Exhibit 10.10
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into effective the 30th
day of December, 1998 ("Effective Date") by and between Davel Communications,
Inc. ("Davel") and its subsidiary, Peoples Telephone Company, Inc. and Xxxxx X.
Xxxxxx ("Executive" or "Employee"). Davel Communications Group, Inc. and Peoples
Telephone Company, Inc. are collectively referred to herein as the "Company" or
"Employer."
WHEREAS, the Executive desires to serve as Senior Vice President for
Regulatory and External Affairs and Assistant General Counsel of the Company;
and
WHEREAS, the Company desires to employ the Executive as Senior Vice
President for Regulatory and External Affairs and Assistant General Counsel of
the Company upon the terms and conditions specified in this Agreement and the
Executive desires to serve as Senior Vice President for Regulatory and External
Affairs and Assistant General Counsel upon the terms and conditions specified in
this Agreement; and
NOW WHEREFORE in consideration of the mutual covenants herein, the parties
state and agree as follows:
1. Employment. The Company hereby agrees to employee the Executive and the
Executive hereby agrees to remain in the employ of the Company upon the
terms and conditions herein set forth.
2. Term. Employment shall be for a term commencing on the effective date
hereof and, subject to termination as provided herein, expiring on December
31, 2000. Upon expiration, this Agreement shall renew for consecutive one
year terms unless either party gives the other party written notice of its
intent not to renew at least sixty days prior to the expiration of the
original or any successive or extended term.
3. Duties.
a. Assignments. The Employee agrees to accept the duties commonly
involved in carrying out the position for which employed and any other
duties as may be required by Employer. The Employer shall have the
right at any time during the term of this Agreement to change the
duties of Employee or assign duties different from the duties
originally assigned.
b. Best Efforts. The Employee shall devote his best efforts, on a full-
time basis, to the Employer's business, and will not engage in any
employment or enterprise detracting from this goal. Employee shall
travel as reasonably required in the performance of his duties
hereunder.
c. Reporting. The Employee as Senior Vice President for Regulatory and
External Affairs and Assistant General Counsel, and in such other
offices as from time to time assigned in Davel or associated
enterprises, shall perform the duties of Senior
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Vice President for Regulatory and External Affairs and Assistant
General Counsel which shall consist of the duties normally associated
with such positions and such other duties as shall be from time to
time assigned. In the regular conduct of his duties as Senior Vice
President for Regulatory and External Affairs the Employee shall
report to and be responsible to the Chief Executive Officer, or such
other officer of the Company, as the Chief Executive Officer may
direct. In the regular conduct of his duties as Assistant General
Counsel the Employee shall report to and be responsible to the General
Counsel of the Company, or such other officer of the Company, as the
Chief Executive Officer may direct.
d. Place of Performance. In connection with his employment by the
Company, the executive shall be based at the principal executive
offices of the Company which as of the date of this Agreement are in
Tampa, Florida or at such other location as the Chief Executive
Officer may specify.
4. Compensation.
a. Base Salary. During the term of this Agreement, the Company shall pay
to the Executive a base salary ("Base Pay") of not less than $170,000
per annum which Base Salary shall be reviewed annually by the Chief
Executive Officer and the Compensation Committee and may be increased,
or decreased (but not below the aforementioned amount) upon
recommendation of the Chief Executive Officer to the Compensation
Committee. Further, the Compensation Committee upon recommendation of
the Chief Executive Officer may in its sole discretion determine to
pay the Executive additional compensation in cash or property as may
be determined from time to time. Base Pay will be paid in accordance
with the normal payroll practices of the Company, but not less
frequently than monthly.
b. Incentive Bonus. The Executive shall be eligible for an annual
incentive bonus ("Incentive Bonus") of up to 60% of the Executive's
Base Pay ("Maximum Incentive Bonus") and is assigned a target
incentive bonus ("Target Incentive Bonus") of 30% of the Executive's
Base Pay for such year. The Executive's actual Incentive Bonus will be
paid within 90 days of the end of the Company's fiscal year computed
and determined by the Compensation Committee upon recommendation of
the Chief Executive Officer in respect of the Executive's performance
measured relative to Company, departmental and individual objectives
as follows:
i. Company Objectives. Up to 50% of the Executive's Maximum
Incentive Bonus shall be awarded based upon the attainment of
company objectives ("Company Objectives") which shall be
determined by reference to growth in earnings per share ("EPSG")
and growth in earnings before interest, taxes, depreciation and
amortization ("EBITDAG") of the Company.
(1) Up to 25% of the Executive's annual Maximum Incentive Bonus
shall be determined by reference to EPSG ("EPSG Objectives")
which shall be determined consistently with the manner in
which the
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Company reports such earnings for financial purposes
adjusted for extraordinary items and shall be determined as
a function of EPSG, computed as follows:
(a) If EPSG is less than 10%, there shall be no award of
the portion of any Incentive Bonus attributable to the
attainment of EPSG Objectives.
(b) If EPSG is 10% or more, but not greater than 20%, then
the portion of the Incentive Bonus awarded for
attainment of EPSG Objectives shall be computed in
accordance with the following formula: [EPSG * 5] * 25%
of the Target Incentive Bonus.
(c) If EPSG is more than 20%, but not greater than 25%,
then the portion of the Incentive Bonus awarded for
attainment of EPSG Objectives shall be computed in
accordance with the following formula: [EPSG *6] * 25%
of the Target Incentive Bonus.
(d) If EPSG is more than 25%, then the portion of the
Incentive Bonus awarded for attainment of EPSG
Objectives shall be not more than 15% of the
Executive's Base Pay and shall be computed in
accordance with the following formula: [EPSG * 6.66667]
* 25% of the Target Incentive Bonus.
(2) Up to 25% of the Executive's annual Maximum Incentive Bonus
shall be determined by reference to EBITDAG ("EBITDAG
Objectives") which shall be determined consistently with the
manner in which the Company reports earnings before
interest, taxes, depreciation and amortization for financial
purposes adjusted for extraordinary items and shall be
determined as a function of EBITDAG, computed as follows:
(a) If EBITDAG is less than 10%, there shall be no award of
the portion of any Incentive Bonus attributable to the
attainment of EBITDAG Objectives.
(b) If EBITDAG is 10% or more, but not greater than 20%,
then the portion of the Incentive Bonus awarded for
attainment of EBITDAG Objectives shall be computed in
accordance with the following formula: [EBITDAG * 5] *
25% of the Target Incentive Bonus.
(c) If EBITDAG is more than 20%, but not greater than 25%,
then the portion of the Incentive Bonus awarded for
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attainment of EBITDAG Objectives shall be computed in
accordance with the following formula: [EBITDAG *6] *
25% of the Target Incentive Bonus.
(d) If EBITDAG is more than 25%, then the portion of the
Incentive Bonus awarded for attainment of EBITDAG
Objectives shall be not more than 15% of the
Executive's Base Pay and shall be computed in
accordance with the following formula: [EBITDAG *
6.66667] * 25% of the Target Incentive Bonus
ii. Department Objectives. Up to 30% of the Executive's Maximum
Incentive Bonus shall be awarded based upon the attainment of
departmental objectives ("Departmental Objectives") which shall
be defined in a writing provided to the Executive by the Chief
Executive Officer after January 1/st/ and prior to January
30/th/ of each year this Agreement is in effect except that in
the year the Executive executes this Agreement such writing
shall be provided within 60 days of the date of execution by
the Executive. Based upon the Chief Executive Officer's
evaluation of the Executive's attainment of the Departmental
Objectives, the Chief Executive Officer shall recommend to the
Compensation Committee an award of Incentive Bonus of up to 18%
of the Executive's Base Pay.
iii. Personal Objectives. Up to 20% of the Executive's Maximum
Incentive Bonus shall be awarded based upon the attainment of
personal objectives ("Personal Objectives") which shall be
defined in a writing provided to the Executive by the Chief
Executive Officer after January 1/st/ and prior to January
30/th/ of each year this Agreement is in effect except that in
the year the Executive executes this Agreement such writing
shall be provided within 60 days of the date of execution by
the Executive. Based upon the Chief Executive Officer's
evaluation of the Executive's attainment of the Personal
Objectives, the Chief Executive Officer shall recommend to the
Compensation Committee an award of Incentive Bonus of up to 12%
of the Executive's Base Pay.
c. Stock Options. On or before March 31 of the year following each year
this contract is in effect the Executive shall be awarded a minimum of
5,000 options, or such greater number as shall be determined by the
Compensation Committee upon consideration of the recommendation of the
Chief Executive Officer. Said options shall have an exercise price not
to exceed the closing price of the Company's stock on the last date
for which a closing price is available prior to the date on which the
Compensation Committee approves such award and shall otherwise be
issued subject to and in accordance with the Company's Stock Option
Plan.
5. Benefits.
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a. 401K Plan. Employer has established a 401(k) Profit Sharing Plan to
provide for voluntary before and after tax contributions by the
employees of the Company. The Profit Sharing Plan may also provide for
Employer contributions as may be from time to time determined by the
Employer consistent with and subject to the terms of the plan as
established by the Employer. The Executive may participate in such
plan provided he is otherwise qualified under the terms and conditions
of any such Profit Sharing Plan.
b. Vacation. The Executive shall receive 20 days of paid vacation per
year accruing at a rate of 1 2/3 vacation days per month. Any vacation
days accrued but not used in the calendar year earned shall carry over
for use in future years except in no event shall the Executive
accumulate more than 40 days of vacation time.
c. Cafeteria Plan. The Employer shall maintain an IRC (S)125 plan, or
similar arrangement as from time to time permitted by the Internal
Revenue Code as then in effect, for health insurance premiums and
other permitted (S)125 benefits and the Employee shall be permitted to
divert compensation for such premiums and other benefits.
d. Health Insurance. The Employee shall be entitled to participate in the
regular Health Insurance plan of the Employer as from time to time in
effect on the terms and conditions as provided for employees
generally.
e. Disability. The Employer shall maintain an executive disability plan
for the benefit of the Executive which shall provide a minimum benefit
of 50% of the Executive's base salary in the event of disability.
f. Automobile. At the option of the Employee, the Employer shall either
pay the Employee a car allowance of a minimum of $700.00 per month or
provide a suitable automobile to Employee for business use to be
accounted for by the Employee consistent with the normal business
practices of Employer as from time to time established.
g. Expenses. The Company shall reimburse Employee for reasonable
expenses incurred in the performance of his duties hereunder upon
presentation of proper evidence thereof as required by Employer.
h. Moving Expenses. The Company shall pay reasonable moving expenses to
the Executive for the Executive to move to Tampa, Florida from Miami,
Florida and if the Employer requires the Executive to be based at any
office or location other than the current Tampa, Florida headquarters
which change of location would require the Executive to commute a
distance from his primary residence in excess of the greater of 50
miles or 125 percent of the distance of such commute prior to the
change of location. Moving expenses shall include reasonable and
customary expenses incidental to Employee's move and shall further
include any brokerage fees and loss, if any, incurred by Employee in
the sale of Employee's residence in Miami.
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i. Incentive Option Grant. In consideration of entering into this
Agreement, Employee shall be awarded as of the Effective date fully
vested ten year options to purchase 30,000 shares of Davel
Communications, Inc. common stock at an exercise price equal to the
average final closing price for the 30 trading days immediately
preceding the Effective Date.
j. Signing Bonus. In consideration of entering into this Agreement,
Employee shall be paid on January 15, 1998 the sum of $25,000.
k. Other Benefits. The Executive shall be entitled to participate in
such other employee benefit and welfare plans as the Company may from
time to time establish subject to the terms, conditions and
eligibility requirements as the Company shall prescribe.
6. Termination.
a. Involuntary Termination. The Executive will be treated for the
purposes of this Agreement as having been involuntarily terminated
("Involuntary Termination") by the Company if his employment is
terminated under any of the following circumstances:
i. the Company has breached any material provision of this
Agreement and within 30 days after written notice thereof from
the Executive the Company fails to cure such breach; or
ii. at the expiration of the term of employment hereunder the
Company has notified the Executive pursuant to (P) 2 that the
Company intends not to renew the term of employment; or
iii. the Board of the Company gives the Executive notice of
termination pursuant to this paragraph ((P) 6-a-iii).
b. Voluntary Termination. The Executive's employment shall be deemed to
have been voluntarily terminated if Executive's employment is
terminated in any of the following circumstances:
i. Upon sixty (60) days' written notice to the Company of the
Executive's intent to terminate this Agreement; or
ii. The termination of the Executive's employment upon the death of
the Employee.
c. Termination for Cause. The Executive shall be deemed to have been
terminated for Cause if the employment of the Executive is terminated
by written notice in any of the following circumstances:
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i. the willful and continued failure by the Executive to perform
substantially his duties hereunder (other than from any such
failure due to the Executive's Disability) which failure shall
continue for 30 days after notice for such substantial
performance is provided to the Executive specifying the manner
in which the Company believes the Executive has not
substantially performed; or
ii. the willful misconduct of the Executive which is materially
injurious to the Company either financially or otherwise; or
iii. the breach of the Confidentiality and Nonsolicitation
provisions of this Agreement set forth at (P) 8; or
iv. the Executive terminates his employment without giving the
notice required by (P) 6-b-i.
d. Termination for Disability. The Executive shall be deemed to have
been terminated for Disability if the employment of the Executive is
terminated for his incapacity due to physical or mental illness to
substantially perform his duties on a full-time basis for six (6)
consecutive months and, within thirty (30) days after a notice of
termination is thereafter given by the Company, the Executive shall
not have returned to the full-time performance of the Executive's
duties; provided, however, if the Executive shall not agree with a
determination to terminate him because of Disability, the question of
Executive's disability shall be subject to the certification of a
qualified medical doctor agreed to by the Company and the Executive
or, in the event of the Executive's incapacity to designate a doctor,
the Executive's legal representative. In the absence of agreement
between the Company and the Executive, each party shall nominate a
qualified medical doctor and the two doctors shall select a third
doctor, who shall make the determination as to Disability.
e. Termination Upon a Change of Control. The Executive shall be deemed to
have been terminated upon a "Change of Control" (as hereafter defined)
if a Change of Control occurs while the Executive is an employee of
the Company and within two years of such Change in Control either the
Company terminates the Executive for any reason except the death of
the Executive or the Executive elects to terminate his employment for
any reason. A Change in Control shall occur upon any person other than
Xxxxx Xxxx or his descendants or Samstock, L.L.C. and its permitted
transferees becoming the owner, either directly or indirectly, of 25%
or more of the combined voting power of the Company's then outstanding
securities.
7. Termination Benefits and Payments.
a. Involuntary Termination and Termination for Disability. In the event
of the termination of the Executive's employment pursuant to the
provisions of (P) 6-a or (P)6-d then all previously awarded options
shall be fully vested and exercisable in accordance with their terms
when issued and all previously granted shares of stock
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shall be fully vested and shall remain subject to such restrictions on
transfer in place as of the date of the Executive's termination and
the Executive shall be entitled to the following benefits and
termination payments:
i. Unpaid Amounts. All accrued but unpaid Base Pay including
credit for unused vacation days limited in accordance with (P)
5-b payable within 10 days of the date of termination, plus
ii. Base Pay. Payable within 10 days of the date of termination
the greater of one year's Base Pay or the remaining amount of
Base Pay due to the Executive through the end of the term
hereof both computed at the Executive's highest annualized rate
of Base Pay during the three year period prior to termination,
plus
iii. Bonus. Payable within 10 days of the date of termination the
greater of the Executive's Target Incentive Bonus or the
Executive's average, annualized Incentive Bonus, if any, during
the three year period prior to the Executive's termination,
plus
iv. Benefits. For the balance of the remaining term of this
Agreement at the date of Termination of the Executive's
employment ("Termination Period") the Company shall maintain in
full force and effect for the continued benefit of the
Executive all employee welfare benefit plans and prerequisite
programs in which the Executive was entitled to participate
immediately prior to the Executive's termination or shall
arrange to make available to the Executive benefits
substantially similar to those which the Executive would
otherwise have been entitled to receive if his employment had
not been terminated. Such benefits shall be provided to the
Executive on the same terms and conditions (including employee
contributions and premium payments) under which the Executive
was entitled to participate immediately prior to the
Executive's termination. Notwithstanding the foregoing for the
purposes of the Consolidated Omnibus Budget Reconciliation Act
of 1985 ("Cobra") the Executive's "qualifying event" shall be
his date of termination from the Company. During the first
thirty days of the Termination Period, the Company shall
provide to the Executive at the Company's expense office space
and staff support similar to that provided immediately prior to
termination.
v. Reduction of Termination Payments. In the event termination of
the Executive's employment is pursuant to the provisions of (P)
6-d, then any amounts otherwise payable to the Executive
pursuant to the terms of (P) 7-a-ii shall be payable monthly
during the Termination Period and shall be subject to offset
for any after tax amounts received by the Executive pursuant to
a plan maintained by the Employer as described at (P) 5-f.
b. Voluntary Termination and Termination for Cause. In the event of the
termination of
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the Executive's employment pursuant to the provisions of (P) 6-b or
(P) 6-c, then the Executive shall be entitled to all accrued but
unpaid Base Pay including credit for unused vacation days limited in
accordance with (P) 5-b payable within 10 days of the date of
termination.
c. Termination Upon a Change in Control. In the event of the termination
of the Executive's employment pursuant to the provisions of (P) 6-e,
then all previously awarded options shall vest and become immediately
exercisable and all previously granted shares of stock shall be fully
vested with all restrictions on transfer of such shares removed and
the Executive shall be entitled to the following benefits and
termination payments:
i. Unpaid Amounts. All accrued but unpaid Base Pay including
credit for unused vacation days limited in accordance with (P)
5-b payable within 10 days of the date of termination, plus
ii. Severance Payment. A severance payment, subject to the
limitations of (P) 7-c-iv payable within 10 days of the date of
termination which shall be the product of three (3) times the
sum of the Executive's Base Salary and Target Incentive Bonuses
for the year in which the Change in Control occurred.
iii. Benefits. For the balance of the remaining term of this
Agreement at the date of Termination of the Executive's
employment ("Termination Period") the Company shall maintain in
full force and effect for the continued benefit of the
Executive all employee welfare benefit plans and prerequisite
programs in which the Executive was entitled to participate
immediately prior to the Executive's termination or shall
arrange to make available to the Executive benefits
substantially similar to those which the Executive would
otherwise have been entitled to receive if his employment had
not been terminated. Such benefits shall be provided to the
Executive on the same terms and conditions (including employee
contributions and premium payments) under which the Executive
was entitled to participate immediately prior to the
Executive's termination. Notwithstanding the foregoing for the
purposes of the Consolidated Omnibus Budget Reconciliation Act
of 1985 ("Cobra") the Executive's "qualifying event" shall be
his date of termination from the Company. During the first
thirty days of the Termination Period, the Company shall
provide to the Executive at the Company's expense office space
and staff support similar to that provided immediately prior to
termination.
iv. Limitation on Severance Payment. In the event that the total
amount of the Severance Payment due to the Executive pursuant
to (P) 7-f-ii together with all other payments and the value of
any benefit received or to be received by the Executive in the
connection with termination upon a Change in Control
constitutes a "Parachute Payment" within the meaning of
(S)280G(b)(2) of the Internal Revenue Code of 1986, as amended
("IRC") and such Parachute
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Payment would result in all or a portion of such payments being
subject to the excise tax imposed by (S) 0000 XXX then the amount
due to the Executive on termination after a Change in Control
shall be either the amount determined in accordance with
(P) 7-f-ii or such lesser amount which would not result in any
portion of the Severance Pay being subject to an excise tax under
(S)4999 IRC, whichever amount, taking into account the applicable
Federal, state and local income taxes and the excise tax imposed
by (S)4999 IRC results in the receipt by the Executive, on an
after-tax basis, of the greatest amount of Severance Pay under
this section, notwithstanding that all or some portion of the
Severance Pay may be subject to excise tax under (S)4999 IRC.
8. Confidentiality and Nonsolicitation Agreement
a. Confidentiality. The Executive acknowledges that in the course of his
employment by the Company, he will or may have access to and become
informed of confidential and secret information which is a competitive
asset of the Company ("Confidential Information"), including, without
limitation, (i) the terms of any agreement between the Company and any
employee, customer, or supplier, (ii) pricing strategy, (iii)
merchandising and marketing methods, (iv) product ideas and
strategies, (v) personnel training and development programs, (vi)
financial results, (vii) strategic systems software, and (viii) any
non-public information concerning the Company, its employees,
suppliers or customers. The Executive agrees that he will keep all
Confidential Information in strict confidence during the term of his
employment by the Company and thereafter and will not directly or
indirectly make known, divulge, reveal, furnish, make available, or
use any Confidential Information (except in the course of his regular
authorized duties on behalf of the Company). The Executive agrees that
the obligations of confidentiality hereunder shall survive termination
of his employment at the Company regardless of any actual or alleged
breach by the Company of this Agreement and shall continue for two
years following such termination provided that such obligation shall
terminate earlier (i) as to specific information that shall have
become, through no fault of the Executive, generally known to the
public or (ii) as to the Confidential Information which the executive
is required by law to disclose (after giving the Company notice and an
opportunity to contest such requirement). The Executive's obligation
under this (P) 8 are in addition to, and not in limitation or
preemption of, all other obligations of confidentiality which the
executive may have to the Company under general legal or equitable
principles.
b. Documents. Except in the ordinary course of the Company's business,
the Executive shall not at any time following the date of this
Agreement, make or cause to be made, any copies, pictures, duplicates,
facsimiles or other reproductions or recordings or any abstracts or
summaries including or reflecting Confidential Information. All such
documents and other property furnished to the Executive by the Company
or otherwise acquired or developed by the Company shall at all times
be the property of the Company. Upon termination of the Executive's
employment by the Company, the Executive will return to the Company
any such documents or other property of the
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Company which are in the possession, custody or control of the
Executive.
c. Nonsolicitation. In the event of the Executive's termination of
employment for any reason, the Executive agrees that he will not in
any capacity, on his own behalf or on behalf of any other firm, person
or entity, for a period of two years, solicit, or assist in the
solicitation of, any employee of the Company to terminate his or her
employment with the Company.
d. Injunctive Relief. The Executive acknowledges and agrees that a
violation of the foregoing provisions of this (P) 8 (referred to
collectively as the Confidentiality and Nonsolicitation Agreement)
that results in material detriment to the Company would cause harm to
the Company, and that the Company's remedy at law for any such
violation would be inadequate. In recognition of the foregoing, the
executive agrees that, in addition to any other relief afforded by law
or this Agreement, including damages sustained by a breach of this
Agreement and any other forfeitures under (P) 8, and without any
necessity or proof of actual damages, the Company shall have the right
to enforce this permanent injunction, it being the understanding of
the undersigned parties hereto that damages, the forfeitures described
above and injunctions shall all be proper models of relief and are not
to be considered as alternative remedies.
9. Covenant Not to Compete.
a. During the term of this Agreement, the Employee shall not, directly or
indirectly, either as an employee, employer, consultant, agent,
principal, partner, stockholder, corporate officer, director or in any
other individual or representative capacity, engage or participate in
any business of any nature which is in competition in any way with the
business of the Employer.
b. For a period of one year after the expiration or termination of this
Agreement, except in the case of a termination upon a Change in
Control as set forth at (P) 6-e in which case the period shall be two
years, the Employee shall not, directly or indirectly, either as an
employee, employer, consultant, agent, principal, partner,
stockholder, corporate officer, director or in any other individual or
representative capacity, engage or participate in any business of any
nature which is in competition with the Employer in the business of
telecommunications within the existing market areas of the Employer
for which Employee had significant responsibility and in which
Employee materially participated in the management and operation of
the Employer. The forgoing shall not be interpreted to prevent the
Employee from engaging in the practice of law in any jurisdiction.
C. Employer shall be entitled to injunctive and/or other equitable relief
to prevent or remedy a breach of the provisions of the Agreement and
to secure their enforcement, in addition to any other remedies or
damages which may be available to Employer.
10. Miscellaneous.
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a. Arbitration. Any dispute between the Executive and the Company under
this Agreement shall be resolved (except as provided below) through
arbitration by an arbitrator selected under the rules of the American
Arbitration Association and the arbitration shall be conducted in
Tampa, Florida under the rules of said association. Each party shall
each be entitled to present evidence and argument to the arbitrator.
The arbitrator shall have the right only to interpret and apply the
provisions of this Agreement and may not change any of its provisions.
The arbitrator shall permit reasonable pre-hearing discovery of facts,
to the extent necessary to establish a claim or a defense to a claim,
subject to supervision by the arbitrator. The determination of the
arbitrator shall be conclusive and binding upon the parties and
judgement upon the same may be entered in any court having
jurisdiction thereof. The arbitrator shall give written notice to the
parties stating his or their determination, and shall furnish to each
party a signed copy of such determination. Notwithstanding the
foregoing, the Company shall not be required to seek or participate in
arbitration regarding any breach of the Executive's Confidentiality
and Nonsolicitation Agreement contained in (P) 8, but may pursue its
remedies for such breach in a court of competent jurisdiction. The
party failing to substantially prevail in any proceeding arising out
of this Agreement shall bear the reasonable expenses of the other
including, but not limited to, preparation and attending the
proceeding, the reasonable attorney fees and allocable cost of in-
house counsel and any other expenses incurred by the other party. This
Agreement shall be governed and construed in accordance with the laws
of the State of Florida, excluding principles of conflict of laws.
b. Agreement. This Agreement supersedes any and all other agreements,
either oral or in writing, between the parties hereto with respect to
the subject matter hereof and contains all of the covenants and
agreements between the parties with respect to such subject matter.
Prior to the Execution hereof the Company shall have paid the
Executive all salary, bonus, options and stock grants due pursuant to
prior agreements the receipt whereof is acknowledged by the Executive.
Each party to this Agreement acknowledges that no representation,
inducements, promises, or other agreements, orally or otherwise, have
been made by any party, or anyone acting on behalf of any party,
pertaining to the subject matter hereof, which are not embodies
herein, and that no other agreement, statement, or promise pertaining
to the subject matter hereof that is not contained in this Agreement
shall be valid or binding on either party.
c. No Obligation to Mitigate. After termination the Executive is under
no obligation to mitigate damages or the amount of any payment
provided for hereunder by seeking other employment or otherwise. The
Executive shall notify the Company within thirty (30) days after the
commencement of any such benefits.
d. Withholding of Taxes. The Company may withhold from any amounts
payable under this Agreement all federal, state, city or other taxes
as the Company is required to withhold pursuant to any law or
government regulation or ruling.
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e. Post-termination Assistance. The Executive agrees that after his
employment with the Company has terminated he will provide, upon
reasonable notice from the Company, such information and assistance to
the Company as may reasonably requested by the Company in connection
with any litigation in which it or any of its affiliates is or may
become a party; provided, however, that the Company agrees to
reimburse the executive for any related expenses, including travel
expenses. Further, if requested by the Employer, the Employee agrees
to cooperate in training his successor following notice of termination
of this Agreement.
f. Successors and Binding Agreement.
i. This Agreement will be binding upon and inure to the benefit
reorganization or otherwise (and such successor shall thereafter
be deemed the "Company" for the purpose of this Agreement), but
will not otherwise be assignable, transferable or delegable by
the Company.
ii. This Agreement will inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributes, and legatees.
iii This Agreement is personal in nature and neither of the parties
hereto shall, without the consent of the other, assign, transfer
or delegate this Agreement.
g. Notices. For all purposes of this Agreement, all communications,
including without limitation notices, consents, requests, or
approvals, required or permitted to be given hereunder will be in
writing and will be deemed to have been duly given when within five
days of posting by registered or certified United States mail, return
receipt requested, postage prepaid, addressed to the Company (to the
attention of the Secretary of the Company) at its principal executive
office and to the Executive at his principal residence, or to such
other address as any party may have furnished to the other in writing
and in accordance herewith, except that notices of changes shall be
effective only upon receipt.
h. Validity. If any provision of this Agreement or the application of any
provision hereof to any person or circumstances is held invalid,
unenforceable or otherwise illegal, the remainder of this Agreement
and the application of such provision to any other person or
circumstances will not be affected, and the provision so held to be
invalid, unenforceable or otherwise illegal will be reformed to the
extent (and only to the extent) necessary to make it enforceable,
valid or legal.
i. Modification. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed
to in writing signed by the Executive and the Company. No waiver by
either party hereto at any time of any breach by the other party
hereto or compliance with any condition or provision of this Agreement
to be performed by such other party will be deemed a waiver of similar
or dissimilar provisions or conditions at that same or at any prior
13
subsequent time. Unless otherwise noted, references to "Sections" are
to sections of this Agreement. The captions used in this Agreement are
designed for convenient reference only and are not to be used for the
purpose of interpreting any provision of this Agreement.
j. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all
of which together will constitute one and the same agreement.
Date: December 30, 1998
Davel Communications Group, Inc. Employee
/s/ Xxxxxx Xxxx
______________________________________ /s/ Xxxxx X. Xxxxxx
Xxxxxx Xxxx, Chief Executive Officer Xxxxx X. Xxxxxx
