Exhibit 10.89
Amended Employment Agreement with Xxxxxxx Bar
AMENDED EMPLOYMENT AGREEMENT
As of the 12th day of January 1998, the employment agreement (the
"Employment Agreement") dated the 1st day of October 1996 ("Employment Date"),
by and between Xxxxxxx Bar, residing at 000 Xx Xxxxx Xxx, Xxxx Xxxx, Xxxxxxxxxx
(hereinafter referred to as the "Employee") and Labyrinth Communication
Technologies Group, Inc. ("Labyrinth") is hereby amended. All capitalized terms
herein refer to their defined meaning as defined in the Employment Agreement,
except as may be specifically defined herein.
W I T N E S S E T H :
WHEREAS, the Company has undertaken the process of merging (the
"Merger") Labyrinth together with and into U.S. Wireless Corporation (the
"Company"), the parent company of Labyrinth, in accordance with a share exchange
offer presented to the shareholders of Labyrinth whereby the Company will be the
sole surviving company; and
WHEREAS, as Labyrinth shall cease to exist, Employee shall become an
employee of the Company and in accordance therewith shall exchange his shares of
common stock of Labyrinth for shares of Common Stock of the Company, subject to
a vesting schedule, in accordance with the amended restricted share agreement
referenced herein; and
WHEREAS, the Employee and the Company desire to continue Employee's
employment with the Company as Vice President - Hardware, and in accordance
therewith amends his Employment Agreement, as described herein, which amendment
shall supersede all prior agreements between the Company, its subsidiaries,
and/or predecessors, and the Employee;
NOW, THEREFORE, it is mutually agreed by and between the parties hereto
as follows:
ARTICLE I
EMPLOYMENT
Subject to and upon the terms and conditions of this Agreement, the
Company hereby retains Employee as Vice President - Hardware of the Company, and
the Employee hereby agrees to continue his employment. In this capacity,
Employee will report directly to the Chief Executive Officer and President of
the Company.
ARTICLE II
DUTIES AND ACKNOWLEDGMENTS
(A) The Employee shall, during the term of his employment with the Company,
and subject to the direction and control of the Company's Board of Directors,
perform such duties and functions related to his position as he may be called
upon to perform by the Company's Board of Directors during the term of this
Agreement.
(B) The Employee agrees to devote 100% of his normal business time, or such
less amount of his business time as shall be agreed upon by the Company and the
Employee, to the Company. Employee shall use his best efforts in the performance
of his duties for the Company and in rendering such services for any subsidiary
corporations of the Company.
(C) The Employee shall perform, in conjunction with the Company's
Management, to the best of his ability, the following services and duties for
the Company and its subsidiary corporations (by way of example, and not by way
of limitation):
(i) Those duties attendant to the position with the Company for
which he is hired;
(ii) Design, Development of and implementation of the Company's
Hardware systems for the Company's product lines; and
(iii) Formulation of the Company's business plans with respect to
his area of operations, subject to the direction of the Board of
Directors.
(D) Employee acknowledges that all Intellectual Property (as defined
herein) developed or co-developed by the Employee during the Employee's tenure
with the Company shall be the sole and absolute property of the Company.
Employee agrees to facilitate and coordinate, to the best of his ability, the
safeguarding of all Intellectual Property which is developed or co-developed
during Employee's tenure with the Company. Employee, on behalf and at the
request of the Company shall detail all Intellectual Property developed or
co-developed, so that the Company may file the appropriate patents or other
filings in order to protect the Company's ownership rights in such properties.
Employee shall execute and deliver assignments of all rights and interest in any
Intellectual Property developed or co-developed during Employee's tenure with
the Company, for the Company's records and as needed for filing with any
federal, state, city, local, or foreign government agency or authority.
(E) Employee represents that he shall comply with all federal, state and
local securities laws and shall have prepared and filed with the appropriate
agencies all required filings in a timely and efficient manner. Employee further
agrees to abide by the rules and regulations of the Company.
ARTICLE III
COMPENSATION
(A) Commencing with the Employment Date, the Company had paid the Employee
a salary at the rate of $100,000 per annum, which was increased to $110,000 as
of January 1, 1998, which rate shall continue during the remaining term of this
Agreement. Salary shall be paid in equal monthly installments or pursuant to
such regular pay periods as are adopted by the Company (the "Base Salary"). (B)
The Company shall deduct from Employee's compensation all federal, state, and
local taxes which it may now or may hereafter be required to deduct.
ARTICLE IV
BENEFITS
(A) During the term hereof, (i) the Company shall provide Employee with
Blue Cross/Blue Shield or equivalent health insurance benefits and major medical
insurance; and (ii) Employee shall be reimbursed by the Company upon
presentation of appropriate vouchers for all business expenses incurred by the
Employee on behalf of the Company.
(B) In the event the Company wishes to obtain Key Man life insurance on the
life of Employee, Employee agrees to cooperate with the Company in completing
any applications necessary to obtain such insurance and promptly submit to such
physical examinations and furnish such information as any proposed insurance
carrier may request.
(C) For each year of the term hereof, Employee shall be entitled to fifteen
(15) days paid vacation.
ARTICLE V
NON-DISCLOSURE
The Employee shall not, at any time during or after the termination of
his employment hereunder, except when acting on behalf of and with the
authorization of the Company, make use of or disclose to any person,
corporation, or other entity, for any purpose whatsoever, any trade secret or
other confidential information concerning the Company's business, finances,
proposed and current services and pricing, and any information relating to the
Company's business (collectively referred to as the "Proprietary Information").
For the purposes of this Agreement, trade secrets and confidential information
shall mean information disclosed to the Employee or known by him as a
consequence of his employment by the Company, whether or not pursuant to this
Agreement, and not generally known in the industry, concerning the Company?s
Intellectual Property, business, finances, methods, operations, marketing
information, pricing, and information relating to proposed expansion of the
Company or the Company's business plans. The Employee acknowledges that trade
secrets and other items of confidential information, as they may exist from time
to time, are valuable and unique assets of the Company, and that disclosure of
any such information would cause substantial injury to the Company. The
foregoing is intended to be confirmatory of the common laws of the states of
California and Delaware relating to trade secrets and confidential information.
?Intellectual Property" means (a) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto,
and all patents, patent applications, and patent disclosures, together with all
re-issuances, continuations, continuations in-part, revisions, extensions, and
reexaminations thereof, (b) all trademarks, service marks, trade dress, logos,
trade names, and corporate names, together with all translations, adaptations,
derivations, and combinations thereof and including all goodwill associated
therewith, and all applications, registrations, and renewals in connection
therewith, (c) all copyrightable works, all copyrights, and all applications,
registrations, and renewals in connection therewith (d) all mask works and all
applications, registrations, and renewals in connection therewith, (e) all trade
secrets and confidential business information (including ideas, research and
development, know-how, formulas, compositions, manufacturing and production
processes and techniques, technical data, designs, drawings, specifications,
customer and supplier lists, pricing and cost information, and business and
marketing plans and proposals), (f) all computer software (including data and
related documentation), (g) all other proprietary rights, and (h) all copies and
tangible embodiments thereof (in whatever form or medium).
ARTICLE VI
RESTRICTIVE COVENANTS
(A) In the event of the Employee's termination with the Company, whether
voluntarily or for cause, Employee agrees that he will not, for a period of four
years following such termination, directly enter into or become associated with
or engage in any other business (whether as a partner, officer, director,
shareholder, employee, consultant, or otherwise), which business is a direct or
indirect competitor of the Company, or any current or future subsidiary,
associate, affiliate or joint venture partner, which is a direct or indirect
competitor of the Company, or any subsidiary or Parent company.
(B) If any court shall hold that the duration of non-competition or any
other restriction contained in this paragraph is unenforceable, it is our
intention that same shall not thereby be terminated but shall be deemed amended
to delete therefrom such provision or portion adjudicated to be invalid or
unenforceable, or in the alternative, such judicially substituted term may be
substituted therefor.
(C) Employee agrees that during the term of this Restrictive Covenant, he
will not, directly or indirectly, (a) contact, induce, or influence any
customers or clients, joint venture partners, employee, consultant, associate or
affiliate of the Company or its or their successors with respect to the
Company?s proposed business as described in (A) above or for any reason
whatsoever, without the written consent of the Company, signed by two executive
officers; (b) request or advise any customers, clients, joint venture partners,
suppliers, manufacturers, employees, consultants, associates or affiliates of
the Company or its or their successors, who may contact or attempt to contact
the Employee to withdraw, curtail, or cancel such parties' business with the
Company or its successors; (c) disclose to any other persons or corporations the
names or addresses of any of the customers, clients, joint venture partners,
suppliers, manufacturers, wireless services providers, employees, consultants,
associates, or affiliates of the Company or its or their successors; or (d)
induce or encourage any employee to terminate his relationship with the Company.
ARTICLE VII
TERM
This Agreement shall be for an initial term of three years commencing on
the Employment Date, subject to automatic extension, as provided herein, unless
sooner terminated pursuant to the terms of Article VIII. After the initial term,
this Agreement shall automatically renew for additional periods of one year,
until such time as either Employee resigns, the shares referenced in Article IX
have fully vested, or Employee is terminated in accordance with Article VIII.
ARTICLE VIII
TERMINATION AND EFFECT THEREOF
(A) The Company may terminate this Agreement:
(i) Upon the death of Employee during the term hereof, except
that the Employee's legal representatives, successors, assigns, and
heirs shall have those rights and interests as otherwise provided in
this Agreement, including the right to receive accrued but unpaid
bonus compensation, if any.
(ii) Upon written notice from the Company to the Employee, if
Employee becomes totally disabled and as a result of such total
disability, has been prevented from and unable to perform all of his
duties hereunder for a period of four (4) consecutive months.
(iii) If the Employee engages in fraud, misappropriation of
Company funds, or gross negligence in the performance of his duties.
(iv) The Company shall have the right to terminate Employee's
employment hereunder for cause. For purposes of this Agreement,
"cause" means (a) a breach of the covenants herein, (b) failure to
perform his duties in a professional and competent manner; (c) failure
by Employee to substantially perform his duties or obligations
hereunder; (d) Employee engaging in misconduct which is materially
injurious to the Company; (e) Employee engaging in any act that in any
way has a direct, substantial, and adverse effect on the Company's
reputation; (f) Employee committing a crime of moral turpitude; (g)
Employee's conviction by, or entry of a plea of guilty or nolo
contendere in, a court of competent jurisdiction of a crime
constituting a felony.
(B) Upon termination of this Agreement:
(i) Pursuant to subarticles (A)(i), (iii), and (iv) of this
Article VIII, Employee's employment hereunder and all compensation and
benefits payable by the Company hereunder shall be immediately
terminated. In addition, all options shall be terminated and all
shares of Common Stock issued pursuant to Article IX which have not
vested shall be returned to the Company's treasury, subject to the
restricted share agreement referenced herein. All vested shares shall
be delivered to the Employee or his estate, as the case may be.
Employee or his estate, as the case may be, shall be entitled to
receive any payments under any applicable life or disability insurance
plans, if any are in effect at the time of termination. Such payments,
if any, shall be made at the time and in accordance with the terms and
conditions of such plans.
(ii) Pursuant to subarticle (A)(ii), Employee's employment
hereunder shall terminate, all vested options shall continue to be
exercisable for a period of six months thereafter and all non vested
options shall terminate. In addition, all shares of Common Stock
issued pursuant to Article IX which have not vested shall be returned
to the Company's treasury, subject to the restricted share agreement
referenced herein. All vested shares shall be delivered to the
Employee or his estate, as the case may be. Employee or his estate, as
the case may be.
(iii) In the event that the employment is terminated for any
reason except as listed in this Article VIII, the Employee shall have
the right to receive his salary for the period from the date of his
termination until the end of the initial term of the agreement as
described in Article VII.
ARTICLE IX
STOCK OPTIONS AND EXCHANGE OF LABYRINTH SHARES
FOR SHARES OF COMMON STOCK OF THE COMPANY
(A) As an inducement to Employee to enter into the Employment Agreement,
the Company granted to Employee options to purchase shares of the Company's
Common Stock, $.001 par value per share, upon and subject to the terms and
conditions of an option agreement. Employee is hereby granted options to
purchase 100,000 shares of the Company's Common Stock, vesting at the rate of
1/3 per year commencing October 3, 1997. The options shall be exercisable on the
dates of vesting and continuing until October 2, 2001. The exercise price of the
options shall be equal to $2.50 per share. The foregoing options are not
intended to qualify as incentive stock options. The options provided for herein
are not transferable by Employee and shall be exercisable only by Employee or by
his legal representative or executor.
(B) Labyrinth issued 25,000 shares of its Common Stock on the Employment
Date, subject to the terms and conditions of a restricted share agreement, which
agreement details a vesting schedule of 1/3 of the shares vesting each year, for
the three year initial term of the Employment Agreement. Subject to the
consummation of the Merger, the Company shall issue 229,500 shares of its Common
Stock in exchange for the 25,000 shares of Labyrinth, subject to the terms and
conditions of an amended restricted share agreement dated as of this date.
ARTICLE X
TERMINATION OF PRIOR AGREEMENTS
This Agreement sets forth the entire agreement between the parties and
supersedes all prior agreements between the parties, whether oral or written,
without prejudice to Employee's right to all accrued compensation prior to the
effective date of this Agreement.
ARTICLE XI
ARBITRATION
Any dispute arising out of the interpretation, application, and/or
performance of this Agreement with the sole exception of any claim, breach, or
violation arising under Articles V or VI hereof shall be settled through final
and binding arbitration before a single arbitrator in the City of San Xxxxx, the
State of California in accordance with the rules of the American Arbitration
Association. The arbitrator shall be selected by the Association and shall be an
attorney at law experienced in the field of corporate law. Any judgment upon any
arbitration award may be entered in any court, federal or state, having
competent jurisdiction of the parties.
ARTICLE XII
SEVERABILITY
If any provision of this Agreement shall be held invalid and
unenforceable, the remainder of this Agreement shall remain in full force and
effect. If any provision is held invalid or unenforceable with respect to
particular circumstances, it shall remain in full force and effect in all other
circumstances.
ARTICLE XIII
NOTICE
All notices required to be given under the terms of this Agreement shall be
in writing and shall be deemed to have been duly given only if delivered to the
addressee in person or mailed by certified mail, return receipt requested, to
the address as included in the Company's records or to any such other address as
the party to receive the notice shall advise by due notice given in accordance
with this paragraph.
ARTICLE XIV
BENEFIT
This Agreement shall inure to, and shall be binding upon, the parties
hereto, the successors and assigns of the Company, and the heirs and personal
representatives of the Employee.
ARTICLE XV
WAIVER
The waiver by either party of any breach or violation of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach of construction and validity.
ARTICLE XVI
GOVERNING LAW
This Agreement and each Option Certificate issued hereunder shall be deemed
to be a contract made under the laws of the State of Delaware and for all
purposes shall be construed in accordance with the laws of such State without
giving effect to the rules of said State governing the conflicts of laws.
ARTICLE XVII
JURISDICTION
Any or all actions or proceedings which may be brought by the Company
or Employee under this Agreement shall be brought in courts having a situs
within the State of California, and Employee hereby consents to the jurisdiction
of any local, state, or federal court located within the State of California,
except in those proceedings specifically referenced in Article XI herein.
ARTICLE XVIII
ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties hereto. No
change, addition, or amendment shall be made hereto except by written agreement
signed by the parties hereto.
ARTICLE XIX
CONSTRUCTION
The parties intend for the provisions of Articles V and VI of this
agreement to be construed, interpreted, and enforced to the maximum extent
permitted by law. The parties acknowledge and agree that they have both
participated in the preparation of this Agreement, and the Agreement shall not
be construed or interpreted against either party on the basis that it was
prepared by such other party. In the event that any provision of Articles V or
VI, or any part thereof, shall be determined by any court of competent
jurisdiction to be invalid, illegal, or unenforceable in any respect for any
reason, such provision shall be revised and/or interpreted to make it
enforceable to the maximum extent in all other respects as to which it may be
enforceable, all as determined by such court in such action.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement and
affixed their hands and seals the day and year first above written.
U.S. WIRELESS CORPORATION
By:
Xx. Xxxxxx Xxxxxxxxxx
Chief Executive Officer
EMPLOYEE
Xxxxxxx Bar
