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EXHIBIT 10.12
EMPLOYMENT, NON-COMPETITION AND NON-DISCLOSURE AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered
into as of the 3rd day of April, 1998, by and between HIGH SPEED ACCESS CORP., a
Delaware corporation (the "Company"), XXXX.XXX, INC., a Kentucky corporation
("CATV"), and W.
XXXX XXXXX, III ("Employee").
RECITAL:
Employee is employed by CATV, a wholly-owned subsidiary of the
Company, pursuant to an Employment, Non-Competition and Non-Disclosure Agreement
dated February 23, 1998 between CATV and Employee (the "CATV Employment
Agreement").
The Company, CATV and Employee desire to terminate the CATV
Employment Agreement and enter into this Agreement providing for the employment
of Employee by the Company, on the terms and conditions hereinafter provided.
NOW, THEREFORE, it is agreed by and between the parties hereto
as follows:
1. Employment. The Company hereby employs Employee and Employee accepts
employment by the Company and agrees to serve the Company, upon the terms and
conditions hereinafter set forth.
2. Duties. Employee shall be employed by the Company as its Chief
Executive Officer. So long as he is employed hereunder, Employee agrees to
devote substantially all of his business time and energy to the business and
affairs of the Company, to perform his duties hereunder to the best of his
ability and at a level of competency consistent with the position occupied, to
act on all matters in a manner he reasonably believes to be in and not opposed
to the best interests of the Company, to use his best efforts, skill and ability
to promote the profitable growth of the Company, and to perform such duties as
are customarily performed by one holding the position of Chief Executive Officer
of a company comparable to the Company, and to perform such other duties as may
be assigned to him by the Company's Chairman or by the Company's Board of
Directors ("Board") from time to time.
Employee may volunteer his service to charitable, business and
other public service agencies, clubs or organizations; provided, however, that
Employee's activities under this clause shall not involve substantial amounts of
Employee's time and shall in no way interfere or detract from the performance of
Employee's duties to be performed hereunder. In addition, Company acknowledges
and understands that Employee is involved in various other business ventures and
activities and that Employee may devote an average of one to two business days
per month on such ventures and activities in a non-operational capacity
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but with the executive titles of President/CEO of OPM Services, Inc.,
President/CEO of OPM Flats, Inc. and Vice President/CFO of Xxxxx Xxxx Machine
Co.
3. Compensation and Benefits. For all services rendered by Employee,
the Company shall pay compensation and provide benefits to Employee as follows:
A. Salary. The Company shall pay Employee a salary ("Salary")
of $6,250.00 monthly. At least once every twelve (12) months the Board shall
review Employee's Salary and make such increases, but not decreases, to the
Salary as it reasonably deems appropriate.
B. Incentive Cash Bonus. Within sixty (60) days from the date
of this Agreement, the Compensation Committee of the Board shall establish an
incentive bonus plan providing Employee the opportunity to earn a cash bonus not
to exceed Seventy-Five Thousand Dollars ($75,000) based upon Employee's
achievement of specific goals concerning the financial performance of the
Company during the Company's fiscal year as established by the Compensation
Committee. The bonus, if payable, shall be paid to Employee within 90 days
following the end of the fiscal year of the Company.
C. Business Expenses. The Company shall reimburse Employee for
his reasonable direct out-of-pocket ordinary and necessary expenses, incurred by
Employee in the performance of his services hereunder and for which Employee
properly accounts in accordance with the Company's regulations and procedures in
effect from time to time.
D. Vacation. Employee shall be entitled to three (3) weeks
(fifteen business days) paid vacation during each 12-month period of his
employment, not to exceed five (5) business days during the first six months of
this Agreement. For the calendar year ending December 31, 1998, Employee shall
be entitled to five (5) paid personal leave days in addition to his vacation.
Employee shall not be entitled to carry over any unused vacation.
E. Additional Benefits. Employee shall be entitled to
participate (at the expense of the Company, where allowed under applicable law)
in any and all employee retirement, medical, life and disability insurance and
other benefits plans and perquisites as may be established and in effect from
time to time and made available to employees of the Company.
F. Review. At least every six months, the Board of Directors
shall review Employee's performance and shall communicate the results of such
review with Employee.
4. Withholding. The Company shall be authorized to deduct and withhold
from Employee's compensation such sums as are required by law to be deducted and
withheld.
5. Employment at Will. Employee's employment with the Company shall be
"at will".
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6. Covenants Not To Solicit or Compete.
A. Non-Competition. Employee agrees that for the period he is
employed by the Company and for a two-year period immediately following the
termination of his employment with the Company for any reason whatsoever, he
shall not, within the United States of America (the "Territory"), engage in any
of the following activities:
[1] Directly or indirectly enter into the employ of
or render any service to or act in concert with any person,
partnership, corporation or other entity that competes directly or
indirectly with Company or any business or activity in which Company or
any successor to Company or CATV shall then be engaged;
[2] Directly or indirectly engage in any such
competitive business or render any such service on his own account; or
[3] Become interested in any such competitive
business or service directly or indirectly as an individual, partner,
shareholder, director, officer, principal, agent, employee, consultant,
creditor or in any other relationship or capacity; provided, that the
purchase of a publicly traded security of a corporation engaged in such
business or service shall not in itself be deemed violative of this
Agreement so long as Employee does not own, directly or indirectly,
more than 3% of the securities of such corporation.
B. Non-Solicitation. Employee agrees that for the period he is
employed by the Company and for a two-year period immediately following the
termination of his employment with the Company for any reason whatsoever, he
shall not (other than in the regular course of the Company's business) solicit,
directly or indirectly, business of the type then being performed by the Company
from any person, partnership, corporation or other entity which is a customer of
the Company at the time Employee's employment with the Company terminates, or
was such a customer within the one-year period immediately prior thereto, or to
the knowledge of Employee at the date of termination of employment, is a person,
partnership, corporation or other entity with which the Company plans to do a
substantial amount of business within the one-year period after such termination
of employment.
C. Affiliates. For purposes of this Section 6,
"Company" as used herein shall mean and include the Company and any affiliate
of the Company, including without limitation CATV.
7. Non-Inducement and Non-Disclosure.
A. Non-Inducement. Employee agrees that for the
period he is employed by the Company and for a two-year period immediately
following the termination of his
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employment with the Company for any reason whatsoever, he shall not directly or
indirectly, individually or on behalf of persons not parties to this Agreement,
aid or endeavor to solicit or induce any of the Company's employees to leave
their employment with the Company in order to accept employment with Employee or
another person, partnership, corporation or other entity.
B. Non-Disclosure. At no time shall Employee divulge, furnish
or make accessible to anyone (other than in the regular course of the Company's
business) any knowledge or information with respect to confidential information
or data of the Company, or with respect to any confidential information or data
of any of the customers of the Company, or with respect to any other
confidential aspect of the business or products or services of the Company or
its customers.
C. Affiliates. For purposes of this Section 7,
"Company" as used herein shall mean and include the Company and any affiliate
of the Company, including without limitation CATV.
8. Injunctive Relief for Breach: Enforceability. Employee agrees that
Company may not be adequately compensated by damages for a breach by Employee of
any of the covenants contained in Sections 6 and 7, and that, in addition to all
other remedies, the Company shall be entitled to injunctive relief and specific
performance. In such event, the periods of time referred to in Sections 6 and 7
shall be deemed extended for a period equal to the respective period during
which Employee is in breach thereof, in order to provide for injunctive relief
and specific performance for a period equal to the full term thereof. The
covenants contained in Sections 6 and 7 shall be construed as separate
covenants, and if any court shall finally determine that the restraints provided
for in any such covenants are too broad as to the geographic area, activity or
time covered, said area, activity or time covered may be reduced to whatever
extent the court deems reasonable and such covenants shall be enforced as to
such reduced area, activity or time.
Employee shall indemnify and hold Company harmless from any
liability, loss, damage, judgment, cost or expense (including reasonable
attorneys' fees and expenses) arising out of or resulting from Employee's breach
of any covenants contained in this Agreement or his failure to perform a duty
hereunder.
9. No Other Non-Compete Agreements. Notwithstanding anything to the
contrary contained herein, Employee hereby represents, warrants and covenants to
Company that Employee (i) is not a party to nor bound by any non-competition,
non-solicitation, confidentiality or other agreement of any kind, which would
conflict with or prevent his employment hereunder or the full performance of all
of his duties hereunder, and (ii) has not, and will not, wrongfully use any
confidential information or know-how taken from another employer. Employee
hereby agrees to indemnify and hold the Company harmless from any claim, loss,
damage and expense hereafter incurred by the Company as
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a result of any breach of the foregoing representations, warranties or covenants
made by Employee in this Section.
10. Representations of Employee. The Employee hereby represents,
warrants and agrees with the Company, that the execution, delivery and
performance of this Agreement by the Employee (i) will not constitute a default
under or conflict with any agreement or instrument to which the Employee is a
party or by which he or his assets are bound, (ii) will not conflict with or
violate any order, judgment, decree, statute, ordinance or regulation applicable
to the Employee, and (iii) do not require the consent of any person or entity.
This Agreement has been duly executed and delivered by the Employee and
constitutes the valid and binding agreement of the Employee enforceable against
him in accordance with its terms.
11. Notices. All notices and other communications hereunder shall be in
writing and shall be given or made by hand delivery, or by certified or
registered mail, return receipt requested, postage prepaid, or by telegram, as
follows, or to such other person or address as shall be hereafter designated by
notice given in accordance with this Section:
A. If to the Company: High Speed Access Corp.
Suite 210, 0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
B. If to Employee: W. Xxxx Xxxxx, III
000 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Any notice or other communication hereunder shall be deemed to have been duly
given or made if made by hand, when delivered against receipt therefor or when
attempted delivery shall be rejected, as the case may be, if made by letter,
upon deposit thereof in the mail, postage prepaid, registered or certified, with
return receipt requested, and if made by telegram, facsimile or reputable
overnight courier when sent. Notwithstanding the foregoing, any notice or other
communication hereunder which is actually received by a party hereto shall be
deemed to have been duly given or made to such party.
12. Termination of CATV Employment Agreement. The CATV Employment
Agreement is hereby terminated and of no further force or effect and superseded
in its entirety by this Agreement.
13. Miscellaneous.
A. Assignment. This is a contract for personal services
by Employee and may not be assigned by Employee. This Agreement shall inure to
the benefit of and be binding upon the Company and its successors and assigns.
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B. Waiver of Breach. The waiver by either party of a
breach of any provision of this Agreement by the other shall not operate or be
construed as a waiver of any subsequent breach.
C. Entire Agreement: Cancellation of Prior Agreements. This
Agreement contains the entire agreement of the parties with respect to the
subject matter hereof. It may not be changed orally, but only by an amendment in
writing signed by the parties hereto. All prior agreements or understandings
concerning Employee's employment by the Company are hereby canceled and
superseded by this Agreement.
D. Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
the remainder of this Agreement.
E. Headings. The headings contained in this Agreement
are for convenience only and shall not be deemed a part of this Agreement in
construing or interpreting the provisions hereof.
F. Governing Law. This Agreement shall be governed by
and interpreted in accordance with the laws of the Commonwealth of Kentucky as
applied to agreements among Kentucky residents entered into and performed in
Kentucky.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day, month and year first above written.
HIGH SPEED ACCESS CORP.
By: /s/ Xxxxx X. Xxxxx, Xx.
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Title:
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XXXX.XXX, INC.
By: /s/ W. Xxxx Xxxxx III
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Title: President
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/s/ W. Xxxx Xxxxx, III
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W. XXXX XXXXX, III
("Employee")
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