Exhibit 10.13
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and effective this 1st day of March, 2000, by and
between, NET-tel Corporation (hereinafter referred to as "NET-tel or
Corporation") having its principal place of business at 0000 00xx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000 and Xxxxx X. Xxxxxx, (hereinafter referred to as the
"Employee"), who resides at 000 X. Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000.
A. Corporation is engaged in the business of designing, creating,
marketing, and providing broadband integrated access telecommunications
services to the small and medium sized business market.
B. Corporation desires to continue the employment relationship of the
Employee.
C. The parties hereto desire to specify the terms of Employee's employment
by Corporation.
Therefore, the parties agree as follows:
1. Term of Employment.
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Corporation hereby agrees to amend its employment relationship subject to
and upon the terms and conditions of this Agreement. This Agreement shall
commence on March 1, 2000, and remain in full force and effect unless and until
terminated by either party pursuant to the provisions in Paragraph 8.
2. Duties.
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Employee shall continue to be employed by the Corporation as the Sr. Vice
President, Corporate Development or in such other positions involving comparable
responsibilities as the Chief Executive Officer or the Board of Directors of the
Corporation may designate from time to time. Employee shall perform the duties
normally associated with such position. In addition, Employee shall perform
such other duties as the Corporation shall reasonable assign from time to time.
3. Compensation.
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As compensation for services rendered to the corporation, the Corporation
shall pay Employee a Base Salary, which on an annualized basis would be
equivalent to $180,000 and will be paid in semi-monthly installments. In
addition to the Base Salary, the Employee shall be entitled to an annual bonus
of up to 70 percent of his Base Salary, payable quarterly (i.e., up to 17.5
percent every three months) to be based on Employee meeting Corporation,
department and personal objectives.
4. Best Efforts.
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4.1 Employee agrees to perform to the best of Employee's ability,
experience, and talents, all of the duties that may be required by the express
and implicit terms of this Agreement, to the reasonable satisfaction of
Corporation. Such duties shall be performed at such place(s) as the needs,
business, or opportunities the Corporation may require from time to time.
4.2 Employee agrees that so long as this Agreement continues in
effect, Employee shall devote substantially all of his full business time and
energies to the business and affairs of the Corporation, Employee shall use his
best efforts, skills and abilities to promote the Corporation's interests, and
Employee shall perform the duties described in this Agreement and such other
duties as may reasonably be assigned to Employee.
5. Prohibition on Using Confidential Information and Non Solicitation
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The Employee agrees to the terms and conditions of the attached
Agreement Regarding Confidentiality, Non-Solicitation, as attached hereto and
incorporated into this Agreement by reference.
6. Covenant Not to Compete.
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6.1 Except as expressly noted herein, during Employee's employment
with the Corporation, and for a period of one (1) year following the termination
of the Agreement and Employee's employment thereunder, Employee shall not,
either directly or indirectly, engage in or have any interest in any person,
firm, corporation or business (whether as an employee, officer, director, agent,
or principal investor) that engages in a business in direct competition with the
Corporation within 90 miles of the Corporation's corporate headquarters.
6.2 Subject to the terms of Paragraph 8.1(b), upon termination of this
Agreement by Corporation under Paragraph 8.1, Employee will be paid severance
pay for a period of one year based on the Employee's Base Salary, to be paid in
accordance with the Corporation's payment of Base Salary.
7. Enforcement of Covenant Not to Compete.
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If Employee breaches or threatens to breach the terms of the Covenant Not
to Compete of this Agreement, NET-tel may pursue any remedies it is or may be
entitled to under the law or equity, including injunctive relief. Employee
acknowledges that NET-tel would be irreparably injured upon Employee's breach of
the foregoing provisions regarding confidential information, non-solicitation,
and covenant not to compete, and it is difficult to ascertain with certainty the
amount of money damages NET-tel will suffer. Employee agrees, however, that a
reasonable amount of such money damages would be the commissions and bonuses
Employee was paid by NET-tel in the six (6) month period prior to Employee's
termination. Provided further, however, that nothing herein shall preclude NET-
tel from seeking a recoupment of its actual damages should they be ascertainable
in an amount certain and should they exceed the amount of commissions and
bonuses Employee received in the six (6) months prior to termination.
8. Termination.
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8.1 Termination Without Cause. Employee's employment under this
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Agreement shall be on an "at will" basis. Subject to the provisions of
Paragraph 8.2, either party may terminate this Agreement and Employee's
employment thereunder at any time, for any reason or no reason whatsoever.
(a) Subject to the terms of Paragraph 8.1(b), upon termination of
this Agreement by Corporation under Paragraph 8.1, Employee will be paid
severance pay equal to four weeks of his Base Salary for every year Employee was
employed by Corporation.
(b) If, in the good faith belief of the Corporation, the Employee
breaches the prohibition against disclosing Confidential Information, the Non-
Solicitation clause and the Covenant Not Compete, the Employee's entitlement to
any severance will cease immediately and Corporation shall have no further
obligation or liability to Employee.
(c) Upon termination of employment under Paragraph 8.1, Employee
will be entitled to payment for his unused personal days.
8.2 Termination for Cause. Corporation may terminate this Agreement
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for Cause and cancel its obligation to Employee hereunder, except for base
salary earned but unpaid to the effective date of termination. In the event the
Agreement is terminated under this Paragraph for cause, Employee will not be
entitled to severance pay. As used herein, the term "Cause" shall include, but
not be limited to: (i) the commission of Employee of a felony or a crime
involving moral turpitude or the commission of any other act involving
dishonesty, disloyalty or fraud, (ii) conduct by Employee tending to bring
Corporation into substantial public disgrace or dispute, (iii) failure of
Employee to perform, in any material respect, his obligations under this
Agreement or the reasonable directives of the Board or the Corporation's Chief
Executive Officer, (iv) failure of Employee to perform his job in an efficient
and satisfactory manner, (v) negligence or willful misconduct by Employee in
providing services required hereby, (vi) Employee's breach of any aspect of this
Agreement (viii) the determination by the Board that Employee has acted, or
had failed to act, which action or failure to take actions are within Employee's
power and authority, in a manner detrimental to the best interests of
Corporation.
8.3 Death or Disability. In the event of Employee's death or the
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Employee's inability, due to a disability, to perform the essential functions of
his job with or without reasonable accommodation during the term of this
Agreement, Corporation shall have no further obligations or liability hereunder,
except to pay to Employee or Employee's estate (in addition to and without
regard for any benefits due under any insurance, retirement, stock option, or
other benefit plan of the Corporation or any other person or entity) the amount
of Employee's Compensation, including base salary, commissions, and unused
personal leave, other payments accrued but unpaid at the date of Employee's
death or disability as described above. Employee's employment shall be deemed
terminated by reason of disability as described above only if the Board of
Directors of the Corporation shall determine in good faith that Employee shall
be unable to perform his duties by reason of such disability for a period of at
least four (4) consecutive months.
8.4 Return of Property. Upon termination of this Agreement,
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Employee shall deliver all property (including keys, records, notes, data,
memoranda, models, and equipment) that is in the Employee's possession or under
the Employee's control which is the Corporation's property or related to the
Corporation's business.
9. Governing Law.
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This Agreement is made pursuant to, and shall be governed, construed,
and enforced in all respects and for all purposes in accordance with the laws of
the Commonwealth of Virginia.
10. Waivers.
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No consent or waiver, express or implied, by either party, to or of
any breach or default by the other in the performance by the other of its
obligations hereunder, shall be deemed or construed to be a consent or waiver
to, or of, any other breach or default in the performance by such other party
hereunder. Failure on the part of either party to complain of any act or
failure to act of any other party, or to declare any other party in default,
irrespective of how long such failure continues, shall not constitute a waiver
by such party of its rights hereunder.
11. Amendments.
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This Agreement is subject to amendment only by a written agreement
signed by all of the parties hereto.
12. Attorneys' Fees.
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In the event of any litigation between the parties hereto to enforce
any provision of this Agreement or any right of any party hereto, the
unsuccessful party to such arbitration or litigation agrees to pay to the
successful party, all costs and expenses, including reasonable attorneys' fees
and costs incurred therein.
13. Entire Agreement.
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This Agreement contains the entire Agreement of the parties. It
supersedes any and all other agreements, either oral or in writing, between the
parties. Each party to this Agreement acknowledges that no representations,
inducements, promises or agreements, 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. This Agreement may not be modified or amended by oral
agreement, but only by an agreement in writing.
IN WITNESS WHEREOF, the parties to this Agreement have duly executed
the same on the date and year first above written.
NET-tel Corporation Xxxxx Xxxxxx
By: ./s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxx, Attorney-in-Fact
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Its: President
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