EXHIBIT 10.12
EMPLOYMENT AGREEMENT
This AGREEMENT (the "Agreement") is made and entered into as of this
13th day of February 2004, by and between Davel Communications, Inc., (the
"Corporation") and Xxxxx Xxxxxx ("the Executive").
WHEREAS, the Corporation desires to have the Executive provide services
to the Corporation as General Counsel, having determined that the services of
the Executive are of value to the Corporation, and the Executive desires to be
employed by the Corporation as General Counsel; and
WHEREAS, the Corporation and the Executive intend this Agreement to
supersede and replace that certain employment agreement between the parties
dated on or about September 3, 2002 (the "Previous Agreement").
NOW THEREFORE, in consideration of the Executive's performance of the
duties set forth herein, and upon the other terms and conditions hereinafter
provided, the parties agree as follows:
1. Employment and Services.
During the term of this Agreement, the Executive shall be
employed as General Counsel of the Corporation. As General
Counsel, the Executive shall render administrative and
management services to the Corporation such as are customarily
performed by persons situated in similar executive positions,
and such other duties as the Chief Executive Officer ("CEO")
may from time to time reasonably direct. As an employee of the
Corporation, the Executive shall report directly to the CEO of
the Corporation.
2. Term of Agreement.
The term of this Agreement shall continue for a period of
twelve (12) months beginning February 13th, 2004 and ending
February 12th, 2005. This Agreement shall supersede the
Previous Agreement and the Previous Agreement shall have no
force or effect.
3. Obligations of the Executive.
The Executive agrees to devote his best efforts and
substantially all of his business time to the business and
affairs of the Corporation, and to discharge his
responsibilities herein. The Executive may serve on corporate,
civic or charitable boards or committees and may manage
personal investments, so long as such activities do not
interfere in any material respect with the performance of his
responsibilities hereunder.
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EXHIBIT 10.12
4. Compensation.
a. Salary. During the term of this Agreement, the
Corporation shall pay the Executive a salary of
$177,424 per annum, which shall be paid at regular
intervals (no less often than monthly) in accordance
with the Corporation's normal payroll practices.
b. Retention Compensation. During the term of this
Agreement, the Executive shall receive retention
compensation based upon and in accordance with the
criterion set forth on Exhibit "A" attached hereto
and incorporated herein by reference.
c. Benefit Plans. The Executive shall be entitled to
participate in any plan of the Corporation relating
to pension, deferred compensation, profit-sharing,
stock purchase, group life insurance, medical
insurance or other retirement or employee benefits
that the Corporation may then have in force for the
benefit of its Executive employees, and for which he
is otherwise eligible. At a minimum, the Corporation
shall provide Executive with family medical
insurance, long-term disability insurance, and family
dental insurance. In the event the Corporation
institutes a stock option plan for its executives,
Executive shall be eligible to participate in such
plan at levels consistent with other senior level
executive employees.
d. Expense Reimbursement. In addition to the
compensation provided to the Executive pursuant to
subparagraphs a., b., and c. hereof, and upon receipt
of proper documentation, the Corporation agrees to
reimburse the Executive for reasonable entertainment,
travel, lodging and other miscellaneous expenses,
including the reasonable and customary expenses
related to the operation and maintenance of a home
business office, incurred on its behalf and related
to the performance of his duties hereunder. The
Corporation shall also reimburse Executive for the
reasonable cost of Executive's monthly cellular
telephone expenses. Company shall provide Executive
with a monthly automobile allowance at a level
commensurate with other executives of the Company.
5. Vacations.
The Executive shall be entitled to four weeks paid
vacation for each calendar year during the Term of
the Agreement. The timing of vacations shall be
scheduled at a time mutually agreed upon between the
Executive and the CEO, but in no event shall the
Executive take more than two weeks of vacation at any
one time. The Executive shall
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EXHIBIT 10.12
not be entitled to receive any additional
compensation for his unused vacation time.
6. Termination of Employment.
a. The Executive's employment under this Agreement may
be terminated by the Corporation for Cause as
hereinafter defined. Any termination of this
Agreement other than for "Cause" shall not prejudice
his right to receive:
(i) Compensation in accordance with Paragraph 4
of this Agreement for the remaining term
hereof, and
(ii) The other benefits provided by this
Agreement for the remaining term thereof.
b. The Executive shall have no right to receive
compensation or other benefits under this Agreement
for any period after the date of termination for
Cause. For purposes of this Agreement, termination
for "Cause" shall include termination because of the
(a) Executive's fraud or dishonesty in the course of
Executive's employment with the Corporation, (b)
gross negligence or willful misconduct committed by
Executive in the course of Executive's employment
with the Corporation which has or might reasonably be
expected to have a material adverse effect upon the
business or operations of the Corporation, (c) breach
of fiduciary duty involving personal profit, (d)
intentional failure to perform stated duties, (e)
conviction of a felony or other crime or moral
turpitude in the course of employment (e.g. fraud,
theft, embezzlement and the like, (f) habitual and
excessive use of alcohol or controlled substances
other than for therapeutic reasons, (g) failure to
achieve the minimum performance criterion set forth
on Exhibit "A" or (h) Executive's material breach of
any provision of this Agreement.
c. This Agreement may be voluntarily terminated by the
Executive at any time upon ninety (90) days' written
notice to the Corporation or upon such shorter period
as may be agreed upon between the Executive and the
CEO of the Corporation. In the event of such
termination, the Corporation shall be obligated only
to continue to pay the Executive his salary up to the
date of termination and those retirement and/or
employee benefits which have been earned or become
payable up to the date of termination.
d. If the Executive's employment terminates by reason of
the Executive's Disability, as defined in Paragraph
7, the Corporation shall pay the Executive any
benefits which pursuant to the terms of
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EXHIBIT 10.12
any compensation or benefit plan have been earned and
have become payable but which have not yet been paid
to the Executive, together with a pro rata portion of
any additional compensation that the Executive would
have been entitled to receive in respect of the year
in which the Executive's date of termination occurs
had he continued in employment until the end of such
calendar year; however, there shall be no incentive
bonus payable with respect to the year during which
Executive's employment is terminated.
7. Disability.
Executive shall be deemed to be disabled and the Corporation
may terminate this Agreement if Executive shall, as a result
of such Disability, fail to perform the duties hereunder for
any 90 days during a consecutive 120-day period. The
Corporation may terminate the Executive's employment after
having established his Disability, which results in the
Executive becoming eligible for long-term disability benefits.
For purposes of this Agreement, "Disability" means a physical,
or mental infirmity, which prevents the Executive from
performing the essential functions of his position under this
Agreement. In the event the Executive's employment is
terminated by reason of Disability, he shall be entitled to
the compensation and benefits provided for under this
Agreement for any period prior to the establishment of the
Executive's Disability during which is unable to work due to a
physical or mental infirmity.
8. Non-Solicitation and Non-Competition.
a. The Executive agrees that during the term of this
Agreement, and for any period after the termination
of this Agreement during which he continues to
receive compensation under this Agreement, he will
not directly or indirectly:
(i) Solicit, divert or take away any of the
customers, business or patronage of the
Corporation or its subsidiaries or
affiliates; or
(ii) Induce or attempt to influence any employee
of the Corporation or its subsidiaries or
affiliates to terminate his or her
employment therewith.
b. Executive agrees that during the term hereof and for
twelve (12) months from the date of the termination
of Executive's employment hereunder, Executive shall
not compete with the Corporation, on behalf of
himself or any other person, firm, business or
corporation, as follows: he shall not directly or
indirectly (i) engage in the pay telephone business;
or (ii) request or instigate any account or
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EXHIBIT 10.12
customer of the Corporation to withdraw, diminish,
curtail or cancel any of its business with the
Corporation.
c. In the event of a breach or threatened breach of the
Executive of the provisions of this Paragraph 8, the
Corporation, or any duly authorized officer thereof,
will be entitled to a temporary restraining order or
injunction.
9. Successors; Binding Agreement.
This Agreement and all rights of the Executive hereunder shall
inure to the benefit of and be enforceable by his personal or
legal representatives, successors, heirs, distributees,
devisees, legatees and permitted assigns. This Agreement and
all rights of the Corporation hereunder shall inure to the
benefit of and be enforceable by its successors and permitted
assigns.
10. No Assignments.
This Agreement is personal to each of the parties hereto and
neither party may assign or delegate any of its rights or
obligations hereunder without first obtaining the written
consent of the other party.
11. Notices.
All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been
duly given if delivered by hand or mailed certified or
registered mail, return receipt requested with postage repaid,
to the following addresses or to such other address as either
party may designate by like notice.
a. If to the Corporation, to:
Davel Communications, Inc.
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Chief Executive Officer
b. If to the Executive, to:
Xxxxx Xxxxxx
0000 X. Xxxxxxxx Xxxx
Xxxxxxxxx Xxxxxxx, XX 00000
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EXHIBIT 10.12
and to such other or additional person or persons as either
party shall have designated to the other party in writing by
like notice.
12. Amendments.
No amendments or additions to this Agreement shall be binding
unless in writing and signed by both parties except as herein
otherwise provided.
13. Paragraph Headings.
The Paragraph Headings used in this Agreement are included
solely for convenience and shall not affect, or be used in
connection with, the interpretation of this Agreement.
14. Severability.
The provisions of this Agreement shall be deemed severable and
the invalidity or unenforceability of any provisions shall not
affect the validity or enforceability of the other provisions
hereof.
This space intentionally left blank.
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EXHIBIT 10.12
15. Governing Law.
This Agreement shall, except to the extent that Federal law
shall be deemed to preempt it, be governed by and construed
and enforced in accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
DAVEL COMMUNICATIONS, INC.
By: /s/ XXXXX X. XXXXX
------------------------------------
Xxxxx X. XxXxx
Chairman and Chief Executive Officer
EXECUTIVE
/s/ XXXXX X. XXXXXX
----------------------------------------
Xxxxx Xxxxxx
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EXHIBIT 10.12
EXHIBIT "A"
KEY EXECUTIVE RETENTION PLAN
DAVEL COMMUNICATIONS, INC. (THE "CORPORATION")
The purpose of this plan is to retain the Executive for efforts in managing the
Corporation and to incent Executive to carry forth certain strategic initiatives
at the direction of the Chairman of the Board and CEO.
In the event the Corporation is acquired and the Executives position is
eliminate or the Executive is asked to relocate more that fifty miles from their
primary residence and does not accept or restructuring efforts eliminate the
Executive's position, the Executive will be paid an amount equal to six months
severance or the time remaining on this Agreement, which ever is greater.
If the Executive chooses to leave employment prior to the expiration of this
Agreement, there will be no retention payments made.
This Agreement may be renewed at the option of the Corporation.
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