21st Century Telesis, Inc.
EMPLOYMENT CONTRACT
21st Century Telesis, Inc., a Delaware corporation, hereinafter referred to as
the Employer, and Xxxxx X. La Belle, hereinafter referred to as the Employee, in
consideration of the mutual promises made herein, agree as follows.
ARTICLE 1. TERM OF EMPLOYMENT
Specified Term
1.0.1. The Employer hereby employs Employee and Employee hereby accepts
employment with Employer beginning on October 15, 1997, to serve at the pleasure
of the board of directors of Employer.
ARTICLE 2. DUTIES AND OBLIGATIONS OF EMPLOYEE
Title and Description of Duties
2.01. Employee shall serve as Chief Operating Officer of Employer and of
Employer's affiliate, the 21st Century Telesis Joint Venture. In that capacity,
Employee shall do and perform all services, acts, or things necessary or
advisable to fulfill the duties of his position. However, Employee shall at all
times be subject to the policies established by the Board of Directors of
Employer.
Loyal and Conscientious Performance of Duties
2.02. Employee agrees that to the best of his ability and experience he will
at all times loyally and conscientiously perform all of the duties and
obligations required of him either expressly or implicitly by the terms of this
agreement.
Devotion of Time to Employer's Business
2.03. Employee shall devote such portion of his productive time, ability,
and attention to the business of Employer during the term of this contract as
shall reasonably be required by the nature of Employer's business.
Competitive Activities
2.04. During the term of this contract Employee shall not, directly or
indirectly, either as an employee, employer, consultant, agent, principal,
partner, controlling stockholder, corporate officer, director, or in any other
individual or representative capacity, engage or participate in any business
that is in competition in any manner whatsoever with the business of Employer.
Trade Secrets
2.05. (a) The parties acknowledge and agree that during the term of this
agreement and in the course of the discharge of his duties hereunder, Employee
shall have access to and become acquainted with information concerning the
operation of Employer and its affiliates, including without limitation,
financial, personnel, sales, planning, and other information that is owned by
Employer and its affiliates and regularly used in the operation of their
businesses and that this information constitutes trade secrets.
(b) Employee agrees that he shall not disclose any such trade secrets, directly
or indirectly, to any other person or use them in any way, either during the
term of this agreement or at any other time thereafter, except as his employment
may require.
ARTICLE 3. OBLIGATIONS OF EMPLOYER
General Description
3.01. Employer shall provide Employee with the compensation, incentives,
benefits, and business expense reimbursement specified elsewhere in this
agreement.
Office and Staff
3.02. Employer shall provide Employee with a private office, stenographic
help, office equipment and supplies, and other facilities and services suitable
to Employee's position and adequate for the performance of his duties. The
office premises will be located in Indianapolis, Indiana, or in such other
location as the parties shall agree.
Indemnification of Losses of Employee
3.03. To the extent permitted by Delaware law, Employer shall indemnify
Employee for all losses sustained by Employee in direct consequence of the
discharge of his duties on Employer's behalf.
ARTICLE 4. COMPENSATION OF EMPLOYEE
Annual Salary
4.01. As compensation for the services to be rendered by Employee hereunder,
Employer shall pay Employee an annual salary of $171,600 effective the dates
specified in Par. 1.01 above. Such salary will be payable in periodic
installments in accordance with Employer's customary practice.
Incentive Compensation
4.02. (a) Employee will be paid a cash bonus of $25,000 upon completion of
the build-out of an operational PCS system in each Basic Trading Area in which
Employer or its affiliates possesses licenses to offer PCS service. For these
purposes, the build-out of an operational system shall be considered to be
complete, and the above mentioned bonus shall be due and owing, when such system
produces its first operating revenues from customers.
(b) In addition to the foregoing, for each full fiscal year for which the
earnings before income taxes, depreciation and amortization ("EBITDA") of
Employer and Employer's affiliates from the operation of PCS systems shall be a
positive number, as reflected in the annual audited financial statements of
Employer and affiliates, Employee shall receive a cash bonus equal to 0.25% of
EBITDA for such year. The bonus will be due and payable 150 days after the close
of the fiscal year to which the bonus is attributable.
Fringe Benefits
4.03. Employee will be entitled to receive medical and dental insurance
benefits as part of the insurance plans maintained by Employer. Employee will
also be entitled to receive a cash allowance of $500 per month as an automobile
allowance.
Stock Options
4.04. Employer expects in due course to request its stockholders to approve
the establishment of a stock option plan pursuant to which shares of Employer's
capital stock equal in number to 5-10% of its then issued and outstanding shares
will be set aside and authorized for issuance pursuant to options granted to key
employees. If such a plan is approved by Employer's stockholders, Employee will
be entitled to participate therein at a level commensurate with his position.
Tax Withholding
4.05. Employer shall have the right to deduct or withhold from the
compensation due to Employee hereunder any and all sums required for federal
income and Social Security taxes and all state or local taxes now applicable or
that may be enacted and become applicable in the future.
ARTICLE 5. BUSINESS EXPENSES
Business Expenses
5.01. (a) Employer shall promptly reimburse Employee for all reasonable
business expenses incurred by Employee in promoting the business of Employer,
including expenditures for entertainment, gifts, and travel.
(b) Each such expenditure shall be reimbursable only if it is of a nature
qualifying it as a proper deduction on the federal and state income tax return
of Employer.
(c) Each such expenditure shall be reimbursable only if Employee furnishes
to Employer adequate records and other documentary evidence required by federal
and state statutes and regulations issued by the appropriate taxing authorities
for the substantiation of that expenditure as an income tax deduction.
ARTICLE 6. GENERAL PROVISIONS
Termination
6.01. This agreement may be terminated (a) by Employer, with or without
cause, or (b) by the resignation or death of Employee. In any such event,
- Employee (or Employee's estate) will be entitled to receive the salary and
fringe benefits called for by Para. 4.01 and Para. 4.03 above, respectively,
paid to the effective date of termination;
- The bonus payments mentioned in Para. 4.02 (a) above shall be payable only
respecting any BTA' s for which no such bonus has been paid and which first
receive operating revenues from customers prior to the effective date of the
termination of this agreement;
- The bonus payments mentioned in Para. 4.02 (b) above shall be payable only
if the effective date of such termination shall fall on a day less than 150 days
after the close of a fiscal year of Employer for which a bonus is payable
pursuant to the terms of Para. 4.02 (b), and the bonus for such year shall not
have been previously paid.
For purposes of this Article 6, the effective date of the termination of this
agreement shall be the date the terminating party gives notice of termination to
the other party, or the date of Employee's decease, in the event that this
agreement shall be terminated by Employee's death.
Involuntary Termination After Change in Control
6.02. (a) Notwithstanding the foregoing, if Employee's employment hereunder
shall be terminated involuntarily following a change in control of Employer,
Employee, as his sole and exclusive remedy therefor, shall be entitled to
receive, within three months following such termination, a termination indemnity
in cash as follows:
- If such involuntary termination occurs during the first 12 months next
following such change in control, the termination indemnity payable to Employee
shall be equal to three times the total compensation paid and payable to
Employee under Paragraphs 4.0 1, 4.02 and 4.03 above for the fiscal year of
Employer last ended before such termination;
- If such involuntary termination occurs during the 13th through 24th months
next following such change in control, the termination indemnity payable to
Employee shall be equal to two times the total compensation paid and payable to
Employee under Paragraphs 4.0 1, 4.02 and 4.03 above for the fiscal year of
Employer last ended before such termination; and
- If such involuntary termination occurs during the 25th through 36th months
next following such change in control, the termination indemnity payable to
Employee shall be equal to the total compensation paid and payable to Employee
under Paragraphs 4.01,4.02 and 4.03 above for the fiscal year of Employer last
ended before such termination;
- No cash termination indemnity will be payable to Employee hereunder if his
employment is thereafter involuntarily terminated.
(b) For purposes of this Para. 6.02, a change in control shall be deemed to
have occurred at the close of the first full business day on which those
individuals identified in documentation filed with the Federal Communications
Commission as the Control Group of the 21st Century Telesis Joint Venture shall
cease to have the collective power to elect a majority of the board of directors
of Employer.
(c) For purposes of this Para. 6.02, the involuntary termination of
Employee's employment shall be deemed to include Employee's termination of his
employment hereunder as a consequence of acts by Employer so radically changing
Employee's duties, compensation or working conditions as to amount to a
constructive termination at law.
(d) Notwithstanding anything to the contrary in the foregoing, no
termination indemnity in any amount will be payable to Employee under the
provisions of this Para. 6.02 in the event that his employment shall be
terminated by reason of (a) persistent and willful neglect of his duties by
Employee; (b) the commission of acts of moral turpitude by Employee; or (c) the
commission by Employee of acts tending to bring Employer into public disrepute.
Notices
6.03. Any notices to be given by either party to the other shall be in
writing and may be transmitted either by personal delivery or by mail,
registered or certified, postage prepaid with return receipt requested. Notices
delivered personally shall be deemed communicated as of the date of actual
receipt; mailed notices shall be deemed communicated as of the date of mailing.
Jurisdiction, Attorneys' Fees and Costs
6.04. (a) Any action at law or inequity brought to enforce or interpret the
terms of this agreement shall be brought and maintained exclusively in the
Superior Court of the State of California for the County of Orange, to the
jurisdiction of which the parties hereby consent, waiving all objections to
venue and to the exercise by such Court of jurisdiction over their persons.
(b) In any such action, the prevailing party shall be entitled to reasonable
attorneys' fees, costs, and necessary disbursements in addition to any other
relief to which that party may be entitled. This provision shall be construed as
applicable to the entire contract.
Entire Agreement
6.05. This agreement supersedes any and all other agreements, either oral or
in writing, between the parties hereto with respect to the employment of
Employee by Employer, and contains all of the covenants and agreements between
the parties with respect to that employment in any manner whatsoever. Each party
to this agreement acknowledges that no representations, inducements, promises,
or agreements, orally or otherwise, have been made by any party, or anyone
acting on behalf of any party, which are not embodied herein, and that no other
agreement, statement, or promise not contained in this agreement shall be valid
or binding.
Modifications
6.06. Any modifications of this agreement will be effective only if it is in
writing signed by the party to be charged.
Effect of Waiver
6.07. The failure of either party to insist on strict compliance with any of
the terms, covenants, or conditions of this agreement by the other party shall
not be deemed a waiver of that term, covenant, or condition, nor shall any
waiver or relinquishment of any right or power at any one time or times be
deemed a waiver or relinquishment of that right or power for all or any other
times.
Partial Invalidity
6.08. If any provision in this agreement is held by a court of competent
jurisdiction to be invalid, void, or unenforceable, the remaining provisions
shall nevertheless continue in full force without being impaired or invalidated
in any way.
Law Governing Agreement
6.09. This agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, exclusive of its choice of law provisions.
In witness whereof, and intending to be bound hereby, the parties have hereunto
set their seals.
EMPLOYER EMPLOYEE
21st Century Telesis, Inc.
Xxxxxx X. Xxxxxxx Xxxxx X. XxXxxxx
Dated: 10-13-97 Dated: 10-14-97
Executive Vice President Chief Operating Officer
& Secretary