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EXHIBIT 10.3
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the
"Agreement") is dated as of the 1st day of April, 1997, by and between XXXX X.
XXXXXXX (the "Executive") and 2CONNECT EXPRESS, INC., a Florida corporation
(the "Company").
WHEREAS, the Company is a specialty retailer offering
Internet, satellite and communication services; and
WHEREAS, the Company and the Executive entered into an
Employment Agreement dated June 17, 1996 (the "Original Agreement"), and the
parties desire to terminate such agreement and enter into a new employment
agreement between the Company and the Executive.
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein and the Executive's agreement to continue to serve as the
Chief Executive Officer and President of the Company, the parties agree as
follows:
1. Termination. The parties agree that this Agreement is
intended to supersede and replace the Original Agreement. Accordingly, the
Original Agreement is hereby terminated in its entirety. The parties agree that
they shall have no obligation or liability to each other whatsoever for any
obligation or liability arising under the Original Agreement, and that no
provisions thereof shall survive such termination.
2. Employment. The Company shall employ the Executive as its
Chief Executive Officer and President. The Executive shall be responsible for
the general management of the affairs of the Company and shall report only to
the Board of Directors of the Company. The Executive shall diligently,
faithfully, and competently perform all duties of the office of Chief Executive
Officer and President and shall devote his full productive time and abilities
to the performance of such duties, and will not render his active business
services to any other person or entity without the prior consent of the Board
of Directors. The Executive shall also serve on the Board of Directors of the
Company.
3. Compensation.
(a) Salary. In consideration of and as compensation for
performance of the services under this Agreement, the Company will pay the
Executive a base salary of $150,000 per year, payable in equal bi-monthly
installments or such frequency as is consistent with Company practices.
Subsequent to the first year of this Agreement, the salary paid to the
Executive shall be reviewed to determine whether to increase Executive's base
annual salary.
(b) Stock Option. In addition to the above salary, the
Company has granted, and may additionally grant in its discretion, certain
options to purchase shares of the Company's common stock, pursuant to the terms
and conditions contained in the Option Agreement between the parties and the
Company's stock option plan.
4. Benefits. While this Agreement is in effect, the Executive
shall receive any and all health and medical benefits, insurance, pension and
profit sharing plans, paid vacation time, sick leave and other benefits, on a
no less favorable basis as is offered to other executive officers.
5. Expenses. The Company shall reimburse the Executive for all
necessary and reasonable expenses incurred and paid by the Executive in
connection with the performance of services hereunder upon presentation of
supporting documentation.
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6. Term. The term of the Executive's employment
with the Company commenced on June 17, 1996, and shall continue thereafter
until June 16, 1999 (the "Term"), unless earlier terminated as provided in
Section 7 below. The term of the Executive's employment shall automatically
renew for successive one-year terms thereafter, unless the Executive provides
the Company with written notice of his intent not to continue his employment.
7. Termination For Cause. The Company may terminate this
Agreement, and the Executive's employment hereunder, for "cause", by written
notice to the Executive, upon the occurrence of any one of the following
events; provided, however, if an event is one that is specified in parts (a),
(b), or (c), termination shall not occur until after arbitrators, as
hereinafter described, shall have finally determined that the Executive shall
have committed the act of which he is accused:
(a) his proven dishonesty, fraud or embezzlement that
materially and adversely affects the Company;
(b) his conviction of a felony involving moral
turpitude that materially and adversely affects the
Company;
(c) his repeated willful failures to carry out the
terms of this Agreement or the lawful instructions of
the Board of Directors, which instructions relate to
matters material to the conduct of the Company's
business, which failures continue after not less than
two (2) written warnings to the Executive specifying
one or more specific failures in each such warning;
provided, however, the provisions contained in this
Section 7(c) shall not constitute a "cause" for
termination in the event that the actual Adjusted
Pre-tax Profits (as defined in accordance with
Generally Accepted Accounting Principles) of the
Company for fiscal year most recently ended shall
have equaled or exceeded the amount of Adjusted
Pre-Tax Profit for the previous year.
(d) his death; or
(e) his disability, which prevents the Executive from
performing his duties under the terms of this Agreement
for 180 days during any period of 360 consecutive days
(the last day of such 180 days being called the
"disability termination date").
In the event of termination of this Agreement for "cause" by reason of an event
defined in parts (a), (b), or (c) of this Section 7, then, except for sums
theretofore earned by, or otherwise payable to, him, no further sums shall be
payable by the Company to the Executive. In the event of termination of this
Agreement for "cause" by reason of an event defined in parts (d) or (e) of this
Section 7, the salary, otherwise payable through the end of the month during
which his death or the disability termination date occurs, shall be paid
immediately to the Executive or to his estate. Any disputes between the
parties hereto relating to the determination of the existence of "cause" shall
be subject to binding arbitration in Dade County, Florida, in accordance with
the rules of the American Arbitration Association then in effect. If the
Executive challenges the Company's right to discharge
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him under this Section 7, the Company shall have the burden of proof. Unless
the parties agree on a single arbitrator, the arbitration shall take place
before three arbitrators, one to be selected by the Company, one to be selected
by the Executive, and the third to be selected by the first two arbitrators.
The decision of the arbitrators shall be deemed final for purposes of this
Agreement, and may be enforced in any court having jurisdiction.
In the event this Agreement is wrongfully terminated by the Company or is
terminated by the Company without cause, then, in addition to any other
remedies available to the Executive (a) he shall have no obligations to
mitigate damages and in the event he is employed elsewhere, the amount of his
compensation from such other employment shall not reduce the Company's
obligations hereunder; and (b) the Company shall accelerate and pay in full the
salary provided in Section 3(a) and shall cover the Executive for other
benefits herein provided, to the same extent and in the same amounts as he
would have been entitled if the Executive had not been terminated as described
above.
The parties acknowledge that if a situation arises in which the Executive seeks
to enforce the severance or other rights provided herein, the Company may
attempt to refuse to comply with its obligations under this Agreement, or may
institute or attempt to institute or attempt to institute litigation seeking to
have this Agreement declared unenforceable, or may take or attempt to take
other action to deny the Executive the benefits intended under this Agreement.
In these circumstances, the purpose of this Agreement could be frustrated. It
is the intent of the Company that the Executive not be required to incur the
expenses associated with the enforcement of any rights under this Agreement by
litigation or other legal action, nor be bound to negotiate any settlement of
any rights hereunder, because the cost and expense of such legal action or
settlement would substantially detract from the benefits intended to be
extended to the Executive hereunder.
Accordingly, if it should appear to Executive that the Company has failed to
comply with any of its obligations under this Agreement, and such failure
includes a failure to comply with its obligations under this Section 7, or in
the event that the Company or any other person takes any action to declare this
Agreement void or unenforceable, or institutes any litigation or other legal
action designed to deny, diminish or to recover from the Executive the benefits
entitled to be provided to the Executive hereunder, and Executive has complied
with his material obligations under this Agreement, the Company irrevocably
authorizes counsel to the Company to represent the Executive in connection with
the initiation or defense of any litigation or other legal action, whether such
action is by or against the Company or any Director, officer, shareholder, or
other person affiliated with the Company, in any jurisdiction. Notwithstanding
any existing or prior attorney-client relationship between the Company and such
counsel, the Company irrevocably consents to the Executive entering into an
attorney-client relationship with such counsel, and in that connection the
Company and Executive agree that a confidential relationship shall exist
between Executive and such counsel. The reasonable fees and expenses of
counsel selected from time to time by Executive as hereinabove provided shall
be paid or reimbursed to Executive by the Company on a regular, periodic basis
upon presentation by Executive of a statement or statements prepared by counsel
in accordance with its customary practice. Any legal expenses incurred by the
Company by reason of any dispute between the parties as to enforceability of
or the terms contained in this Agreement, notwithstanding the
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outcome of any such dispute, shall be the sole responsibility of the Company,
and the Company shall not take any action to seek reimbursement from the
Executive for such expenses.
8. Confidentiality and Non-Disclosure.
(a) The Executive acknowledges that the Company has
organized and created a new form of retail establishment to sell Internet,
satellite, cellular, paging, long-distance, local phone, and other communication
services and related hardware in a format aimed at mass market consumers (as
adjusted by the Company from time-to-time, referred to herein as the "Company's
Business"). The Company has invested substantial capital, time, expertise,
effort and other resources to develop this unique specialty retail concept;
these resources contain certain confidential and proprietary information and
analysis. For purposes of this Agreement, confidential and proprietary
information ("Confidential Information") shall be defined as any information
relating to the Company's confidential or proprietary business affairs, whether
communicated orally or in writing, including without limitation, concepts,
techniques, lists, designs, cost data, management information, and other
know-how, financial, marketing, and other business information disclosed by the
Company to the Executive or obtained by the Executive through observation or
examination of the Company's customers or suppliers, including the identity of
such customers and suppliers, and any information the Company has received from
others which the Company is obligated to treat as confidential or proprietary.
(b) The Executive acknowledges that irreparable injury and
damage will result from the Executive's disclosure to third parties or from any
use of Confidential Information for purposes other than those connected with
Executive's employment hereunder.
(c) Executive agrees that he will not, during the course of
his employment, and at all times thereafter, without the Company's prior written
consent, disclose any Confidential Information to any third party and shall not
use any Confidential Information except pursuant to and in the course of his
association with the Company. The Executive shall have no liability for
reasonable disclosure of any Confidential Information that the Executive can
establish (i) has become publicly known without breach of this Agreement, or
(ii) had become known by or available prior to disclosure of such information to
the Executive or to such third party, without any breach of any obligation of
confidentiality by the Executive to the Company.
(d) Without limiting any other obligations contained in
this Agreement, the Executive agrees to take reasonable security precautions, at
least as great as the Executive uses to protect his own confidential
information, to protect from disclosure and to keep confidential the
Confidential Information, including without limitation, protection of documents
from discovery of contents, theft, unauthorized duplication, and access by other
persons to Confidential Information.
(e) Upon reasonable request by the Company and immediately
upon termination of the Executive's employment, the Executive will return to the
Company all materials, including but not limited to written materials,
photographs, equipment, art work, prototypes, advertising materials, customer
lists, service user lists, access lists, prospect lists, hardware, computers,
programs in whatever form, and all other documentation made available or
supplied by the Company, and all copies and reproductions thereof.
(f) The Executive will not make or use any copies of, or
summaries of, oral or written material, photographs or any other documentation
or information made available or supplied by the Company, except such as are
necessary to accomplish the purpose of his employment hereunder.
(g) The Company retains all rights and remedies afforded it
under the copyright, trademark and other laws of the United States and the
states thereof, including without limitation any laws designed to protect
proprietary or confidential information.
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9. Non-Competition.
(a) In addition to, and separate from the provisions
regarding Confidential Information stated in Section 8 above, the Executive
agrees that for one (1) year after the termination of employment for any reason
(excluding termination of the Executive by the Company without cause) the
Executive will not, in any geographic area where the Company operates a retail
establishment, for his own account or as agent, servant or employee, nor as a
shareholder of any corporation or member of any firm: (a) accept employment
from, or directly or indirectly take any action for the benefit of, any
individual or entity that conducts a business that is in competition with the
Company's Business, without the consent of the Board of Directors of the
Company; (b) contact or accept any business with any of the Company's vendors or
customers with the intention of engaging in competition with the Company's
Business; (c) engage, hire, employ or solicit the employment of, for the purpose
of engaging in competition with the Company's Business, any of the Company's
employees whose duties require that employee to be familiar with the operation
of the Company's business or the employees or agents of any vendor or customer
of the Company. For purposes of this Section 9, the phrase "in competition with
the Company's Business" shall mean any company or division thereof that derives
more than 50% of its annual gross revenues from the sale of Internet, satellite,
cellular, paging, long-distance, local phone, and other communication services
and related hardware in a format aimed at mass market consumers.
(b) In the event of the Executive's actual or threatened
breach of any of the preceding paragraph of this Section 9, the Company shall be
entitled (without the need to post bond) to an injunction restraining Executive
from the prohibited conduct. If the court should hold that the duration and/or
scope (geographic or otherwise), of the covenants contained in this Section 9
are unreasonable, then, to the extent permitted by law, the court may prescribe
a duration and/or scope (geographic or otherwise) that is reasonable, and both
the Company and Executive agree to accept such determination, subject to rights
of appeal. Nothing herein stated shall be construed as prohibiting the Company
or any third party from pursuing any other remedies available to it for such
breach or threatened breach, including the recovery of damages.
(c) The Executive agrees that if he is in violation of any
of the aforementioned restrictive covenants, then the time limitation for the
covenant shall be extended for a period of time equal to the period of time
during which the Employee was in breach of the covenant.
(d) The Executive agrees that the existence of any claim or
cause of action which he may have against the Company, whether predicated upon
this Agreement or otherwise, shall not constitute a defense to the Company's
enforcement of the foregoing restrictive covenants, but shall be litigated
separately.
10. Notices. All claims, notices, requests, demands and
other communications required or permitted hereunder shall be in writing and
shall be deemed to have been duly given or made when delivered by hand or
mailed, first class certified mail, return receipt requested, with postage
paid:
(i) If to Executive: XXXX X. XXXXXXX
0000 X.X. 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
or to such other person or address as Executive shall furnish to the Company in
writing.
(ii) If to the Company, to: 2CONNECT EXPRESS, INC.
0000 X.X. 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
or to such other person or address as the Company shall furnish to Executive in
writing.
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(iii) In either case, with a copy
to:
XXXXXX XXXXX, Esq.
Xxxxx & XxxXxxxxx
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
and to such other persons or addresses as either the Executive or the Company
shall furnish to the other in writing.
11. Binding Effect. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of The Company.
12. Governing Law. This Agreement shall be governed by
and construed in accordance with the law of the State of Florida. Venue for any
proceedings shall be Dade County, Florida, and the parties agree to submit to
the jurisdiction thereof.
13. Entire Agreement. This Agreement contains the entire
agreement concerning the subject matter and supersedes all prior written
andoral understandings of the parties with respect thereto. This Agreement may
not be changed except by a writing signed by the party against whom the
enforcement of any waiver, change, extension, modification or discharge is
sought.
14. Severability. In the event any term, paragraph or
provision of this Agreement or its application to any circumstances shall to
any extent be deemed invalid or unenforceable, the remainder of this Agreement
shall be valid and enforceable to the fullest extent permitted by law.
15. Consultation of Attorneys. The Company and the
Executive acknowledge that they each have had the opportunity to consult its or
his attorney with respect to this Agreement and that they each understand its
contents.
16. Gender. References in this Agreement to any of the
masculine, feminine, or neuter genders shall refer to the other two genders as
the context may reasonably require, and references to the singular or plural
shall refer to the other as the context may reasonably require.
17. Paragraph Headings. This paragraph headings
contained herein are for reference only and shall not in any way affect the
meaning and interpretation of this Agreement.
18. Counterparts. This Agreement may be executed
in counterparts, each of which when so executed shall be an original, but both
of which shall together constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement is made and entered into on the date first
above written.
2CONNECT EXPRESS, INC.
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Vice President-Finance
EXECUTIVE
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
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