Exhibit 10.25
Elcotel Inc.
Employment Termination Agreement of Xxxxxxx Xxxxxxxxxx
This Termination Agreement (this "Agreement") dated as of the 22nd day of March
2000 by and between Elcotel, Inc. (the "Company") and Xxxxxxx Xxxxxxxxxx
("Employee") amends the Employment Agreement dated as of the 10th day of
December 1998 by and between the Company and Employee (the "Employment
Agreement") upon the following terms and conditions:
1. Termination Date: The Company and Employee hereby agree to terminate the
Employment Agreement effective as of the close of business on the 2nd day of
April 2000 (the "Termination Date"). The Company agrees to provide Employee with
a letter of recommendation.
2. Salary: The Company will pay to Employee his salary accrued but not paid
through the Termination Date and pay Employee his salary for a period of six
months (or 26 weeks) from the Termination Date. The salary payments shall be
based on a salary of One Hundred and Sixty Thousands Dollars ($160,000) per year
and a 52-week year and will be made on a bi-weekly basis.
3. Benefits: The Company will pay to Employee the cost of group insurance
benefits made available to the Company's senior executives to which COBRA
applies, net of the employee contribution paid by the Company's senior
executives, for the six months ending September 30, 2000, as additional taxable
compensation. The benefit payments will be paid to Employee on a bi-weekly basis
based on the total net cost divided by 26 weeks.
4. Direct Deposit: Salary and benefit payments pursuant to Sections 2 and 3
hereof will be made through a direct deposit in the following Nations Bank
account: Routing Number 000000000, Account Number 003430052505.
5. Incentive Bonuses: Employee hereby waives his rights to receive any further
incentive bonuses based on revenues, personal objectives and management
objectives not paid to Employee as of the Termination Date and the Company
hereby waives its rights to receive repayment of any incentive bonus recoverable
draws paid to Employee under the compensation structure between Employee and the
Company dated July 21, 1999.
6. Stock Options: All of Employee's vested employee stock options shall continue
in effect for 30 days, except that (1) for all options that can be amended
without increasing the exercise price in order to maintain incentive stock
option status for federal income tax purposes, shall continue in effect until
the termination of such option in accordance with its terms absent termination
of employment and (2) for all options to which (1) does not apply, shall, if not
exercised within such 30 day period, be automatically extended until termination
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of such option in accordance with its terms absent termination of employment,
but in no event shall any option remain in effect for more than one year from
the Termination Date.
7. Business Expenses: Employee will be reimbursed (in accordance with Company
policy) for all expenses incurred by him in the performance of his duties prior
the Termination Date.
8. Indemnification: Employee shall be indemnified by the Company with respect to
claims made against him as an officer and/or employee of the Company to the
fullest extent permitted by the Company's certificate of incorporation, by-laws
and the General Corporation Law of the State of Delaware.
9. Proprietary Information: Unless otherwise expressly agreed by Company in
writing, any inventions, ideas, reports, discoveries, developments, designs,
improvements, inventions, formulas, processes, techniques, "know-how," data, and
other creative ideas concerning the manufacture, design, marketing or sale of
pay phones (all of the foregoing to be hereafter referred to as "Proprietary
Information"), whether or not patentable or registrable under copyright or
similar statutes, generated by Employee either alone or jointly with others in
the course of his employment with the Company relating or useful to the
manufacture, design, marketing or sale of pay phones by the Company, shall be
the sole property of the Company. Employee hereby assigns to the Company any
rights that he may acquire or develop in such Proprietary Information. Employee
shall cooperate with the Company in patenting or copyrighting any such
Proprietary Information, shall execute any documents tendered by the Company to
evidence its ownership thereof, and shall cooperate with the Company in
defending and enforcing its rights therein. Employee's obligations under this
Section 9 to assist the Company in obtaining and enforcing patents, copyrights,
and other rights and protections relating to such Proprietary Information in any
and all countries shall continue beyond the termination of his employment. The
Company agrees to compensate Employee at a reasonable rate for time actually
spent by Employee at the Company's request on such assistance after termination
of Employee's employment with the Company. If Company is unable, after
reasonable effort, to secure Employee's signature on any document or documents
needed to apply for or prosecute any patent, copyright, or right or protection
relating to such Proprietary Information, whether because of the Employee's
physical or mental incapacity or for any other reason whatsoever, Employee
hereby irrevocably designates and appoints the Company and its duly authorized
officers and agents as Employee's agent and attorney-in-fact, to act for and on
his behalf to execute and file any such application or applications and to do
all other lawfully permitted acts to further the prosecution and issuance of
patents, copyrights, or similar protections thereon with the same legal force
and effect as if executed by Employee.
10. Covenants Not To Disclose Confidential Information:
(a) Employee agrees that he will not at any time or place for three years
after the Termination Date directly or indirectly disclose to any person or firm
other than Company or make, use or sell any records, ideas, files, drawings,
documents, improvements, equipment, customer lists, sales and marketing
techniques and devices,
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formulas, specifications, research, investigations, developments, inventions,
processes and data, and without limiting the generality of the foregoing,
anything not within the public domain (ideas in the process of being disclosed
to customers shall not be considered in the public domain), belonging to
Company, whether or not patentable or copyrightable, other than for the sole and
exclusive benefit of Company, without the prior written consent of Company.
Employee agrees that for three years after the Termination Date he will keep
confidential from persons not associated with the Company any and all
Proprietary Information, special techniques, and trade secrets of the Company.
Employee agrees to return to the Company prior to the Termination Date any
property belonging to it, including but not limited to any and all records,
notes, drawings, specifications, programs, data and other materials, and copies
thereof, pertaining to the Company's business and generated or received by
Employee in the course of his employment duties with the Company.
(b) Employee agrees that during the Restricted Period (as defined in
Section 11) he will not directly or indirectly entice or hire away or in any
other manner persuade an employee, consultant, dealer or customer of the Company
to discontinue that person's or firm's relationship with or to the Company as an
employee, consultant, dealer or customer, as the case may be.
(c) Employee agrees that he will not, during Restricted Period (as defined
in Section 11), engage in any employment or business activity in which it might
reasonably be expected that confidential Proprietary Information or trade
secrets of Company obtained by the Employee during the course of his employment
with the Company would be utilized.
(d) The Employee recognizes and agrees that his violation of any terms
contained in paragraphs (a), (b), or (c) of this Section 10 will cause
irreparable damage to the Company, the amount of which will be impossible to
estimate or determine. Therefore, Employee further agrees that the Company shall
be entitled, as a matter of course, to an injunction restraining any violation
or further violation of any such covenant or covenants by Employee, his
employees, partners, agents or associates, such right to an injunction to be
cumulative and in addition to any other remedies, at law or otherwise, which the
Company might have. The Company hereby waives any right to require a bond in
connection with obtaining such an injunction. Such covenants shall be severable,
and if the same shall be held invalid by reason of length of time, area covered,
or activity covered, or any or all of them, shall be reduced to the extent
necessary to cure such invalidity.
11. Covenant Not To Compete Unreasonably With Company:
Employee further covenants and agrees that:
(a) During the Restricted Period, Employee shall not undertake any
employment or financial involvement with or assistance of any person, firm,
association, partnership, corporation or enterprise which is engaged in the
manufacture, design, marketing or sale of pay phones. "Restricted Period" shall
mean the time period following the Termination Date during which the Employee is
entitled to receive salary and benefits.
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(b) Employee recognizes and agrees that his violation of any terms
contained in paragraph (a) of this Section 11 will cause irreparable damage to
the Company the amount of which will be impossible to estimate or determine.
Therefore, Employee further agrees that the Company shall be entitled, as a
matter of course, to an injunction restraining any violation or further
violation of any such covenant or covenants by Employee, his employees,
partners, agents or associates, such right to an injunction to be cumulative and
in addition to any other remedies, at law or otherwise, which the Company might
have. Such covenants shall be severable, and if the same shall be held invalid
by reason of length of time, area covered, or activity covered, or any or all of
them, shall be reduced to the extent necessary to cure such invalidity.
12. Notices: Notices that are required or permitted hereunder shall be given by
hand delivery, by delivery to a courier service providing next day delivery and
proof of receipt, or by facsimile transmission (except to Employee), as follows:
If to the Company at: Elcotel, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: President
Facsimile: 941-7514716
If to Employee, to his most recent residence address on the books of the
Company, or, to such other address of a party as to which that party shall
notify the other parties in the manner provided herein.
13. Release of Claims:
(a) Employee and his heirs, assigns, executors and/or administrators
hereby release the Company, its successors, assigns, affiliates, present and
former owners, employees, officers, directors, and agents (hereinafter
"Releasees") from any and all claims, demands or causes of action of whatever
nature, whether known or unknown, that he ever had, now have or claim to have
against the Company or any other Releasee relating to or arising out of his
employment with the Company or his termination of employment with the Company.
Employee also hereby waives and releases forever any right to have employment or
reemployment by the Company and Employee agrees not to xxx or join in any suit
against the Company for any claim described herein.
(b) Employee represents that he (a) understands that the claims he is
releasing include, but are not limited to claims for discrimination on the basis
of sex, race, color, religion, national origin, handicap or age under Title VII
of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of
1967, the American with Disabilities Act, and/or the Florida Civil Rights Act,
(b) claims under any other federal, state or local statute or ordinance
protecting employees, and (c) claims under common law (such as breach of
contract or defamation). Employee also represents that he understands that he is
waiving
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and forever giving up all claims he may have against the Company that may have
arisen or arose before the Termination Date.
(c) Employee represents that he is aware that various state and federal
laws prohibit employment discrimination based on age, sex, race, color,
religion, national origin, handicap and disability, and veteran status, and that
these laws are enforced through the Equal Opportunity Commission, the Department
of labor, and the Florida Commission on Human Relations, and that he has been
advised to consult with an attorney prior to signing this Agreement.
(d) Employee represents that he is aware that although he may sign this
Agreement as of the date first written above, that he may also take up to 45
days to consider the Agreement, and that the Agreement is revocable for seven
days after he signs it at which time the Agreement will become effective.
(e) The Company, its successors, assigns, affiliates, present and former
owners, employees, officers, directors, and agents hereby release Employee and
his heirs, assigns, executors and/or administrators (hereinafter "Releasees")
from any and all claims, demands or causes of action of whatever nature, whether
known or unknown, that he ever had, now have or claim to have against the
Employee or any other Releasee relating to or arising out of Employee's
employment with the Company or his termination of employment with the Company.
14. Entire Agreement, etc.:
(a) This Agreement contains the entire understanding of the parties except
as otherwise expressly contemplated herein; shall not be amended except by
written agreement of the parties signed by each of them; shall be binding upon
and inure to the benefit of the parties and their successors, personal
representatives and assigns; and shall supersede and replace all prior
employment agreements between the parties.
(b) No representation, affirmation of fact, course of prior dealings,
promise or condition in connection herewith not incorporated herein shall be
binding on the parties.
(c) No waiver of any term or condition contained herein shall be binding
upon the parties unless made in writing and signed by the party to be bound
thereby.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first set forth above.
EMPLOYEE: ELCOTEL, INC.:
/s/ Xxxxxxx Xxxxxxxxxx /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx Xxxxxxxxxx Xxxxxxx X. Xxxxx
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