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Exhibit 10.1
EMPLOYMENT AGREEMENT
This employment agreement (the "Agreement") is entered into as of the 27th day
of April, 2000, by and between SHARED TECHNOLOGIES CELLULAR, INC. ("STC" or the
"Company"), having its principal offices at 000 Xxxxx Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxxxx, XX 00000, a Delaware corporation, and XXXXX XXXXX, residing at 00
Xxxxxx Xxxxx, Xxxx Xxxxxxxx, XX 00000 ("Employee").
NOW THEREFORE, in consideration of the mutual promises and covenants set forth
herein, the parties agree as follows.
WITNESSETH
WHEREAS, the Company desires to obtain the services of Employee in
accordance with the terms, conditions and provisions of this Agreement;
WHEREAS, Employee desires to provide services to the Company in
accordance with the terms, conditions and provisions of this Agreement; and
WHEREAS, each of the Company and Employee agree that the terms,
conditions and provisions of this Agreement are fair and reasonable and are
necessary to protect the legitimate business interests of each other.
NOW THEREFORE, the parties hereto agree as follows:
1. Employment. The Company hereby employs Employee, and Employee
hereby accepts such employment and agrees to perform his duties and
responsibilities hereunder, in accordance with the terms and conditions
hereinafter set forth.
2. Term. This Agreement shall have a term commencing April 26,
2000 (the "Effective Date") and expiring April 30, 2001, unless earlier
terminated in accordance with Section 9 of this Agreement (the "Term"). Such
Term shall be automatically renewed for successive one-year periods thereafter
unless, at least sixty (60) days before the end of the current Term either
Employee or the Company gives written notice to the other of his or its intent
to terminate this Agreement without Cause (see Section 9(c) for definition of
the term "Cause"), in which event this Agreement and Employee's employment
hereunder shall terminate at the end of the then current Term, except that any
such nonrenewal by the Company shall be subject to Section 9(e) hereof.
3. Duties and Responsibilities. During the Term, Employee shall
be employed in the capacity of PRESIDENT AND CHIEF OPERATING OFFICER of the
Company, and shall perform those duties normally associated with that position,
subject to such policies, guidelines and directions consistent therewith as may
be established from time to time by the Board of Directors of the Company.
During the Term, Employee will utilize a hands-on management approach and will
devote substantially all of his full time, attention and energies to the
business of the Company, and will perform and discharge his duties and
responsibilities under Section 3 hereof faithfully,
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diligently, to the best of his efforts and abilities and in a manner consistent
with any and all policies, guidelines and directions, consistent with those
duties normally associated with Employee's position, as may be established from
time to time by the Board of Directors of the Company. Except as provided in
Section 7 hereof, the foregoing shall not be construed as preventing Employee
from making investments in other businesses or enterprises not competitive with
the Company (as defined in Section 7(a) hereof), provided that Employee agrees
not to become engaged in any other business activity which may interfere with
his ability to discharge his duties and responsibilities hereunder. Employee
shall have the right to serve on the boards of directors of other companies,
subject to the prior approval of the Company's Board of Directors. The Company's
Board of Directors shall nominate and recommend Employee for election to the
Company's Board of Directors by the Company's shareholders.
4. Consulting Services. Notwithstanding anything else contained
in this Agreement, during the period commencing as of the date hereof through
April 30, 2000 (the "Consulting Period"), Employee shall serve solely in the
capacity of a consultant to the Company and shall receive no compensation or
benefits of any kind during such Consulting Period. As of May 1, 2000,
Employee's status shall convert from that of consultant to employee, whereupon
Employee's rights to receive all compensation and benefits provided for pursuant
to the terms and conditions of this Agreement shall take effect.
5. Compensation, Benefits and Expenses.
(a) Salary. During the first year of the Term, the Company
shall pay to Employee a base salary at the rate of TWO HUNDRED THOUSAND DOLLARS
($200,000) per annum, less deduction and withholding required by applicable law,
or such greater amount as shall be approved by the Compensation Committee of the
Board of Directors of the Company ("Base Salary"), payable in arrears in
accordance with the Company's regular payroll schedule, which is semimonthly as
of the date hereof. The Base Salary in effect from time to time shall not be
decreased during the Term.
(b) Bonuses. Employee shall be entitled to receive a bonus for
each calendar year based on the attainment of measurable performance objectives
that, if met, will result in a bonus to Employee equal to FIFTY PERCENT (50%) of
Employee's Base Salary in effect as of the end of the applicable year (the
"Target Bonus"). Such performance objectives shall be established by the
Company's Board of Directors within the first quarter of each calendar year and
Employee shall be notified thereof. However, with respect to the Target Bonus
for calendar year 2000, one-half of such Target Bonus shall be payable on the
basis of the Company achieving the performance objectives set forth in the
Performance Plan, receipt of which is hereby acknowledged, and the other half of
such Target Bonus shall be payable on a discretionary basis as determined in the
discretion of the Compensation Committee of the Company's Board of Directors.
Target Bonuses shall be payable, if earned, not later than January 31 of the
year after the year for which they are earned. The Company's Board of Directors
may pay less than the full amount of the Target Bonus if the performance
objectives are not fully met. In addition, Employee shall receive a signing
bonus of $25,000, payable December 31, 2000, which shall be payable regardless
of whether this
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Agreement is still in effect as of such date.
(c) Equity. Effective as of April 26, 2000, Employee shall
receive a stock option grant for the purchase 300,000 shares of the Company's
common stock, exercisable at $4.00 per share, which options shall vest at the
rate of 100,000 on November 1, 2000, 100,000 on November 1, 2001, and 100,000 on
November 1, 2002, subject to Employee's continued employment and otherwise in
accordance with the Company's 1994 Stock Option Plan (the "Plan"), a copy of
which has been delivered to Employee, but in any case subject to the terms and
conditions of this Agreement, including, without limitation, provisions
concerning the acceleration of vesting of such stock options. Notwithstanding
anything else contained in this Agreement or the Plan, in the event that a
Trigger Event occurs prior to January 1, 2001, then only 100,000 of said 300,000
options shall be subject to accelerated vesting.
(c) Expenses. During the Term, the Company shall reimburse
Employee monthly for his travel (other than commutation) and other reasonable
business expenses incurred in connection with his services under this Agreement
during the preceding month upon submission of written receipts substantiating
such expenses and otherwise in accordance with the Company's expense
reimbursement policies.
(d) Vacation and Personal Days. During the Term, Employee
shall be entitled to paid time off for vacation and personal days in accordance
with the Company's regular vacation policy. Notwithstanding such regular
vacation policy, Employee's vacation allowance shall be four (4) weeks per year,
except that for calendar year 2000 Employee's vacation allowance shall be pro
rated, such that his vacation allowance shall be 14 days for such period.
(e) Other Employee Benefits. During the Term, the Company
shall provide to Employee such fringe benefits, including, without limitation,
paid sick leave, paid holidays, participation in a health insurance plan, and
other employee benefit plans which may be regularly maintained by the Company
for its employees, in accordance with the policies of the Company in effect from
time to time. Employee shall be entitled to participate in or receive benefits
under any employee benefit plan or employee arrangement made available by the
Company to its executives or key management employees. Employee's participation
in such employee benefit plans or arrangements shall be on an appropriate level,
but no less favorable than the level of other peers. However, Employee is not
eligible for split-premium or whole life insurance such as that currently
provided to the Company's Chairman and Chief Executive Officer.
6. Confidential Information.
(a) Information. Employee acknowledges and agrees that all
information relating to STC's existing and prospective customers, distributors,
carriers, suppliers, business partners, trade secrets, business plans, sales and
marketing strategies, contracts, technologies and processes, software, codes,
products, services, product development activities, procurement and sales
records, distribution information, promotion and pricing information, financial
data, and other proprietary data and information of STC (collectively,
"Information") are valuable, special and
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unique assets of STC. Employee acknowledges that its access to and knowledge of
the Information is essential to the performance of its duties for STC. In light
of the competitive nature of the industry in which the business of STC is
conducted, Employee agrees that all knowledge and information about the
Information known or in the future obtained by Employee will be considered
Information. In recognition of this, Employee represents and agrees that, except
as specifically authorized in writing by STC, Employee will not, either during
or after the Term hereof (i) disclose any Information to any person or entity
for any purpose whatsoever, or (ii) make use of any Information for its own
purposes or for the benefit of any other person or entity, other than STC.
Employee acknowledges that all Information will at all times be subject to the
control of STC, and Employee agrees to surrender and return the same to STC upon
request of STC, and in any event will surrender and return such no later than
the termination of this Agreement for any reason. The obligations of this
Section 6(a) shall survive the termination of this Agreement. This Section 6(a)
shall apply in a reciprocal manner to confidential information of Employee.
(b) Work Product, etc. Employee hereby assigns, transfers and
conveys to STC all of Employee's right, title and interest to all work products
of any type whatsoever generated by Employee in connection with this Agreement,
including, without limitation, all data; software; intellectual property,
business plans, and material, conceived or developed solely, or jointly with
others by Employee during the Term hereof (a) which relate directly or
indirectly to the business of STC; or (b) which result from any work performed
or managed by Employee for STC. The obligations of Employee under this Section
6(b) shall survive the termination of this Agreement. Employee may elect to
disclose to the Company certain information that is proprietary to Employee, and
which was developed prior to the Term hereof, in which event the parties shall
enter into a written nondisclosure agreement with respect to such information.
7. Restrictive Covenant. During the term(s) hereof and for a
period of one (1) year thereafter, Employee shall not, directly or indirectly:
(a) conduct or assist others in conducting or be involved or
interested in any manner in any business relating to the rental of cellular
phones or the sale of prepaid cellular services, or any other business that STC
is engaged in during the Term of this Agreement, within the United States and,
if STC conducts business or develops substantive plans for conducting business
outside of the United States during the Term hereof, then the scope of this
restriction shall extend to outside of the United States wherever STC conducts
or plans to conduct business;
(b) recruit, solicit or hire, or assist any other person or
party in recruiting, soliciting or hiring any Employee (as hereinafter defined),
or induce or attempt to induce or assist any other person or entity in inducing
or attempting to induce any Employee to terminate or alter its relationship with
STC (collectively "Recruiting Activity"). For the purposes of this Section 7(b),
the term "Employee" shall mean any person who is, or within the twelve (12)
month period preceding the date of any such Recruiting Activity was, an employee
or Employee of STC; or
(c) solicit any Customer (as hereinafter defined), or induce,
attempt to induce or assist any other person or entity in inducing or attempting
to induce any Customer to discontinue or alter
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its relationship with (collectively "Solicitation Activity"). For the purposes
of this Section 7(c), the term "Customer" shall mean any individual, firm,
partnership, corporation or other entity which is, or within the twelve (12)
month period immediately preceding the date of such Solicitation Activity was, a
customer, vendor, distributor, dealer, or agent of STC. It is understood and
agreed that the business(es) of STC are national in scope, and that the
geographical scope of the covenants set forth in this Section 7(c) is therefore
appropriate. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THE SCOPE OF EACH OF THE
COVENANTS CONTAINED IN THIS SECTION 7(c) ARE REASONABLE AS TO TIME, SCOPE OF
ACTIVITIES AND GEOGRAPHIC AREA AND ARE NECESSARY TO PROTECT THE LEGITIMATE
BUSINESS INTERESTS OF STC. It is further agreed that such covenants will be
regarded as divisible and if any such covenant is found by any court of
competent jurisdiction to be unenforceable because it extends for too long a
period of time or over too great a range of activities or persons or in too
broad a geographic area, it shall be interpreted to extend over the maximum
period of time, range of activities or persons, or geographic area as to which
it may be enforceable. The provisions of this Section 7(c) shall survive the
termination of this Agreement.
8. Injunctive Relief. Employee acknowledges that a remedy at law
for any breach or attempted breach of Sections 6 or 7 of this Agreement would be
inadequate, and agrees that the Company will be entitled to specific performance
and injunctive and other equitable relief in case of any breach or attempted
breach and agrees not to use as a defense that any party has an adequate remedy
at law. Sections 6 and 7 of this Agreement shall be enforceable in a court of
equity, or other tribunal with jurisdiction, by a decree of specific
performance, and appropriate injunctive relief may be applied for and granted in
connection herewith. Such remedy shall not be exclusive and shall be in addition
to any other remedies now or hereafter existing at law or in equity, by statute
or otherwise. No delay or omission in exercising any right or remedy set forth
in this Agreement shall operate as a waiver thereof or of any right or remedy
and no single or partial exercise thereof shall preclude any other or further
exercise thereof or the exercise of any other right or remedy.
9. Termination.
(a) Termination upon Death. If Employee dies during the Term hereof,
this Agreement and Employee's employment shall terminate, except that Employee's
legal representative shall be entitled to receive Employee's Base Salary for a
period of ninety (90) days following the date of Employee's death.
(b) Termination upon Disability. If during the Term hereof Employee
shall become physically or mentally disabled, whether totally or partially, so
that he is unable substantially to perform his duties under this Agreement for
ninety (90) consecutive days or one hundred twenty (120) days in the aggregate
in any twelve (12) month period, the Company may at any time after either such
period elapses, as the case may be, by written notice to Employee, but before
Employee has recovered from such disability, terminate the Term hereof, and upon
such termination no further sums shall be due to Employee hereunder.
(c) Termination by the Company for Cause. The Company may at any time
during
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the Term hereof, by written notice to Employee, terminate this Agreement and
Employee's employment for Cause (as hereinafter defined), in which event
Employee shall be entitled to receive his Base Salary accrued through the
effective date of such termination. Employee shall have no right to receive any
other compensation or benefit hereunder after the effective date of such
termination. Employee shall have no right to receive any other compensation or
benefit hereunder after the effective date of such termination, including
without limitation Severance Pay; provided, however, that the foregoing shall
not affect Employee's right to receive any compensation or benefit previously
paid by Employee or the Company under the Company's 401(k) plan. As used herein,
the term for "Cause" shall mean:
(1) the willful and continued failure by Employee to
substantially perform his duties after written notice from the Board of
Directors, which notice specifically states and identifies the manner in which
the Board of Directors believes Employee has failed to substantially perform his
duties hereunder, (ii) Employee being charged with a crime relating to any act
of dishonesty (excluding misdemeanors, other than those involving moral
turpitude) involving or affecting the Company, (iii) any material
misappropriation by Employee of any asset of the Company, (iv) the intentional
engaging by Employee in conduct which is materially injurious to the business or
reputation of the Company, monetarily or otherwise, (v) gross negligence or
recklessness by Employee in the performance of his duties hereunder, (vi) the
conviction of Employee of a felony or crime involving moral turpitude (vii) any
breach by Employee of his obligations under Sections 6 or 7 hereof, (viii) the
engagement in conduct which involves a significant conflict of interest between
Employee and the Company, unless such conduct has been disclosed to and approved
by the Company's Board of Directors, (ix) abuse of alcohol or other substances
so as to interfere with the performance of Employee's duties hereunder or, (x)
the material violation of any Company policy by Employee, but only after
Employee has received notice of the violation and has been provided a fair
opportunity to cure the alleged violation. In the event of termination for
Cause, no payment obligations shall accrue hereunder after the effective date of
such termination.
(2) Any termination for Cause shall require prior approval of
the Company's Board of Directors by a vote of at least three-quarters of the
Company's Directors other than Employee. Prior to the Board taking a vote of
such matter, Employee shall have an opportunity to be heard, with Employee's
counsel, by the Board.
(d) Severance Pay upon Termination without Cause. This Agreement may be
terminated by the Company without Cause upon three (3) months' written notice to
Employee specifying the effective date of termination. In the event of such
termination without Cause, Employee shall be entitled to severance pay in an
amount, exclusive of the notice period, equal to the sum of ONE (1) YEAR'S BASE
SALARY PLUS ONE (1) YEAR'S TARGET BONUS, INCREASED BY A FACTOR OF TWENTY PERCENT
(20%) to account for Employee's loss of benefits ("Severance Pay"). For example,
if Base Salary were $200,000, then Severance Pay would be $360,000; (i.e.
200,000 + 100,000 = 300,000, plus 20% = 360,000). Such Severance Pay shall be
payable in a lump sum within thirty (30) days of the effective date of
termination or, at the option of Employee, over a one (1) year period, following
the effective date of termination, in equal semi-monthly installments or
otherwise in accordance with the Company's regular payroll schedule. Any payment
of Severance
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Pay under this Agreement shall be subject to applicable withholdings. As of the
effective date of termination without Cause, Employee shall become fully vested
in all stock options previously granted to Employee. Such Severance Pay and
vesting of options shall be the Employee's sole and exclusive remedies for such
termination without Cause, provided, however, that if a Trigger Event, as
defined in Section 10(b), is announced or occurs within six (6) months of the
effective date of such notice of termination without Cause, then Employee shall
be entitled to payment of the Additional Payment provided for under Section
10(c) and the Tax Payment provided for under Section 9(g) hereof in addition to
Severance Pay, subject to and payable subsequent to the closing of such Trigger
Event, and otherwise in accordance with the terms of this Agreement.
(e) Severance Pay for Nonrenewal of Agreement by the Company. In the
event that the Company elects not to renew the Term of this Agreement, as
provided under Section 2 hereof, in which event this Agreement and Employee's
employment hereunder shall terminate at the end of the then current term, then
Employee shall be entitled to receive Severance Pay, payable as a lump sum
within thirty (30) days of the termination of the term hereof or, at the option
of Employee, over a one (1) year period, following the effective date of
termination, in equal semi-monthly installments or otherwise in accordance with
the Company's regular payroll schedule. Notwithstanding anything contained in
this Section 9(e), Employee shall not be entitled to Severance Pay in the event
that, in lieu of a renewal of the Term hereof, the Company and Employee mutually
agree to an alternative arrangement.
(f) Effect of Termination. Upon the termination of this Agreement, all
rights and obligations of the parties under this Agreement, except those rights
and obligations set forth in Sections 6, 7 and 8 hereof, shall terminate, except
as otherwise required by law. The provisions of Sections 6, 7 and 8 hereof and
those sections and provisions which by their sense and context are intended to
survive the termination of this Agreement shall survive any termination of this
Agreement, and Employee acknowledges that this Agreement and the compensation
and benefits payable hereunder are fair and adequate consideration, in part, for
the covenants of Employee under Sections 6, 7 and 8 and the survival of such
covenants after the termination of this Agreement.
(g) Tax Payment. In addition to the other payments payable pursuant to
this Agreement, in the event that any payment or benefit received or to be
received by Employee under this Agreement (a "Payment") is subject to the excise
tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986,
as amended (the "Code"), or any successor to such section, as determined by a
nationally recognized independent certified public accounting firm selected by
Employee (the "Tax Advisor"), then the Company shall make an additional payment
(a "Tax Payment") to Employee in a lump sum as soon as the determination of the
Tax Advisor is completed, in an amount such that after receipt of such lump sum
and payment of all excise and income taxes imposed with respect to and receipt
of the Payment, Employee will have received an after-tax amount equal to the
amount Employee would have received had the Excise Tax not been applicable to
the Payment. The determination of the Tax Advisor shall be completed not later
than forty-five (45) days following Employee's date of termination of
employment, and such determination shall be communicated in writing to Company,
with a copy to Employee, within such forty-five (45) day period. The
determination of the Tax Advisor as
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provided herein shall be deemed conclusive and binding on Company and Employee.
Such Tax Payment shall include the fees and other costs of the Tax Advisor
hereunder.
10. Effect of a Trigger Event.
(a) It is the belief of the parties that any transfer of
ownership control of the Company after the date hereof shall be reflective of
Employee's contributions to the performance of the Company, and that Employee
should be compensated accordingly. Therefore, the parties agree that, subject to
the limitations set forth herein, Employee shall receive the Additional Payment
set forth in Section 10(c) below in the event that after the date of this
Agreement, and during the Term(s) hereof, a Trigger Event, as defined in Section
10(b) below, occurs. Employee's eligibility to receive the Additional Payment
shall accrue on a graduated vesting schedule, with vesting at the rate of
one-twelfth (1/12) per month during the Term hereof, but commencing May 1, 2000
rather than the initial day of the Term, subject to pro ration for partial
months. For example, in the event that a Trigger Event were to occur on December
20, 2000, then Employee would receive an Additional Payment of $286,687,
representing 7.645 months' of accrual, as follows: ($300,000 + $150,000) =
$450,000; $450,000/12 months = $37,500; 7 months + 20/31 days = 7.6451612
months; ($37,500 x 7.645 = $286,694.
(b) For purposes of this Agreement, the term "Trigger Event"
shall mean:
(1) The acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"))(a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 50% or more of either (i) the then outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or (ii) the combined voting
power of the then outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this subsection (1), the
following acquisitions shall not constitute a Trigger Event: (A) any acquisition
directly from the Company; (B) any acquisition by the Company; (C) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company or (D)
any acquisition by any corporation pursuant to a transaction which complies with
clauses (i) and (ii) subsection 10(b)(2) below; or
(2) Consummation of a reorganization, merger or
consolidation or sale of other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), in each case, unless
immediately following such Business Combination, (i) all or substantially all of
the individuals and entities who were the beneficial owners, respectively, of
the Outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding voting
securities entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination (including,
without limitation, a corporation which as a result of such transaction owns the
Company or all or substantially all of the Company's assets either directly or
through one or more
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subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination or the Outstanding Company Common
Stock and Outstanding Company Voting Securities, as the case may be, and (ii) no
Person (excluding any corporation resulting from such Business Combination or
any employee benefit plan (or related trust) of the Company or any related
corporation or such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 50% or more of, respectively, the
then outstanding shares of commons stock of the corporation resulting from such
Business Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Business Combination.
(c) Upon the occurrence of a Trigger Event, Employee shall be
entitled to a cash payment from the Company within thirty (30) days of effective
date of the Trigger Event (the "Additional Payment"), and the Company shall pay
to Employee the Additional Payment, less applicable withholdings, in a lump sum
amount equal to EIGHTEEN (18) MONTHS' BASE SALARY PLUS EIGHTEEN (18) MONTHS'
TARGET BONUS. The Additional Payment shall be in addition to, and not in
substitution for, Severance Pay that may be otherwise payable pursuant to the
terms of this Agreement. Employee also shall receive the Additional Payment if
Employee is offered and, in Employee's sole discretion, accepts employment with
the new owner (in which case there would be no Severance Pay).
(d) In the event of a Trigger Event, Employee shall have the
right to terminate his employment with the Company upon 30 days' notice, but in
no event later than six (6) months after the effective date of the Trigger
Event. In the event that Employee gives such notice, Employee shall be entitled
to the Severance Pay as if terminated without Cause pursuant to Section 9(d)
above, including acceleration of the vesting of options as provided in such
Section 9(d), provided, however, that no Severance Pay shall be payable under
such circumstances (although acceleration of the vesting of options shall
nevertheless occur) if (i) Employee has been advised in writing by the Company,
or its successor, that subsequent to the Trigger Event Employee is to be
retained for the remainder of the Term of this Agreement (as extended pursuant
to the last sentence of this paragraph) at the same rate of compensation
(including comparable bonus compensation and comparable fringe benefits, such as
insurance), and that Employee will perform substantially the same functions as
those that Employee performed prior to the Trigger Event, provided that Employee
shall not be required to relocate, and (ii) Employee continues to receive such
compensation and be permitted to perform such functions. In the event of a
Trigger Event, Employee is offered continued employment by the Company or its
successor, such offer shall include, an extension of the then remaining Term of
this Agreement such that the remaining Term hereof shall extend for a period of
not less than one (1) year following the Trigger Date, without in any way
limiting the renewal provisions of Section 2 hereof.
(e) During the term hereof and for a period of twelve (12)
months following the termination of this Agreement (the "Noncompetition
Period"), Employee shall not, except as permitted by the Company upon its
written consent, engage in, be employed by, or in any way advise or act for, or
have any financial interest in any business that is a competitor of the Company.
The ownership of 5% of the outstanding securities of any corporation, even
though such
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corporation may be a competitor of the Company as specified above, shall not be
deemed as constituting a financial interest in such competitor. In consideration
for Employee's abstention from competitive activities during the Noncompetition
Period, Employee shall be eligible to receive Severance Pay, subject to the
other terms and conditions herein governing the payment of Severance Pay to
Employee.
11. Compliance with Other Agreements. Employee represents and
warrants that the execution and delivery of this Agreement and the performance
of the obligations will not conflict with, result either in the breach of any
provisions or the termination of, or constitute a default under, any agreements
to which he is or may be bound. Employee agrees that he is not presently bound
by, nor will he enter into any agreement, either written or oral, in conflict
with this Agreement.
12. Severability. If any provision of this Agreement is declared
or found to be illegal, unenforceable or void, in whole or in part, then both
parties will be relieved of all obligations arising under such provision, but
only to the extent it is illegal, unenforceable or void. The intent and
agreement of the parties to this Agreement is that this Agreement will be deemed
amended by modifying any such illegal, unenforceable or void provision to the
extent necessary to make it legal and enforceable while preserving its intent,
or if such is not possible, by substituting therefor another provision that is
legal and enforceable and achieves the same objectives. Notwithstanding the
foregoing, if the remainder of this Agreement will not be affected by such
declaration or finding and is capable of substantial performance, then each
provision not so affected will be enforced to the extent permitted by law.
13. Notice. Whenever any notice is required to be given hereunder,
such notice shall be given in writing and personally delivered or sent by
certified or registered mail, return receipt requested, or by overnight courier.
Notice shall be deemed to have been given at the time of receipt, if personally
delivered, or three (3) days after mailing if sent by certified or registered
mail, or upon delivery if sent by overnight courier. Notices shall be delivered
to the parties' respective addresses set forth above. Either party may change
its notice address by giving notice of the change to the other party pursuant to
this Section.
14. General.
(a) No modification or waiver of any provision of this Agreement shall
be valid unless in writing signed by the parties hereto.
(b) Neither party may assign this Agreement to any third party without
the prior written consent of the other party. This Agreement shall be valid and
binding upon the parties hereto and, with respect to the Company, upon its
successors and assigns, including without limitation any persons acquiring
directly or indirectly all or substantially all of the business and/or assets of
the Company by purchase, merger, consolidation or operation of law.
(c) This Agreement shall be governed by the laws of the State of
Connecticut, without giving effect to any principle of conflict-of-laws. Any
claim(s) arising out of or in
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connection with this Agreement shall be brought in the State of Connecticut,
wherein the parties waive to the fullest extent permitted by applicable law all
objections to personal and subject matter jurisdiction.
(d) In the event of a dispute arising out of this Agreement, the
prevailing party shall be entitled to recovery of its reasonable legal fees and
expenses.
(e) The waiver of any provision of this Agreement shall not be
construed as a continuing waiver of such breach or of other breaches of the same
or of other provisions hereof.
(f) The section headings of this Agreement are for reference purposes
only and shall not constitute a part hereof or affect the meaning or
interpretation of this Agreement. Whether defined terms are stated in the
singular or plural shall not affect their construction as defined terms.
(g) All payment obligations, nondisclosure and noncompete provisions,
and any other provisions that by sense and context are intended to survive the
termination of this Agreement shall so remain in effect after the termination
hereof until the running of the applicable statute of limitations.
(h) The parties acknowledge that they have each read this Agreement in
its entirety, understand it and agree to be bound by its terms and conditions.
(i) This Agreement represents the entire agreement between the parties
with respect to the subject matter hereof and supersedes any and all prior
agreements, discussions and understandings, whether oral or written.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
Employee Shared Technologies Cellular, Inc.,
a Delaware corporation
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------- ---------------------------------------
Xxxxx Xxxxx Xxxxxxx X. Xxxxxxxx, Chairman and CEO
Date: April 27, 2000 Date: April 27, 2000
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