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EXHIBIT 10.68
EXECUTION COPY
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), made this 23rd day of
April, 1999 is entered into by Omnipoint Corporation, a Delaware corporation
with its principal place of business at 0 Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxx 00000 (the "Company"), and Xxxxx Xxxxxxxxx, residing at 0
Xxxxxxxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000 (the "Employee").
The Company desires to continue to employ the Employee, and the
Employee desires to continue to be employed by the Company. In consideration of
the mutual covenants and promises contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties hereto, the parties agree as follows:
1. Term of Employment. The Company hereby agrees to employ the
Employee, and the Employee hereby accepts employment with the Company, upon the
terms set forth in this Agreement, for the period commencing on April 23, 1999
(the "Commencement Date") and ending on October 31, 2003 (such period, as it may
be extended, the "Employment Period"), unless sooner terminated in accordance
with the provisions of Section 4.
2. Title; Capacity. The Employee shall serve as Treasurer and acting
Chief Financial Officer of the Company. The Employee shall be based at the
Company's office located in Cedar Knolls, New Jersey. The Employee shall be
subject to the supervision of, and shall have such authority as is delegated to
him by, the Board of Directors of the Company (the "Board"), or the Chief
Executive Officer of the Company (the "CEO").
The Employee hereby accepts such employment and agrees to undertake the
duties and responsibilities inherent in such position and such other duties and
responsibilities as the Board or the CEO or his designees shall from time to
time reasonably assign to him. The Employee agrees to devote his entire business
time, attention and energies to the business and interests of the Company during
the Employment Period. The Employee agrees to abide by the rules, regulations,
instructions, personnel practices and policies of the Company and any changes
therein which may be adopted from time to time by the Company. The Employee
acknowledges receipt of copies of all such rules and policies committed to
writing as of the date of this Agreement.
3. Compensation and Benefits.
3.1 Salary. The Company shall continue to pay the Employee, in
semi-monthly installments, an annual base salary of $185,000 for the period
commencing on the Commencement Date through October 31, 1999. Thereafter, such
salary shall be subject to annual review and increases at the discretion of the
Compensation Committee of the Board (the "Compensation Committee").
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3.2 Bonus. The Employee is eligible for a target bonus of up to 30%
of his annual gross salary, paid at the completion of milestones established by
the CEO and the Compensation Committee. Such milestones shall be established no
later than March 31st of each year. The completion of such milestones will be
determined at the sole discretion of the CEO and the Compensation Committee. Any
bonus awarded to the Employee will be made at the discretion of the CEO and the
Compensation Committee. Such bonus shall be subject to annual review and
increases at the discretion of the Compensation Committee.
3.3 Fringe Benefits; Officer Indemnification. The Employee shall be
entitled to participate in all bonus and benefit programs that the Company
establishes and makes available to its employees, if any, to the extent that
Employee's position, tenure, salary, age, health and other qualifications make
him eligible to participate. The Employee shall be entitled to three weeks
vacation per year (or such greater amount as Employee is eligible under the
Company's employment policy based on tenure of service), to be taken at such
time as may be approved by the Board or the CEO. To the extent the Company
extends more favorable indemnification terms to other officers of the Company
then is currently provided in the Company's By-laws, the Employee shall be
entitled to such indemnification terms.
3.4 Stock Option Plan. The Employee shall be entitled to participate
in the Company's 1997 Omnibus Stock Plan in the amount and subject to the terms
and conditions set out in the Combined Non-Statutory and Incentive Stock Option
Agreements attached hereto as Exhibit A and Exhibit B.
3.5 Reimbursement of Expenses. The Company shall reimburse the
Employee for all reasonable travel, entertainment and other expenses incurred or
paid by the Employee in connection with, or related to, the performance of his
duties, responsibilities or services under this Agreement, upon presentation by
the Employee of documentation, expense statements, vouchers, and such other
supporting information as the Company may request, provided, however, that the
amount available for such travel, entertainment and other expenses may be fixed
in advance by the Board.
3.6 Car Allowance. The Company shall provide the Employee with an
automobile expense allowance in the amount of $600.00 per month while the
Employee is located in the New York Major Trading Area.
3.7 Social Membership. The Company shall pay on behalf of the
Employee, or reimburse the Employee for, up to $20,000 for the initiation fee at
a social club located in the New York Metropolitan Trading Area. The Employee's
membership in such social club must be a corporate membership in the name of
Omnipoint Corporation.
4. Employment Termination. The employment of the Employee by the
Company pursuant to this Agreement shall terminate upon the occurrence of any of
the following:
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4.1 Expiration of the Employment Period in accordance with Section
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4.2 At the election of the Company, for cause, immediately upon
written notice by the Company to the Employee. For the purposes of this Section
4.2, cause for termination shall be deemed to exist upon (a) failure to cure a
material breach by the Employee of the terms of this Agreement within twenty
(20) days of receipt of written notice of such breach from the Company,
dishonesty, gross negligence or willful misconduct, or (b) the conviction of the
Employee of, or the entry of a pleading of guilty or nolo contendere by the
Employee to, any crime involving moral turpitude or any felony;
4.3 Upon the death or thirty (30) days after the disability of the
Employee. As used in this Agreement, the term "disability" shall mean the
inability of the Employee, due to a physical or mental disability, for a period
of ninety (90) days, regardless of whether consecutive, during any 360-day
period to perform the services contemplated under this Agreement. A
determination of disability shall be made by a physician satisfactory to both
the Employee and the Company, provided that if the Employee and the Company do
not agree on a physician, the Employee and the Company shall each select a
physician and these two together shall select a third physician, whose
determination as to disability shall be binding on all parties;
4.4 At the election of the Employee, upon not less than thirty (30)
days prior written notice of termination; or
4.5 At the election of the Company, otherwise than for cause, upon
not less than thirty (30) days prior written notice.
5. Effect of Termination.
5.1 Termination for Cause or at Election of Employee. In the event
the Employee's employment is terminated for cause pursuant to Section 4.2, or at
the election of the Employee pursuant to Section 4.4, the Company shall pay to
the Employee the compensation and benefits otherwise payable to him under
Section 3 through the last day of his actual employment by the Company.
5.2 Termination for Death. If the Employee's employment is
terminated by death pursuant to Section 4.3, the Company shall pay to the estate
of the Employee the compensation and benefits which would otherwise be payable
to the Employee up to the end of the month in which the termination of his
employment because of death occurs.
5.3 Termination at the Election of the Company or for Disability. If
the Employee's employment is terminated at the election of the Company pursuant
to Section 4.5 or for disability pursuant to Section 4.3, the Company shall pay
to the Employee the compensation and benefits which would otherwise be payable
to the Employee up to the end of the one year period following the month in
which the termination of his employment occurs.
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5.4 Survival. The provisions of Sections 6, 7 and 8 shall survive
the termination of this Agreement.
6. Non-Compete.
(a) So long as the Company is not in breach of this Agreement,
during the Employment Period and for a period of one year after the termination
or expiration thereof, the Employee will not directly or indirectly:
(i) as an individual proprietor, partner, stockholder, officer,
employee, director, joint venturer, investor, lender, or in any other capacity
whatsoever (other than as the holder of not more than one percent (1%) of the
total outstanding stock of a publicly held company), engage in the business of
developing, producing, marketing or selling equipment of the kind or type
developed or being developed, produced, marketed or sold by the Company or its
affiliates while the Employee was employed by the Company; or
(ii) recruit, solicit or induce, or attempt to induce, any employee or
employees of the Company or its affiliates to terminate their employment with,
or otherwise cease their relationship with, the Company or its affiliates; or
(iii) solicit, divert or take away, or attempt to divert or to take
away, the business or patronage of any of the clients, customers or accounts, or
prospective clients, customers or accounts, of the Company or its affiliates
which were contacted, solicited or served by the Employee while employed by the
Company.
(b) So long as the Company is not in breach of this Agreement, for a
period of one year after the termination or expiration of the Employment Period,
the Employee will not be employed in any capacity by, or provide consulting
services to, any company engaged in the provision of wireless communications
services in the New York Major Trading Area.
(c) The parties agree that the relevant public policy aspects of
covenants not to compete have been discussed, and that every effort has been
made to limit the restrictions placed upon the Employee to those that are
reasonable and necessary to protect the Company's legitimate interests.
(d) If any restriction set forth in this Section 6 is found by any
court of competent jurisdiction to be unenforceable because it extends for too
long a period of time or over too great a range of activities or in too broad a
geographic area, it shall be interpreted to extend only over the maximum period
of time, range of activities or geographic area as to which it may be
enforceable.
(e) The restrictions contained in this Section 6 are necessary for
the protection of the business and goodwill of the Company and/or its affiliates
and are considered by the Employee to be reasonable for such purposes. The
Employee agrees that any breach of this Section 6 will cause the Company and/or
its affiliates substantial and irrevocable damage and
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therefore, in the event of any such breach, in addition to such other remedies
which may be available, the Company shall have the right to seek specific
performance and injunctive relief.
7. Proprietary Information and Developments.
7.1 Proprietary Information.
(a) Employee agrees that all information and know-how, regardless of
whether in writing, of a private, secret or confidential nature concerning the
Company's business or financial affairs, including the terms of this Agreement,
(collectively, "Proprietary Information") is and shall be the exclusive property
of the Company. By way of illustration, but not limitation, Proprietary
Information may include inventions, products, processes, methods, techniques,
formulas, compositions, compounds, projects, developments, plans, research data,
clinical data, financial data, personnel data, computer programs, and customer
and supplier lists. Employee will not disclose any Proprietary Information to
others outside the Company or use the same for any unauthorized purposes without
written approval by an officer of the Company, either during or after his
employment, unless and until such Proprietary Information has become public
knowledge without fault by the Employee.
(b) Employee agrees that all files, letters, memoranda, reports,
records, data, sketches, drawings, laboratory notebooks, program listings, or
other written, photographic, or other tangible material containing Proprietary
Information, whether created by the Employee or others, which shall come into
his custody or possession, shall be and are the exclusive property of the
Company to be used by the Employee only in the performance of his duties for the
Company.
(c) Employee agrees that his obligation not to disclose or use
information, know-how and records of the types set forth in paragraphs (a) and
(b) above, also extends to such types of information, know-how, records and
tangible property of affiliates of the Company, customers of the Company or
suppliers to the Company or other third parties who may have disclosed or
entrusted the same to the Company or to the Employee in the course of the
Company's business.
7.2 Developments.
(a) Employee will make full and prompt disclosure to the Company of
all inventions, improvements, discoveries, methods, developments, software, and
works of authorship, whether patentable that are created, made, conceived or
reduced to practice by the Employee or under his direction or jointly with
others during his employment by the Company, whether during normal working hours
or whether on the premises of the Company (all of which are collectively
referred to in this Agreement as "Developments").
(b) Employee agrees to assign and does hereby assign to the Company
(or any person or entity designated by the Company) all his right, title and
interest in and to all Developments and all related patents, patent
applications, copyrights and copyright applications. However, this Section 7(b)
shall not apply to Developments which do not relate to the present or
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planned business or research and development of the Company and that are made
and conceived by the Employee not during normal working hours, not on the
Company's premises and not using the Company's tools, devices, equipment or
Proprietary Information.
(c) Employee agrees to cooperate fully with the Company, both
during and after his employment with the Company, with respect to the
procurement, maintenance and enforcement of copyrights and patents (both in the
United States and foreign countries) relating to Developments. Employee shall
sign all papers, including, without limitation, copyright applications, patent
applications, declarations, oaths, formal assignments, assignment of priority
rights, and powers of attorney, which the Company may deem necessary or
desirable in order to protect its rights and interests in any Development.
7.3 Other Agreements. Employee hereby represents that he is not
bound by the terms of any agreement with any previous employer or other party to
refrain from using or disclosing any trade secret or confidential or proprietary
information in the course of his employment with the Company or to refrain from
competing, directly or indirectly, with the business of such previous employer
or any other party. Employee further represents that his performance of all the
terms of this Agreement and as an employee of the Company does not and will not
breach any agreement to keep in confidence proprietary information, knowledge or
data acquired by him in confidence or in trust prior to his employment with the
Company.
8. Company's Remedies for Breach. It is recognized that damages in the
event of breach of Section 6 and 7 of this Agreement by the Employee would be
difficult, if not impossible, to ascertain, and it is therefore agreed that,
notwithstanding anything in this Agreement to the contrary, including but not
limited to the arbitration provisions of Section 15 hereof, the Company, in
addition to and without limiting any other remedy or right it may have, shall
have the right to an injunction or other equitable relief in any court of
competent jurisdiction, enjoining any such breach, and the Employee hereby
waives any and all defenses he may have on the ground of lack of jurisdiction or
competence of the court to grant such an injunction or other equitable relief.
The existence of this right shall not preclude any other rights and remedies at
law or in equity which the Company may have.
9. Notices. All notices required or permitted under this Agreement
shall be in writing and shall be deemed effective upon delivery personally, by
facsimile or by overnight mail, or upon deposit in the United States Post
Office, by registered or certified mail, postage prepaid, addressed to the other
party at the address shown above, or at such other address or addresses as
either party shall designate to the other in accordance with this Section 9.
10. Pronouns. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular forms of nouns and pronouns shall include the plural,
and vice versa.
11. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings,
whether written or oral, relating to the subject matter of this Agreement.
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12. Amendment. This Agreement may be amended or modified only by a
written instrument executed by both the Company and the Employee.
13. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the State of New Jersey.
14. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of both parties and their respective successors and
assigns, including any corporation with which or into which the Company may be
merged or which may succeed to its assets or business, provided, however, that
the obligations of the Employee are personal and shall not be assigned by him.
15. Arbitration. The parties agree that any controversy, claim or
dispute arising out of or relating to this Agreement, or the breach thereof, or
arising out of or relating to the employment of the Employee, or the termination
thereof, including any claims under federal, state, or local law, shall be
resolved by arbitration in Bethesda, Maryland in accordance with the Employment
Dispute Resolution rules of the American Arbitration Association. The parties
agree that any award rendered by the arbitrator shall be final and binding, and
that judgment upon the award may be entered in any court having jurisdiction
thereof.
16. Miscellaneous.
16.1 No delay or omission by the Company in exercising any right
under this Agreement shall operate as a waiver of that or any other right. A
waiver or consent given by the Company on any one occasion shall be effective
only in that instance and shall not be construed as a bar or waiver of any right
on any other occasion.
16.2 The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
16.3 In case any provision of this Agreement shall be invalid,
illegal or otherwise unenforceable, the validity, legality and enforceability of
the remaining provisions shall in no way be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
OMNIPOINT CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
EMPLOYEE
/s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
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