EXHIBIT 10.1 FORM OF EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of October
15, 1997 (the "Effective Date") by and between Socket Communications, Inc., a
Delaware corporation (the "Company"), and ____________________ ("Executive").
WHEREAS, the Company desires to continue to employ Executive and
Executive desires to be employed by the Company upon the terms and conditions
set forth below;
NOW, THEREFORE, the Company and Executive agree as follows:
1. TERM OF THE AGREEMENT. The Company hereby employs Executive and
Executive hereby accepts employment with the Company under this Agreement
commencing on the Effective Date and expiring on December 31, 2000 (the
"Initial Employment Period") subject, however, to prior termination as
provided pursuant to Paragraph 5 of this Agreement.
2. DUTIES AND OBLIGATIONS.
a. Executive shall report to, and follow the instructions and wishes
of, the Company's Chief Executive Officer.
b. Executive agrees that to the best of his ability and experience,
he will at all times loyally and conscientiously perform all of the duties
and obligations required of and from him pursuant to the express and implicit
terms hereof.
3. DEVOTION OF ENTIRE TIME TO THE COMPANY'S BUSINESS.
a. During the term of his employment, Executive shall, during
regular business hours, devote all of his attention, knowledge, skills,
interests, and productive time to the business of the Company, and the
Company shall be entitled to all of the benefits and profits arising from or
incident to all work, services, and advice of Executive.
b. During the term of his employment, Executive shall not, directly
or indirectly, either as an employee, employer, consultant, agent, principal,
partner, stockholder, corporate officer, director, or in any other individual
or representative capacity, engage or participate in any business that is
competitive in any manner whatsoever with the business of the Company.
4. COMPENSATION AND BENEFITS.
a. BASE COMPENSATION. During the term of this Agreement, the
Company shall pay to Executive a base annual salary of [CURRENT BASE SALARY]
payable in equal semi-monthly installments in accordance with the Company's
payroll schedule. During the term of this
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Agreement, Executive shall be eligible for annual salary and merit increases
in his base salary as determined in the sole discretion of the Company's
Board of Directors.
b. BONUS. During the term of this Agreement, Executive is entitled
to participate in the Company's Management Incentive Bonus Plan (the "Bonus
Plan") according to its terms as set by the Company's Board of Directors.
c. INSURANCE. Executive shall be entitled to the perquisites and
benefits generally available to other executive employees or their families
through group insurance programs sponsored by the Company.
d. PAID TIME OFF. Executive shall be entitled to accrue paid time
off ("PTO") in accordance with the Company's PTO policy applicable to all
employees. Executive can request payment of PTO to reduce the PTO balance by
up to 20% of the maximum by giving fifteen (15) days notice prior to a
payroll date if the PTO accrual is within 10 hours of reaching the maximum
PTO accrual.
e. SAVINGS PLAN. Executive shall be entitled to the perquisites and
benefits generally available to other executive employees through tax
deferred savings, pension and similar programs when and if sponsored by the
Company.
5. TERMINATION OF EMPLOYMENT.
a. Executive understands that either he or the Company may terminate
the employment relationship between them at any time, for any reason, with or
without Cause. For purposes of this Agreement, "Cause" for termination of
employment by the Company is defined as a determination in the sole
discretion of the Company's Board of Directors of the occurrence of any of
the following:
(i) gross misconduct or fraud by Executive;
(ii) Misappropriation of the Company's proprietary information
by Executive;
(iii) willful and continuing breach by Executive of his duties
under this Agreement after the Company has given notice to Executive thereof
and Executive has had 30 days in which to cure such breach.
b. If at any time during the Initial Employment Period, the Company
terminates Executive's employment without Cause, as defined above, or in the
event of a disability which causes the Executive to be unable to perform the
Executive's duties in a satisfactory manner, it shall provide to Executive
each of the following:
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(i) Executive's regular base salary for a period of six (6)
months, payable on normal Company paydays during that six month period (the
"Period"). Executive will be entitled to receive this payment regardless of
whether or not he secures other employment during the Period.
(ii) Continued health insurance benefits at its own expense
pursuant to COBRA until the earlier of either: a) such time as Executive
becomes eligible for the health insurance benefits provided by another
employer; or b) the expiration of the Period. Executive agrees that should
he become eligible for health insurance benefits provided by another employer
during the Period, he will immediately provide written notice of such event
to the Company's Board of Directors.
(iii) For quarter in which the Executive is terminated or
disabled, he will receive the full bonus amount, pursuant to terms of the
Bonus Program, to which he would otherwise have been entitled had he remained
employed with Company. For the quarter following Executive's termination, he
will receive one-half the bonus amount, pursuant to terms of the Bonus
Program, to which he would otherwise have been entitled had he remained
employed with Company. Executive understands that he is not entitled to, nor
will he receive, any further pay-out under the Bonus Program.
(iv) Within thirty (30) days of the date of the termination
without Cause of Executive's employment, and pursuant to mutual agreement
between the Company and Executive, Executive may purchase at book value
certain items of Company property which were purchased by the Company for the
use of Executive, which may include a personal computer, cellular phone, and
other similar items.
Executive agrees that in the event he accepts employment directly or
indirectly, either as an employee, employer, consultant, agent, principal,
partner, stockholder, corporate officer, director, or in any other individual
or representative capacity, in any business that is competitive in any manner
whatsoever with the business of the Company, the Company may discontinue any
of the benefits set forth in this Paragraph 5(b) not payable as of the date
of such employment. Executive understands that in the event his employment
is terminated for any reason, with or without Cause, after December 31, 2000,
he is not entitled to receive any of the benefits set forth in this Paragraph
5(b).
c. In the event of the termination of this Agreement for any reason,
at any time, with or without Cause, the Company agrees that it will pay to
Executive all his accrued but unused PTO.
d. In the event that the Company alters Executive's reporting
structure at any time during the Initial Employment Period so that Executive
does not report directly to the Chief Executive Officer, Executive may elect
to resign his employment. In such case, Executive will be entitled to
receive all of the benefits set forth under Paragraph 5(b).
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6. GOVERNING LAW. This agreement shall be interpreted, construed, governed,
and enforced according to the laws of the State of Delaware.
7. ATTORNEYS' FEES. In event of any arbitration or litigation concerning
any controversy, claim, or dispute between the parties arising out of or
relating to this Agreement or the breach or the interpretation hereof, the
prevailing party shall be entitled to recover from the losing party
reasonable expense, attorneys' fees, and costs incurred therein or in the
enforcement or collection of any judgment or award rendered therein. The
"prevailing party" means the party determined by the arbitrator or court to
have most nearly prevailed, even if such party did not prevail in all
matters, not necessarily the one in whose favor a judgment is rendered.
8. ARBITRATION. Any controversy between the parties hereto involving the
construction or application of any terms, covenants, or conditions of this
Agreement, or any claim arising out of or relating to this Agreement, except
with respect to prejudgment remedies, will be submitted to and be settled by
final and binding arbitration in San Jose, California, in accordance with the
rules of the American Arbitration Association then in effect, and judgment
upon the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof.
9. AMENDMENTS. No amendment or modification of the terms or conditions of
this Agreement shall be valid unless in writing and signed by the parties
hereto.
10. SEVERABILITY. All agreements and covenants contained herein are
severable, and in the event any of them shall be held to be invalid or
unenforceable, this Agreement shall be interpreted as if such invalid
agreements or covenants were not contained herein.
11. SUCCESSORS AND ASSIGNS. The rights and obligations of the Company under
this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Company. Executive shall not be entitled to
assign any of his rights or obligations under this Agreement.
12. ENTIRE AGREEMENT. This Agreement and the Proprietary Information and
Inventions Agreement signed by Executive on May 5, 1992, a copy of which is
attached hereto as Exhibit A, constitute the entire agreement between the
parties with respect to the employment of Executive.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
EXECUTIVE: SOCKET COMMUNICATIONS, INC.:
/s/Executive By: /s/Xxxxxxx Xxxx
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Its: Chairman and Acting CEO
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