THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
this __ day of August, 1999, by and between Telephone Equipment And Maintenance,
Inc., (the "Company"), a Florida corporation, whose principal place of business
is located at 6702 Benjamin Road, Tampa, Florida 33634, and H. Ralph Cole
("Executive"), an individual, whose address is 13920 Pepperel Drive, Tampa,
WHEREAS, the Company recognizes the experience and knowledge of the
Executive in the telephone interconnect industry, and wishes to retain the
valuable services of the Executive,
WHEREAS, the Executive wishes to accept employment with the Company
under the terms and conditions set forth herein; and
WHEREAS, Executive is uniquely experienced and qualified to perform
certain employment services for Company, and the value of the services to be
provided by the Executive are considered to be so unique and vital to the
Company's business, that the parties are entering into this Agreement which
provides generous consideration for the Executive, performance obligations for
the Executive and protective covenants for the Company and Executive; and
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements herein contained, and intending to be legally bound hereby, Company
and Executive agree as follows:
1. OFFICE AND DUTIES:
1.1 For the term of this Agreement as herein defined, Company
hereby employs, engages and hires Executive to serve as President of the
Company. The Executive shall have the powers and shall perform the specific
duties as set forth on the job description attached hereto as Attachment "A",
and such other duties as delegated to Executive the C.E.O. of the Company. The
Executive hereby agrees to such employment. It is hereby agreed between the
parties that primary responsibility for the supervision of the Executive shall
rest with the C.E.O. of the Company, who shall review the Executive's
performance annually, make upward adjustment's to Executive's compensation and
award such other bonuses and employee benefits as he shall deem appropriate and
as set forth in this Agreement.
1.2 To assist Executive in performing Executive's duties, the
Company shall ensure that Executive is provided, in a timely manner, all
reasonable resources necessary for the accomplishment of Executive's duties
2. TERM AND TERMINATION. This Agreement shall be effective August _,
1999 ("Effective Date"), and shall remain in full force and effect for five
(5)years from the Effective Date, unless the Agreement is terminated sooner by
the parties pursuant to subsection 2.1 or 2.2 below.
2.1 Termination With Cause. This Agreement may be terminated
by the Company of the Executive for the following: (a) upon the other party's
material default or breach of any of its obligations hereunder, if such default
or breach remains uncorrected for a period of fifteen (15) days after the
receipt by the defaulting party of written notice of such default or breach; (b)
upon the gross negligence or willful misconduct of the other party during the
term of this Agreement, which is materially damaging to the Company or
Executive, if such gross negligence or misconduct remains uncorrected for a
period of fifteen (15) days after the receipt by the Company or Executive of
written notice of such negligence or misconduct; (c) upon the conviction of the
Company or the Executive during the term of this Agreement of a crime involving
breach of trust or moral turpitude; In the event that the Company discharges the
Executive alleging "cause" under this Section 2.1, such notice of discharge
shall be accompanied by a written and specific description of the circumstances
alleging such "cause". Further, in the event that the Company discharges the
Executive alleging "cause" under this Section 2.1, and it is subsequently
determined judicially that the termination was "without cause", then such
discharge shall be deemed a discharge without cause subject to the provisions of
Section 2.2 hereof.
2.2 Termination Without Cause. The Company or the Executive
may, upon sixty (60) days prior written notice to the other party, terminate
this Agreement without cause at any time during the term of this Agreement. If
the Company terminates the Executive without cause, the Company shall pay the
Executive, as liquidated damages in lieu of all other claims arising directly
out of the Executive's employment, an amount equal to the Base Salary which
would otherwise be payable to Executive for the remaining term of the Agreement,
plus any bonuses which the Executive would have earned if the Executive had
remained employed by the Company through the end of the bonus period then in
effect, based upon a reasonable extrapolation of the financial statements of the
Company at the time of such termination. Any such payments shall, at the option
of the Company, be made either in equal bi-weekly installments over the
remaining term of this Agreement, or in a lump sum cash payment on the date of
termination. Further, upon termination of the Executive without cause, all
benefits of the Executive which are in effect at the time of such termination
shall remain in full force and effect through the end of the original term of
this Agreement. The Liquidated damages payments and benefits due to the
Executive if terminated without cause as set forth above, are hereby
unconditionally guaranteed in full by USA Digital, Inc., the parent corporation
to the Company.
2.3 Effect of Termination. In the event of any expiration or
termination of this Agreement, such expiration or termination shall not effect
any of the obligations of any party arising prior to the date of such expiration
or termination, nor shall such expiration or termination effect any allegations,
representations, promises or covenants contained herein which are expressly made
to extend beyond the term of this Agreement. The Executive shall resign from any
office that the Executive may hold in the Company, and shall cooperate in the
transfer of Executive's work responsibilities to such consultants or employees
of Company as may be designated by the Company.
3.1 Base Salary. For all services rendered hereunder during
the term of this Agreement, the Executive shall be paid an annual base salary
("Base Salary") of Ninety-Thousand Dollars ($90,000) per year. The Company and
the Executive agree that such base salary is reasonable and is based upon the
fair market rate in the marketplace for similar services by similarly qualified
executives. The Base Salary shall be paid in bi-weekly installments in
accordance with the Company's usual payroll practices. The Executive shall also
be eligible to receive an annual bonus based upon specific Company financial
performance criterion to be mutually developed by the parties.
3.2 Benefits. During the term of this Agreement, the Executive
will be entitled to those executive benefits as set forth on Attachment "B" to
this Agreement, plus any other benefits consistent with personnel policies and
procedures which now exist or which may be developed for similar executive
employees during the term of this Agreement.
3.3 Vacation. Executive shall be entitled to three (3) weeks
annual vacation leave with pay. Vacation shall be scheduled at reasonable times
not in conflict with Executive's duties hereunder.
4. EXECUTIVE REPRESENTATIONS. Executive represents to Company that:
4.1 There are no restrictions, agreements or understandings
whatsoever to which Executive is a party that would prevent or make unlawful the
Executive's execution of this Agreement or the Executive's employment hereunder.
4.2 Executive's execution of this Agreement and Executive's
employment hereunder shall not constitute a breach of any contract, agreement or
understanding, oral or written, to which Executive is a party or by which
Executive is bound.
4.3 Executive will at all times faithfully, industriously and
to the best of Executive's ability, experience and talents perform all of the
duties that may be required of Executive pursuant to the express and implied
terms of this Agreement.
5. CONTEMPORANEOUS BUSINESS ACTIVITY. In order to assure the
consistency of services provided by Executive, Executive agrees, during the
effective terms of this Agreement, that Executive shall devote such full-time
attention to the performance of the Executive's duties under this Agreement as
necessary to ensure Executive's full and complete compliance with Executive's
covenants under this Agreement.
6.1 Non-Competition. During the term of this Agreement, the
Executive shall not without the prior written permission of the Company: (a)
Directly or indirectly induce or attempt to influence any of Company's employees
or other staff, including but not limited to Company's agent, representatives
and independent contractors, to terminate their relationship
with the Company; (b) Directly or indirectly induce or attempt to influence any
of the Company's business associates, clients, customers, consultants or
referral sources to terminate their relationship with the Company; (c) Divert or
take away any corporate business or professional opportunity of Company that the
Executive may become aware of during the term of this Agreement, whether
competitive or not competitive; (d) Engage in or have any interest in any sole
proprietorship, partnership, corporation or other business or be employed by or
work for any other person or business entity (whether as employee, officer,
director, partner, agent, security holder, consultant or otherwise) that
directly or indirectly engages primarily in a business in competition with the
6.2 Non-disclosure. Executive, by virtue of Executive's
employment, has been and will continue to be introduced to confidential and/or
proprietary information concerning the Company and its operations. Because
unauthorized disclosure of such confidential and/or proprietary information will
harm the Company, the Executive shall not, except with the Company's express,
prior written consent, directly or indirectly, communicate, disclose, divulge or
use, for the benefit of any person or entity other than the Company, any
information regarding the business, customer and/or client lists of Company or
any other knowledge or information whether confidential or proprietary of or
about the Company acquired by the Executive during the term of this Agreement.
This Executive further agrees that all work product produced by the Executive
during the term of Executive's employment shall remain the property of the
Company, and may not reproduced or communicated, disclosed or divulged to any
person or entity other than the Company.
6.3 Remedies. The Executive agrees that the Company's remedies
at law for the Executive's breach of any of these non-competition/non-disclosure
provisions are inadequate and that the Company may seek relief in equity by way
of an injunction restraining any violation of the non-competition/non-disclosure
provisions by the Executive. If any period of time or geographic area relative
to these non-competition/non-disclosure provisions should be adjudged to be
unreasonable in any proceedings, then the period of time or geographic area
shall be reduced by such amount of time or distance so that such restrictions
may be enforced for such time or geographic area as is adjudged to be reasonable
by a court of competent jurisdiction.
7.1 Indulgences, Etc. The failure or any delay on the part of
the Executive or Company to exercise any right, remedy, power or privilege under
this Agreement shall not operate as a waiver thereof. A single or partial
exercise of any right, remedy, power or privilege shall not preclude any further
exercise of the same or of any other right, remedy, power or privilege. A waiver
of any right, remedy, power or privilege with respect to any occurrence shall
not be construed as a waiver of such right, remedy, power or privilege with
respect to any other occurrence.
7.2 Controlling Law. This Agreement and all questions relating
to its validity, interpretation, performance and enforcement shall be governed
by and construed in accordance with the laws of the State of Florida.
7.3 Notice. All notices, requests, demands and other
communications required or permitted under this Agreement and transactions
contemplated herein shall be in writing and shall be deemed to have been duly
given, made and received when delivered against receipt or when sent by United
States certified or registered mail, return receipt requested, postage prepaid,
addressed as set forth below in subparagraphs (a) and (b). In addition, notice
by mail shall be air mail if posted outside the continental United States.
Executive and Company may alter the address to which communications of copies
are to be sent by giving notice of such change of address in conformity with the
provisions of this paragraph for the giving of notice.
(a) If to Company:
USA Digital, Inc.
P.O. Box 172574
Attn: Mark D. Cobb
(b) If to Executive:
13920 Pepperel Drive
Tampa, Florida 33624
7.4 Binding Nature of Agreement. This Agreement shall be
binding upon and inure to the benefit of Company and its successors and assigns
and shall be binding upon and inure to the benefit of Executive, and Executive's
heirs and legal representatives.
7.5 Provisions Separable. The provisions of this Agreement are
independent of and separable from each other. No provision shall be rendered
invalid or unenforceable by virtue of the fact that for any reason, any one or
more of them may be invalid or unenforceable in whole or in part.
7.6 Entire Agreement. This Agreement contains the entire
understanding between Company and Executive with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance or usage of the trade or professions inconsistent with any
of the terms hereof. This Agreement may not be modified or amended other than by
any agreement in writing.
7.7 Section Headings. The section headings in this Agreement
are for convenience only and form no part of this Agreement and shall not affect
7.8 Gender, Etc. Words used in this Agreement, regardless of
the number and gender specifically used, shall be deemed and construed to
include any other number, singular or plural, and any other gender, masculine,
feminine or neuter, as the context requires.
7.9 Number of Days. In computing the number of days for
purposes of this Agreement, all days shall be counted, including Saturdays,
Sunday or holidays; provided,
however, that if the final day of any time period falls on a Saturday, Sunday or
holiday, then the final day shall be deemed to be the next day which is not a
Saturday, Sunday or holiday.
7.10 Counterparts. This Agreement may be executed two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute but one and the same Agreement.
7.11 Assignment. No assignment by Executive of this Agreement
or the rights and obligations hereunder shall be valid without the specific
written consent of Company, which consent may be arbitrarily withheld. This
Agreement may be assigned by the Company to an entity under its control,
directly or indirectly, or the control of its principals without the consent of
the Executive, provided Executive's security herein is not impaired by the
7.12 Construction. This Agreement shall be construed without
regard to any presumption or other rule requiring construction against the party
causing this Agreement to be drafted.
IN WITNESS WHEREOF, the parties hereto have executed this agreement or
caused their duly authorized representatives to execute this Agreement on the
day first stated above. COMPANY:
TELEPHONE EQUIPMENT AND MAINTENANCE, INC.
H. RALPH COLE
(TO BE DEVELOPED)
1. Executive shall be entitled to receive a monthly car allowance in
the amount of $1,000.
2. Executive shall have an unaccountable expense account, not to exceed