EXHIBIT 10.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("AGREEMENT") is entered into as of this 2 day of
September, 1997, by and between Price Communications Wireless, Inc. ("COMPANY"),
a Delaware corporation formerly known as Price Communications Cellular Merger
Corp. and Xxxxxxx X. Xxxxx (the "EXECUTIVE").
1. EMPLOYMENT. On the terms and conditions set forth in this Agreement,
the Company shall employ Executive and Executive shall be employed by the
Company for the term set forth in Section 2 hereof and in the position and with
the duties set forth in Section 3 hereof. Upon the date of commencement of this
Agreement, that certain Severance Agreement between Xxxxxx Wireless, Inc. and
Executive dated March 28, 1997 shall be hereby automatically terminated and
superseded and replaced in its entirety by this Agreement.
2. TERM. The term of this Agreement shall commence on the Effective Time
of the Merger (as defined in paragraph 11 hereof) and end on December 31, 1998,
provided that the term of this Agreement shall be extended automatically for
additional one (1) year periods on December 31 of each year ("YEAR END")
commencing on December 31, 1998 and each subsequent Year End, unless and until
either party provides written notice to the other party, in accordance with
Section 9 hereof, not less than ninety (90) days prior to such Year End that
such party is terminating this Agreement, which termination shall be effective
as of such Year End, or until sooner terminated as hereinafter set forth.
3. POSITION AND DUTIES. The Executive shall serve as Director
Analysis/Planning of the Company, with such duties and responsibilities as the
Chief Executive Officer of Company may from time to time determine and assign to
the Executive. The Executive shall devote the Executive's reasonable best
efforts and substantially full business time to the performance of the
Executive's duties and the advancement of the business and affairs of the
Company.
4. PLACE OF PERFORMANCE. In connection with the Executive's employment by
the Company, the Executive shall be based at the principal executive offices of
the Company, which the Company retains the right to change in its discretion.
5. COMPENSATION AND RELATED MATTERS.
5(a) BASE SALARY. The Company shall pay to the Executive an annual
base salary (the "BASE SALARY") at the rate of $113,000 per year, payable in
biweekly or other such installments consistent with the Company's payroll
procedures.
5(b) STOCK OPTIONS. At or promptly after the Effective Time, the
Company shall cause to be granted to the Executive options to purchase 20,000
shares of Common Stock of PCC (the "OPTIONS") under the Price Communications
Corporation 1992 Long Term Incentive Plan (the "OPTION PLAN"). The exercise
price shall be the Fair Market Value, as defined in the 0ption Plan, on the
business day of the Effective Time. The Options shall become exercisable one
year from the Effective Time.
5(c) OTHER BENEFITS. The Executive shall be entitled to participate
in such plans and to receive such fringe benefits that are offered by the
Company.
6. NON-COMPETITION.
6(a) NON-COMPETITION. The Executive covenants and agrees that the
Executive will not, during the Executive's employment hereunder and for a period
of one (1) year thereafter (to the extent, permitted by law), at any time and in
any state or other jurisdiction which the Company or any of its affiliates is
engaged or has reasonably firm plans to engage in business, (i) compete with the
Company or any of its affiliates on behalf of the Executive or any third party,
(ii) participate as a director, agent, representative, stockholder or partner or
have any direct or indirect financial interest in any enterprise which engages
in the cellular business or any other business in which the Company or any of
its affiliates is engage; or (iii) participate as an employee or officer in any
enterprise in which Executive's responsibility relates to the cellular business
or any other business in which the Company or any of its affiliates is engaged.
The ownership by Executive of less than five percent (5%) of the outstanding
stock of any corporation listed on a national securities exchange conducting any
such business shall not be deemed a violation of this section 8(a).
6(b) INJUNCTIVE RELIEF. In the event the restrictions against
engaging in a competitive activity contained in Section 6(a) hereof shall be
determined by any court of competent jurisdiction to be unenforceable by reason
of their extending for too great a period of time or over too great a
geographical area or by reason of their being too extensive in any other
respect, Section 6(a) hereof shall be interpreted to extend only over the
maximum period of time for
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which it may be enforceable and to the maximum extent in all other respects as
to which it may be enforceable, all as determined by such court in such action.
7. TERMINATION.
7(a) DEATH. The Executive's employment hereunder shall terminate upon
the Executive's death.
7(b) BY THE COMPANY. The Company may terminate Executive's employment
hereunder under the following circumstances:
(i) If the Executive shall have been unable to perform all of
the Executive's duties hereunder by reason of illness, physical or mental
disability or other similar incapacity, which inability shall continue for more
than three (3) consecutive months, the Company may terminate the Executive's
employment hereunder.
(ii) The Company may terminate the Executive's employment
hereunder for "Cause". For purposes of this Agreement "Cause" shall mean (A)
willful refusal by the Executive to follow a written order of the Board of
Directors, (B) the Executive's willful engagement in conduct materially
injurious to the Company or any of its affiliates, (C) dishonesty of a material
nature that relates to the performance of the Executive's duties under this
Agreement, (D) the Executive's conviction for any felony involving moral
turpitude, or (E) unreasonable neglect or refusal on the part of the Executive
to perform the Executive's reasonably assigned duties and obligations hereunder
(unless significantly changed without Executive's consent). In addition, the
Company may terminate the Executive's employment for "Cause" if the normal
business operations of the company are rendered commercially impractical as a
consequence of an act of God, accident, fire labor controversy, riot or civil
commotion, act of public enemy, law, enactment, rule, order, or act of
government or governmental instrumentality, failure of facilities, or other
cause of a similar or dissimilar nature that is not reasonably within the
control of the Company or which the Company could not, by reasonable diligence,
have avoided.
7(c) BY THE EXECUTIVE. The Executive may terminate the Executive's
employment with "Good Reason". For the purposes of this Agreement, "Good Reason"
shall mean (i) the Company's failure to perform or observe any of the material
terms or provisions of this Agreement, and the continued failure of the Company
to cure such default within thirty (30) days after written demand for
performance has been given to the Company by the Executive, which demand shall
describe specifically the nature of such alleged failure to
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perform or observe such material terms or provisions; or (b) a material
reduction in the scope of the Executive's responsibilities and duties.
7(d) NOTICE OF TERMINATION. Any termination of the Executive's
employment, by the Company or the Executive (other that pursuant to Section 7(a)
hereof) shall be communicated by written "Notice of Termination" to the other
party hereto in accordance with Section 9 hereof. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which shall indicate
the specific termination provision in this Agreement relied upon, if any, and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination the Executive's employment under the provision
so indicated.
7(e) DATE OF TERMINATION. For the purposes of this Agreement, the
"Date of Termination" shall mean (i) if the Executive's employment is terminated
by the Executive's death, the date of the Executive's death, (ii) if the
Executive's employment is terminated pursuant to Section 7(b)(i) hereof, thirty
(30) days after Notice of Termination, provided that the Executive shall not
have returned to the performance of the Executive's duties on a full-time basis
during such 30-day period; (iii) if the Executive's employment is terminated
pursuant to Section 7(b)(ii) or 7(c) hereof, the date specified in the Notice of
Termination which shall be no later than 30 days after the giving of such Notice
of Termination or such later date as may be mutually agreed to by the Executive
and Company; (iv) if the Executive's employment is terminated pursuant to notice
under Section 2 hereof, the Year End upon which termination is effective; and
(v) if the Executive's employment is terminated for any other reason, the date
on which Notice of Termination is given.
(8) COMPENSATION UPON TERMINATION.
8(a) If the Executive's employment is terminated by the Executive's
death, the Company shall pay to Executive's estate or as may be directed by the
legal representatives of such estate, the Executive's full Base Salary through
Date of Termination and all other accrued and unpaid amounts, if any, to which
Executive is entitled as of the Date of Termination in connection with any
fringe benefits under any plan or program of the Company pursuant to Section
5(c) hereof, at the time such payments are due, and the Company shall have no
further obligations to the Executive under this Agreement.
8(b) If the Company terminates the Executive's employment pursuant to
Section 7(b)(i) hereof, the Company shall pay the Executive the Executive's full
Base Salary through the Date of Termination and all other accrued and unpaid
amounts, if any, to which the Executive is entitled as of the
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Date of Termination in connection with any fringe benefits under any plan or
program of the Company pursuant to section 5(c) hereof, at the time such
payments are due, and the Company shall have no further obligations to the
Executive under this Agreement; PROVIDED that payments so made to the Executive
during any period that the Executive is unable to perform all of the Executive's
duties hereunder by reason of illness, physical or mental illness or other
similar incapacity shall be reduced by the sum of the amounts, if any, payable
to the Executive at or prior to the time of any such payment under disability
benefit plans of the Company and which amounts were not previously applied to
reduce any such payment.
8(c) If the Company terminates the Executive's employment for Cause
as provided in Section 7(b)(ii) hereof, or if the Company or the Executive
terminates this Agreement under Section 2 hereof, the Company shall pay the
Executive the Executive's full Base salary through the Date Of Termination and
all other accrued and unpaid amounts, if any, to which Executive is entitled as
of the Date of Termination in connection with any fringe benefits under any plan
or program of the Company pursuant to Section 5(c) hereof, at the time such
payments are due, and the company shall have no further obligations to the
Executive under this Agreement.
8(d) If the Executive terminates the Executive's employment other
than for Good Reason, the Company shall pay the Executive the Executive's full
Base Salary through the Date of Termination and all other accrued and unpaid
amounts, if any, to which Executive is entitled as of the Date of Termination in
connection with any fringe benefits under any plan or program of the Company
pursuant to Section 5(c) hereof, at the time such payments are due, and the
Company shall have no further obligations to the Executive under this Agreement.
8(e) If the Company terminates the Executive's employment other than
for Cause, disability or death and other than pursuant to Section 2 hereof or
the Executive terminates the Executive's employment for Good Reason as provided
in Section 7(c)(i) or (ii) hereof, the Company shall pay the Executive (A) the
Executive's full Base Salary through the date of Termination and all other
accrued and unpaid amounts, if any to which Executive is entitled as of the Date
of Termination in connection with any fringe benefits under any plan or program
of the Company pursuant to Section 5(c) hereof at the time such payments are
due, and (B) the full Base Salary and any other amounts that would have been
payable to Executive under Section 5(c) hereof from the Date of Termination
through the first anniversary of the Date of Termination (of benefits comparable
in value to the benefits provided under Section 5(c)).
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9. NOTICES. All notices, demands, requests or other communications
required or permitted to be given or made hereunder shall be in writing and
shall be delivered, telecopied or mailed by first class registered or certified
mail, postage prepaid, addressed as follows:
9(a) If to the Company;
Price Communications Wireless, Inc.
c/o Price Communication Corporation
00 Xxxxxxxxxxx Xxxxx
Xxxxx 0000 [struck out] 3200 [handwritten]
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attn: Xxxxxx Xxxxx
9(b) If to Executive:
Mr. Xxxx Xxxxx
00000 Xxxxxxxxxx Xxxxx, Xxx. 000
Xxxx Xxxxx, XX 00000-0000
or to such other address as may be designated by either party in a notice to the
other. Each notice, demand, request or other communication that shall be given
or made in the manner described above shall be deemed sufficiently given or made
for all purposes three (3) days after it is deposited in the U.S. mail, postage
prepaid, or at such time as it is delivered to the addressee (with return
receipt, the delivery receipt, the telecopy confirmation, the answer back or the
affidavit of messenger being deemed conclusive evidence of such delivery) or at
such time as delivery is refused by the addressee upon presentation.
10. SURVIVAL. It is the express intention and agreement of the parties
hereto that the provisions of Section 6 hereof shall survive the termination of
employment of the Executive. In addition, all obligations of the Company to make
payments hereunder shall survive any termination of this Agreement on the terms
and conditions set forth herein.
11. BINDING EFFECT. The effectiveness of this Agreement shall be subject
to and conditioned upon the consummation of the merger, pursuant to which the
Company shall merge with and into Xxxxxx Wireless, Inc. ("MERGER"), and this
Agreement shall be of no force and effect if the Merger shall fail to be
consummated for any reason. Subject to any provisions hereof restricting
assignment, this Agreement shall be binding upon the parties hereto and shall
inure to the benefit of the parties and their respective heirs, devisees
executors,
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administrators, legal representatives, successors and assigns. This Agreement
may not be assigned by the Executive, and shall not inure to the benefit of or
be enforceable by any person or entity other that as aforesaid including without
limitation any employee of the Company.
12. GOVERNING LAW. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the laws of the State of Florida (but not
including the choice of law rules thereof).
13. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each shall be an original and all of which shall be deemed to
constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement, or
have caused this Agreement to be duly executed on their behalf, as of the day
and year first herein above written.
PRICE COMMUNICATIONS WIRELESS, INC.
By:
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Name: Xxxxxx Xxxxx
Title: President
THE EXECUTIVE
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Xxxxxxx X. Xxxxx
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