Exhibit 10.23.1
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AGREEMENT OF EMPLOYMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of November 5, 2001,
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by and among Independent Wireless One Corporation, a Delaware corporation
("IWO"), IWO Holdings Inc., a Delaware corporation ("Holdings" and together with
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IWO the "Corporation") and, Xxxx X. Xxxxxxx, residing at 0000 Xxxxxx Xxxx Xxxxx,
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Xxxxxxx, Xxxxxxx 00000, hereinafter called (the "Employee").
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RECITALS
WHEREAS, the Corporation desires to induce and secure the employment of the
Employee as Chief Technical Officer and Employee desires to be so employed by
the Corporation, beginning as of November 19, 2001 (the "Effective Date").
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AGREEMENTS
1. Employment and Term. Subject to the provisions for earlier termination
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and extension as hereinafter provided in paragraph 7 below, the Corporation
hereby employs the Employee and the Employee agrees to serve the Corporation for
a term of three years commencing upon the Effective Date.
2. Duties of Employee.
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(a) The Employee shall serve as Chief Technical Officer of the
Corporation, and of any subsidiary or affiliated corporation if elected by the
appropriate Board of Directors, and shall perform such duties as are appropriate
to such office and not inconsistent therewith as may be assigned to him by the
Chief Executive Officer of the Corporation.
(b) So long as this Agreement shall continue in effect, the Employee
shall devote substantially his full business time and energies to the business
and affairs of the Corporation, and to any subsidiary or affiliate of the
Corporation as directed by the Corporation, and use his best efforts, skills and
abilities to promote its interests.
3. Compensation.
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(a) Basic Salary. The Corporation will pay the Employee during the
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term hereof for all services to be rendered hereunder a basic salary at the rate
of two hundred thousand dollars ($200,000) per annum from the Effective Date
through December 31, 2002; two hundred five thousand dollars ($205,000) per
annum from January 1, 2003 through December 31, 2003; two hundred ten thousand
dollars ($210,000) per annum from January 1, 2004 to the date occurring three
years after the Effective Date. The foregoing basic salary shall be paid in such
regular installments as are applied generally to salary period payments to other
employees of the Corporation, but in no event less than twice monthly.
(b) Cash Bonus Compensation. As an added inducement for the Employee
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to use his best efforts to enhance the business of the Corporation, the
Corporation shall pay to the
Employee, as additional compensation hereunder, an annual cash bonus in the
following amount and subject to the following terms and conditions:
(i) for and in respect of each fiscal year (or partial fiscal
year) of the Corporation during the term of Employee's
employment by the Corporation whether or not such employment
is under this Agreement or any extension hereof, commencing
with the fiscal year beginning January 1, 2001, amounts,
payable as provided below, equal to up to 100% of the basic
compensation ("Annual Bonus") described in subparagraph (a)
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above. Such bonus shall be payable pro rata to Employee to
the extent, and only to the extent, that business plan
targets (including by way of example only, such targets as
Earnings Before Interest, Taxes, Depreciation and
Amortization ("EBITDA"), revenue, and/or target service
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levels) and individual management performance targets (as
both such business plan and individual performance targets
have been developed by the Corporation's Chief Executive
Officer and Board of Directors in consultation with Employee
and issued within approximately sixty (60) days after the
commencement of the relevant fiscal year of the Corporation
(or 30 days in the case of a portion thereof)) have been
exceeded or met by at least 75% of target with respect to
the relevant fiscal year (or portion of the relevant fiscal
year) of the Corporation and not to exceed 100% of the
Annual Bonus; and
(ii) Employee must be employed full-time on the last day of the
applicable period for which the cash bonus is paid to
receive the bonus.
(c) Other Emoluments and Benefits. The Employee shall be entitled to
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participate in all rights and benefits for which he shall be eligible under any
stock option plan, bonus, participation or extra compensation plans, pensions,
dental, vision, life, and disability group insurance or other benefits which the
Corporation may provide for its executive employees generally from time to time
during the term of this Agreement. Employee shall also be entitled to:
(i) A computer and appropriate peripherals, a wireless telephone
(tolls and charges paid), and a vehicle allowance, as
defined by company policy but no less than three hundred
dollars ($300.00) per month, to defray the costs of the use
of an automobile for business purposes only; and
(ii) For the period extending from the Effective Date until the
earlier of the date Employee acquires a new residence in the
vicinity of Albany, New York, or one hundred twenty (120)
days after the date hereof, the Corporation will lease on
Employee's behalf an
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executive residential quarters at a cost no greater than
One-Thousand Five Hundred Dollars ($1,500.00) per month.
(iii) Relocation money pursuant to the Relocation and Expense
Agreement entered into by the Employee and the Corporation
as of the date hereof. Such Agreement is incorporated herein
as Exhibit A.
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(d) Vacation. Employee shall be entitled annually to 248 hours of
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time-off from the Employee Paid Time Off Pool as such computation is customarily
administered by the Corporation. Time-off not used during the calendar year or
partial calendar year in which earned may be carried forward to subsequent
calendar years or partial calendar years ("Carry Forward Time"). However,
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Employee may not carry over more than 40 hours of Carry Forward Time in any one
year and may not aggregate more than 160 hours of Carry Forward Time in total.
All time-off is subject to approval by the CEO and in no event shall annual
vacation exceed 4 weeks.
(e) Stock Incentive Plan. In addition to the basic compensation and
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cash bonus compensation provided herein, Employee shall be entitled during the
term of his employment to participate in the Management Stock Incentive Plan of
Holdings, as amended from time to time, and pursuant thereto has been granted
certain options pursuant to a Stock Option Agreement entered into between the
Employee and the Corporation as of the date hereof. Such Agreement is
incorporated herein as Exhibit B.
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4. Expenses. The Corporation shall provide Employee with a Corporate credit
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card, and further shall pay or reimburse the Employee for all reasonable
traveling and other expenses incurred or paid by the Employee in connection with
the performance of his services under this Agreement upon presentation of
expense statements or vouchers and any such other supporting information in such
form as the Corporation may from time to time request; provided, however, that
the amount available for such traveling and other expenses shall be consistent
with general corporate policy guidelines established by the Corporation.
5. Payment. Expenses, benefits and allowances due Employee hereunder shall
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be paid not later than thirty (30) days following Employee's entitlement to
same, which, in the case of expenses, shall commence with the Employee's request
for reimbursement. Employee bonuses shall be paid within approximately sixty
(60) days following year end.
6. Restrictive Covenants. In consideration of payment to Employee of the
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compensation specified in paragraph 3 above, Employee hereby covenants and
agrees as follows:
(a) Employee shall treat either as trade secrets or as confidential or
as proprietary information of the Corporation (i) any data or information
acquired during the course of or as a result of his employment, which is not
otherwise available to Employee except by reason of his employment, including
but not limited to such items as reports or findings from tests, investigative
studies, consultations or the like, methodology, proposals, systems, programs or
marketing techniques, and strategies developed by but not generally released by
the Corporation or peculiar to the business of any customer or client of the
Corporation and all particularized information relating thereto; (ii) names or
lists of the Corporation's clients or
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information, data or services made available to such clients not made public by
the Corporation and non-public information relating to the operating methods or
plans or requirements of any customer or client of the Corporation; and (iii)
any other data or information designated either by the Corporation or by any of
its customers or clients as confidential or proprietary.
(b) All improvements, discoveries, programs, process, innovations, and
inventions, and inventions conceived (whether or not deemed patentable),
devised, made, developed or perfected by Employee during any period of his
employment by the Corporation or any period prior to the effective date hereof
during which Employee was in the service of any entity acquired by the
Corporation or any period prior to the effective date hereof during which
Employee was in the service of any entity acquired by the Corporation and
related in any material way to the business, including development and research
of the Corporation, shall be fully and promptly disclosed to the Corporation and
the same shall be the sole and absolute property of the Corporation. Upon
request of the Corporation, the Employee will execute all documents reasonably
deemed appropriate by the Corporation to secure the foregoing rights and for
obtaining the grants of patents, both domestic and foreign, with respect to such
improvements, discoveries, programs, processes, innovations or inventions and
for vesting title to such patents in the Corporation; provided, however, that
Employee shall not be required to incur any costs or legal expenses in
conjunction with the compliance of any such request.
(c) Employee agrees to refrain, except as properly required in the
business of the Corporation, or as authorized in writing by the Corporation, (i)
from using for Employee's own benefit any matters to be treated as trade secrets
or as confidential or proprietary information under subparagraph (a) above; (ii)
from using these matters for the benefit of any other person, firm or
corporation; (iii) from disclosing these matters to any other person, firm or
corporation; and (iv) from authorizing or permitting such disclosure during the
term of his employment or thereafter.
(d) Employee agrees to surrender to the Corporation at any time upon
request and in any event upon termination of employment, except as the
Corporation may otherwise consent in writing, all written documents, sketches,
records or information whether copyrighted or patented or not, or any copies of
imitations thereof, whether made by Employee or not, which embody or contain or
describe in any way those matters to be treated as trade secrets or as
confidential or proprietary information under subparagraph (a) above. The
Corporation shall not unreasonably withhold authorization for Employee to retain
any matters covered by this paragraph 6, the continued possession of which by
Employee will not, in the Corporation's sole but reasonable, opinion, be
detrimental to the best interest of the Corporation.
(e) Employee agrees, during the term of his employment and for a
period of two (2) years after the termination thereof, whether such termination
be voluntary or not, that the Employee will not, except at the direction of the
Corporation, either directly or indirectly, for himself as a proprietor,
principal partner, director, officer, employee, agent or other representative
acquire or attempt to acquire the business then conducted by the Corporation
with any customer of the Corporation under any contracts existing or proposals
submitted on or before the date of termination of his employment.
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The term "Customer of the Corporation" for purposes hereof shall
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mean any individual or entity which is the ultimate user or recipient of the
Corporation's (or any subsidiary of the Corporation) services and products
whether the same be made available directly to such entity or through an
intermediate purchaser of such services and products.
(f) Employee agrees to refrain, during the term of his employment and
for one (1) year thereafter, from hiring or offering to hire, except with the
written permission of the Corporation, any employee of the Corporation or from
enticing away or in any other manner persuading or attempting to persuade any
employee of the Corporation to discontinue his relationship with the
Corporation.
(g) No provision of this paragraph 6 is intended to limit Employee's
right to use or disclose information which is in the public domain or a matter
of common knowledge, or which is generally known in the industry, or acquired by
him from a third party not prohibited from making such disclosure to him, or
which information was already known to Employee other than by breach of this
Agreement; nor is it intended to limit the Employee's obligation to comply with
lawful subpoenas or other lawful process.
(h) No act or failure to act shall be a waiver of any right conveyed
hereunder, except an express waiver in writing. The rights reserved to the
Corporation under this paragraph 6 of this Agreement are necessarily of a
special, unique, unusual and extraordinary character, which gives them a
peculiar value, the loss of which cannot reasonably or adequately be compensated
for in damages in an action at law, and the breach by Employee of any of the
provisions in this paragraph 6 will cause the Corporation irreparable injury.
Therefore, in addition to any other available remedies, the Corporation shall be
entitled to an injunction to restrain any violation of this Agreement by
Employee, his agents, servants or employees and all persons, firms, or
corporations acting for or with him. The obligations of the Employee under the
covenants herein contained shall not cease upon termination of his employment
for whatever reason, except where otherwise limited in time above.
These covenants contained in this paragraph 6 on the part of the
Employee shall each be construed as an agreement independent of any other
provision in this Agreement, and the existence of any claim or cause of action
of Employee against the Corporation, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Corporation
of such covenants. It is the intention of both parties to make the covenants of
this paragraph 6 binding only to the extent that it may be lawfully done under
existing applicable laws. In the event that any part of any covenant of this
paragraph 6 is determined by a court of law to be overly broad thereby making
the covenant unenforceable, the parties hereto agree, and it is their desire,
that such court shall substitute a reasonable judicially enforceable limitation
in place of the offensive part of the covenant, and that as so modified the
covenant shall be as fully enforceable as set forth herein by the parties
themselves in the modified form.
7. Terms and Earlier Termination.
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(a) Subject to the provisions for earlier termination as herein
provided, the term of this Agreement shall commence and terminate as specified
above.
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(b) This Agreement shall terminate prior to the end of the term set
forth in paragraph 3 in the event that the Board of Directors shall determine
that the Employee has become disabled, or the Employee shall be dismissed for
cause, as hereinafter provided:
(i) The Board of Directors of the Corporation may determine that
the Employee has become disabled, for purposes of this
Agreement, in the event that the Employee shall fail,
because of illness or incapacity, to render for one hundred
twenty (120) successive days in excess of the number of days
provided for in the Corporation's then applicable sick leave
policy or for shorter periods aggregating one hundred twenty
(120) days or more in excess of the number of days provided
for in the Corporation's then applicable sick leave policy
during the term hereof, services of the character
contemplated by this Agreement, and thereupon this Agreement
and the employment of the Employee hereunder shall be deemed
to have been terminated as of the end of the calendar month
in which such determination was made. Any termination under
this paragraph 7(b)(i) shall not be deemed to be a
termination "for cause" for any purpose under the Agreement
or under any other contract or arrangement between the
Employee and the Corporation relating to employment services
or compensation between them.
(ii) The Board of Directors may dismiss the Employee for cause in
the event that it determines that the Employee has
committed: (A) fraud or material dishonesty; (B) intentional
or willful or grossly negligent injury to the Corporation;
(C) criminal conduct in relation to his employment; or (D)
continued neglect of his duties hereunder which continues
subsequent to fifteen (15) days written notice to cure,
provided that if a longer cure period is required, Employee
shall diligently pursue such cure; and thereupon, this
Agreement shall terminate and the Employee shall be removed
from all positions held by him with the Corporation and any
subsidiary corporation, effective upon the delivery of
notice to the Employee by the Board of Directors that it has
made such determination; any other termination by the
Corporation shall be considered termination without cause
for purposes of this Agreement and any other contract or
arrangement between the parties hereto. In the event that
the Board of Directors shall desire to dismiss the Employee
based on any determination referred to in the preceding
sentence, such determination shall be effective only upon
the following conditions complied with in the following
order: (A) Employee shall be furnished with a written
statement specifying in reasonable detail the actions or
events supporting such determination; (B) at the request of
the Employee, there shall be convened a Special Meeting of
the Board of Directors no later than fifteen (15) business
days after Employee's receipt of the
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notice referred to in (A) above at which meeting the
Employee may, with assistance of counsel or other
representation, present evidence to refute or in mitigation
of such actions or events or to establish that the actions
or events have been cured; and (C) within five (5) business
days after the adjournment of such Special Meeting, the
Board of Directors shall furnish a written statement to
Employee that, based upon Employee's representations and
upon other relevant evidence, such determination has either
been confirmed or rescinded.
(iii)The Board of Directors may terminate this Agreement and
dismiss the Employee, without cause and for any reason
deemed sufficient by the Board of Directors. In the event
that the Board of Directors shall decide to dismiss the
Employee and terminate this Agreement based on any
determination referred to in the preceding sentence, such
determination shall be effective as of such date as shall be
designated by notice in writing from the Board of Directors
to the Employee (the "Effective Termination Date"). In the
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event that this Agreement is terminated pursuant to this
subparagraph (iii), Employee shall be entitled to payment on
the Effective Termination Date of an amount equal to: (A)(I)
if the Effective Termination Date occurs during the first 12
months of employment, the basic salary due pursuant to
paragraph 3(a) to accrue during the 24 months following the
Effective Termination Date, (II) if the Effective
Termination Date occurs during the second 12 months of
employment, the basic salary due pursuant to paragraph 3(a)
to accrue during the 12 months following the Effective
Termination Date and (III) if the Effective Termination Date
occurs after the second 12 months of employment, the basic
salary due pursuant to paragraph 3(a) to accrue during the
remainder of the initial term of this Agreement; plus (B)
such cash bonus compensation prorated to the Effective
Termination Date otherwise due Employee pursuant to
paragraph 3(b); and (C) the benefits to be paid to Employee
pursuant to paragraph 3(c), 3(d) and 3(e) prorated to the
Effective Termination Date.
(c) Notwithstanding anything to the contrary contained herein, any
termination of Employee's employment by the Corporation pursuant to the terms of
this paragraph, shall not affect or diminish: (i) any rights accruing to the
Employee under this Agreement prior to the effective date of such termination
and in such event Employee's rights to all compensation, including, but not
limited to, paragraphs 3 and 4 above, shall be calculated and paid for and in
respect of any period prior to such effective date; and (ii) any rights or
remedies available to the Corporation by reason of any breach or threatened
breach of the provisions of paragraph 7 hereof, the force and effect of which
provisions shall survive the termination of this Agreement, however such
termination occurs.
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(d) In the event Employee gives his notice to terminate prior to the
expiration of the Initial Term, Employee shall be entitled to any rights
accruing to the Employee under this Agreement prior to the effective date of
termination and in such event Employee's rights to all compensation shall be
calculated and paid for to such effective date, including but not limited to,
his basic salary as described in paragraph 3(a), his emoluments and benefits as
described in paragraph 3(c), any unused vacation as set forth in paragraph 3(d),
and any incurred or paid expenses as set forth in paragraph 4. Additionally,
Employee shall be entitled to any vested Stock Incentives as described in
paragraph 3(e).
8. In connection with a Designated Merger if and when requested by the
Board of Directors of Holdings, Employee agrees to enter into a lockup agreement
and a voting agreement with respect to his shares of capital stock of Holdings
and Parent and any such capital stock that may be acquired upon the exercise of
options or warrants for such capital stock, to the extent and on substantially
the same basis as Investcorp S.A. and its subsidiaries enter into such
agreements with respect to their capital stock of Holdings and Parent.
The term "Designated Merger" for purposes hereof means a transaction
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that results in the merger, consolidation or amalgamation of Holdings with or
into any Person that results in the conversion of the outstanding shares of
capital stock of Holdings into shares of capital stock of such Person (or its
Affiliate) and such Person (or its Affiliate) has an affiliation with Sprint
Spectrum L.P. (or its Affiliates) similar to the affiliation between IWO and
Sprint Spectrum L.P. and its Affiliates (other than with respect to the
territory covered).
The term "Parent" for purposes hereof means the entity issuing shares
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of its capital stock in connection with such Designated Merger.
The term "Affiliate" for purposes hereof means (a) any Person which,
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directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person or (b) any Person who is a director or officer (i) of
such Person, (ii) of any subsidiary of such Person or (iii) of any Person
described in clause (a) above. For purposes of this definition, "control" of a
Person means the power, directly or indirectly, (x) to vote 50% or more of the
securities having ordinary voting power for the election of directors of such
Person whether by ownership of securities, contract, proxy or otherwise, or (y)
to direct or cause the direction of the management and policies of such Person
whether by ownership of securities, contract, proxy or otherwise.
The term "Person" for purposes hereof means an individual,
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partnership, joint venture, limited liability company, corporation, trust,
unincorporated organization or a government or any department or agency thereof.
9. Partial Invalidity. All paragraphs, subparagraphs, and portions of this
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Agreement shall be considered as separate and distinct from one another, and if,
for any reason any paragraph, subparagraph or portion of this Agreement shall be
held to be invalid or unenforceable, it is agreed that the same shall not be
held to affect the validity or enforceability of the remaining paragraphs,
subparagraphs or portions of this Agreement.
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10. Notice. Any notices, requests, demands or other communications required
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or permitted under this Agreement shall be in writing and shall be deemed to
have been given when delivered personally, one (1) day after being sent by
recognized overnight courier service with all charges prepaid or charges to the
sender's account, or three (3) days after being mailed by certified mail, return
receipt requested, addressed to the party being notified at the address of such
party first set above, or at such other address as such party may hereafter have
designated by notice; provided, however, that any notice of change of address
shall not be effective until its receipt by the party to be charged therewith.
Copies of any notices or other communications to the Corporation shall
simultaneously be sent by first class mail to:
Independent Wireless One Corporation
00 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: General Counsel
Notice to Holdings shall be as follows:
c/o Investcorp International Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxxxxxx X. Xxxxxxx
With a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: E. Xxxxxxx Xxxxxxx, Esq.
11. Corporation Defined. The terms "Independent Wireless One Corporation"
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and "IWO Holdings, Inc." as used in this Agreement, shall include, respectively,
IWO and Holdings, and its respective successors and/or assigns, any subsidiary
corporation of IWO and Holdings, and any corporation into which or with which
IWO or Holdings may be merged or consolidated or to which all, or substantially
all, of their respective businesses and/or assets are transferred.
12. Waiver of Breach. The waiver by either party of a breach of any
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provision of this Agreement, shall not operate or be construed as a waiver of
any subsequent breach by the same party.
13. Section 280G. Employee hereby waives any acceleration of benefits
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pursuant to the Stock Option Agreement entered into between the Employee and the
Corporation as of the date hereof unless shareholder approval meeting the
requirements of Section 280G(b)(5) of the Internal Revenue Code of 1986, as
amended, with respect to such benefits is obtained.
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14. Integration: Entire Agreement. This instrument contains the entire
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agreement of the parties with regard to the subject matter hereof and supersedes
all prior oral or written understandings, memoranda or communications with
regard to the terms or conditions of Employee's employment by the Corporation.
This Agreement may not be changed orally, but only by an agreement in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
15. Binding Effect. Except as otherwise provided hereinabove, this contract
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shall inure to the benefit of, and be binding upon, the heirs, executors,
administrators, successors and assigns of the parties hereto.
16. Assignment. Corporation may assign all or any portion of Corporation's
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rights or delegate all or any portion of Corporation's duties under this
Agreement to any Affiliate or to any entity that acquires all or a substantial
portion of the business of the Corporation and Affiliates. However, any such
assignment or delegation shall not relieve Corporation of its financial
obligations to Employee under this Agreement. Except in conjunction with his
estate planning or in the event of death, Employee may not assign any rights
under this Agreement or delegate any duties under this Agreement.
17. Counterparts. This Agreement may be executed in counterparts, including
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facsimile counterparts, all of which taken together shall constitute but one
agreement.
[signature page follows]
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IN WITNESS WHEREOF, IWO and Holdings have caused this Agreement to be
signed by their respective officers hereunto duly authorized, and the Employee
has hereunto set his hand, effective as of the day and year first above written.
INDEPENDENT WIRELESS ONE
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
IWO HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
EMPLOYEE
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
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Exhibit A
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Relocation Expense Agreement
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Employee Name: Xxxx X. Xxxxxxx Date: November 19, 2001
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The terms of this Relocation Agreement are predicated on your acceptance of an
Offer of Employment with Independent Wireless One Corporation (the "Company")
and with full understanding that you will take the necessary steps to relocate
in order to fulfill the responsibilities of a full-time, regular employee.
As part of your offer of employment, the Company agrees to pay and/or reimburse
your reasonable and customary relocation expenses, consistent with the terms
contained in your Employment Offer Letter.
Unless stated otherwise in your Employment Offer Letter, Relocation funds will
be distributed to you as follows:
. $25,000 upon your signing the Employment Offer Letter (and any related
attachments) and your commencing work with the Company.
. Additional dollars will not be advanced directly to you but will be
paid as reimbursement when your relocation bills are submitted. (See
Relocation Guidelines)
In accordance with Internal Revenue Service Regulations, any amount paid to or
on behalf of you (the employee) as reimbursement for relocation expenses, with
the exception of shipping household goods and travel to the new location, etc.
must be included in your gross wages as income and will be subject to
appropriate federal and state withholding requirements.
In such cases the Company will gross up your taxable relocation reimbursement
amount by using federal tax rates reflective of your annual base salary without
regard to other income. The gross-up amount will be paid in cash at the end of
the year in which your relocation occurred.
In consideration of the Company's investment in your future, you agree to the
following terms:
. If you voluntarily terminate your employment with the Company or if
the Company terminates your employment for cause prior to completing
three (3) full, consecutive months of active service, you will
immediately refund any and all relocation expense payments or
reimbursements paid to you or on behalf of you to the Company.
. If you voluntarily terminate your employment with the Company or if
the Company terminates your employment for cause before you complete
twelve (12) full, consecutive months of active employment, but after
you complete three (3) or more full, consecutive months of active
service, you will immediately refund to the Company an amount which is
equal to: any and all relocation expense payments or reimbursements
paid to you or on behalf of you by the Company divided by 12, then
multiplied by (12 minus the number of full, consecutive months of
active service with the Company).
. After you complete twelve (12) full consecutive months of active
employment, you retain the full amount.
. If any action or proceeding is brought to enforce any provision of
this Agreement by the Company, or the Company is required to refer any
matter arising under this Agreement to an attorney, you agree to pay
all costs and expenses of collection and litigation, together with
reasonable attorney's fees.
This agreement does not create any contract of employment between you and the
Company. You or the Company may terminate your employment with the Company at
any time with or without reason or cause.
AGREED TO BY: WITNESSED BY:
/s/ Xxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxx
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Employee's Signature Independent Wireless One Corporation
DATE: 11/4/01 DATE: 11/4/01
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