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EXHIBIT 10.11
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is entered into effective the
22nd day of May, 1995, among LET'S TALK CELLULAR OF AMERICA, INC., a Florida
Corporation (the "Employer") and ANNE GOZLAN (the "Employee").
RECITALS
WHEREAS, the Employer is in the business of operating a retail business
selling cellular Telephones, pagers and related accessions, among other
electronic devices and products (the "Business");
WHEREAS, the Employer desires to obtain the services of the Employee in
connection With the operation of the Business;
WHEREAS, the Employee desires to be employed by the Employer, pursuant to
the Terms and conditions set forth in this Agreement;
NOW THEREFORE, in consideration of the premises and the mutual covenants
herein Contained, the parties hereto agree as follows:
AGREEMENT
1. Term of Employment. The Employer hereby agrees to employ the
Employee and The Employee hereby agrees to be employed by the Employer as its
Chief Financial Officer. Subject to earlier termination pursuant to Section 4
hereof, the Employee's employment under this Agreement shall be for an initial
term of three (3) years from May 22, 1995 (the "Effective Date") and be
automatically renewed thereafter for additional one year periods, unless either
party notifies the other in writing not less than 90 days prior to the
expiration of the initial or any Renewal terms that it does not desire to renew
the term of Employee's employment.
2. Duties. The Employee shall serve as Chief Financial Officer of the
Employer and Shall perform such duties as are customarily performed by a chief
financial officer of a retail business of a similar size and character as the
Employer and such other reasonable duties as may be requested by or under the
authority of the Chief Executive Officer oft Employer. The Employee shall report
directly to the Chief Executive Officer oft Employer. The Employee shall devote
her full business time to the performance of her duties hereunder and shall not
render to others any service of any kind for compensation or engage in any
activity which Conflicts or interferes with the performance of her duties
hereunder
3. Compensation. For all services to be rendered by the Employee in
any capacity During the period of her employment under this Agreement, including
all services as an owner, employee or member of any committee of the Employer or
any subsidiary, affiliate, board or Division thereof, the Employee shall receive
the following compensation:
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3.1 Base Salary. Employee shall receive a minimum annual base
salary of $100,000 (less applicable taxes and deductions), which salary shall be
paid in equal installments in accordance with the Employer's regular payroll
practices, but not less frequently than monthly. The Board of Directors of the
Employer (the "Board") shall review Employee's base salary on an annual basis
and, in its sole discretion, may increase such salary commensurate with the
Employee's performance.
3.2 Stock Bonus Shares. Assuming the Employee is still in the
employ of the Employer, upon the first anniversary oft Effective Date, and upon
each of the second and third anniversaries of the Effective Date thereafter, the
Employee shall be entitled to receive such amount of common stock (the "Stock
Bonus Shares") as shall, on such anniversary date, constitute 1% oft Employer's
then outstanding common stock. Notwithstanding the preceding sentence, all 3% of
the Employer's outstanding Common Stock to be given to the Employee shall all be
given to the Employee upon a Chance in Control (as such term is defined in
Section 5.1 oaths Agreement) oft Employer. In addition to those contained in
Section 9 of this Agreement, the terms and conditions of such rights to the
Stock Bonus Shares are as follows:
(a) Redemption of Stock Bonus Shares. Within six (6) months of
the termination of employment of the Employee, for any reason
whatsoever, including without limitation the permanent disability
or death of the Employee, the Employer may, at its option and in
its sole discretion, redeem all or any portion of the Stock Bonus
Shares owned by the Employee, at a price equal to the Book Value
per share of each oft Stock Bonus Shares; provided, however, if
the Employee is terminated without cause (as determined in
accordance with Section 4.3 of this Agreement), such redemption
price shall be equal to the higher of book value per share of each
of the Stock Bonus Shares; or times (5x) the After-Tax Earnings
oft Employer. The Employer may exercise this redemption right
following the Employee's termination by delivering written notice
to the Employee specifying the number of such Stock Bonus Shares
to be redeemed. For purposes hereof, the term "Book Value" shall
mean, as of any date, the total shareholder's equity (including
capitol, additional paid in capital and retained earnings alter
deducting treasury stock) which would appear on the audited
balance sheet of the Employer as of such date in accordance with
generally accepted accounting principles, consistently applied.
For purposes hereof, the term "After-Tax Earnings" shall mean, as
of any date, the after-tax earnings which would appear on the
audited income statement of the Employer as of such date in
accordance with generally accepted accounting principle
consistently applied. The Book Value and the After-Tax Earnings of
the Stock Bonus Shares shall be determined by the then existing
independent certified public accountants oft Employer. The
determination by such independent certified public accountants of
the Book Value and the After Tax Earnings of the Stock Bonus
Shares shall be conclusive and binding on the Employee and the
Employer.
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Any payment for the redemption of the Stock Bonus Shares made
pursuant to a termination cause, shall be payable quarterly over a
twenty-four (24) month period at an interest rate per annum equal
to the Prime Rate plus one percent (1%).
For the purposes hereof, the "Prime Rate. shall mean, as of the
date of any determination thereof, the Prime rate" as published in
the Wall Street Journal (Southeastern Edition). The Prime Rate
shall be determined monthly on the first day of each calendar
month after such termination, and the unpaid principal balance oft
purchase price for the Stock Bonus Shares shall bear interest
during each such month (or portion thereof) on the basis oft Prime
Rate calculated as of the first day of each such month or portion
thereof. In the event that the Wall Street Journal (Southeastern
Edition) has ceased publishing the Prime rates, then the "Prime
Rate" shall be determined with reference to the "Prime Rate" as
published in the New York Times (National edition).
(b) Expiration of Redemption Right. The Employer's right to
redeem the Stock Bonus Shares as set forth in this Section 3.2
shall terminate upon the completion of an initial public offering.
3.3. Bonus. The Employee shall be entitled to participate in any
bonus plan established from time to time for executives of the Employer at such
level as may be determined by the Board. . Bonuses, if any, shall be paid to the
Employee in accordance with a payment schedule as may be particularly approved
from time to time by the Board.
3.4 Stock Option Plan. After an Initial public offering of
equity securities of the Employer, the Employee shall be eligible to participate
in any stock option plan which may be established for the benefit of any
employees oft Employer on terms at least equal to seventy-five (75%) percent
of the participation rights in such stock option plan of the Chief Executive
Officer of the Employer.
3.5 Expense Reimbursement. The Employer shall reimburse the
Employee for reasonable and necessary business expenses incurred by the Employee
in the performance of her duties hereunder including, without limitation, travel
and entertainment expenses. Such expenses shall be reimbursed by the Employer,
from time to time, upon presentation of appropriate documentation therefore.
3.6 Health Insurance. During the term of Employee's employment
hereunder, the Employee shall be entitled to medical insurance comparable to
that provided to other employees of the Employer.
3.7 Vacation. The Employee shall be entitled to twenty (20)
business days vacation per year. The Employee shall be entitled to carry over up
to, but not more than, ten (10 days unused vacation time into any succeeding
year or years. The Employee shall not be
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compensated for any portion of unused vacation time. In no event shall the
Employee be entitled to more than thirty (30) days vacation in any given year.
3.8 Memberships. To facilitate the promotion oft Employer's
business interests, the Employer shall pay all initiation fees and periodic dues
for the Employee's membership in such clubs and business associations as shall
be reasonably selected by the Employee and approved in writing by the Chief
Executive Officer of the Employer.
4. Termination. The Employee's employment under this Agreement may be
terminated prior to the expiration of the term set forth in Section 1 under the
circumstances and on the terms and conditions described below.
4.1 Death or Disability. The Employee's employment under this
Agreement shall be terminated upon her death or Complete Disability. Complete
Disability means the inability of the Employee, due to illness, accident or any
other physical or mental incapacity, to perform her duties under this Agreement
for an aggregate of 120 days within any period of twelve consecutive months
during the term hereof, which Complete Disability shall be determined by the
Board with such professional advice as it may deem reasonably appropriate.
4.2 Termination for Cause. The Employee's employment pursuant
to this Agreement shall be terminated by the first to occur of the following
events. Upon any such termination, the Company shall be released from all
obligations hereunder, including without limitation, the obligation to
compensate the Employee pursuant to Section 5.1 hereof
(a) The death oft Employee.
(b) The Complete Disability oft Employee.
(c) The resignation of the Employee or the discharge of the
Employee by the Company for Cause. "Cause" as used herein shall mean:
(i) use of alcohol or a controlled substance which
materially impairs the Employee's ability to effectively perform her duties
hereunder,
(ii) conviction of the Employee of a felony or such other
crime as shall, in the reasonable opinion oft Board, result in a lack of
confidence in the honesty or moral character or integrity oft Employee
(iii) conviction of a felony or a crime involving moral
turpitude;
(iv) an act fraud by the Employee against the Employer or
any of its subsidiaries, or in connection with the performance of her duties
hereunder, as determined by the Board after investigation, notice of the charge
to the Employee and after allowing the Employee an opportunity to explain the
conduct in question;
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(v) the willful failure or refusal to comply with the
provisions of this Agreement or to perform the Employee's duties and obligations
under this Agreement, other than as a result of the Employee's death or Complete
Disability (a "Default"); provided, however, that in the case of this subsection
(v), termination for "Cause" shall occur only if the Employer has given written
notice of the Default to the Employee and an opportunity to cure the Default, if
curable, and the Employee has failed to cure the Default in question, during a
period of twenty (20) days after the date oft Employee's receipt of such notice.
Upon such termination, the Employer shall have no further obligations to
the Employee under this Agreement.
4.3 Termination Without Cause. If the Employer terminates the
Employee's employment at any time for any reason or under any circumstances
other than Cause, death or Complete Disability, the Employer shall pay the
Employee the Severance Payment, as defined in Section 5.1.
5. Payments on Termination of Employment.
5.1 Severance Payment. If the Employer terminates the
Employee's employment at any time pursuant to Section 4.3, the Employer shall
continue to pay the Employee her base salary then in effect and her medical
insurance costs for a period of twelve (12) months following the date of
termination of Employee's employment, subject to reduction or offset for the
amount of all loans made by the Employer to the Employee and all other
obligations of the Employee to the Employer, which upon offset shall be deemed
satisfied and paid in full (the Severance Payment"). If the Employee is
terminated for Cause within 180 days after a Change in Control (as such term is
defined below) of the Employer, then the Employee shall be entitled to receive
the Severance Payment.
For the purpose of this Agreement, a "Change in Control" of the Employer
shall mean the occurrence of (and shall be deemed to have occurred on the date
of the earliest to occur of) any of the following events:
1. The shareholders oft Employer approve a definitive
agreement or plan to merge, reorganize, exchange shares, or consolidate (a
"Business Combination?) or the issuance of voting securities oft Employer
pursuant to a Business Combination, provided, however, that the foregoing shall
not be applicable to a Business Combination which will result in the voting
securities of the Employer outstanding immediately prior to such Business
Combination continuing to represent (either by remaining outstanding or by being
converted into voting securities oft surviving or acquiring entity) more than
50% of the voting power oft voting securities of the Employer or such surviving
or acquiring entity outstanding immediately after such Business Combination: or
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2. The shareholders of the Employer approve a definitive
agreement or plan to dissolve and/or liquidate the Employer or to sell, lease,
exchange, or otherwise dispose of, all or substantially all of the Employer's
property and assets (a "Transaction") to any other corporation or any other
legal person, provided, however, that the foregoing shall not be applicable to a
Transaction which will result in the voting securities of the Employer
outstanding immediately prior to such transaction continuing to represent more
than 50% of the Voting power oft voting securities of such other corporation or
other legal person outstanding immediately after such transaction or
3. Individuals who are Continuing Directors (as defined below)
of the Employer cease for any reason to constitute at least a majority of the
Board of the Employer.
Computations required by Subsection (a) and (b) shall be made on
and as of the date of shareholder approval and shall be based on reasonable
assumptions that will result in the lowest percentage obtainable. For purposes
of determining voting power pursuant to Subsections (a) and (b), all voting
securities of a corporation (whether the Employer or another entity) shall be
considered as a single class.
For purposes of Subsection (c), "Continuing Directors" means Nick Molina
,Brett Beveridge and Allan C. Sorensen For purposes of Subsections (a) through
(c), inclusive, so long as voting control of a majority of the Employer's
outstanding voting stock is held by Nick Molina and Brett Beveridge,
collectively or individually, or their respective trustees or beneficiaries, or
children, or other entities controlled by any one or more of such persons or of
which any one or more of them are the primary beneficiaries, a Change in Control
of the Employer shall be deemed not to have occurred. The Severance Payment
shall not be reduced by any earnings the Employee may receive from subsequent
employment or otherwise be subject to mitigation.
If the Employee's employment is terminated otherwise than pursuant
to Section 4.3 hereof, or if the Employee notifies the Employer pursuant to
Section 1 that she toes not desire to renew the term of her employment, the
Employer shall not be obligated to pay the Severance Payment.
5.2 Rights and Obligations upon Termination. Upon termination
of the Employee's employment, the Employer shall have no further obligation
under this Agreement to make any payments to, or bestow any benefits on, the
Employee after the date of termination, other than payments or benefits accrued
or due and payable to the Employee through the date of termination and other
than as specifically set forth in Sections 4 or 5 hereof Payment of any amounts
to which Employee is entitled under Sections 4 or 5 hereof shall constitute full
satisfaction of any and all financial obligations of the Employer to the
Employer under this Agreement except for any obligations the Employer may have
with respect to vested benefits of Employee. As a condition to the receipt of
such amounts, the Employee shall execute such releases, waivers and
satisfactions as may reasonably be required by the Employer.
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6. Confidentiality. Employee shall not, at any time during or after
her employment with the Employer, knowingly use, disclose, confirm, furnish, or
make accessible to anyone, other than as required by law or in the regular
course of the business of the Employer and consistent with the best interests
oft Employer, any knowledge or information of a confidential or secret nature
with respect to the business affairs, customers, vendors, assets, operations,
plans or know-how of the Employer. The Employee acknowledges and agrees that, in
the event of a breach or threatened breach oaths Section 6, the Employer will
suffer irreparable harm and that monetary damages would be inadequate.
Accordingly, in addition to such other remedies to which the Employer may be
entitled, the Employer shall be entitled to the remedies of injunction, specific
performance and other equitable relief.
7. Noncompetition.
(a) Except as the duties of Employee strictly necessitate,
Employee will not remove from Employer's premises (or cause or aid in the
removal therefrom), documents or papers of any type, (ii) photographs or films
(whether positive, negative or otherwise), (iii) computerized information
relating to Employers business function (whether stored or programmed as tapes,
punch-cards, print-outs or otherwise), or(iv) any other property containing or
reflecting information relating to the business of Employer including, but not
limited to, copies (regardless oft process by which made) and abstracts or
summaries, in whole or in part, of any of the foregoing. Employee agrees to
immediately return all of such items and all copies thereof to the premises of
Employer upon completion of his investigation or upon written demand by
Employer.
(b) By virtue of Employee's employment with Employer, Employee
will become possessed of confidential or proprietary information developed or to
be developed by Employer including, but not limited to, Employer's methods and
systems, the names and addresses of its customers and suppliers, prices charged
and paid by Employer, technical memoranda, research reports, designs and
specifications, supplies, new product and service developments, record cards,
patient applications, comparative analysis of competitive products, services and
operating procedures and other information, data and documents now existing or
hereafter acquired by Employer or Employee in connection with Employee's
employment, regardless of whether any of such information, data or documents
qualify as a Trade secret under applicable Federal or State laws (confidential
Information.). In consequence of this and in recognition that the secrecy of
Confidential Information gives Employer and its Affiliates (as defined in the
Securities Act of 1933, and amended (the "Security Act"), and the rules and
regulations promulgated thereunder) a significant competitive advantage in its
business and within the cellular telephone industry, Employee agrees not
disclose or cause or aid in the disclosure of any Confidential Information or
use or cause or aid in the use of any Confidential Information at any time for
whatever reason, during or after the Employment Term (as defined in Subsection
(c) below) without the specific prior written consent of Employer. Such consent
may be withheld at the sole and uncontrolled discretion of Employer.
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(c) Employee agrees and covenants that Employee will not during the
term of this Agreement and, thereafter for a period of two (2) years (the
"Employment Term") (i) engage in any business which competes with Employer's
business anywhere within the county or counties in which Employer or its
subsidiaries conducts business or any county contiguous thereto (the Area"),
(ii) become associated as manager, supervisor, employee, consultant, advisor,
stockholder, investor or otherwise with any person, corporation or entity which
engages in any business which competes with the Employer's business within the
Area, and (iii) call upon any employee, supplier, tenant, customer or customers
of Employer within the Area for the purpose of selling or soliciting for any
person, corporation or entity other than Employer, services offered by or being
developed by Employer within the Area, (iv) divert, solicit or take away any
such employee, supplier, tenant, customer or customers of Employer for the
purpose of selling or providing, within the Area, services offered by or being
developed by Employer other than that of Employer, and (v) service any contracts
or accounts within the Area offered or being developed by Employer within the
Area for any person, corporation or entity other than Employer.
(d) Employee agrees that any violation or breach of any provision
oaths Section 7 would cause irreparable harm to Employer and such violation or
breach cannot be adequately compensated in money damages. Accordingly, any such
violation or breach may be enjoined by any court of competent jurisdiction,
without waiving or affecting any claim for any damages incurred by Employer in
connection with such violation.
(e) The restrictions against competition set forth in this Section 7
are considered by the parties to be reasonable for the purpose of protecting the
business oft Employer. If any such restriction is found by any court of
competent jurisdiction to be unenforceable because it extends for too long a
period of time or over too broad a range of activities or in too large a
geographic area, however, such restriction shall be interpreted to extend only
over the maximum period of time, range of activities or geographic areas to
which it may be enforceable.
8. Arbitration.
8.1 General. If there is a dispute under this Agreement, either
party may submit such dispute to arbitration upon written notice to the other
party. Within 30 days alter delivery of such written notice, each party shall
appoint one arbitrator, and within 15 days thereafter the two appointed
arbitrators shall select a third arbitrator. If either party shall fail to make
such appointment within said 15-day period, the parties shall mutually select
the third arbitrator. If the parties me unable to agree within 15 days
thereafter as to appointment of the third arbitrator, then either party may,
upon at least five days prior written notice to the other party, request the
American Arbitration Association to choose such third arbitrator. All
arbitrators shall be impartial and unrelated, directly or indirectly, so far as
employment or services is concerned to either of the parties or to any affiliate
or to any person directly or indirectly related to the parties or to any
affiliate. The arbitration proceeding shall be governed by the Commercial
Arbitration Rules of the American Arbitration Association then in force. The
place of arbitration shall be Miami, Florida
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8.2 Procedures. The three arbitrators shall investigate the
facts and shall hold a hearing at which the parties may present evidence and
arguments, be represented bar counsel and conduct cross-examination. In
determining any questions, matter or dispute before them, the arbitrators shall
apply the provisions of this Agreement, without varying therefrom in any
respect. They shall not have the power to add to, modify or change any of the
provisions of this Agreement. The three arbitrators shall render a written
decision upon the matter presented to them by a majority vote within 90 days
after the date upon which the last arbitrator is appointed, and that decision
shall be final and binding on both parties. Judgment upon the decision rendered
in such arbitration may be entered by any court having jurisdiction thereof
Neither party shall be considered in default hereunder during the pendency of
arbitration proceedings relating to a disputed default. If the three arbitrators
shall fail to render a decision within said 90-day period, then, to the extent
permitted by law, any party shall have the right to institute an action or
proceeding in such court as shall be appropriate in the circumstances, and upon
the institution of such action, the arbitration proceeding shall be terminated
and shad be of no further force and effect. The arbitrators shall determine in
what proportion the parties shall bear the fees and expenses oft arbitrators,
and each party shall bear the fees and expenses of its own counsel and other
consultants.
9. Stock Bonus Shares.
9.1 Adjustment of Number of Stock Bonus Shares.
(a) If, at any time after the date oaths Agreement, the number
of shares of common stock outstanding is increased by a stock dividend payable
in shares of common stock or by a subdivision or split-up of shares of common
stock, then, following the record date fixed for the determination of holders of
common stock entitled to receive such stock dividend, subdivision or split-up,
the number of Stock Bonus Shares shall be increased in proportion to such
increase in outstanding shares.
(b) If, at any time after the date of this Agreement, the
number of shares of common stock outstanding is decreased by a combination of
the outstanding shares of common stock, then, following the record date for such
combination, the number of Stock Bonus Shares shall be decreased in proportion
to such decrease in outstanding shares.
(c) If at any time after the date oaths Agreement, but prior to
any public offering of equity securities of the Employer, the Employer shall
issue additional shares of common stock to any of the Continuing Directors which
results in the Elation of the Employee's percentage ownership in the Employer (a
"Dilution"), the Employer shall, within thirty (30) days after such Dilution,
issue to the Employee, in exchange for the same consideration as was received
from the Continuing Directors for such additional shares of common stock, Such
number of additional shares of common stock to raise the Employee's percentage
ownership in the Employer to the level of percentage ownership that the Employee
had prior to the Dilution.
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9.2 Representations, Warranties and Agreements of the Employee.
(a) The Employee hereby represents and warrants to the Employer
that the Stock Bonus Shares will be owned for the Employee's own account, for
investment purposes and not with a view to the distribution thereof The Employee
understands that the issuance to the Employee of Stock Bonus Shares has not been
registered under the Securities Act by reason of its proposed issuance in a
transaction exempt from the registration requirement oft Securities Act ant that
the Stock Bonus Shares must be held indefinitely unless a subsequent disposition
thereof is registered under the Securities Act or the transaction is exempt from
registration. In connection with the foregoing, the Employee also agrees that
the issuance of all or any portion of the Stock Bonus Shares is subject to the
receipt by the Employer at the time of its issuance of an opinion of counsel
reasonably acceptable to the Employer that the issuance of such shares is exempt
from registration pursuant to an exemption provided for in the Securities Act.
The Employee agrees that the Employer will not be liable for any damages
incurred by the Employee in the event such an opinion cannot reasonably be
obtained.
(b) The Employee also agrees that, as a condition to the
Employer's obligation to issue Stock Bonus Shares, the Employee shalL if
requested by the Employer, enter into a shareholders agreement providing, among
other things, that the Employer and/or the other shareholders thereof shell have
a right of first refusal to purchase any Stock Bonus Shares issued to the
Employee prior to the sale, transfer or other disposition of any such Stock
Bonus Shares by the Employee to any third party.
9.3 Nontransferability Restock Bonus Shares. The Stock Bonus
Shares granted hereby may not be pledged, assigned, or otherwise transferred or
disposed of by the Employee, except by will or the laws of descent and
distribution.
Except for such restrictions on transfer, the Employee shall have
all of the rights of a stockholder with respect to the Stock Bonus Shares
awarded to her including, but not limited to the right to receive dividends on,
and the right to vote, the shares.
9.4 Legends. All stock certificates representing Stock Bonus
Shares issued to the Employee shall have affixed thereto a legend substantially
in the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT PURPOSES ONLY AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR THE BLUE SKY LAWS OF ANY STATE. THESE
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT OR SUCH LAWS. THESE
SECURITIES ARE ALSO SUBJECT TO COMPLIANCE WITH CONDITIONS OF AN
EMPLOYMENT AGREEMENT DATED AS OF JUNE ____, 1995 BETWEEN LET'S TALK
CELLULAR OF AMERICA, INC. AND ANNE GOLZAN. NO TRANSFER OF THESE
SECURITIES SHALL BE VALID OR EFFECTIVE UNTIL
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SUCH CONDITIONS HAVE BEEN FULFILLED. COPES OF SUCH AGREEMENT MAY BE
OBTAINED BY WRITTEN MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO
THE SECRETARY OF THE COMPANY.
9.5 Tax Liabilities. The Employee shall be responsible for and
shall pay any and all taxes resulting from the grant oft Stock Bonus Shares, and
the Employer shall have no liability for any such taxes. The Employee hereby
agrees to reimburse the Employer for any withholding taxes or other similar
items that may be required to by paid by the Employer with respect to the grant
oft Stock Bonus Shares to the Employee.
9.6 Piggyback Registration Rights. In case the Employer shall
at any time determine to register any of its equity securities under the
Securities Act, other than on Form S-4, Form S-8 or Form S-18(a "Registration
Statement"), or to qualify such securities under the securities laws of any
state, at its own initiative, the Employer shall give prompt written notice of
each such registration to the Employee. If so requested in writing by the
Employee, the Employer shall include among the securities which it endeavors to
register under) the Securities Act or to qualify undo the securities laws of any
state, all or any part (but at least So% oft Stock Bonus Shares) oft Stock Bonus
Shares as shall be specified in such request; and the Employer shall use its
best efforts to cause all such registrations, qualifications or compliances to
be effected and to be kept effective as provided in this Section 9.6.
In the event of a bona fide underwritten public offering of the
Employer's equity securities, the managing underwriter(s) shall have sole and
absolute discretion as to whether to include any Stock Bonus Shares requested to
be so included by the Employee; provided, however, that if such managing
underwriter(s) does not prohibit the registration oft Stock Bonus Shares, the
Employee shall be entitled to register, at a minimum, such percentage oft Stock
Bonus Shares which corresponds to her percentage ownership in the outstanding
common stock oft Employer. For example, if the Employee owns, as oft date any
determination thereof is to be made, one percent (1%) of the outstanding common
stock of the Employer, then the Employee shall be entitled to register a minimum
of one percent (1%) of the Stock Bonus Shares, assuming the managing
underwriter(s) has not denied such request for registration.
(a) Registration Procedures. In connection with the
registration, qualification or compliance effected by the Employer pursuant to
this Section 9.6, the Employer shall:
(i) keep the Employee advised in writing at the
initiation of proceedings of each registration, qualification or
compliance and as to the completion thereof;
(ii) furnish the Employee with such number of
prospectuses, including a preliminary prospectus, and such other
documents as may be reasonably requested; and
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(iii) keep such registration, qualification or compliance
effective until all sales or distributions contemplated in connection
therewith are completed; provided that the Employer shall not be
obligated to keep such registration, qualification or compliance in
effect for more than 90 days after the effective date thereof. In the
case of any registration effected by the Employer pursuant to an
underwritten public offering, the Employer, if requested by the Employee,
shall request the managing underwriter(s) of such offering to include the
Stock Bonus Shares among those to be distributed by the underwriter(s).
(b) Conditions to Registration. The Employee's right to have
the Stock Bonus Shares included in the Registration Statement shall be subject
to the following conditions:
(i) The Employee shall furnish the Employer in a timely
manner with all information required by the applicable rules and
regulations of the Securities and Exchange Commission (the "Commission"),
including without limitation the proposed method of sale or other
disposition of the Stock Bonus Shares, the identity of and compensation
to be paid to any person to be employed in connection therewith, and all
other information as the Employer may reasonably require; and
(ii) If the Employee desires to sell and distribute the
Stock Bonus Shares over a period of time, or from time to time, at then
prevailing market prices, then the Employee shall execute and deliver to
the Employer those written undertakings which the Employer and its
counsel may reasonably require in order to assure full compliance with
relevant provisions oft Securities Act and the Exchange Act; and
(iii) The Employee hereby agrees that upon the Employer's
written request, it shall not sell publicly or otherwise transfer or
dispose of any Stock Bonus Shares or other equity securities of the
Employer held by the Employee during the period starting up to 45 days
prior to the Employer's good faith estimate of the date of filing with
the Commission of, and ending on a date up to 180 days after the
effective date of, a registration statement involving the registration of
an underwritten offering of equity or debt securities convertible into
equity securities of the Employer, provided that the Employer is actively
employing in good faith all reasonable efforts to cause such registration
statement to become effective.
(iv) The Employer will pay all expenses of the
registration, including without limitation legal and accounting fees and
disbursements, blue sky fees and expenses, printing costs and related
expenses arising out of the preparation, filing, amending and
supplementing of the Registration Statement and any prospectus a part
thereof, other than fees and disbursements of counsel, accountants and
other advisors for the Employee, underwriting commissions and discounts,
brokerage commissions,
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agents' fees and transfer taxes relating to the offer and sale of the
Stock Bonus Shares that may held by the Employee.
(c) Indemnification.
(i) Indemnification by the Employer. The Employer
will, to the extent permitted by law, indemnify and hold the Employee harmless
against any losses, claims, demands, damages or liabilities, joint or several,
to which the Employee may become subject under the Securities Act or otherwise,
insofar as the losses, claims, demands, damages or liabilities (or actions or
proceedings in respect thereof arise out of or are based upon (a) any untrue
statement or alleged untrue statement of any material fact contained or
incorporated by reference in the Registration Statement, the Prospectus or the
preliminary or summary prospectuses contained therein, any amendment or
supplement thereto, or any document (or part thereof) incorporated by reference
therein, or (b) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading; and the Employer will reimburse the Employee for all legal or
other expenses reasonably incurred by her in connection with investigating or
defending any such loss, claim, demand, damage, liability, action or proceeding,
except that the Employer will not be liable in any such case to the extent that
the loss, claim, demand, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made or incorporated by reference in the Registration Statement, the Prospectus
or preliminary, or summary prospectus, amendment or supplement in reliance upon
and in conformity with information relating to the Employee or her Shares
furnished to the Employer by the Employee stating in writing that it is for use
in the preparation thereof This indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Employer.
(ii) Indemnification by the Employee. The Employee
will, to the extent permitted by law, indemnify and hold harmless the Employer,
each director of the Employer, each officer of the Employer who signs the
Registration Statement, and each other person, if any, who controls the
Employer, against any losses, claims, demands, damages or liabilities, joint or
several, to which the Employer or such director, officer or controlling person
may become subject under the Securities Act or otherwise, insofar as the losses,
chime, demands, damages or liabilities (or actions or proceedings in respect
thereof) arise out of or are based upon (a) any untrue statement or alleged
untrue statement of any material fact contained or incorporated by reference in
the Registration Statement, the Prospectus or the preliminary or summary
prospectuses contained therein, any amendment or supplement thereto, or any
document (or part thereof) incorporated by reference therein, or Do) the
omission or alleged omission to state there in a material fact required to be
stated therein or necessary to make the statements therein not misleading, which
untrue statement or alleged untrue statement or omission or alleged omission has
been made or incorporated therein in reliance upon and in conformity with
information relating to the Employee or her shares furnished to the Employer by
the Employee in writing stating that it is for use in preparation thereof and
will reimburse the Employer and each director, officer and controlling person
for all legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, demand, damage,
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liability, action or proceeding. This indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Employer or
such director, officer or controlling person.
(iii) Notices of Claims. Promptly alter receipt by
an indemnified party of a demand or notice of the commencement of any action or
proceeding losses, claims, demands, damages or liabilities referred to in
Subsections (i) or bud above, an Indemnified Claim.), the indemnified party
will, if a claim for indemnification is to be made against an indemnifying park,
give written notice to the latter of the Indemnified Claim, provided that the
failure of any indemnified party to give notice as provided herein soul not
relieve the indemnifying party of its obligations under Subsections (i) or (ii)
above, except to the extent that the indemnifying party is actually prejudiced
by the failure to give notice. Unless in the reasonable judgment of counsel for
an indemnifying party a conflict of interest exists between such indemnifying
party and the indemnified party or parties with respect to the Indemnified
Claim, each indemnified party agrees to permit the indemnifying party to assume
the defense of the Indemnified Claim with courted reasonably satisfactory to the
indemnified party or parties. If the indemnifying party is not entitled to, or
elects not to, assume the defense of an Indemnified Claim, it will not be
obligated to pay the fees and expenses of more than one counsel for such
indemnified party or parties with respect to the Indemnified Claim. No
indemnifying party will consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term the giving by the
claimant or plaintiff to the indemnified party of a release from all liability
in respect of the Indemnified Claim
10. Miscellaneous.
10.1 Modification and Waiver. Any term or condition of this
Agreement may be waived at any time by the party hereto that is entitled to the
benefit thereof, except that DO such waiver of any breach or default hereunder
is to be implied from the omission of the other party to take any action on
account thereof A waver on one occasion shall not be deemed to be a waiver of
the same or of any other breach or default on a subsequent occasion nor shall it
be deemed a continuing waiver. This Agreement may be modified or amended only by
a writing signed by the Employer and the Employee.
10.2 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Florida,
without regard to conflict of laws principles thereunder.
10.3 Section Captions. Section captions contorted in this
Agreement are for reference purposes only and are not intended to describe,
interpret, define, or limit the scope of this Agreement or any provision hereof
10.4 Severability. Every provision of this Agreement is intended
to be severable. If any term or provision is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the validity of the
remainder of this Agreement.
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10.5 Entire Agreement. This Agreement constitutes the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof, and there are no agreements, understandings,
restrictions, representations, or warranties between the parties other than
those set forth or provided for herein
10.6 Attorneys Fees. If any litigation is instituted between the
parties to enforce the terms of this Agreement, the prevailing parer shall be
entitled to recover, from the other party, any and all reasonable attorneys'
fees and disbursements and court costs incurred in enforcing such terms.
10.7 Interpretation. No provision of this Agreement is to be
interpreted for or against any party because that party or that party's legal
representative drafted such provision.
10.8 Submission to Jurisdiction. The Employer and the Employee
hereby consent to the jurisdiction of any federal, state or municipal court
located within Dade County, State of Florida and waives any objection which
either of them may have based on improper venue or forum non convenient to the
conduct of any proceeding in any such court.
10.9 Notices. Any notices required to be given hereunder shall
be in writing and shall be deemed to have been duly given when personally
delivered or deposited in the United States mail, certified or registered,
retain receipt requested, postage prepaid, addressed to the parties and their
counsel at their respective addresses listed below:
If to the Employer
Let's Talk Cellular of America, Inc.
Attention: Nick Molina, Chief Executive Officer
5200 N.W. 77th Court
Miami, Florida 33166
With a copy to:
Steel Hector & Davis
4000 Southeast Financial Center
Miami, Florida 33131-2398
Attn: Harvey Goldman If to
If to the Employee:
Anne Gozlan
With a copy to:
1O.10 JURY TRIAL WAIVER. THE EMPLOYER AND THE EMPLOYEE HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EACH MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
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HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS EMPLOYMENT AGREEMENT
AND ANY AGREEMENTS CONTEMPLATED HEREBY TO BE EXECUTED IN CONJUNCTION THEREWITH,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF EACH PARTY. IS PROVISION IS A MATERIAL INDUCEMENT FOR THE
EMPLOYER AND THE EMPLOYEE ENTERING INTO THIS EMPLOYMENT AGREEMENT.
IN WITNESS WHEREOF, THE PARTIES HAVE DULY EXCEPTED THIS AGREEMENT AS OF
THE DATE INDICATED ABOVE.
LET'S TALK CELLULAR OF AMERICA, INC.
/s/Nick Molina
--------------------------------------
By: Nick Molina
Its: Chief Executive Officer
/s/Anne Gozlan
--------------------------------------
Anne Gozlan
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FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This AGREEMENT, dated of June 25, 1996 (this "Amendment") is entered into
by and between LET'S TALK CELLULAR OF AMERICA, INC., a Florida corporation (the
"Employer") and ANNE GOZLAN (the "Employee"), and amends that certain Employment
Agreement, dated as of May 22, 1995 (the "Agreement" and together with the
Amendment, the "Agreement"), by and between the Employee.
RECITALS
WHEREAS, the Employee is currently employed as the Chief Financial
Officer of the Employer;
WHEREAS, the Employee and the Employer desire to amend the Employment
Agreement in accordance with the term hereof;
NOW THEREFORE, for good and valuable consideration, the receipt, adequacy
and sufficiency whereof are hereby acknowledged, the parties hereto agree as
follows:
Agreement
1. The above recitals are true and correct and are incorporated herein by
this reference. All capitalized teens used but not otherwise defined
herein shall have the respective meanings provided for them in the
Agreement.
2. The following sections of the Agreement are hereby amended to read as
follows:
a) Section 3.1 Shall be amended to provide that the Employee's base
salary shall be increased yearly commencing on the second
anniversary of the Effective Date by an amount not less than the
greater of (i) five percent (5%) per annum or (ii) the increase in
the Consumer Price Index as published by the U.S. Department of
Labor.
b) The first two sentences of the first paragraph of Section 3.2 are
amended in their entirety to read as follows:
ASSUMING THE EMPLOYEE IS STILL IN THE EMPLOY OF THE EMPLOYER, UPON
THE BUST ANNIVERSARY OF THE EFFECTIVE DATE, AND UPON EACH OF THE
SECOND AND THIRD ANNIVERSARIES OF THE EFFECTIVE DATE THEREAFTER,
THE EMPLOYEE SHALL BE ENTITLED TO RECEIVE 6,500 SHARES OF THE
EMPLOYER'S COMMON STOCK (THE "STOCK BONUS SHARES").
NOTWITHSTANDING THE PRECEDING SENTENCE, ALL 19,500 SHARES OF THE
STOCK BONUS SHARES TO BE GIVEN TO THE EMPLOYEE UNDER THIS
AGREEMENT SHALL ALL BE GIVEN TO THE EMPLOYEE UPON A CHANGE IN
CONTROL (AS SUCH TERM IS DEFINED IN SECTION 5.1 OF THIS AGREEMENT)
OF THE EMPLOYER.
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c) Sections 9.6(a) and (b) the Agreement are deleted in their
entirety and replaced with the "Piggy-back Registration Rights"
set forth in Section 7.3 of that certain Series A Preferred Stock
Purchase Agreement dated as of the date hereof, by and among the
Employer, HIG Fund V, Inc., Nick Molina, and Brett Beveridge For
purposes of the Employee's Piggy-back Registration Rights, the
definition of "Registrable Securities" under the Purchase
Agreement shall be deemed to include the Employee's Stock Bonus
Shares. The Employee hereby agrees and acknowledges that his
shares shall be treated pro rata with the shares of the other
Holders of Registrable Securities.
d) Section 10.9 is amended to include 6810 S.W. 45 Lane, Apt. #3,
Miami, Florida as the Employee's address for purposes of providing
notice under the Agreement.
e) The Employee and the Employer each acknowledge that (i) the
Employee currently owns 6,500 shares of the Common Stock of the
Employer which shares are fully vested and not subject to
forfeiture as a result of the occurrence of the first anniversary
on May 22, 1996 of the Employee's employment with the Employer,
(ii) the Employee is entitled to an additional 6,500 shares of the
Company's Common Stock upon each of her second and third
anniversaries in the employ of the Employer; (iii) the total
aggregate number of shares of Common Stock that the Employee is
eligible to receive pursuant to the terms of the Agreement is
19,500 shares; and (v) upon the execution of this Amendment, the
Employer shall deliver a certificate to the Employee evidencing
her ownership of 6,500 shares of the Company's Common Stock
3. Except a modified by this Amendment, the parties hereto acknowledge that
the Agreement remains unmodified and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date and year first written above
EMPLOYER: LET'S TALK CELLULAR OF AMERICA, INC:
By: /s/ Nicolas Molina
-----------------------------------
Its: President
EMPLOYEE: /s/ Anne Gozlan
------------------------------------
Anne Gozlan
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