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EXHIBIT 10.7
|___| Employee's Copy
| X | Company's Copy
AETHER TECHNOLOGIES INTERNATIONAL, L.L.C.
EMPLOYMENT AGREEMENT
To XXXXX XXXX:
This Agreement establishes the terms of your employment as President and
Chief Executive Officer of Aether Technologies International, L.L.C., a
Delaware limited liability company (the "Company").
EMPLOYMENT You and the Company agree to your continued employment as
AND DUTIES President and Chief Executive Officer of the Company on the
terms contained below. You will report directly to the
Company's Managers. You agree to perform whatever duties the
Managers may assign you from time to time that are consistent
with services customarily performed by the President and Chief
Executive Officer of a similar company. During your employment,
you agree to devote your full business time, attention, and
energies to performing those duties (except as the Managers
otherwise agrees from time to time). During your employment,
you will not perform services for compensation for other
companies without the consent of the Managers.
TERM OF Your employment under this Agreement begins as of June 22, 1999
EMPLOYMENT (the "Effective Date") and will end at 6 p.m. Eastern Time on
June 21, 2002, unless earlier ended or later extended (which
period is referred to as the "Term"). If neither party
notifies the other of nonextension at least 15 days before the
Term would otherwise end, it will extend a month at a time
until such notice is given.
PLACE OF Your principal place of employment will be at the Company's
EMPLOYMENT principal office in Owings Mills, Maryland or such other
location at which you agree to work, and in office space you
consider appropriate.
COMPENSATION The Company will provide you compensation and incentives as
follows:
Salary The Company will pay you an annual salary (the "Salary") of
$200,000.
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Performance You will have the opportunity at the Managers' sole discretion
Bonus to receive a performance bonus of up to $100,000 for every
fiscal year (ending December 31) ending within the Term. In
determining whether to award the bonus, the Managers will
consider the progress of projects such as the formation of
Airweb, the rollout of Discover brokerage and the licensing of
Xxx.xxx.
Bonus Based You will receive a bonus equal to 1% of the Company's gross
on Sales sales in excess of $3.5 million for its fiscal year ending
December 31, 1999. For the fiscal years ending December 31,
2000 and December 31, 2001, the Managers, in their sole
discretion, will set the minimum sales amount required for you
to receive the bonus.
Bonus Based You will receive a bonus equal to 1% of all private equity
on New Equity raised by the Company during the fiscal year ending December
31, 1999. This bonus does not apply to money raised in a public
offering or money raised after December 31, 1999.
Warrants You will be granted a warrant to acquire 350,000 Units in the
Company. The warrants will be exercisable for $0.01 per Unit
upon the terms and conditions described in the Warrant to
Acquire Limited Liability Company Interests of Aether
Technologies International L.L.C. dated as of June 22, 1999
(the "Warrant Agreement"). You will also have the right to
specify key employees who will receive warrants for an
aggregate of up to 50,000 Units on the same terms and
conditions as those described in the Warrant Agreement.
Employee While you are employed under this Agreement, the Company will
Benefits provide you with the same benefits, including medical insurance
coverage, as the Company makes generally available from time to
time to the Company's senior executives, as those benefits are
amended or terminated from time to time. Your participation in
the Company's benefit plans will be subject to the terms of the
applicable plan documents and the Company's generally applied
policies, and the Company in its sole discretion may from time
to time adopt, modify, interpret, or discontinue such plans or
policies.
Vacation The Company will provide you with at least four weeks' vacation
per calendar year.
EXPENSES The Company will reimburse you for reasonable travel,
entertainment, and other out-of-pocket expenses you incur in
performing your duties under this Agreement or otherwise
rendering services to or on behalf of the
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Company upon submission and approval of written statements and
bills that comply with the Company's then regular procedures.
TERMINATION Subject to the provisions of this section, you and the Company
agree that it may terminate your employment, or you may resign,
except that, if you voluntarily resign, you must provide the
Company with 90 days' prior written notice (unless the Company
has previously waived such notice in writing or authorized a
shorter notice period).
By the Company The Company may terminate your employment for Cause, with
For Cause written notice stating the acts, omissions, refusals, or
failures that the Company believes constitute Cause, if you:
(i) are convicted of, or plead guilty or no contest to, any
misdemeanor (other than for minor infractions) involving
fraud, breach of trust, or misappropriation, or any
felony; or
(ii) commit an act of gross negligence or otherwise act with
willful disregard for the Company's best interests, and
the result of your actions is materially adverse to the
Company; or
(iii) fail or refuse to comply in any material respect with
specific written directions from the Managers that are
reasonable in scope, material to your duties as
President and Chief Executive Officer, consistent with
the duties of similarly-situated President and Chief
Executive Officer at other companies and with the terms
of this Agreement, and reasonably capable of being
performed.
When providing you with a written notice of termination for
Cause under Clause (ii) or (iii), the Managers will provide you
with at least 30 days in which to correct the specified act,
omission, refusal, or failure. If not corrected within that
period, your employment will terminate for Cause at the end of
that period. Your termination for Cause under Clause (i) will
be effective immediately upon the Managers's mailing or
transmission of such notice.
By the Company The Company may terminate your employment under this Agreement
Without Cause before the end of the Term, without Cause, upon 60 days' prior
written notice.
By the Company If you become "disabled" (as defined below), the Company may
For Disability terminate your employment. You are "disabled" if you are
unable, despite whatever reasonable accommodations the law
requires, to render services
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to the Company for more than 180 days in a calendar year
because of physical or mental disability, incapacity, or
illness. You are also disabled if you are found to be disabled
within the meaning of the Company's long-term disability
insurance policy as then in effect or would be so found if you
applied for benefits. After you become "disabled," the Company
agrees, if possible, to retain you in some capacity for the
period set forth below under PAYMENT ON TERMINATION - By The
Company Because of Disability.
Upon Death If you die during the Term, the Term will end as of the date of
your death.
By You You may resign by giving the Company 90 days' prior written
notice.
Nonrenewal Neither party has any obligation to extend the term of this
Agreement.
PAYMENTS ON Except to the extent the law requires otherwise or as provided
TERMINATION in this PAYMENTS ON TERMINATION section or in the Warrant
Agreement, neither you nor your beneficiary or estate will have
any rights or claims under this Agreement or otherwise to
receive severance or any other cash compensation (other than
Salary, bonuses, and vacation already accrued but not paid, and
reimbursement of unpaid expenses) after your termination or
resignation.
By the Company If, during the Term, the Company terminates your employment
Without Cause without Cause, the Company will promptly pay you severance
equal to the Salary that would have been paid to you during the
balance of the Term if you had remained employed. In addition,
your warrant under the Warrant Agreement will vest on the date
of termination.
Upon Death If you die during the Term, the Company will promptly pay your
estate an amount equal to the Salary that would have been paid
to you during the balance of the Term if you had remained
employed.
By the Company If the Company terminates your employment because of
Because of Disability, it will pay you severance equal to your Salary, as
Disability then in effect, for the lesser of six months and the applicable
elimination period before you qualify for long-term disability
benefits, with payments made on the same schedule as though you
had remained employed.
You are not required to mitigate amounts payable under these
provisions by seeking other employment or otherwise.
NO INTERFERENCE; During the Restricted Period (as defined below), you agree
that you will
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NO SOLICITATION not, directly or indirectly, whether for yourself or for any
other individual or entity (other than the Company or its
affiliates or subsidiaries), intentionally
solicit any person or entity who is, or was, within
the Restricted Period, a customer, prospect, or
client of the Company;
hire away or endeavor to entice away from the Company
any employee or any other person or entity whom the
Company engages to perform services or supply products
and including, but not limited to, any independent
contractors, consultants, engineers, or sales
representatives or any contractor, subcontractor,
supplier, or vendor; or
hire any person whom the Company employs or employed
within the prior 12 months.
Restricted For purposes of this Agreement, the Restricted Period runs from
Period the date of your employment with the Company through the six
month anniversary of the date your employment with the Company
ends for any reason.
SECRECY
Preserving Your employment with the Company under and before this
Company Agreement has given and will give you Confidential Information
Confidences (as defined below). You acknowledge and agree that using,
disclosing, or publishing any Confidential Information in an
unauthorized or improper manner could cause the Company
substantial loss and damages that could not be readily
calculated and for which no remedy at law would be adequate.
Accordingly, you agree with the Company that you will not at
any time, except in performing your employment duties to the
Company under this Agreement (or with the Members' prior
written consent), directly or indirectly, use, disclose, or
publish, or permit others not so authorized to use, disclose,
or publish any Confidential Information that you may learn or
become aware of, or may have learned or become aware of,
because of your prior or continuing employment, ownership, or
association with the Company, or use any such information in a
manner detrimental to the interests of the Company.
Preserving You agree not to use in working for the Company and not to
Others' disclose to the Company any trade secrets or other information
Confidences you do not have the right to use or disclose and that the
Company is not free to use without liability of any kind. You
agree to promptly inform the Company in
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writing of any patents, copyrights, trademarks, or other
proprietary rights known to you that the Company might violate
because of information you provide.
Confidential "Confidential Information" includes, without limitation,
Information information that the Company has not previously disclosed to
the public or to the trade with respect to the Company's
present or future business, including its operations, services,
products, research, inventions, discoveries, drawings, designs,
plans, processes, models, technical information, facilities,
methods, trade secrets, copyrights, software, source code,
systems, patents, procedures, manuals, specifications, any
other intellectual property, confidential reports, price lists,
pricing formulas, customer lists, financial information
(including the revenues, costs, or profits associated with any
of the Company's products or services), business plans, lease
structure, projections, prospects, opportunities or strategies,
acquisitions or mergers, advertising or promotions, personnel
matters, legal matters, any other confidential and proprietary
information, and any other information not generally known
outside the Company that may be of value to the Company but
excludes any information already properly in the public domain.
"Confidential Information" also includes confidential and
proprietary information and trade secrets that third parties
entrust to the Company.
You understand and agree that the rights and obligations set
forth in this SECRECY Section will continue indefinitely and
will survive termination of this Agreement and your employment
with the Company.
EXCLUSIVE You confirm that all Confidential Information is and must
PROPERTY remain the exclusive property of the Company. Any office
equipment (including computers) you receive from the Company in
the course of your employment and all business records,
business papers, and business documents you keep or make,
whether on digital media or otherwise, in the course of your
employment by the Company relating to the Company must be and
remain the property of the Company. Upon the termination of
this Agreement with the Company or upon the Company's request
at any time, you must promptly deliver to the Company any such
office equipment (including computers) and any Confidential
Information or other materials (written or otherwise) not
available to the public or made available to the public in a
manner you know or reasonably should recognize the Company did
not authorize, and any copies, excerpts, summaries,
compilations, records, or documents you made or that came into
your possession during your employment. You agree that you will
not, without the Company's consent, retain copies, excerpts,
summaries, or compilations of the foregoing information and
materials. You understand
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and agree that the rights and obligations set forth in this
EXCLUSIVE PROPERTY Section will continue indefinitely and will
survive termination of this Agreement and your employment with
the Company.
COPYRIGHTS, You agree that all records, in whatever media (including
DISCOVERIES, written works), documents, papers, notebooks, drawings,
INVENTIONS, AND designs, technical information, source code, object code,
PATENTS processes, methods or other copyrightable or otherwise
protected works you conceive, create, make, invent, or discover
or that otherwise relate to or result from any work you perform
or performed for the Company or that arise from the use or
assistance of the Company's facilities, materials, personnel,
or Confidential Information in the course of your employment
(whether or not during usual working hours), whether conceived,
created, discovered, made, or invented individually or jointly
with others, will be and remain the absolute property of the
Company, as will all the worldwide patent, copyright, trade
secret, or other intellectual property rights in all such
works. You irrevocably and unconditionally waive all rights,
wherever in the world enforceable, that vest in you (whether
before, on, or after the date of this Agreement) in connection
with your authorship of any such copyrightable works in the
course of your employment with the Company. Without limitation,
you waive the right to be identified as the author of any such
works and the right not to have any such works subjected to
derogatory treatment. You recognize any such works are "works
for hire" of which the Company is the author.
You will promptly disclose, grant, and assign ownership to the
Company for its sole use and benefit any and all ideas,
processes, inventions, discoveries, improvements, technical
information, and copyrightable works (whether patentable or
not) that you develop, acquire, conceive or reduce to practice
(whether or not during usual working hours) while the Company
employs you. You will promptly disclose and hereby grant and
assign ownership to the Company of all patent applications,
letters patent, utility and design patents, copyrights, and
reissues thereof or any foreign equivalents thereof, that may
at any time be filed or granted for or upon any such invention,
improvement, or information. In connection therewith:
You will, without charge but at the Company's expense,
promptly execute and deliver such applications,
assignments, descriptions, and other instruments as the
Company may consider reasonably necessary or proper to
vest title to any such inventions, discoveries,
improvements, technical information, patent
applications, patents, copyrightable works, or reissues
thereof in the Company and to
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enable it to obtain and maintain the entire worldwide
right and title thereto; and
You will provide to the Company at its expense all such
assistance as the Company may reasonably require in the
prosecution of applications for such patents,
copyrights, or reissues thereof, in the prosecution or
defense of interferences that may be declared involving
any such applications, patents, or copyrights and in any
litigation in which the Company may be involved relating
to any such patents, inventions, discoveries,
improvements, technical information, or copyrightable
works or reissues thereof. The Company will reimburse
you for reasonable out-of-pocket expenses you incur and
pay you reasonable compensation for your time if the
Company no longer employs you.
To the extent, if any, that you own rights to works,
inventions, discoveries, proprietary information, and
copyrighted or copyrightable works, or other forms of
intellectual property that are incorporated in the work
product you create for the Company, you agree that the
Company will have an unrestricted, non-exclusive,
royalty-free, perpetual, transferable license to make,
use, sell, offer for sale, and sublicense such works and
property in whatever form, and you hereby grant such
license to the Company.
This COPYRIGHTS, DISCOVERIES, INVENTIONS AND PATENTS section
does not apply to an invention or discovery for which no
equipment, supplies, facility or trade secret information of
the Company (including its predecessors) was used and that was
developed entirely on your own time, unless (a) the invention
relates (i) directly to the Company's business, or (ii) the
Company's actual or then reasonably anticipated research or
development, or (b) the invention results from any work you
performed for the Company or any predecessor.
MAXIMUM LIMITS If any of the provisions under the SECRECY, EXCLUSIVE PROPERTY,
OR COPYRIGHTS, DISCOVERIES, INVENTIONS AND PATENTS sections are
ever deemed to exceed the time, geographic area, or activity
limitations the law permits, you and the Company agree to
reduce the limitations to the maximum permissible limitation,
and you and the Company authorize a court or arbitrator having
jurisdiction to reform the provisions to the maximum time,
geographic area, and activity limitations the law permits;
provided, however, that such reductions apply only with respect
to the operation of such provision in the particular
jurisdiction with respect to which such adjudication is made.
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INJUNCTIVE Without limiting the remedies available to the Company,
RELIEF you acknowledge:
that a breach of any of the covenants in the SECRECY,
EXCLUSIVE PROPERTY, OR COPYRIGHTS, DISCOVERIES,
INVENTIONS AND PATENTS sections of this Agreement may
result in material irreparable injury to the Company for
which there is no adequate remedy at law, and
that it will not be possible to measure damages for
such injuries precisely.
You agree that, if there is a breach or threatened breach, the
Company will be entitled to obtain a temporary restraining
order and/or a preliminary or permanent injunction restraining
you from engaging in activities prohibited by any provisions of
the SECRECY, EXCLUSIVE PROPERTY, OR COPYRIGHTS, DISCOVERIES,
INVENTIONS AND PATENTS sections of this Agreement or such other
relief as may be required to specifically enforce any of the
covenants in the SECRECY, EXCLUSIVE PROPERTY, OR COPYRIGHTS,
DISCOVERIES, INVENTIONS AND PATENTS sections of this Agreement.
The Company will, in addition to the remedies provided in this
Agreement, be entitled to avail itself of all such other
remedies as may now or hereafter exist at law or in equity for
compensation and for the specific enforcement of the covenants
contained in this Agreement. Resort to any remedy provided for
in this Section or provided for by law will not prevent the
concurrent or subsequent employment of any other appropriate
remedy or remedies, or preclude the Company's recovery of
monetary damages and compensation. You also agree that the
Restricted Period or such longer period during which the
covenants hereunder by their terms survive will extend for any
and all periods for which a court with personal jurisdiction
over you finds that you violated the covenants contained in the
SECRECY, EXCLUSIVE PROPERTY, OR COPYRIGHTS, DISCOVERIES,
INVENTIONS AND PATENTS sections of this Agreement.
ASSIGNMENT The Company may assign or otherwise transfer this Agreement and
any and all of its rights, duties, obligations, or interests
under it to any of the affiliates or subsidiaries of the
Company.
Upon such assignment or transfer, any such business entity will
be deemed to be substituted for the Company for all purposes.
Without the Company's prior written consent, you may not assign
or delegate this Agreement or any or all rights, duties,
obligations, or interests under it, except that your economic
benefits may be paid to your heirs or beneficiaries after your
death.
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SEVERABILITY If the final determination of an arbitrator or a court of
competent jurisdiction declares, after the expiration of the
time within which judicial review (if permitted) of such
determination may be perfected, that any term or provision of
this Agreement is invalid or unenforceable, the remaining terms
and provisions will be unimpaired, and the invalid or
unenforceable term or provision will be deemed replaced by a
term or provision that is valid and enforceable and that comes
closest to expressing the intention of the invalid or
unenforceable term or provision.
AMENDMENT; Neither you nor the Company may modify, amend, or waive the
WAIVER terms of this Agreement other than by a written instrument
signed by you and a duly authorized officer of the Company
(with the Managers' approval). Either party's waiver of the
other party's compliance with any provision of this Agreement
is not a waiver of any other provision of this Agreement or of
any subsequent breach by such party of a provision of this
Agreement.
WITHHOLDING The Company will reduce its compensatory payments to you for
withholding and FICA taxes and any other withholdings and
contributions required by law.
GOVERNING LAW The laws of the State of Maryland (other than its conflict of
laws provisions) govern this Agreement.
SUPERSEDING This Agreement supersedes any prior oral or written employment,
EFFECT severance, or fringe benefit agreements between you and the
Company, other than with respect to your eligibility for
generally applicable employee benefit plans. This Agreement
supersedes all prior or contemporaneous oral or written
negotiations, commitments, and agreements with respect to the
subject matter of this Agreement (other than the Warrant
Agreement). All such other negotiations, commitments,
agreements, and writings will have no further force or effect;
and the parties to any such other negotiation, commitment,
agreement, or writing will have no further rights or
obligations thereunder.
NOTICES Notices must be given in writing by personal delivery, by
certified mail, return receipt requested, by telecopy, or by
overnight delivery. You should send or deliver your notices to
the offices of the Company. The Company will send or deliver
any notice given to you at your address as reflected on the
Company's personnel records. You and the Company may change the
address for notice by like notice to the other. You and the
Company agree that notice is received on the date it is
personally delivered, the date it is received by certified
mail, the date of guaranteed delivery by the overnight service,
or the date the fax machine confirms effective transmission.
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AETHER TECHNOLOGIES INTERNATIONAL, L.L.C.
By: /s/ XXXXX X. XXXXXXX
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Name XXXXX X. XXXXXXX
Title CFO
I accept and agree:
/s/ XXXXX XXXX
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Xxxxx Xxxx
Dated: 7/7/99
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