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EX. 10.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is effective as of the 21st
day of January, 2000 by and between XXXXXXXX.XXX LLC (the "Company") having its
principal office in St. Louis, Missouri, and XXXXXX X. XXXXX, an individual
("Employee").
WHEREAS, Employee desires to be employed by the Company, and the
Company desires to employ Employee, upon the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the compensation and other benefits
of Employee's employment by the Company and the recitals, mutual covenants and
agreements hereinafter set forth, Employee and the Company agree as follows:
1. Employment Services.
(a) Employee is hereby employed by the Company, and Employee hereby
accepts such employment, upon the terms and conditions hereinafter set forth.
During the Employment Period (as defined below), Employee shall serve as
requested and in the discretion of the CEO.
2. Term of Employment. The term of this Employment Agreement (the
"Employment Period") shall commence on January 21, 2000 (the "Effective Date"),
shall end on January 21, 2001 (the "Initial Period"), and shall thereafter
continue from year to year (each an "Annual Extension"), unless sooner
terminated as provided in the second sentence of this Section 2 or in Section 4
hereof. Unless sooner terminated as provided in Section 4 hereof, the Employment
Period may be terminated by either the Company or Employee, at the end of the
Initial Period or an Annual Extension, if a written notice of nonrenewal is
delivered to the other party at least six (6) months prior to the end of such
Initial Period or Annual Extension, as the case may be.
3. Compensation and Benefits.
(a) Annual Base Salary. During the Employment Period, the Company
shall pay Employee as compensation for his services an initial annual base
salary of $90,000 per year. Employee's annual base salary rate shall be
reviewed at least annually for increase (but in no event decrease) in the
discretion of the CEO. The annual base salary shall be paid to Employee on the
regular pay periods established by the Company.
(b) Bonus. In addition to Employee's base compensation, Employee
shall be eligible to earn a bonus upon achievement of such objectives as may be
established from time to time by the CEO. It is the expectation that the
Employee will be eligible to earn a bonus equal to his base salary upon
achievement of such objectives, with greater bonus payments available if such
objectives are exceeded.
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(c) Additional Equity Participation. In addition, Employee shall be
entitled to participate in such equity incentive plan as may be approved from
time to time by the Board of Managers.
(d) Benefits. For so long as he is employed by the Company, the
Company will pay for Employee's personal vehicle, which Employee can replace
every three (3) years. The payments on the current vehicle are $______ per
month. Employee shall also receive all other standard employee benefits made
available to senior executives of the company. Employee shall be eligible for
all of the Company's benefits, including participation in any pension or option
plan(s), so long as Employee qualifies under the terms of the plan documents.
Subsequent to termination of Employee's employment, Employee shall have the
option to continue in the Company's benefit plans at his sole cost so long as
Employee qualifies under the terms of the plan documents.
(e) Expenses. The Company agrees to reimburse Employee for those
reasonable expenses incurred by Employee as a result of Employee promoting the
business of the Company, including expenses for entertainment, travel and
similar items upon the presentation by Employee of any itemized account of such
expenses in such detail as to meet IRS requirements for the deduction of such
expenses and said expenses must be ordinary and necessary expenses of the
Company paid or incurred in carrying on the Company's trade or business.
4. Termination of Employment. Prior to the expiration of the Employment
Period, this Agreement and Employee's employment may be terminated as follows:
(a) By the Company, if Employee engages in conduct which gives the
Company cause to discharge him. "Cause" shall be defined as fraud,
misrepresentation, theft, embezzlement, or intentional violation of law or the
Company's policies or willful refusal to follow lawful directives of the CEO or
the Board of Managers, which violation or willful refusal is not remedied within
ten (10) days after receipt of notice thereof from the Company.
(b) Automatically, upon Employee's death or legal incapacity.
(c) By the Company, upon the Employee's incapacity or inability to
perform the services contemplated by this Agreement for a period of at least one
hundred-eighty (180) days in any three hundred-sixty (360) day period because
his physical or mental health shall have become so impaired as to make it
impossible or impractical to perform the duties and responsibilities
contemplated hereunder.
(d) By the Company, at the discretion of the CEO or upon a majority
vote of the Board of Managers.
5. Effect of Termination of Employment. Upon termination of Employee's
employment and this Agreement, the rights and obligations of the parties
pursuant to Sections 7 through 14 and Sections 16 and 17 shall be unaffected,
but all other rights and obligations of the parties hereunder shall cease,
except:
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(a) If the Agreement is terminated pursuant to Section 4(a), all of
the Employee's rights to receive compensation and benefits under this Agreement
shall terminate as of the date of such termination, except as otherwise mandated
by law, and the Employee shall not be entitled to any bonus with respect to the
year in which termination occurs.
(b) If this agreement is terminated pursuant to Section 4(d), the
Company shall continue to pay Employee (or his estate), his Annual Base Salary
at the time of termination described in Section 3(a) of this Agreement for one
(1) year, a pro rata bonus under Section 3(b) for the period through the date of
termination, and a bonus under Section 3(b) for the twelve month period
following the termination (collectively, "Severance Pay"). The Severance Pay
shall be paid to Employee (or his estate) on the regular pay periods established
by the Company, but at least on a monthly basis, and shall be subject to
withholding and other applicable taxes. Notwithstanding the terms of any option
plan or any equity awards granted to Employee thereunder, all such options and
equity awards outstanding immediately prior to such termination shall
immediately become exercisable. If Employee has been found to have in any manner
breached Section 7 of this Agreement, then the Company's duty to pay any
Severance Pay to Employee under this Section 5(b) of this Agreement shall
terminate from the date on which it is determined that said breach occurred and
Employee shall immediately reimburse the Company for any Severance Pay payments
made by the Company to Employee after the first date on which said breach
occurred.
(c) If this Agreement is terminated pursuant to Section 4(b) or
4(c), Employee (or his estate) shall receive his annual base salary for the
remainder of the calendar year in which such termination occurs (according to
the same payroll practices in effect at the time of termination) and benefits
(as applicable) for the remainder of the year and six months of the following
year. Notwithstanding the terms of any option plan or any equity awards granted
to Employee thereunder, all such options and equity awards outstanding
immediately prior to such termination shall immediately become exercisable.
6. Withholding. All compensation paid to Employee shall be subject to
customary withholding taxes and other employment taxes as required with respect
thereto.
7. Non-Competition and Non-Solicitation Agreement. Employee agrees that
during his employment by the Company and for the period beginning on the date
hereof and ending twelve (12) months following expiration or termination of
employment for any reason, Employee will not, as an individual or as a partner,
employee, agent, advisor, consultant or in any other capacity of, or, directly
or indirectly, (i) carry on any business, or own greater than a 10% interest in
any, Internet intensive business that uses the Global Portal Platform or a
company that derives over 50% of its gross revenues or over one hundred million
dollars ($100,000,000.00) from the sale of telecommunications infrastructure
equipment over or through the use of the internet or the world wide web,
anywhere in the United States (the "Territory"), or (ii) solicit or hire, or
engage as a consultant or in any other capacity, any person who was an employee
or officer of the Company at the time of termination of the Employee's
employment, or at any time within six (6) months prior to such termination.
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Employee recognizes the broad territorial scope of the covenant above,
but acknowledges and agrees that the restriction is reasonable and enforceable
in view of, among other things, (1) the narrow range of activities prohibited,
(2) the national market in which the Company and its affiliates operate, and (3)
Employee's background, which is such that the restraint will not impose an undue
hardship on Employee.
Employee expressly agrees that the covenant set forth in this Section 7
is reasonable in light of the scope of the business heretofore conducted by the
Company. If any court or tribunal of competent jurisdiction shall refuse to
enforce the foregoing covenant because the time limit applicable thereto is
deemed unreasonable, it is expressly understood and agreed that such covenant
shall not be void, but that for the purpose of such proceedings and in such
jurisdiction, such time limitation shall be deemed reduced to the extent
necessary to permit enforcement of the covenant. If any court or tribunal of
competent jurisdiction shall refuse to enforce the foregoing covenant because it
is more extensive (whether as to geographic area, scope of business or
otherwise) than is deemed reasonable, it is expressly understood and agreed
between the parties hereto that such covenant shall not be void, but that for
the purpose of such proceedings and in such jurisdiction, the restrictions
contained herein (whether as to geographic area, scope of business or otherwise)
shall be deemed reduced to the extent necessary to permit enforcement of the
covenant.
Employee further acknowledges and agrees that the damages resulting
from any breach of the foregoing covenant may be intangible in whole or in part
and that the Company is entitled to seek specific enforcement, injunctive relief
and other equitable remedies in addition to monetary damages, and Employee
hereby stipulates to the entering of such injunctive relief prohibiting Employee
from competing with the Company in breach of such covenant.
8. Non-Waiver of Rights. The failure of either party to enforce at any
time any of the provisions of this Agreement or to require at any time
performance by the other party of any of the provisions hereof shall in no way
be construed to be a waiver of such provisions or to affect either the validity
of this Agreement, or any part hereof, or the right of either party thereafter
to enforce each and every provision in accordance with the terms of this
Agreement.
9. Severability and Interpretation. Whenever possible, each provision
of this Agreement and any portion hereof shall be interpreted in such a manner
as to be effective and valid under applicable law, rules and regulations. If any
covenant or other provision of this Agreement (or portion thereof) shall be held
to be invalid, illegal, or incapable of being enforced, by reason of any rule of
law, rule, regulation, administrative order, judicial decision or public policy,
all other conditions and provisions of this Agreement shall, nevertheless,
remain in full force and effect, and no covenant or provision shall be deemed
dependent upon any other covenant or provision (or portion) unless so expressed
herein. The parties hereto desire and consent that the court or other body
making such determination shall, to the extent necessary to avoid any
unenforceability, so reform such covenant or other provision or portions of this
Agreement to the minimum extent necessary so as to render the same enforceable
in accordance with the intent herein expressed.
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10. Entire Agreement. This Agreement represents the entire and
integrated Employment Agreement between Employee and the Company and supersedes
all prior negotiations, representations and agreements, either written or oral,
with respect thereto.
11. Notice. All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party, by registered or
certified mail, return receipt requested, postage prepaid, or by overnight
courier, addressed to such address as may have been furnished to the other party
in writing. Notices and communications shall be effective at the time they are
given in the foregoing manner (provided that notice by mail shall be deemed
given three business days after posting).
12. Amendments and Waivers. No modification, amendment or waiver of any
of the provisions of this Agreement shall be effective unless in writing
specifically referring hereto, and signed by the parties hereto.
13. Assignments. This Agreement shall be binding upon, and shall inure
to the benefit of the Parties heirs, administrators, executors, successors and
assigns.
14. Arbitration. Except for disputes for which equitable relief is
permitted under this Agreement, any controversy or claim arising out of or
relating to this Agreement, the employment relationship or any breach thereof
between the Company and Employee and any of their agents, employees and
affiliated companies shall be settled by arbitration in accordance with the
rules of the America Arbitration Association and judgment upon the award may be
entered in any court having jurisdiction.
15. Headings. Section headings are provided in this Agreement for
convenience only and shall not be deemed to substantively alter the content of
such sections.
16. Indemnification. To the fullest extent permitted by the
indemnification provisions of the operating agreement of the Company in effect
as of the date of this Agreement (collectively, the "Indemnification
Provision"), and in each case subject to the conditions thereof, the Company
shall (i) indemnify the Employee, as an officer or director of the Company if
the Employee shall be serving in such capacity at the Company's written request,
against all liabilities and reasonable expenses that may be incurred by the
Employee in any threatened, pending, or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, and whether formal or
informal, because the Employee is or was an officer or director of the Company
and (ii) pay for or reimburse the reasonable expenses incurred by the Employee
in the defense of any proceeding to which the Employee is a party because the
Employee is or was an officer or director of the Company. The rights of the
Employee under the Indemnification Provision shall survive the termination of
the employment of the Employee by the Company.
17. Non-Disclosure Agreement. Employee shall execute the non-disclosure
agreement attached as Exhibit A.
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THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
XXXXXXXX.XXX LLC
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
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