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CONFIDENTIAL TREATMENT REQUESTED BY BEARCOM GROUP, INC.
OMITTED PORTIONS HAVE BEEN SEPARATELY FILED WITH THE SEC.
EXHIBIT 10.2
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of March 31, 1998 by and between CONDOR
HOLDINGS, INC., a Delaware corporation ("Employer"), BEARCOM, INC., a Texas
corporation ("BearCom"), and XXXXXXX XXXXXXXXXX ("Employee").
W I T N E S S E T H:
WHEREAS, Employer, BearCom and Employee are parties to an Asset
Purchase Agreement dated as of March 31, 1998 (the "Asset Purchase Agreement"),
pursuant to which Employer purchased substantially all of the assets of Condor
Communications, Inc., a Florida corporation ("Condor"); and
WHEREAS, Employee was the President, Chief Executive Officer and,
together with his spouse, sole stockholder of Condor; and
WHEREAS, Employee desires to enter into the employment of Employer,
and Employer desires to employ Employee provided that, in so doing, it can
protect the confidential information, business, accounts, patronage and good
will of Employer and BearCom; and
WHEREAS, the execution and delivery of this Agreement is a condition
precedent to the obligations of Condor and Employee pursuant to the Asset
Purchase Agreement; and
WHEREAS, the noncompetition and nonsolicitation provisions of this
Agreement are conditions precedent to the obligations of Employer and BearCom
pursuant to the Asset Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree as follows:
1. EMPLOYMENT. Employer hereby agrees to employ Employee, and
Employee hereby agrees to serve Employer, upon the terms and conditions
hereinafter set forth.
2. TERMS. Subject to prior termination as hereinafter set forth,
the term of the employment of Employee by Employer pursuant to this Agreement
(the "Term") shall commence on the date hereof and shall continue through the
last day of the first twenty-four (24) complete calendar month period following
the date hereof.
3. DUTIES. Employee shall serve as, and have all power and
authority consistent with the position of, President and Chief Executive
Officer of Employer with complete power and authority over the management of
Employer, subject only to direction of the Board of Directors of Employer
("Board") exercised in good faith and not with the purpose of reducing any
amount payable to Condor pursuant to Section 1.6 of the Asset Purchase
Agreement. Employees duties hereunder shall be those normally incident to his
position as President and Chief Executive Officer of Employer, which duties
will be similar to those heretofore performed for Condor by Employee, and such
other duties as may be reasonably assigned to Employee from time to time by the
Board, provided that such duties do not diminish the prestige or responsibility
of Employee's position.
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Employee shall devote substantially all his business time and efforts to the
business of Employer; provided, however, that subject to the provisions of
Section 8, Employee may devote limited time to other business matters in which
he has an interest, including, but not limited to the business interests
identified on Schedule 3 hereto.
4. COMPENSATION AND OTHER PROVISIONS. Employee shall be entitled
to the compensation and benefits hereinafter described in Subsections (a)
through (e) (such compensation and benefits being hereinafter referred to as
"Compensation Benefits").
(a) BASE SALARY. Employer shall pay to Employee a base
salary equal to $150,000 per annum during the Term ("Base Salary"), payable in
equal installments consistent with Employer's regular payroll policy.
(b) PARTICIPATION IN BENEFIT PLANS. During the Term,
Employee shall be eligible to participate in all employee benefit plans and
arrangements now in effect or which may hereafter be established in
substitution of or in addition to such employee benefit plans and arrangements,
including, without limitation, all life, group insurance and medical care plans
of Employer. Employee's participation shall be made available on the same
basis as provided to other senior executives of Employer and BearCom.
(c) EXPENSES. In addition to the compensation
hereinabove provided, Employer will pay directly or reimburse Employee for all
reasonable expenses incurred by Employee in the interest of Employer,
including, but not limited to all reasonable entertainment expenses and first
class travel expenses.
(d) WORKING FACILITIES. Employee shall be entitled to
the continued exclusive use of the existing office which he presently occupies,
including the exclusive use of the furniture, fixtures and equipment contained
in such office, technical and secretarial assistance, and other facilities and
services suitable to Employee's position as President and Chief Executive
Officer of Employer and adequate for the performance of his duties; provided,
however, that if Employer's executive offices are relocated, which relocation
shall be within Miami-Dade County, Employee shall be provided with such new
office space, furniture, fixtures, equipment and technical and secretarial
staff of the same grade and qualify as his existing working facilities.
(e) VACATION AND SICK PAY. Employee shall be entitled to
four (4) weeks paid vacation per annum and such paid sick pay, consistent with
Employer's and BearCom's policy for senior executive officers.
5. TERMINATION. Employee's employment hereunder shall terminate
prior to the expiration of the Term upon the happening of the first to occur of
the following events:
(a) The mutual agreement of Employer and Employee;
(b) Employee's death;
(c) The inability of Employee to perform his duties
hereunder by reason of illness, accident or other physical or mental disability
for a continuous period of at least four months or an aggregate of six months
during any continuous twelve month period ("Disability");
(d) The termination by Employee for Good Reason (as
hereinafter defined); or
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(e) For Cause, where "Cause" shall mean: (i) any
misappropriation by Employee of funds or property of Employer or any of its
affiliates; (ii) the conviction of Employee for a felony or any crime involving
moral turpitude; (iii) refusal of Employee to perform his duties and
responsibilities, persistent neglect of duty or chronic absenteeism, which
remains uncured for ten (10) days after written notice from Employer to
Employee of such alleged Cause; (iv) a breach by Employee of the provisions of
Section 7 or Section 8; or (v) any attempt by Employee to obtain a personal
profit from any transaction in which Employee has an interest adverse to
Employer unless such adverse interest and the potential profit are disclosed in
writing to the Board and approved in advance of such transaction.
Any termination pursuant to subparagraph (a) (b), (c) or (e)
of this Section shall be communicated by a written notice ("Notice of
Termination"), such notice to set forth with specificity the grounds for
termination if the result of "Cause". Employee's employment under this
Agreement shall be deemed to have terminated as follows: (i) if Employee's
employment is terminated pursuant to subparagraph (b) above, on the date of his
death; or (ii) if Employee's employment is terminated pursuant to subparagraphs
(a), (c) or (e) above, on the date on which Notice of Termination is given; or
(iii) if Employee's employment is terminated pursuant to subparagraph (d)
above, ten (10) days after the date on which a Notice of Termination is given.
The date on which termination is deemed to have occurred pursuant to this
paragraph is hereinafter referred to as the "Date of Termination."
6. PAYMENTS ON TERMINATION. Except as otherwise provided in this
Section, in the event that Employee's employment is terminated, Employer shall
pay to Employee his full Base Salary through the Date of Termination together
with all benefits and other compensation, if any, due and owing as of that
date. In the event that Employee's employment is terminated at any time by
Employee for "Good Reason" (as defined in this Section) or by Employer without
Cause, then Employer shall pay to Employee on the Date of Termination a lump
sum cash payment equal to all Compensation Benefits that are due, and all Base
Salary that would have become due to Employee under the terms of this Agreement
if the employment had not been terminated. For purposes of this Section 6 and
Section 8(e), "Good Reason" shall include: (i) the assignment to Employee of
any duties inconsistent in any material respect with Employee's position
(including status, offices, titles and reporting requirements), authority,
duties or responsibilities as contemplated by Section 3, or any other action by
Employer which results in a diminution of such position, authority, duties or
responsibilities, excluding for this purpose any action taken with the consent
of Employee and any isolated, insubstantial and inadvertent action taken in
good faith and which is remedied by Employer promptly after receipt of notice
of such action given by Employee; (ii) any material breach by Employer of any
of the terms or conditions of this Agreement which remains uncured following
ten (10) days after written notice to Employer of such alleged breach; or (iii)
any material breach by Employer of any of the terms or conditions of the Asset
Purchase Agreement which remains uncured following ten (10) days after written
notice to Employer of such alleged breach.
7. DISCLOSURE AND PROTECTION OF CONFIDENTIAL INFORMATION.
(a) For purposes of this Agreement, "Confidential
Information" means knowledge, information and material which is proprietary to
Employer, of which Employee may obtain knowledge or access through or as a
result of his employment by Employer (including information conceived,
originated, discovered or developed in whole or in part by Employee).
Confidential Information includes, but is not limited to, (i) technical
knowledge, information and material such as trade secrets, processes, formulas,
data, know-how, improvements, inventions, computer programs, drawings, patents,
and experimental and development work techniques, and (ii) marketing and other
information, such as supplier lists, customer lists, marketing and business
plans, business or technical needs of customers, consultants, licensees or
suppliers and their methods
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of doing business, arrangements with customers, consultants, licensees or
suppliers, manuals and personnel records or data. Confidential Information
also includes any information described above which Employer obtains from
another party (including Condor and its affiliates) and which Employer treats
as proprietary or designates as confidential, whether or not owned or developed
by Employer. Notwithstanding the foregoing, any information which is or
becomes available to the general public otherwise than by breach of this
Section 7 shall not constitute Confidential Information for purposes of this
Agreement.
(b) During the term of this Agreement and thereafter,
Employee agrees to hold in confidence all Confidential Information and not to
use such information for Employee's own benefit or to reveal, report, publish,
disclose or transfer, directly or indirectly, any Confidential Information to
any person or entity, or to utilize any Confidential Information for any
purpose, except in the course of Employee's work for Employer.
(c) Employee will abide by any and all security rules and
regulations, whether formal or informal, that may from time to time be imposed
by Employer for the protection of Confidential Information, and will inform
Employer of any defects in, or improvements that should be made to, such rules
and regulations.
(d) Employee will notify Employer in writing immediately
upon receipt of any subpoena, notice to produce, or other compulsory order or
process of any court of law or government agency if such document requires or
may require disclosure or other transfer of Confidential Information. For this
purpose, Employee irrevocably nominates and appoints Employer (including any
attorney retained by Employer), as his true and lawful attorney-in-fact, to act
in Employee's name, place and stead to perform any act which Employee might
perform to defend and protect against any disclosure of Confidential
Information.
(e) Upon termination of his employment, Employee will
deliver to Employer any and all records and tangible property that contain
Confidential Information that are in his possession or under his control.
8. COVENANT NOT TO COMPETE.
(a) Employee covenants and agrees that until the later of
[Confidential Treatment Requested with SEC] after the closing of the
transactions contemplated in the Asset Purchase Agreement or [Confidential
Treatment Requested with SEC] after Employee ceases to be employed by Employer
or one of its affiliates (the "Non-Competition Period"), except for services
performed on behalf of Employer or one of its affiliates, Employee shall not,
within the trade territories described in the Motorola Distribution Agreement
to which Condor or any of its affiliates is a party existing on the date hereof
("Restricted Area"), directly or indirectly, alone or as a partner, member,
employee, agent, consultant, officer, director, stockholder, manager or
investor of any corporation, partnership or other entity: (i) invest (except
for investments of not more than five (5%) percent of the outstanding stock of
any publicly-traded company), own, manage, operate or control, or participate
in the ownership, management, operation or control of a business which sells,
rents, or services wireless communication products ("Competitive Business"); or
(ii) accept employment with or render services to a Competitive Business.
(b) During the Non-Competition Period, Employee shall
not, directly or indirectly: (i) solicit for any purpose any customer of
Employer or any person who was a customer of Employer; (ii) solicit or induce
any employee of Employer to leave his or her employment with Employer; or (iii)
solicit for employment by himself or anyone else any person who was an employee
of Employer.
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(c) If any court shall determine that the duration or
geographical limit of any covenant contained in this Section 8 is
unenforceable, it is the intention of the parties that covenant shall not
thereby be terminated but shall be deemed amended to the extent required to
render it valid and enforceable, such amendment to apply only in the
jurisdiction of the court that has made such adjudication.
(d) Employee acknowledges and agrees that the covenants
contained in Sections 7 and 8 are of the essence in this Agreement, that each
of such covenants is reasonable and necessary to protect and preserve the
interests, properties, and business of Employer, and that irreparable loss and
damage will be suffered by Employer should Employee breach any of such
covenants. Employee further represents and acknowledges that he shall not be
precluded from gainful engagement in a satisfactory fashion by the enforcement
of these provisions.
(e) This Section 8 shall not be effective in the event
Employee is terminated by Employer without Cause or by Employee for Good Reason
(as defined in Section 6) but shall be effective following termination for any
other reason.
9. AVAILABILITY OF INJUNCTIVE RELIEF. Employee acknowledges and
agrees that any breach by him of the provisions of Sections 7 or 8 hereof will
cause Employer irreparable injury and damage for which it cannot be adequately
compensated in damages. Employee therefore expressly agrees that Employer
shall be entitled to seek injunctive and/or other equitable relief, on a
temporary or permanent basis to prevent any anticipatory or continuing breach
of this Agreement or any part hereof, and is in addition to any other remedies
available to it. Nothing herein shall be construed as a waiver by Employer of
any right it may have or hereafter acquired to monetary damages by reason of
any injury to its property, business or reputation or otherwise arising out of
any wrongful act or omission of Employee.
10. ENTIRE AGREEMENT; MODIFICATION. This Agreement sets forth the
entire understanding of the parties with respect to the subject matter hereof,
supersedes all existing agreements between them concerning such subject matter,
and may be modified only by a written instrument duly executed by each party.
11. NOTICES. Any notice required or permitted hereunder shall be
deemed validly given if delivered by hand, verified overnight delivery, or by
first class, certified mail to the following addresses (or to such other
address as the addressee shall notify in writing to the other party):
If to Employee: Xxxxxxx Xxxxxxxxxx
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
with a copy to: Cohen, Berke, Xxxxxxxxx,
Xxxxxx & Kondell, P.A.
0000 Xxxxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx, Esq.
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If to Employer: BearCom, Inc.
00000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxxx, Chairman
Telecopier: (000) 000-0000
with a copy to: Gardere & Xxxxx, L.L.P.
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
Telecopier: (000) 000-0000
12. WAIVER. Any waiver by either party of a breach of any
provision of this Agreement shall not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision
of this Agreement. The failure of a party to insist upon strict adherence to
any term of this Agreement on one or more occasions shall not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement. All waivers must
be in writing.
13. BINDING EFFECT. Employer's rights and obligations under this
Agreement shall not be transferable by assignment or otherwise, and any attempt
to do any of the foregoing shall be void; provided, that, the assignment of its
rights to enforce the confidentiality or non-competition provisions under
Section 7 or 8 of this Agreement to any successor entity shall not have any
effect whatsoever upon the binding nature or enforceability of this Agreement.
The provisions of this Agreement shall be binding upon and inure to the benefit
of Employer (and its successors and assigns) and Employee (and his heirs and
personal representatives).
14. HEADINGS. The headings in this Agreement are solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
15. GOVERNING LAW; VENUE. This Agreement will be governed and
construed in accordance with the laws of the State of Texas, without giving
effect to rules governing conflicts of law, with proper venue with respect to
all disputes related to this Agreement being Dallas, Texas.
16. INVALIDITY. The invalidity or unenforceability of any term of
this Agreement shall not invalidate, make unenforceable or otherwise affect any
other term of this Agreement, which shall remain in full force and effect.
17. ATTORNEYS' FEES. In the event any dispute or litigation
arises hereunder between any of the parties hereto, the prevailing party shall
be entitled to all reasonable costs and expenses incurred by it in connection
therewith (including, without limitation, all reasonable attorneys' fees and
costs incurred before and at any trial or other proceeding and at all tribunal
levels), as well as all other relief granted in any suit or other proceeding.
18. GUARANTEE. BearCom unconditionally guarantees the full and
timely performance of all of the obligations and agreements of Employer
pursuant to this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first hereinabove written.
EMPLOYER:
CONDOR HOLDINGS, INC., a Delaware
corporation
By: /s/ XXXX X. XXXXXX
------------------------------------
Xxxx X. Xxxxxx, Chairman
BEARCOM, INC., a Texas corporation
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Xxxx X. Xxxxxx, Chairman
EMPLOYEE:
/s/ Xxxxxxx Xxxxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxxxx
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