EXHIBIT NUMBER 10.12
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made as of this May 1, 2000 by and between Centennial
Communications Corp., a corporation organized and subsisting under the laws of
Delaware and whose address for the purposes of this Agreement is 0000 Xxxxxx
Xxxxxxx, Xxxxxxx, Xxx Xxxxxx 00000 (the "Company"), and Xxxxxx X. Xxxxxx, an
individual residing at 00000 XX 00xx Xxxxx, Xxxxx, Xxxxxxx 00000 ("Employee").
WITNESSETH
WHEREAS:
A. The Company desires to employ the Employee as its Vice President, Human
Resources and in such other capacities as may be permitted by this
Agreement, and under all of the terms, provisions and conditions set forth
herein.
B. Employee is willing to accept such employment, and such other employment
as may be provided for herein, all under the terms, provisions and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth and other good and valuable consideration, the receipt and
adequacy of which is mutually acknowledged, it is agreed by and between the
parties as follows:
1. Representations and Warranties
Employee represents and warrants that he is not subject to any restrictive
covenants or other agreements or legal restrictions in favor of any person which
would in any way preclude, inhibit, impair or limit his employment by the
Company or the performance of his duties, all as contemplated herein.
2. Employment
The Company hereby employs Employee and Employee accepts such employment
as Vice President, Human Resources. In such capacity, Employee shall be
responsible for managing the human resource functions of the Company, subject to
the direction and control of the Chief Executive Officer and the Board of
Directors of the Company. At the direction of the Chief Executive Officer or the
Board of Directors of the Company, Employee shall also serve in such other
senior executive and/or other administrative capacities with any subsidiaries of
the Company ("Subsidiaries" or individually a "Subsidiary," as hereafter
defined), as they may determine.
3. Place of Employment
Employee shall render his services where and as required by the Company,
it being understood and agreed, however, that employee's base of operations
shall be the offices of the Company in New Jersey, and that Employee shall not
be required to render services on a permanent basis outside of said region
unless Employee otherwise agrees.
4. Term
4.1 Unless earlier terminated as provided in this Agreement, the term of
Employee's employment under this Agreement shall be for a period beginning on
the date hereof and ending on December 31, 2001 (the "Initial Term").
4.2 The term of the Employee's employment under this Agreement shall be
automatically renewed for additional one-year terms (each a "Renewal Term") upon
the expiration of the Initial Term or any Renewal Term unless the Company or the
Employee delivers to the other, at least one hundred twenty (120) days prior to
the expiration of the Initial Term or the then current Renewal Term, as the case
may be, a written notice specifying that the term of the Employee's employment
will not be renewed at the end of the Initial Term or such Renewal term, as the
case may be. The Initial Term or, in the event that the Employee's employment
hereunder is earlier terminated as provided herein or renewed as provided in
this Section 4.2, such shorter or longer period, as the case may be, is
hereinafter called the "Term".
5. Compensation
5.1 Subject to prior termination, as compensation for all services
rendered and to be rendered by Employee hereunder and the fulfillment by
Employee of all of his obligations herein, the Company shall pay Employee a base
salary at the rate of $180,000 per year for each year of the Term on such days
as the Company normally pays its employees and subject to such withholdings as
may be required by law (said amount, together with any changes thereto as may be
determined from time to time by the Board of Directors of the Company in its
sole discretion, being hereinafter referred to as "Base Salary").
5.2 Nothing herein shall prevent or preclude the Board of Directors of
the Company or the applicable committee of the Board of Directors, in its sole
discretion, and from time to time, from awarding a bonus or bonuses to Employee
for his service as an Employee and/or from awarding or granting Employee (i)
options to acquire shares of stock in the Company, (ii) shares of stock in the
Company or (iii) any other incentive or stock related awards in addition to Base
Salary. In exercising its discretion with respect to whether a bonus should be
awarded and the amount thereof, the Board or the applicable Committee may
consider, among other factors, the contribution of Employee (x) to the growth in
revenues, cash flow and subscribers of the Company and those subsidiaries to or
for which Employee renders service, (y) in connection with acquisitions and
financings, and (z) to the operations of the Company and its various
subsidiaries as an entity.
6. Reimbursement for Business Expenses; Fringe Benefits
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6.1 The Company agrees that all reasonable expenses incurred by Employee
in the discharge and fulfillment of his duties for the Company, as set forth in
Section 2, will be reimbursed or paid by the Company upon written substantiation
therefor signed by Employee, itemizing said expenses and containing all
applicable vouchers or other substantiation consistent with Company policy in
effect from time to time.
6.2 The Company agrees that it will cause Employee to be insured under
such group life, medical, major medical and disability insurance that the
Company may maintain and keep in force from time to time during the Term for the
benefit of all the Company employees, subject to the terms, provisions and
conditions of such insurance and the agreements with underwriters relating to
same. It is understood and agreed that in its discretion the Company from time
to time may terminate or modify any or all of such insurance without obligation
or liability to Employee.
7. Exclusivity; Non Solicitation
7.1 During the Term, Employee agrees to devote his services and his best
energies and abilities, exclusively, to the business and activities of the
Company, including any Subsidiaries, and not engage or have an interest in or
perform services for any other business or entity of any kind or nature;
provided, however, that nothing herein shall prevent Employee from investing in
(but not rendering services to) other businesses which are not competitive in
any manner with the business then being conducted by the Company or any of its
Subsidiaries, or investing in (but not rendering services to) other businesses
(other than for charitable organizations, provided same does not interfere with
Employee's performance of his duties hereunder) which are competitive in any
manner with the business then being conducted by the Company, provided in the
latter instance, that (i) the shares of such business are listed and traded over
either a national securities exchange or in the over-the-counter market, and
(ii) stock interest or potential stock interest (based on grants, options,
warrants or other arrangements or agreements then in existence) in any such
business which is so traded (together with any and all interest, actual and
potential, of all members of Employee's immediate family) is not a controlling
or substantial interest and specifically does not exceed one percent of the
issued and outstanding shares or a one percentage interest of or in such
business.
7.2 During the Term and during the one year period following the end of
the Term for any reason whatsoever, Employee will not directly or indirectly
induce or attempt to induce any employee of the Company or any of its
Subsidiaries to leave the employ of the Company or such Subsidiary, or in any
way interfere with the relationship between the Company and any of its
Subsidiaries and any employee thereof.
7.3 During the Term, and during the one year period following the end of
the Term, Employee agrees that he will not, directly or indirectly, own, manage,
control, participate in, consult with, render services for or in any manner
engage in any business which shall compete with any business conducted by the
Company or any of its subsidiaries prior to the date hereof or hereafter
conducted.
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8. Uniqueness
8.1 Employee agrees that his services hereunder are special, unique and
extraordinary and that in the event of any material breach or attempted material
breach of this Agreement by Employee including, without limitation, the
provisions of Section 7, 9 and/or 10, the Company will sustain substantial
injury and damage, and Employee hereby consents and agrees that, in the event of
such breach hereof, the Company shall be entitled to injunctive relief against
Employee or any third party to prevent or in respect of any such breach, in
addition to such other rights or remedies available to it.
9. Trade Secrets
9.1 Employee acknowledges that his employment hereunder will necessarily
involve his understanding of and access to certain trade secrets and
confidential information pertaining to the businesses and activities of the
Company and its Subsidiaries. Accordingly, Employee agrees that during the
period of employment and at all times thereafter, he will not disclose to any
unauthorized third party any such trade secrets or confidential information and
will not (other than in connection with carrying out his duties) for any reason
remove or retain without the express consent of the Company any figures or
calculation, letters, papers, records or other information of a type likely to
be regarded as confidential. The provisions of this section shall survive the
termination, for any reason, of this Agreement or the Employee's employment.
10. Inventions; Creations
10.1 All right, title and interest of every kind and nature whatsoever in
and to inventions, patents, trademarks, copyrights, films, scripts, ideas,
creations, intellectual property and literary, intellectual and other properties
furnished to the Company or any of its Subsidiaries and/or used in connection
with any of the activities of the Company or any of its Subsidiaries, or with
which employee is connected or associated in connection with the performance of
his service, shall as between the parties hereto be, become and remain the sole
and exclusive property of the Company or any of its Subsidiaries, as the case
may be, for any and all purposes and uses whatsoever, regardless of whether the
same were invented, created, written, developed, furnished, produced or
disclosed by Employee or by any other party, and Employee shall have no right,
title of interest of any kind or nature therein or thereto, or in any results
and proceeds therefrom. Employee agrees during and after the term hereof to
execute any and all documents which the Company may deem necessary and
appropriate to effectuate the provisions of this Section 10.1 and, further, that
the provisions of this Section shall survive the termination, for any reason, of
this Agreement or Employee's employment.
11. Death -- Permanent Incapacity
11.1 The death of the Employee shall result in the immediate termination
of this Agreement.
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11.2 In the event Employee suffers a disability which prevents him from
performing his services hereunder (herein called "Disability"), and in the event
such Disability continues for longer than 90 consecutive days or 120 days in any
12-month period, Employee shall be deemed to have suffered a Permanent
Incapacity, in which event the Company shall have the right to terminate this
Agreement upon not less than fifteen days' notice to Employee, and this
Agreement shall terminate on the date set forth therefor in said notice.
11.3 Notwithstanding anything to the contrary expressed or implied in
this Agreement, except as required by applicable law, the Company (and its
affiliates and Subsidiaries) shall not be obligated to make any payments to
Employee or on his behalf of whatever kind or nature by reason of the Employee's
cessation of employment as described in Sections 11.1 and 11.2 above other than
(i) such amounts, if any, of his Base Salary as shall have accrued and remained
unpaid as of the date of said cessation and (ii) such other amounts, if any,
which may be then otherwise payable to Employee pursuant to the terms of the
Company's benefits plans or pursuant to Section 6.1 above.
12. Termination
12.1 In addition to termination pursuant to Section 11, Employee's
employment hereunder may be terminated for "cause." "Cause" for purposes of this
Agreement shall mean the following:
(i) alcoholism or drug addiction materially affecting Employee's
performance,
(ii) conviction for a felony involving moral turpitude,
(iii) failure to comply within a period of ten business days with a
reasonable directive of the Chief Executive Officer of the Company
relating to Employee's duties or Employee's performance and
consistent with Employee's position, after written notice that such
failure will be deemed to be "cause," to the extent such failure can
be cured within ten business days and if not so curable, fails to
commence curing during said ten-day period and diligently pursue the
curing of same until cured,
(iv) gross neglect or gross misconduct of Employee in carrying out his
duties under this Agreement, resulting, in either case, in material
economic harm to the Company, unless Employee believed in good faith
that such act or non-act was in the best interests of the company,
(v) misappropriation of corporate assets or corporate opportunity, and
(vi) acts of dishonesty or breach of fiduciary obligation to the Company.
12.2 In the event the Company terminates this Agreement and Employee's
employment other than for "cause," and other than for death or disability, the
Company shall pay
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to Employee, as severance pay or liquidated damages or both, monthly payments at
the rate per annum of his Base Salary at the time of such termination for a
period from the date of such termination to the date which is six (6) months
after such termination.
13. Vacation
13.1 Employee shall be entitled to a vacation of four (4) weeks duration
in the aggregate during each year of the Term at times reasonably agreeable to
both Employee and the Company, it being understood that any portion of such
vacation not taken in such year shall not be available to be taken during any
other year.
14. Insurance
14.1 In addition to insurance referenced in Section 6.2, Employee agrees
that the Company or any Subsidiary may apply for and secure and/or own and/or be
the beneficiary of insurance on the Employee's life or disability insurance (in
each instance in amounts determined by the Company), and Employee agrees to
cooperate fully in the applying and securing of same, including the submission
to various physical and other examinations and the answering of questions and
furnishing of information as may be required by various insurance carriers.
However, nothing contained herein shall require the Company to obtain any such
life or disability insurance.
15. Miscellaneous
15.1 The Company shall have the right to assign this Agreement and to
delegate all duties and obligations hereunder to any successor, affiliated or
parent company or to any person, firm or corporation which acquires the Company
or substantially all of its assets, or with or into which the Company may
consolidate or merge. This Agreement shall be binding upon and inure to the
benefit of the permitted successors and assigns of the Company. Employee agrees
that this Agreement is personal to him and may not be assigned by him.
15.2 This Agreement is being delivered in the State of New York and shall
be construed and enforced in accordance with the laws of such State applicable
to contracts made and fully to be performed therein, and without any reference
to any rules of conflicts of laws.
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15.3 Except as may herein otherwise be provided, all notices, requests,
demands and other communications hereunder shall be in writing and shall be
deemed to have been duly given if delivered personally or if mailed, first class
postage prepaid, registered or certified mail, return receipt requested, of if
sent by telecopier or overnight express delivery service, (a) to Employee at his
address set forth on the facing page hereof or at such other address as Employee
may have notified the Company sent by registered or certified mail, return
receipt requested, or by telecopier or overnight express delivery service, or
(b) if to the Company, at its address set forth on the facing page hereof,
Attention: Chief Executive Officer, or at such other address as the Company may
have notified Employee in writing sent by registered or certified mail, return
receipt requested, or by telecopier or overnight express delivery service.
Notice shall be deemed given (i) upon personal delivery, or (ii) on the second
business day immediately succeeding the posting of same, prepaid, in the U.S.
mail, (iii) on the date sent by telecopy if the addressee has compatible
receiving equipment and provided the transmittal is made on a business day
during the hours of 9:00 A.M. to 6:00 P.M. of the receiving party and if sent on
other times, on the immediately succeeding business day, or (iv) on the first
business day immediately succeeding delivery to the express overnight carrier
for the next business day delivery.
15.4 This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Each party shall deliver
such further instruments and take such further action as may be reasonably
requested by the other in order to carry out the provisions and purposes of this
Agreement. This Agreement (together with the offer letter dated March 23, 2000)
represents the entire understanding of the parties with reference to the
transaction set forth herein, supercedes any prior agreement or understanding
between the parties with respect to the employment of the Employee by the
Company and the rights and obligations of the Employee and the Company relating
thereto, and neither this Agreement nor any provision thereof may be modified,
discharged or terminated except by an agreement in writing signed by the party
against whom the enforcement of any waiver, change, discharge or termination is
sought. Any waiver by either party of a breach of any provision of this
Agreement must be in writing and no waiver of a particular breach shall operate
as or be construed as a waiver of any subsequent breach thereof.
15.5 "Subsidiaries" or "Subsidiary" shall include and mean any
corporation, partnership or other entity 50% or more of the then issued and
outstanding voting stock is owned directly or indirectly by the Company in the
instance of a Corporation, and 50% or more of the interest in capital or in
profits is owned directly or indirectly by the Company in the instance of a
partnership and/or other entity, or any corporation, partnership, venture or
other entity, the business of which is managed by the Company or any of its
Subsidiaries.
IN WITNESS WHEREOF, the parties hereto have executed and have caused this
Agreement to be executed as of the day and year first above written.
CENTENNIAL COMMUNICATIONS CORP.
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/s/ XXXXXXX X. SMALL
----------------------------
Xxxxxxx X. Small
Chief Executive Officer
/s/ XXXXXX X. XXXXXX
----------------------------
Xxxxxx X. Xxxxxx
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