EXHIBIT 10.13
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into on November 19,
1999, by and between Xxxxxxx X. Xxxxx ("Employee") and Advanced Communications
Group, Inc., a Delaware corporation ("Company") (sometimes collectively referred
to as the "Parties"). The Company and Employee agree as follows:
1. EMPLOYMENT.
In consideration of the mutual covenants and agreements contained in this
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged by Employee and the Company, the Company
employs Employee, and Employee accepts employment subject to the terms and
conditions of this Agreement.
2. TERM.
This Agreement shall commence and become effective on the date hereof and end on
the second anniversary of the date hereof, subject to the termination provisions
set forth below. Such terms of employment may be renewed for successive periods
of one year thereafter upon the mutual agreement of the Parties. Provided,
however, that Employee and Company shall have the right to terminate this
Agreement by giving the other party thirty (30) days written notice of its
intent to terminate this Agreement within the scheduled expiration of any one
year term.
3. COMPENSATION AND OTHER BENEFITS.
3.1 As compensation for rendering service to the Company under this
Agreement, the Company shall pay to Employee during the term of this
Agreement a base salary ("Base Salary") of $ 130,000 per annum,
payable in equal bi-weekly installments, subject only to such
payroll and withholding deductions as may be required by law and
other deductions applied generally to employees of the Company for
any employee benefit plans.
3.1.a Employee shall also be entitled to receive 50,000 options to
purchase shares of the Company's common stock. The shares are to be
issued at an exercise price equal to the fair market value of the
Company's stock on the date of this agreement. Further, employee
will be eligible to receive additional options to purchase shares of
common stock based on his performance at the sole discretion of the
compensation committee of the board of directors.
3.2 Employee shall be eligible to receive a potential cash bonus up to
50% of Employee's Base Salary ("Bonus") to be based upon performance
and a payment schedule as determined by the Compensation Committee
of the Board of Directors ("Compensation Committee") of Company.
Employee agrees that the decision as to whether to award a Bonus and
the percentage amount thereof will
be made by the Compensation and will be based solely upon the
criteria they set.
3.3 Employee will be entitled to three (3) weeks of paid vacation
annually during the term of this Agreement.
3.4 If Employee agrees to relocate to the new headquarters of the
Company. The Company will provide reasonable relocation assistance
under policy terms to be communicated at a later date. If Employee
does not relocate to the new headquarters of the Company, Employee
agrees to provide transition services to the Company for not less
than ninety days from the date he advises of his decision not to
relocate.
3.5 Employee shall receive benefits commensurate with the level of
employment under any health plan of the Company.
4. Duties and Extent of Service.
Employee shall serve as Chief Financial Officer of the Company. Employee agrees
to perform the duties incidental to this position, as determined from time to
time by the Chief Executive Officer of the Company. Employee shall devote such
time, attention, and energy to the business of the Company as are required to
perform the duties and responsibilities hereunder and shall not during the term
of this Agreement be engaged, directly or indirectly, in any other business
activity if pursued for gain, profit, or other pecuniary advantage without the
prior written consent of the Chief Executive Officer of the Company. In any
event, after the date hereof, Employee shall not take any action inconsistent
with Employee's relationship and responsibilities as an employee of the Company,
or take any action which is intended, or may be reasonably expected, to harm the
reputation, business, prospects, or operations of the Company.
5. Protection of Confidential Information and Employee Non-Competition.
5.1 Employee recognizes and acknowledges that he will have access to
certain confidential information and trade secrets of the Company
("Confidential Information"). Such Confidential Information
includes, but is not limited to: customer names; contracts; products
purchased by customers; production capabilities and processes;
customer account and credit data; referral sources; computer
programs and software; names and information relating to potential
acquisition candidates; financing sources and other business
relationships; information relating to confidential or secret
designs, processes, formulae, plans, devices, or materials of the
Company's business and marketing plans, confidential information and
trade secrets relating to the distribution and marketing of the
Company's products and services; patents pending; confidential
characteristics of the Company's products and services; customer
comments; troubleshooting requirements; product and service
development; market development; manuals written by the Company,
management, accounting and reporting systems, procedures and
programs; off net contracts; leases, marketing agreements, sales
employee compensation information, plans, and programs; marketing
and financial analysis, plans, research, programs, and related
information and data; forms, agreements, and legal documents;
regulatory and supervisory reports; correspondence; statements;
corporate books and records; and other similar information.
5.2 Employee acknowledges and agrees that this Confidential Information
constitutes valuable, special, and/or unique property of the
Company.
5.3 Employee will not, at any time during or after the term of this
Agreement or his employment with the Company, use or disclose any
Confidential Information to any person, firm, corporation,
association, or other entity for any reason or purpose.
5.4 The Confidential Information disclosed to Employee under this
Agreement may include information that may be contained in more
general information in the public domain or in Employee's
possession. The information does not lose its status as proprietary
merely because portions thereof are in the public domain or in
Employee's possession.
5.5 To protect the confidentiality of the Confidential Information,
Employee further agrees that while employed by the Company and for a
period of one year immediately after the termination of the
Agreement or his employment with the Company, regardless of whether
such termination of employment is voluntary of involuntary, he will
not, for himself, or on behalf of any other person, firm,
partnership, company, or corporation, either directly or indirectly
(i) solicit, accept, divert, or take away from the Company the
business of any person, company, or business who was a customer of
the Company during the term of this Agreement or to whom the Company
had made an outstanding proposal at the time of the termination of
this Agreement or Employee's employment with the Company; (ii)
induce or attempt to influence any employee, officer, director,
consultant, agent, vendor or other entity related to the Company to
terminate his or her employment or association in any manner
whatsoever with the Company; or (iii) engage in any commercial or
technical activity involving the development, formulation,
manufacture, production, distribution, marketing or sale of any
product or services that the Company designs, produces,
manufactures, distributes, markets or sells during the term of this
Agreement or Employee's employment with the Company. The prescribed
territory in which Employee shall not compete with the Company as
outlined in this Paragraph 5.5 shall consist of all of those areas
of the United States in which the Company is doing business at the
time of Employee's termination of employment.
5.6 Employee acknowledges that a violation or attempted violation on his
part of any provision in this Paragraph 5 will cause irreparable
damage to the Company. Accordingly, in the event of a breach or
threatened breach by Employee of the provisions of this Paragraph 5,
Employee agrees that, notwithstanding
paragraph 9 of this Agreement, the Company shall be entitled as a
matter of right to an injunction, from any court of competent
jurisdiction, restraining any violation or further violation of
such agreements by Employee or his agents, without showing any
evidence of actual monetary loss resulting from such breach,
including, but not limited to, restraining Employee from using or
disclosing, in whole or in part, such Confidential Information or
trade secrets; rendering any services to any person, firm,
corporation, or other entity to whom any of such information
may have been disclosed or is threatened to be disclosed; and/or
violating the non-competition provision. Nothing herein shall be
construed as prohibiting the Company from pursuing any other
remedies available to it for such breach or threatened breach,
including the recovery of damages and attorneys' fees from Employee.
6. Termination of Employee.
6.1 Employee's employment under this Agreement shall terminate on the
occurrence of any of the following events:
(a) END OF TERM: If the term of employment under the Agreement or
any term of renewal ends.
(b) DEATH OR DISABILITY OF EMPLOYEE: If Employee dies or
becomes disabled such that he no longer is reasonably able
to perform his duties as contemplated by this Agreement,
the Company shall pay to Employee, or the estate of
Employee if he dies, that part of his Base Salary which
would otherwise be payable to Employee through the end of
the month in which his death or disability occurs, after
giving effect to accrued sick leave benefits and accrued
vacation time, if any. In the event of death of the
employee, the estate of the employee shall have the right
to exercise all options in which the employee was vested at
the time of his death until the expiration of those option
under the terms of the option award. Upon such payment, as
well as applicable insurance benefits, if any, all
obligations of the Company to the Employee or his estate
shall be fully satisfied, and this Agreement shall
terminate.
(c) RESIGNATION OF EMPLOYEE: If Employee resigns prior to the
end of the term of this Agreement, this Agreement shall
terminate immediately, and the Company shall pay to
Employee that part of his Base Salary which would otherwise
be payable to Employee through the effective date of his
resignation. Upon such payment, all obligations in any
manner whatsoever of the Company to Employee shall be fully
satisfied.
(d) CHANGE IN OWNERSHIP, MANAGEMENT, OR EMPLOYEE'S
RESPONSIBILITIES: If there is a substantial change in the
ownership or management of the Company, and either of these
changes significantly alters Employee's job responsibilities
or compensation, Employee may resign from his positions
within 60 days of such a change. If Employee resigns pursuant
to this paragraph, the Company will continue to provide
Employee with his monthly compensation for a period of
twelve (12) months after the initial date of any such change.
For the period after Employee's resignation during which
Employee will be paid, Employee will not have any authority
to act on behalf of the Company.
(e) TERMINATION BY THE COMPANY "WITH CAUSE." If Employee (i)
violates any provision of this Agreement; (ii) fails to
perform the services required of him pursuant to this
Agreement; (iii) commits acts of fraud or dishonesty
against the Company; (iv) is convicted of or pleads guilty
to a crime other than a routine traffic violation; (v)
violates any policies of the Company as outlined in any
Company policy handbook; (vi) fails to perform at the level
expected by the Company; and/or (vii) commits an act or
omission that is deemed by the Company to cast doubt upon
the Employee's fitness for the position with the Company,
the Company may terminate the employment of Employee with
cause. If Employee is terminated "with cause," Employee
shall not be entitled to receive any further salary or
benefits under this Agreement other than payment for that
part of Employee's compensation that would otherwise be
payable to Employee through the last date of his employment
with the Company. Upon such payment, all obligations of
the Company to Employee shall be fully satisfied, and this
Agreement will terminate. Employee shall not be entitled
to receive any Bonus or accrued vacation pay if his
termination is "with cause."
(f) TERMINATION BY THE COMPANY WITHOUT CAUSE. In the event the
Company terminates Employee's employment for any reason other
than as described in (e) above, Employee shall be entitled to
that part of the Base Salary and benefits payable to Employee
through the last date of his employment and the Base Salary
shall continue thereafter for a period of twelve months from
termination.
6.2 Termination of this Agreement shall not relieve Employee of any
continuing obligations expressly provided in this Agreement,
including, without limitation, those set forth in Paragraphs 5.1
through 5.6.
7. RETURN OF COMPANY PROPERTY.
7.1 All data, drawings, documents, contracts, computerized data,
information printouts, and tapes, tape recordings, documents, data,
accounting records, personnel files, computer terminals, equipment,
and other records and written material prepared or compiled by
Employee or furnished to Employee while in the employ of the Company
shall be the sole and exclusive property of the Company, and none of
such data, drawings or other records and written material, or copies
thereof, shall be retained by Employee upon termination of his
Employment. This Company property shall not be removed from the
Company premises without the Company's prior written consent.
7.2 Upon termination of this Agreement or whenever requested by the
Company, Employee immediately shall deliver to the Company all of
the Company property or any of the Company's documents in Employee's
possession or under Employee's control, including, but not limited
to, all documents or data, Confidential Information, accounting
records, computer terminals, data, discs, printouts and tapes,
accounting machines, and all office furniture and fixtures,
supplies, equipment, and other property placed in the office of the
Company. No copies of any such data shall be retained by Employee.
8. NOTICES.
Any notice required or permitted to be given under this Agreement shall be in
writing and addressed to Employee at 0000 Xxxx Xxxx Xx., Xx. Xxxxx, Xxxxxxxx
00000, Attn: Xxxxxxx X. Xxxxx, and to the Company, c/o Xxxxxxx X'Xxxx, 0000
Xxxxxxxx, Xxxxx 000, Xxxxxxxx XX 00000, or to such other address as either party
shall designate by written notice to the other. Notices may be sent by messenger
or by registered or certified mail, postage prepaid, addressed to the party or
parties to be notified, with return receipt requested. Notices sent by messenger
shall be deemed received upon their actual receipt of the party to whom they are
directed. Notices sent by registered or certified mail shall be deemed received
on the third day following their deposit with the United States Postal Service.
9. ARBITRATION.
Exclusive jurisdiction with respect to any dispute, controversy, or claim
brought by Employee concerning the subject matter contained in this Agreement,
including, but not limited to, Employee's employment, termination from, and/or
affiliation with the Company, shall be settled by arbitration in Texas, in
accordance with the Employment Dispute Resolution Rules of the American
Arbitration Association, and judgment upon the award rendered by the arbitrator
may be entered in any court having jurisdiction. In reaching his or her
decision, the arbitrator shall have no authority to change or modify any
provision of this Agreement. Any and all charges that may be made for the cost
of the arbitration and the fees and expenses of the arbitrator shall be borne
equally by the parties; attorneys' fees and witness expenses shall be borne by
the party incurring them.
Jurisdiction with respect to any dispute, controversy, or claim brought by the
Company, concerning any subject matter contained in this Agreement, including,
but not limited to, the right to seek injunctive relief pursuant to paragraph
5.7, shall rest in state or federal courts sitting in the State of Texas. In
addition, the Company, at its election, may submit any dispute to arbitration in
accord with the procedures set forth in this section.
10. MISCELLANEOUS.
10.1 The rights and obligations of the Company under this Agreement shall
inure to the benefit of and shall be binding upon the successors and
assigns of the Company. This Agreement shall be binding upon the
Employee and his agents, heirs, executors, administrators and legal
representatives. The rights and obligations of Employee hereunder
shall not be assignable by Employee.
10.2 This Agreement shall be governed by and construed in accordance with
the laws of the State of Texas.
10.3 This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original and all of which shall constitute
one instrument.
10.4 This Agreement contains the entire agreement of the parties
pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, whether
oral or written, and there are no other warranties, representations,
covenants or agreements among the Company, and the Employee in
connection with the subject matter hereof.
10.5 Employee hereby represents and warrants that he (a) has had an
opportunity to review this Agreement and ask the Company questions
about the Agreement, and (b) understands the meaning and effect of
each Section of this Agreement.
10.6 The waiver by the Company of a breach of any provision of this
Agreement by Employee shall not operate or be construed as a waiver
by the Company of any subsequent breach by Employee.
10.7 Use of the masculine pronoun in this Agreement is intended to
include the feminine as well.
10.8 The Employee represents and warrants that he is not a party to or
bound by any covenant or agreement which in any manner restrains or
restricts the activities of the Employee or his ability to enter
into this Agreement.
10.9 If a court of competent jurisdiction shall adjudge to be invalid any
clause, sentence, subparagraph, paragraph or section of this
Agreement, such judgment or decree shall not affect, impair,
invalidate, or nullify the remainder of this Agreement, but the
effect thereof shall be confined to the clause, sentence,
subparagraph, paragraph, or section so adjudged to be invalid.
The parties have executed this Agreement to be effective as of the day and
year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION.
"COMPANY" "EMPLOYEE"
ADVANCE COMMUNICATIONS GROUP, INC.
By:
______________________________________ _____________________________
Xxxxxxx X. Xxxxx
Its:
______________________________________
