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Exhibit 4.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made this 24th day of
October 1997 by and between SecurFone America, Inc. (the "Corporation"), a
Delaware corporation, and Xxxxx Xxxxx (the "Employee").
EXPLANATORY STATEMENT
A. The Corporation is engaged in the business of telecommunications.
B. The Employee has specialized expertise in the operation of
telecommunications companies.
C. The Corporation desires to employ the Employee as Vice-President
and Chief Operating officer and to render such services as shall be assigned
reasonably, from time-to-time, to the Employee by the Board of Directors or by
the President of the Corporation, and the Employee is willing to accept such
employment, upon the terms and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the Explanatory Statement, which
shall be deemed to be a substantive part of this Agreement, and the mutual
covenants, promises, agreements, representations and warranties set forth, the
parties hereto do hereby covenant, promise, agree, represent and warrant as
follows:
1. Employment. The Corporation hereby employs the Employee as the
Vice-President and Chief Operating Officer of the Corporation and to render
such services for and on behalf of the Corporation as may be assigned
reasonably, from time-to-time, to the Employee by the Board of Directors or by
the President of the Corporation (the "Services"). The Employee hereby accepts
such employment with the Corporation and agrees to render the Services for and
on behalf of the Corporation on the terms and conditions set forth in this
Agreement. The power to direct, control and supervise the Services to be
performed, the means and manner of performing the Services and the time for
performing the Services shall be exercised by the Board of Directors or the
President of the Corporation; provided, however, that the Board of Directors
or the President shall not impose employment duties or constraints of any kind
which would require the Employee to violate any law, statute, ordinance, rule
or regulation now or hereinafter in effect.
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2. Term. The term (the "Initial Term") of this Agreement shall
commence on the date hereof and, subject to the further provisions of this
Agreement, shall end on Oct 24, 1998; provided, however, this Agreement shall
be automatically renewed for successive one-year periods (a "Renewal Term")
unless, at least 60 days prior to the expiration of the Initial Term or any
Renewal Term, either party gives written notice to the other party
specifically electing to terminate this Agreement at the end of the Initial
Term or any such Renewal Term.
3. Performance of Services. The Employee shall devote all of his time
exclusively to the Corporation's business and shall render the Service to the
best of his ability for and on behalf of the Corporation. The Employee shall
comply with all laws, statutes, ordinances, rules and regulations relating to
the Services. Unless having first received the written consent of the
Corporation, during the term of this Agreement the Employee shall not, at any
time or place, directly or indirectly, engage or agree to engage in the
telecommunications business with or for any other person or entity to any
extent whatsoever, other than to the extent required by the terms and
conditions of this Agreement.
4. Compensation.
4.1 During the term of this Agreement, the Employee will earn
an annual salary of $100,000 ("Salary") of which $75,000 will be payable in
equal consecutive weekly installments. The parties agree that the balance of
such annual Salary shall be accrued and deferred without interest and shall be
payable upon the earlier of (i) a determination by the Board of Directors or
the President of the Corporation that the Corporation has sufficient revenues
or capital for payment of the accrued and deferred Salary, or (ii) October 1,
1998, and upon the occurrence of either (i) or (ii) above, Employee's annual
Salary of $100,000 shall be payable in equal consecutive weekly installments.
4.2 Prior to the date of this Agreement, Employee provided
significant services to the Corporation on a consulting basis. As full
compensation for such consulting services, the Corporation shall issue to
Employee 20,000 shares of the Corporation's common stock. Such shares shall be
validly issued, fully paid and non-assessable.
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5. Vacations and Benefits.
5.l. During each 12-month period during the Initial Term and any
Renewal Term of this Agreement, the Employee shall be entitled to vacation time
of not less than three (3) weeks, during which time the Employee's Salary shall
be paid in full. The Employee shall take his vacation at such time or times as
shall be approved by the Corporation, which approval shall not be unreasonably
withheld.
5.2. The Employee shall be entitled to such benefits as the
Board of Directors shall lawfully adopt and approve.
6. Disability.
6.1. As used herein, the Employee shall be "disabled" or have a
"disability" for purposes of this Agreement if the Employee shall have an
illness, injury, or other physical or mental condition which results in the
Employee's inability to perform substantially the duties he performed in his
employment capacity under this Agreement to the extent he was performing such
duties immediately prior to the commencement of such condition.
6.2. In the event that the Employee shall be disabled for not
more than ninety (90) days during any 12-month period, then the Employee, during
the continuance of such disability, shall remain employed by the Corporation
hereunder and shall continue to receive his Salary pursuant to Section 4 of this
Agreement and otherwise have all of the rights and be subject to all of the
Employee's obligations and duties under this Agreement, other than the
obligation and duty to render the Services otherwise in accordance with this
Agreement.
6.3. In the event that the Employee shall be disabled for more
than ninety (90) days during any 12-month period, but not more than one hundred
eighty (180) days during any 12-month period, then from and after the expiration
of the 90th day and during the continuance of such disability up to and
including the day immediately preceding the 181st day, the Employee shall be
deemed to have taken a leave of absence from the Corporation commencing on the
91st day of such disability and, during the continuance of such disability, the
following provisions shall apply:
6.3.1. The Employee's Salary shall be apportioned up to and
including the 90th day of such disability and from and after the 90th day of
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such disability and up to and including the day immediately preceding the 181st
day, the Corporation shall pay Salary to the Employee at the rate of one half
(1/2) the Salary specified in Section 4 of this Agreement.
6.3.2. The Corporation, in the sole discretion of its Board
of Directors, shall have the right and power to remove the Employee from the
position of Vice-President and Chief Operating Officer of the Corporation or to
delegate all or any portion of the Employee's duties as Vice-President and Chief
Operating Officer of the Corporation to one or more other employees of the
Corporation.
6.3.3. The Employee shall otherwise have all of the rights
and be subject to all of the Employee's obligations and duties under this
Agreement, except that the Employee shall have no obligation or duty to render
the Services otherwise in accordance with this Agreement; provided, however,
that the Corporation shall be excused from providing any insurance coverages or
benefits which, by reason of the Employee's disability, the Corporation shall
not be able to obtain, continue or maintain at substantially the same cost and
expense or on substantially the same terms and conditions that the Corporation
was able to obtain, continue or maintain immediately prior to the commencement
of the Employee's disability.
6.4. In the event that the Employee shall be disabled for
more than one hundred eighty (180) days in any 12-month period, the employment
of the Employee hereunder shall cease and terminate pursuant to Section 10
hereof.
6.5. If the Corporation and the Employee are unable to agree
whether the Employee is disabled within the meaning of this Section 6, then
this limited issue shall be submitted to and settled by binding arbitration
under and pursuant to the Delaware Uniform Arbitration Act and the rules and
regulations of the American Arbitration Association, and the decision in such
arbitration shall be final, conclusive and binding upon each of the parties
and judgment may be entered thereon in any court of competent jurisdiction. No
other issue shall be submitted to or settled by binding arbitration under this
Agreement.
7. Confidential Information.
7.1. The Employee acknowledges that in the Employee's
employment hereunder, the Employee will be making use of, acquiring and adding
to the Corporation's trade secrets and its confidential and proprietary
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information of a special and unique nature and value relating to such matters
as, but not limited to, the Corporation's business operations, internal
structure, financial affairs, procedures, manuals, confidential reports, lists
of clients and prospective clients and sales and marketing methods, as well as
the amount, nature and type of services equipment and methods used and
preferred by the Corporation's clients and business partners, all of which
shall be deemed to be confidential information. The Employee acknowledges that
such confidential information has been and will continue to be of central
importance to the business of the Corporation and that disclosure of it to or
its use by others could cause substantial loss to the Corporation. In
consideration of employment by the Corporation, the Employee agrees that
during the Initial Term and any Renewal Term of this Agreement and upon and
after leaving the employ of the Corporation for any reason whatsoever, the
Employee shall not, for any purpose whatsoever, directly or indirectly,
divulge or disclose to any person or entity any of such confidential
information which was obtained by the Employee as a result of the Employee's
employment with the Corporation or any trade secrets of the Corporation, but
shall hold all of the same confidential and inviolate.
7.2. All contracts, agreements, financial books, records,
instruments and documents; client lists; memoranda; data; reports; programs;
software; tapes; rolodexes; telephone and address books; letters; research;
card decks; listings; programming; and any other instruments, records or
documents relating or pertaining to clients serviced by and business partners
of the Corporation or the Employee, the Services rendered by the Employee, or
the business of the Corporation (collectively, the "Records") shall at all
times be and remain the property of the Corporation. Upon termination of this
Agreement and the Employee's employment under this Agreement for any reason
whatsoever, the Employee shall return to the Corporation all Records (whether
furnished by the Corporation or prepared by the Employee), and the Employee
shall neither make nor retain any copies of any of such Records after such
termination.
7.3. All inventions and other creations, whether or not
patentable or copyrightable, and all ideas, reports and other creative works,
including, without limitation, computer programs, manuals and related
materials, made or conceived in whole or in part by the Employee while
employed by the Corporation which relate in any manner whatsoever to the
business, existing or proposed, of the Corporation or any other business or
research or development effort in which the Corporation or any of its
subsidiaries or affiliates engages during Employee's employment by the
Corporation will be disclosed promptly by the Employee to the Corporation and
shall be the sole and exclusive property of the Corporation. All copyrightable
works created by the Employee and
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covered by this Section 7.3 shall be deemed to be works for hire. The Employee
shall cooperate with the Corporation in patenting or copyrighting all such
inventions, ideas, reports and other creative works, shall execute,
acknowledge, seal and deliver all documents tendered by the Corporation to
evidence its ownership thereof throughout the world, and shall cooperate with
the Corporation in obtaining, defending, and enforcing its rights therein.
8. Indemnity. The Employee shall indemnify the Corporation, its
officers, directors and stockholders (other than the Employee), and hold the
Corporation, its officers, directors and stockholders (other than the
Employee) harmless, from and against any and all actions, suits, proceedings,
liabilities, damages, losses, costs and expenses (including attorneys' and
experts' fees) arising out of or in connection with any breach or threatened
breach by the Employee of any one or more provisions of this Agreement.
9. Restrictive Covenants.
9.1. The Corporation and the Employee acknowledge and agree
that the Employee's Services are of a special and unusual character which have
a unique value to the Corporation, the loss of which cannot be adequately
compensated by damages in an action at law and if used in competition with the
Corporation could cause serious harm to the Corporation. Accordingly, the
Employee covenants that for a period of one year after the Employee ceases to
be employed by the Corporation for any reason whatsoever, the Employee shall
not, without the prior written consent of the Corporation, directly or
indirectly:
9.1.1. Offer to render any services or solicit the
rendition of any services which were rendered by the Corporation during the
two year period immediately preceding such cessation of the Employee's
employment with the Corporation to any clients, business partners, customers
or accounts of the Corporation who were such at any time during such two year
period to or for the benefit or account of the Employee or to or for the
benefit or account of any other person or entity.
9.1.2. Render or attempt to render any services which were
rendered by the Corporation during the two year period immediately preceding
such cessation of the Employee's employment with the Corporation to any
clients, business partners, customers or accounts of the Corporation who were
such at any time during such two year period to or for the benefit or account
of the Employee or to or for the benefit or account of any other person or
entity.
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9.1.3. Solicit for employment or employ to or for
the benefit or account of the Employee or to or for the benefit or account of
any other person or entity any employee of the Corporation, nor shall the
Employee urge, directly or indirectly, any client, business partners or
referrer of clients, business partners, customers, or accounts of the
Corporation to discontinue, in whole or in part, business with the Corporation
or not to do business with the Corporation. For purposes of this Section 9.1.3
of this Agreement, the term "referrer of clients" shall mean any person or
entity who or which referred a client, business partners, customer or account
to the Corporation at any time prior to such cessation of the Employee's
employment with the Corporation.
9.1.4. Engage, either as a consultant, independent
contractor, proprietor, stockholder, partner, officer, director, employee or
otherwise, in any telecommunications business or otherwise compete with the
Corporation in any state of the United States or in any foreign country, in
each such case where the Corporation sold, licensed or otherwise engaged in
the telecommunications business at any time during the two year period
immediately preceding such cessation of the Employee's employment with the
Corporation.
9.2. The parties hereto agree that to the extent that any
provision or portion of Section 9.1 of this Agreement shall be held, found or
deemed to be unreasonable, unlawful or unenforceable by a court of competent
jurisdiction, then any such provision or portion thereof shall be deemed to be
modified to the extent necessary in order that any such provision or portion
thereof shall be legally enforceable to the fullest extent permitted by
applicable law; and the parties hereto do further agree that any court of
competent jurisdiction shall, and the parties hereto do hereby expressly
authorize, request and empower any court of competent jurisdiction to, enforce
any such provision or portion thereof or to modify any such provision or
portion thereof in order that any such provision or portion thereof shall be
enforced by such court to the fullest extent permitted by applicable law.
9.3. As the violation by the Employee of the provisions of
Sections 7 and 9 of this Agreement would cause irreparable injury to the
Corporation, and there is no adequate remedy at law for such violation, the
Corporation shall have the right, in addition to any other remedies available
at law or in equity, to enjoin the Employee in a court of equity from
violating such provisions.
9.4. The provisions of Sections 9.1.1, 9.1.2, 9.1.3 and
9.1.4 of this Agreement are cumulative. Compliance with Sections 9.1.1, 9.1.2,
9.1.3 and 9.1.4 of this Agreement is a condition precedent to the
Corporation's
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obligation to make any payments of any nature to the Employee, whether under
this Agreement or otherwise. Nothing in this Agreement shall be construed as
prohibiting the Corporation from pursuing any other remedies available to it
for a breach or threatened breach of Sections 7 and 9 of this Agreement.
9.5 As used in this Section 9, "clients," "business
partners," "customers" and "accounts" shall include any person or entity that,
directly or indirectly, through one or more intermediaries, controls or is
controlled by, or is under common control with, any such "clients," "business
partners," "customers" or "accounts".
10. Termination of Employment.
10.1. Subject to Section 10.2 of this Agreement, the
Corporation shall have the right to terminate the Employee's employment
hereunder at any time and without prior written notice to the Employee upon
the occurrence of any one or more of the following events: (i) the breach by
the Employee of any covenant, promise or agreement of this Agreement; (ii) the
voluntary or involuntary dissolution of the Corporation; (iii) the voluntary
or involuntary liquidation or winding up of the Corporation; (iv) the
disability of the Employee for more than one hundred eighty (180) days in any
12-month period pursuant to Section 6.4 of this Agreement; and (v) for cause,
other than permitted in Section 10.1(i). Upon termination of the Employee's
employment under this Agreement pursuant to this Section 10, neither party
shall thereafter have any further rights, duties or obligations under this
Agreement, except for the Employee's obligations and duties under Sections 7,
8 and 9 hereof, but each party shall remain liable and responsible to the
other for all prior obligations and duties hereunder and for all acts and
omissions of such party, its agents, servants and employees, prior to such
termination.
10.2. Anything contained in Section 10.1 to the contrary
notwithstanding, the Corporation shall not terminate this Agreement and the
Employee's employment under this Agreement pursuant to Section 10.1(i) or (v)
unless the Corporation shall have first given to the Employee 15 days' prior
written notice of such termination which sets forth the grounds of such
termination, and the Employee shall have failed to cure such grounds for
termination within said 15-day period; provided, however, that the foregoing
opportunity to cure shall be limited to no more than two opportunities during
each 12-month period hereunder, commencing upon the effective date of this
Agreement.
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11. Notices. All notices and other communications required or
permitted to be given by this Agreement shall be in writing and shall be given
and shall be deemed received if and when either hand-delivered and a signed
receipt is given therefor or mailed by registered or certified U.S. mail,
return receipt requested, postage prepaid, and if to the Corporation to:
SecurFone America, Inc.
Xxxxxxx Xxxxxxx, President
0000 Xxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Fax 000-000-0000
and if to the Employee to:
Xxxxx Xxxxx
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Fax 000-000-0000
or at such other address as either party hereto shall notify the other of in
writing.
12. Miscellaneous.
12.1. This Agreement shall be binding upon and inure to the
benefit of the Corporation, its successors and assigns. This Agreement shall
be binding upon the Employee and his heirs, personal and legal
representatives, and guardians, and shall inure to the benefit of the
Employee. Neither this Agreement nor any part hereof or interest herein shall
be assigned by the Employee.
12.2. The terms and provisions of this Agreement may not be
modified except by written instrument duly executed by each party hereto.
12.3. The use of any gender herein shall be deemed to be or
include the other genders and the neuter and the use of the singular herein
shall be deemed to be and include the plural (and vice versa), wherever
appropriate.
12.4. This Agreement shall be governed by and enforced and
construed in accordance with the laws of the State of Delaware.
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12.5. This Agreement sets forth the entire, integrated
understanding and agreement of the parties hereto with respect to the subject
matter hereof.
12.6. The headings in this Agreement are included for the
convenience of reference and shall be given no effect in the construction of
this Agreement.
12.7. In the event of a breach of this Agreement, the
non-breaching party hereto may maintain an action for specific performance
against the party hereto who is alleged to have breached any of the terms,
conditions, representations, warranties or agreements, herein contained.
Anything contained herein to the contrary notwithstanding, this Section shall
not be construed to limit in any manner whatsoever any other rights or
remedies an aggrieved party may have by virtue of any breach of this
Agreement. Each of the parties hereto shall have the right to waive compliance
with or the fulfillment, satisfaction or enforcement of any warranty,
representation, covenant, promise, agreement or condition herein set forth,
but the waiver by any party of such right shall not be deemed a waiver of
compliance with or fulfillment, satisfaction or enforcement of any other
warranty, representation, covenant, promise, agreement or condition herein set
forth or to seek redress for any breach thereof on any subsequent occasion,
nor shall any such waiver be deemed effective unless in writing and signed by
the party so waiving.
IN WITNESS WHEREOF, the parties have executed, acknowledged, sealed
and delivered this Agreement the day and year first hereinabove set forth.
SECURFONE AMERICA,INC.
ATTEST:
By: /s/ Xxxxxxx Xxxxxxx XX
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Xxxxxxx Xxxxxxx, President
WITNESS:
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx, Employee
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