
in any manner whatsoever, or to represent to others that he has
any such authority.
5. Term; Termination. (a) Unless earlier terminated
pursuant to subsection (b), this Agreement shall terminate on the
second anniversary of the date hereof.
(b) Notwithstanding anything to the contrary contained
herein, this Agreement may be terminated by:
(i) either party in the event of a material
breach by the other of them of any covenant or agreement
contained herein, which cannot be cured within 10 days after
written notice of such breach is given to the party committing
such breach;
(ii) the Company, upon the Consultant's death,
incapacity or interdiction; or
(iii) the mutual written consent of both parties
hereto in whole or in part at any time.
(c) Except as otherwise provided herein, upon
termination of this Agree-ment under this Section 5, all
obligations of the Company and Consultant hereunder shall cease;
except that the obligations of Consultant under Section 3
hereunder shall survive for the periods of time set forth in
subsection 3(b) hereof. If this Agreement is terminated by
Consultant pursuant to subsection (b)(i) above, all amounts owed
him for the unexpired term hereof shall become immediately due
and payable in full to him within 30 days of such termination.
6. Notices. Any notice, communication, request, reply,
consent, advice or disclosure notice ("Notice") required or
permitted to be given in connection herewith must be in writing
and may be given by (i) depositing it in the United States mail,
postage prepaid and registered or certified with return receipt
requested, (ii) hand delivery, or (iii) sending it by an express
air mail courier service for next business day delivery,
facsimile or e-mail. Notice deposited in the mail shall be
effective 72 hours thereafter; otherwise it shall be effective
upon delivery. For purposes of Notice, the addresses of the
parties shall, until changed as hereinafter provided, be as
follows:
(a) If to the Company:
000 Xxxxxxxxx Xxxx.
Covington, La.
Attention: President
(b) If to Consultant:
000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xx.
or such other address as either party shall specify by Notice to
the other party.
8. Complete Agreement; No Amendment. This Agreement is
the entire under-standing between the parties with respect to the
matters provided for herein, and all prior discussions,
negotiations, commitments, writings and understandings related
hereto are hereby superseded. This Agreement shall not be
amended or modified except by the written agreement of the
parties.
9. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties and their
successors and permitted assigns. Consultant may not assign
either his rights or obligations hereunder without the Company's
prior written consent.
10. Remedies. The parties agree that if Consultant
breaches or is about to breach any provision hereof, the damage
to the Company will be substantial, although difficult to
ascertain, and money damages may not afford it an adequate
remedy, and it shall be entitled, in addition to all other rights
and remedies as may be available to it at law or in equity, to
specific performance and injunctive and other equitable relief to
prevent or restrain a breach.
11. Governing Law. The construction and interpretation of
this Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Louisiana, provided,
however, that any dispute regarding the reasonableness of the
covenants and agreements in Section 3 hereof, or the territorial
scope or duration thereof, shall be governed by the laws
applicable to such dispute.
12. Waivers. The Company will not be deemed as a
consequence of any act, delay, failure, omission, forbearance or
other indulgence granted by it from time to time or for any other
reason to have: (a) waived, or to be estopped from exercising,
any of its rights or remedies hereunder or (b) modified, changed,
amended, terminated, rescinded, or superseded any of the terms
hereof, unless it does so expressly, in a writing signed by a
duly authorized officer. No single or partial exercise by the
Company of any right or remedy will preclude other or further
exercise thereof or the exercise of any other right or remedy,
and a waiver expressly made in writing on one occasion will be
effective only in that specific instance and only for the precise
purpose for which given, and will not be construed as a consent
to or a waiver of any right or remedy on any future occasion. No
notice or demand will entitle its recipient to any other or
future notice or demand in similar or other circumstances.
13. Severability. Consultant acknowledges that (a) the
geographic scope of the covenants contained herein is the result
of arm's-length bargaining and is fair and reasonable in light of
the nature of the operations of the Business and that some or all
facets of the Business have been conducted throughout the
Restricted Market and (b) such covenants are given as an integral
part of his obligation to provide services pursuant to Section 2
hereof. It is the desire, intent and agreement of the parties
that the provisions of this Agreement be enforced to the fullest
extent permitted under the laws and public policies applied in
each jurisdiction in which enforcement is sought, and if the
duration, geographical scope or any other provision of the
covenants herein are determined to be invalid or unenforceable in
any jurisdiction, then they will negotiate in good faith to
modify or limit the scope of such covenants in a manner that they
believe, after consultation with their respective counsel, will
result in such covenants being enforceable in such jurisdiction,
it being the intent of this provision that such modification or
limitation will apply only with respect to such jurisdiction and
that the Company shall at all times have the benefit of the
covenants contained herein, except to the extent otherwise
required by any such modification or limitation. Without
limiting the generality of the foregoing, the parties acknowledge
that the covenants in subsections (i) through (iii) of Section
3(a) and in Sections 3(b), 3(c) and 3(d) are each intended to be
separate and divisible, and if, for any reason, any one or more
shall be determined to be invalid or unenforceable, in whole or
in part, such determination shall not be held to affect the
validity or enforceability of any other such covenant or portion
thereof.
14. Determinations. Any good faith determination by the
Board of Directors that a business or line of business
constitutes a Competitive Business shall be final and binding.
15. Acknowledgment. Consultant hereby acknowledges that he
has read, understands and expressly agrees to the terms of this
Agreement, including without limitation the provisions governing
the length of his agreements not to compete and the choice of
governing law.
IN WITNESS WHEREOF, the parties hereto have duly authorized,
executed and delivered this Agreement as of the date first above
written.
CAMPO ELECTRONICS, APPLIANCES
AND COMPUTERS, INC.
By: /s/ XXX XXXXXX
/s/ XXXXXXX X. XXXXX
