Exhibit 10.20
EMPLOYMENT
AGREEMENT
This Employment
Agreement is made this 15 day of June 2007 by and
between First Communications, Inc., a Delaware corporation (the
"Parent"), First Communications, LLC, an Ohio limited
liability company (the "Company"), and Joseph R. Morris, an
individual residing at (the "Chief Operating
Officer").
WITNESSETH:
WHEREAS,
the Company is engaged
in the business of providing data, long distance and local
telecommunications services to residential, midsize business and
enterprise business customers in the United States (the
"Telecommunications Business"), as well as being engaged in
the "Broadband Over Powerline Business" (the "BPL
Business");
WHEREAS,
pursuant to a Membership
Purchase Agreement to be entered into in the near future (the
"Purchase Agreement"), the Parent will acquire all the
membership interests in the Company and following the Closing (as
defined in the Purchase Agreement) the Company will continue in
existence as a wholly-owned subsidiary of the Parent;
WHEREAS,
the Executive possesses
valuable knowledge and skills with respect to the
Telecommunications Business and the BPL Business, which knowledge
and skills will contribute to the continued success of the Company;
and
WHEREAS,
the Parent and the
Company desire to retain the services of the Executive, and the
Executive is willing to enter into this Agreement with the Parent
and the Company, in each case on the terms and subject to the
conditions hereinafter set forth.
NOW, THEREFORE, in
consideration of the premises and the mutual covenants herein
contained, the parties hereby agree as follows:
PROVISIONS RELATING TO
SERVICE AS A DIRECTOR OF THE PARENT
1.
Director.
(a) The Executive
acknowledges that he has been appointed as a Director of the Parent
in the Certificate of Incorporation of the Parent to serve from the
date of Admission of the Company to trading on the AIM market of
the London Stock Exchange plc becoming effective until the first
Annual Meeting of the Shareholders of the Parent.
(b) The Parent's
Code of Corporate Governance provides for the Executive, in
furtherance of his duties as a Director of the Parent, to take
independent professional advice, if necessary, at the Parent's
expense. The Chairman or the company secretary of the Parent should
be notified if this step is taken, which should only be taken in
the best interests of the Parent.
(c) The Executive
acknowledges that as a Director of the Parent he is bound by the
provisions of the AIM Rules of The London Stock Exchange plc, the
provisions of the Financial Services and Markets Act 2000 and the
Code of Market Conduct, the details of which are available from the
Parent's legal advisers and company secretary of the Parent. The
Executive agrees that, if at any point he is uncertain as to the
interpretation of such provisions, he will seek the advice of the
Chairman of the Board.
(d) The Parent shall
take all necessary action to nominate the Executive to serve as a
Director of the Parent, and recommend to the Company's stockholders
to vote for the Executive, for so long as the Executive remains
employed by the Company as its Chief Operating Officer and
Secretary.
PROVISIONS RELATED TO SERVICE AS
CHIEF OPERATING OFFICER AND
SECRETARY OF THE COMPANY
2.
Employment and Responsibilities.
(a) The Company
hereby agrees to employ the Executive and the Executive hereby
agrees to serve the Company on the terms and conditions set forth
herein.
(b) During the Term
(as defined below) of this Agreement, the Executive shall be
employed as the Chief Operating Officer and Secretary of the
Company and shall report to the Board of Directors of the Company
(the "Board"). The Executive shall be responsible for the
overall operations of the Company and shall have such other duties
and responsibilities as the Board may from time to time prescribe,
consistent with the Executive's position and office.
(c) The Executive
shall perform and discharge his duties and responsibilities
faithfully, diligently and to the best of his ability and in
compliance with all applicable federal, state and local laws. The
Executive shall devote substantially all his working time and
efforts to the business and affairs of the Company. Without
limiting the generality of the foregoing, the Executive shall not
serve on the Board of Directors, or otherwise participate in the
business, of any company or entity other than the Parent and the
Company and their affiliates; provided, however, upon the approval
of the Board and provided that such activities do not interfere
with the Executive's performance of his duties and responsibilities
to the Parent and the Company, but subject to the other conditions
of this Agreement, the Executive may serve on the boards of
directors or trustees of one or more organizations in a
non-executive capacity. The Executive agrees to comply with all
reasonable rules, regulations and policies established by the
Company.
(d) The Executive
shall act only in accordance with the Certificates of Incorporation
and By-laws of the Parent and the Company, respectively, and shall
comply and promptly give the Parent such information as the Parent
may require to enable it to comply with the requirements of all
applicable rules and regulations from time to time laid down by the
London Stock Exchange plc (including the AIM Rules) and/or any
other relevant authority.
(e) In
relation to dealing in any securities of the Parent and any
unpublished price sensitive information affecting the securities of
any other company, the Executive agrees to comply, where relevant,
with every rule of law, every regulation of the AIM Rules, the UK
Listing Authority, The London Stock Exchange plc and every
regulation of the Parent from time to time in force including
compliance with the spirit as well as the letter of the rules for
the time being applicable to the relevant stock exchange on which
securities of the Parent are for the time being listed or traded,
and the Executive will not (and will procure so far as he is able
that his spouse and children do not) deal or become or cease to be
interested in any securities of the Parent except in accordance
with any rules or guidelines in effect from time to time related to
securities transactions by senior executives of the Parent
(including the Parent's securities dealing code).
3.
Term.
The period of
employment of the Executive by the Company shall commence as of the
Closing and continue for an initial term of two (2) years (the
"Initial Term"), unless sooner terminated in accordance
herewith. Unless the Executive's employment has been terminated in
accordance herewith, following the Initial Term, this Agreement
shall be extended automatically for additional one (1) year periods
(each a "Renewal Period" and all Renewal Periods together
with the Initial Term, the "Term"), unless either party gives
notice in the manner specified in Section 11 of its decision
not to renew this Agreement.
4.
Compensation.
(a) In
consideration of the performance of his services, the Executive
shall receive an annual base salary of $130,000 (the "Base
Salary"), which shall be paid in accordance with the Company's
normal payroll policies.
(b) In
addition to the Base Salary, the Executive shall be eligible to
receive annual cash bonuses in the discretion of the Board of up to
$100,000 (the "Annual Bonus"). The actual amount of any
annual bonus shall be a function of the attainment by the Company
and the Executive of performance targets established from time to
time by the Board.
(c) The Base
Salary and Annual Bonus amounts shall be reviewed annually by the
Board or the Remuneration Committee appointed by the Board. Your
salary shall be reviewed for the first time in July 2008 and in
March of each subsequent year. Increases are not automatic (and a
review does not imply an increase) but will be based on individual
merit and performance.
(d) Subject to the
approval by the Board, the Executive shall have the right to
participate in the Parent's 2007 Equity Incentive Plan (the
"Plan"). Such options shall be subject to the general terms of the
Plan.
(e) The
Company shall reimburse the Executive for all reasonable
out-of-pocket expenses incurred by the Executive in the lawful and
ordinary course of the Company's business, consistent with its then
applicable policies, and properly reported to the Company in
accordance with its accounting procedures.
5.
Benefits.
(a) The
Executive shall be entitled to participate in all employee pension
and welfare benefit plans, programs and practices maintained by the
Company for its employees generally in accordance with the terms of
such plans, programs and practices as in effect from time to time,
and in any other insurance, pension, retirement or welfare benefit
plans, programs and practices which the Company provides to its
executives from time to time, including plans that supplement such
plans.
(b) The
Company shall pay the reasonable membership fees of the Executive
for membership of Portage Country Club.
6.
Workplace and Work Schedule.
(a) The
Executive's workplace shall initially be 3340 West Market Street,
Akron, Ohio 44333.
(b) The Executive
shall be entitled to such holidays as are established by the
policies of the Company and as provided by local law.
(c) The Executive
shall be entitled to four (4) weeks of vacation per year, which may
be taken in various periods, subject to the Company's
needs.
7.
Non-Competition; Non-Solicitation.
(a) In
consideration of the benefits to be provided to the Executive
hereunder, the parties agree that during the Term of this Agreement
and for a period of two (2) years after the expiration or
termination of the Executive's employment with the Company for any
reason, the Executive shall not Compete (as defined below) anywhere
in the United States of America, including its territories and
dependencies, with the Parent or any of its subsidiaries or
affiliates, including the Company (the Parent and its subsidiaries
and affiliates, including the Company, being hereinafter
collectively referred to, for the purposes of this Clause 7 and
Clause 8, as "First Communications").
(i) As
used in this Agreement, the term "Compete" means: to own,
manage, operate, control or participate in the ownership,
management, operation or control of, or be connected as an officer,
employee, consultant, service provider, partner or director of, or
have any financial interest in, or aid or assist anyone else in the
conduct of, any business, sole proprietorship, company,
corporation, association, partnership or other entity of any kind
that is directly or indirectly engaged in the Telecommunications
Business or the BPL Business (a "Competitor"), regardless of
where such activities are conducted by such Competitor, whether
directly or indirectly, or through an Affiliate or a member of the
Executive's Immediate Family.
(ii) As used in
this Agreement, the term "Affiliate" means any company,
corporation, association, partnership or other entity of any kind
that is directly or indirectly controlled by the Executive; and the
term "Immediate Family Member" shall mean spouse or child of
the Executive, each spouse of any such person, each trust created
for the benefit for one or more of such persons and each custodian
or guardian of the property of one or more such persons.
(iii) Notwithstanding
the foregoing, the passive ownership for investment of less than
five percent (5%) of the combined voting power of all issued and
outstanding voting securities of a company whose shares are traded
on a public securities market shall not be deemed to violate this
Section 7.
(b) In
consideration of the benefits to be provided to the Executive
hereunder, the parties agree that during the Term of this Agreement
and for a period of one (1) year following the expiration or
termination of the Executive's employment with the Company for any
reason, the Executive shall not directly or indirectly (i) induce
or attempt to induce any employee of First Communications to leave
the employ of First Communications or in any way interfere with the
relationship, contractual or otherwise, between First
Communications and any employee thereof or (ii) induce or attempt
to induce any customer, supplier, licensee or other business
relation of First Communications to cease doing business with First
Communications or in any way interfere with the relationship
between any such customer, supplier, licensee or business relation
and First Communications.
(c) The parties
acknowledge that this Agreement has been negotiated at arms length
by the parties, none of whom being under any compulsion to enter
into this Agreement. In addition, the Executive acknowledges (i)
that during his service and employment with the Parent and the
Company, he will acquire special expertise and talent in conducting
his duties and that the Executive will have substantial contacts
with customers, suppliers, advertisers and vendors of First
Communications; (ii) that the Executive is placed in a position of
trust and responsibility and will have access to a substantial
amount of confidential information and trade secrets and that the
Parent and the Company will place him in such position and give him
access to such information in reliance upon his agreement not to
Compete with First Communications during the time periods set forth
above, including, but not limited to, the review and preparation of
strategic plans and business strategies to expand the business
operations of First Communications; (iii) that due to the
Executive's management and supervising duties, the Executive is a
repository of a substantial portion of the goodwill of First
Communications and would have an unfair advantag
