EX-10.12
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into
as of February 1, 2002 (the "Effective Date"), by and between 5G
Wireless Communications, Inc. (the "Employer"), and Xxxxx Xxx ("Employee").
TERM of this Agreement is 36 months from the "Effective Date".
Thirty days prior to expiration of this Agreement, Employee and
Employer will enter into negotiations to re-evaluation, terminate or
extend contract.
WHEREAS, Employee has advised Employer of his willingness to act
in a fulltime capacity as its President and Chief Executive Officer as
provided herein.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions contained herein, the parties agree as follows:
SECTION 1: Employment. Employer hereby employs Employee and
Employee hereby accepts this employment and agrees to exercise and
perform faithfully, exclusively and to the best of his ability on
behalf of Employer the powers and duties customarily exercised and
performed by a President on the terms and conditions set forth herein.
Employee acknowledges and agrees that he is hereby also making a moral
commitment to honor this Agreement, and to provide Employee with the
authority necessary to fulfill his responsibilities and to direct the
affairs of Employer in a manner which is consistent with safe and
sound banking practices and in compliance with all applicable laws and
regulations.
SECTION 2: Employee's Service and Duties.
During the term hereof, Employee shall:
(a) Observe and conform to the policies and directions
promulgated by Employer's Board of Directors;
(b) Assume and perform those duties customarily performed by the
President and Chief Executive Officer as imposed by the Bylaws of
Employer; and
(c) Serve as a full-time employee, and devote his best efforts,
ability and attention to the business of Employer during the term
of this Agreement.
The precise services to be performed by Employee may be extended,
modified or curtailed, from time to time, at the discretion of the
Board of Directors of Employer, provided such services shall at all
times be of the nature customarily performed by the President and
Chief Executive Officer of a Corporation.
Employee represents and warrants to Employer that (i) employee
understands and voluntarily agrees to the provisions of this
Agreement, (ii) Employee has been advised by competent legal counsel
in connection with the negotiation and execution of this Agreement,
(iii) Employee is free to enter into this Agreement and has no
commitment, arrangement or understanding to or with any third party
which restrains or is in the conflict with this Agreement or which
would operate to prevent Employee from performing the services to the
Employer which Employee has agreed to provide hereunder. Employee
agrees to indemnify and hold Employer harmless form and against any
and all liabilities or claims, including costs, expenses and
reasonable attorney's fees, arising to of any act or acts by Employee
which, the foregoing representations and warranties to the contrary
notwithstanding, shall be in violation of or shall constitute a breach
of any such commitment, arrangement or understanding.
SECTION 3: Compensation and Other Benefits. As compensation
in full for the services to be rendered by Employee hereunder,
Employer shall pay and Employee shall accept the following
compensation and benefits.
3.1 Base Salary. Employer shall pay to the employee a salary of
$12,000 per month commencing as the Effective Date, payable in two
monthly installments on the 1st and 15th of each month. The salary
will be increased to $18,000 in year two and $25,000 in year three.
The Board of Directors shall review Employee's base salary annually
and may, in its sole discretion, grant such increases as it may deem
appropriate. The Employer may withhold from Employee's compensation,
and pay to appropriate authorities, any amount which it determines in
good faith may be subject to Federal or state withholding obligations.
3.2 Additional Benefits. During the term of Employee's
employment under the Agreement, Employee shall be entitled to receive
such other benefits of employment as are made available to other
employees of Employer such as life, health, dental, vision and
accident insurance on Employee in the form, kind and amount made
available under group insurance coverage to employees of Employer and
their dependant's, as well as stock options.
3.3 Expense Reimbursement. The Employee shall be entitled to
reimbursement of expenses incurred by Employee in the performance of
duties, subject to presenting of appropriate vouchers in accordance
with Employer's policy.
3.4 Disability. If the Employee has been disabled for a period
of at least 6 months during which period Employee was disabled for 180
consecutive days, the Employer may elect, upon notice to the Employee,
to pay the Employee 1/3 of the compensation the Employee would
otherwise be entitled. Disability shall mean the Employee's
inability, due to sickness or injury, to perform effectively the job
duties hereunder.
3.5 Vacation. Employee shall be entitled to an annual vacation
according to the Employer's personnel policy of four (4) weeks per
year without reduction in salary. Employee shall not utilize more
than two consecutive weeks of vacation at a time without approval of
Employer's Board of Directors. Employee shall also be entitled to all
paid holidays provided to Employer's senior officers; in addition this
vacation time may be accrued at the Employee's discretion.
3.6 Incentive Program For each fiscal year during the Employment
Period, Executive shall be eligible for an incentive bonus in the
Company's sole discretion. For each full fiscal year of employment,
Executive shall be eligible for an incentive bonus of up to eighty
(80%) of his annual base salary and his performance objectives shall
be set such that 100% completion of his objectives shall entitle him
to at least seventy-five percent (75%) of the bonus (or sixty percent
(60%) of his annual base salary) ("the Target Bonus"). During the
first year of employment, Executive shall be eligible for a pro rata
portion of the incentive bonus. The bonus amount will be based on the
following factors: (1) the financial performance of the Company as
determined and measured by the Company's Board of Directors, and (2)
Executive's achievement of management targets and goals as set by the
Company. The bonus amount is intended to reward contribution to the
Company's performance over an entire fiscal year, and on the basis of
continuing, cumulative contribution, and consequently will be paid
only if Executive is employed and in good standing at the time of
bonus payments, which generally occurs within 45 days after the close
of the Company's fiscal year. Bonus determinations will be made in the
Company's sole discretion.
3.7 Deductions The Company shall deduct and withhold from the
compensation payable to Executive hereunder any and all applicable
Federal, State and Local income and employment withholding taxes and
any other amounts required or authorized by Executive to be deducted
or withheld by the Company under applicable statutes, regulations,
ordinances or orders governing or requiring the withholding or
deduction of amounts otherwise payable as compensation or wages to
employees.
3.8 Insurance Executive shall, throughout the Employment Period,
be eligible to participate in all group term life insurance plans,
group health plans, accidental death and dismemberment plans and
short-term disability programs and other Executive perquisites which
are made available to the Company's Executives and for which Executive
qualifies.
SECTION 4: Termination of Employment
Termination by Employer Without Cause. Employer, by vote or
written approval of the Board of Directors duly taken in accordance
with law and Employer's Bylaws, may terminate this Agreement and
Employee's rights hereunder, without cause or any reason whatsoever.
Upon termination, payment to Employee of the sum of the remaining
contract obligation term as stated herein will be paid in full to Employee.
SECTION 5: Nondisclosure Covenants.
5.1 As a significant inducement to Employer to employ Employee
and to perform its obligations under this Agreement, Employee hereby
agrees that he will not, directly or indirectly, during the term of
this Agreement and for the period set forth in section 5.2 below, own
an interest in or be employed by, act as a consultant to, or otherwise
participate, associate, or engage in, an entity, organization, or
business venture of any kind other than services to public and private
sector communication systems operators, or high-speed mobile wireless
data access to corporate networks and the Internet using wireless
modems (other than the de minimis ownership amounts permitted pursuant
to Section 2.3 hereof). Without limiting the foregoing, Employee also
agrees that he will not, while employed by Employer to terminate or
modify such relationship to Employer's detriment or to form a
relationship with any other person or entity other than the Employer,
call on or otherwise solicit business from any of the customers of
Employer which, at the time of termination of his employment, were
listed (or ought to have been listed) in the Employer's records, in
respect of any service or product that competes directly or indirectly
with any service or product provided or marketed by or actually under
development or active consideration by Employer at the time of
Employee's termination.
5.2 Employee agrees that if his employment terminates for any
reason, including Employee's voluntary resignation, the obligation of
Employee under Section 5.1 shall hereby terminate after termination of
employment.
5.3 All trade secrets and other confidential and/or proprietary
information concerning but not limited to financial information,
sales, pricing, marketing techniques, customer and broker lists,
strategic planning, systems, methods, processes, unique information
which give Employer the opportunity to obtain an advantage over
competitors (collectively referred to herein as "Trade Secrets")
related to Employer's business are and shall remain the property of
Employer, and Employer is entitled to any such information in
Employee's possession, and any and all copies or transcriptions
thereof at any time, upon request. Further, any such information
shall remain confidential. Except as may be required by Employer in
the course of employment, Employee will not disclose, either during or
after employment, reason or purpose whatsoever, nor shall Employee
make use of any Employer's trade secrets for his or her own purposes
or for the benefit of any other person, firm, corporation or entity or
to the detriment of Employer. Employee will safeguard Employer's
trade secrets at all times so they are not exposed to or taken by
unauthorized persons and will exercise best efforts to assure their
safe keeping and confidentiality.
5.4 The right, title and interest in and to all inventions after
the "Effective Date", ideas, disclosures and improvements, whether
patented or un-patented, and any copyrightable material, made or
conceived by Employee, either alone or with others, at any time either
within or outside of normal working hours, during Employee's
employment by Employer, which relate to methods, apparatus, designs,
products, processes or devices, which otherwise relate to or pertain
to the business, functions or operations of Employer or which arise
from Employee's efforts during the course of Employee's employment
with Employer, shall be and remain the property of Employer. Employee
agrees to disclose to Employer in such form as Employer may request
all information, details and data pertinent to any such invention,
ideas, disclosures and improvements and to execute and deliver to
Employer such documents and perform such other acts as Employer deems
necessary to protect such information, including executing such papers
and documents as may be necessary to permit Employer to file and
prosecute applicable patent applications and, as to copyrightable
material, obtain copyright thereof. All items mentioned in this
section that have been personally developed by Employee will be
submitted in writing and attached hereto and held excluded from this
Agreement.
5.5 By execution of this Agreement, Employee agrees that the
remedy at law for any breach of foregoing covenants would not be
adequate for the protection of Employer, and that upon any breach
thereof by Employee, Employer will be entitled to seek injunctive
relief to prevent or curtail such a breach without necessity of a
bond. Such injunctive relief shall be in addition to and not in place
of any other remedies available at law or equity. Employee
acknowledges that the provisions of this Section 5 and the covenants
contained herein have been agreed upon after specific negotiation
between Employer and Employee and are reasonable, and Employee is
cable of gainful employment without breaching such covenants.
However, if at any time of enforcement of this Section 5, a court
shall hold that duration, scope, area, or other restrictions stated
herein are unreasonable under circumstances then existing, the parties
agree that the maximum duration, scope, area, or other restrictions
reasonable under such circumstances shall be substituted for the
stated unreasonable duration, scope, area, or other restrictions.
SECTION 6: Entire Agreement. This Agreement contains the entire
Agreement between the parties with respect to the Employment of
Employee by Employer, and supersedes all prior and contemporaneous
agreements, representations and understandings of the parties. No
modification, amendment or waiver of any of the provisions of this
Agreement shall be effective unless in writing specifically referring
hereto and signed by both parties.
SECTION 7: Waiver of Breach. The failure to enforce at any time
any of the provisions of this Agreement, or to require at any time
performance by the other party of any of the provisions hereof, shall
in no way be construed to be a waiver of such provisions or to effect
either the validity of this Agreement or any part hereof or the right
of either party thereafter to enforce each and every provision in
accordance with the terms of this Agreement.
SECTION 8: Notice. Any written notice to be given to Employee by
Employer may be given either by personal delivery to Employee, or by
mail, registered or certified, postage prepaid and return receipt
requested, addressed to Employee at his then current residence. Any
written notice to be given to Employer by Employee shall be given
either by personal delivery to the Chairman of the Board of Directors
of Employer, or by mail, registered or certified, postage prepaid with
return receipt requested, addressed to the Chairman of the Board of
Directors of Employer at the administrative offices of Employer.
SECTION 9: Assignment. This Agreement shall be binding upon and
inure to the benefit of Employer, its successors and assignees.
Employee may not assign all or any part of his interest under this
Agreement without the prior written consent of Employer.
SECTION 10: Arbitration and Attorney's Fees. Any controversy or
claim arising out of or relating to this Agreement shall be subject to
arbitration in Boise, Idaho, pursuant to the Commercial Arbitration
Rules of the American Arbitration Association, and judgment upon the
award may be entered by the court having jurisdiction. The prevailing
party shall be entitled to recover reasonable attorney's fees from the
other party, which fees shall be set by the arbitrator and shall be in
addition to any other relief that may be awarded.
SECTION 11: Governing Law and Venue. This Agreement along with the
documents expressly referenced in this Agreement constitute the entire
agreement and understanding of the Company and Executive with respect
to the terms and conditions of Executive's employment with the Company
and the payment of severance benefits and supersedes all prior and
contemporaneous written or verbal agreements and understandings
between Executive and the Company relating to such subject matter.
This Agreement may only be amended by written instrument signed by
Executive and an authorized officer of the Company. Any and all prior
agreements, understandings or representations relating to the
Executive's employment with the Company are terminated and cancelled
in their entirety and are of no further force or effect.
The provisions of this Agreement will be construed and
interpreted under the laws of the State of California. If any
provision of this Agreement as applied to any party or to any
circumstance should be adjudged by a court of competent jurisdiction
to be void or unenforceable for any reason, the invalidity of that
provision shall in no way affect (to the maximum extent permissible by
law) the application of such provision under circumstances different
from those adjudicated by the court, the application of any other
provision of this Agreement, or the enforceability or invalidity of
this Agreement as a whole. Should any provision of this Agreement
become or be deemed invalid, illegal or unenforceable in any
jurisdiction by reason of the scope, extent or duration of its
coverage, then such provision shall be deemed amended to the extent
necessary to conform to applicable law so as to be valid and
enforceable or, if such provision cannot be so amended without
materially altering the intention of the parties, then such provision
will be stricken and the remainder of this Agreement shall continue in
full force and effect.
SECTION 12: Captions and Section Headings. Captions and section
headings used herein are for convenience only and are not part of this
Agreement and shall not be used in construing its provisions.
SECTION 13: Severability. Should any part of this Agreement for
any reason be declared invalid, the validity and binding effect of any
remaining portion shall not be affected, and the remaining portions of
this Agreement shall remain in full force and effect as if this
Agreement has been executed with the invalid provisions eliminated.
SECTION 14: Receipt of Agreement. Each of the parties hereto
acknowledges that he or it has read this Agreement in its entirety and
does hereby acknowledge receipt of a fully executed copy hereof. A
fully executed copy shall be an original for all purposes, and is a
duplicate original.
SECTION 15: Change of Control For purposes of this Agreement
"Change In Control" shall mean any of the following transactions
effecting a change in ownership or control of the Company:
15.1 a merger, consolidation or reorganization approved by the
Company's stockholders, UNLESS securities representing more than fifty
percent (50%) of the total combined voting power of the voting
securities of the successor Company are immediately thereafter
beneficially owned, directly or indirectly and in substantially the
same proportion, by the persons who beneficially owned the Company's
outstanding voting securities immediately prior to such transaction, or
15.2 any stockholder-approved transfer or other disposition of
all or substantially all of the Company's assets, or the acquisition,
directly or indirectly, by any person or related group of persons
(other than the Company or a person that directly or indirectly
controls, is controlled by, or is under common control with, the
Company), of beneficial ownership (within the meaning of Rule 13d-3 of
the 0000 Xxx) of securities possessing more than fifty percent (50%)
of the total combined voting power of the Company's outstanding
securities pursuant to a tender or exchange offer made directly to the
Company's stockholders.
This Agreement may be executed in more than one counterpart, each
of which shall be deemed an original, but all of which together shall
constitute but one and the same instrument.
EMPLOYER:
5G Wireless Communications, Inc.
By: /s/ Xxx Xxxxxxxx
Xxx Xxxxxxxx, Assistant Secretary
/s/ Xxxxx Xxx
Xxxxx Xxx
