EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), is made as of this 12th day of
July, 2004, by and between GIGABEAM CORPORATION, a Delaware corporation, with
its corporate headquarters located at 00000-X Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, XX
00000, its successors and assigns (hereinafter collectively referred to as
"Company"), and XXX X. XXXX, an individual residing at 0000 Xxxxxxxxxx Xxxxx,
Xxxxxxx, XX 00000 ("Executive").
BACKGROUND
WHEREAS, Executive is currently employed by Company as Vice President
of Engineering; and
WHEREAS, Company desires to continue to employ the Executive, and the
Executive desires to continue to be employed by the Company, upon the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the facts, mutual promises, and
covenants contained herein and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Employment. The Company hereby employs Executive and Executive
hereby accepts employment by Company, for the period and upon the terms and
conditions set forth in this Agreement, subject to earlier termination pursuant
to Section 6 below.
2. Office and Duties.
(a) During the term of this Agreement, Executive shall serve as Vice
President of Engineering of Company, and shall report directly to the Company's
President and Chief Technology Officer and be subject to his supervision and
control.
(b) In his capacity as Vice President of Engineering of Company,
Executive shall have such authority, perform such duties, discharge such
responsibilities and render such services as are customary to, and consistent
with his position, subject to the authority and direction of the President and
Chief Technology Officer, and shall perform such additional duties and
responsibilities as may be from time to time assigned to him by the President
and Chief Technology Officer, the Company's Board of Directors ("Board") or
committee established by the Board.
(c) The Executive shall render his services diligently, faithfully
and to the best of his ability, and shall devote all of his working time,
energy, skill and best efforts to the performance of his duties hereunder, in a
manner that will further the business and interests of Company.
(d) During the term of this Agreement, Executive shall not be
engaged in any business activity which, in the reasonable judgment of the Board,
conflicts with Executive's duties hereunder, whether or not such activity is
pursued for pecuniary advantage.
3. Term. This Agreement shall be effective for a term commencing on the
date hereof ("Effective Date") and ending on the Third anniversary thereof (the
"Expiration Date"), unless sooner terminated as hereinafter provided or further
extended by the mutual written agreement of Company and Executive (the "Term").
4. Compensation.
(a) Base Salary. In consideration of the services rendered by
Executive to Company during the term hereof, Executive shall receive an annual
base salary of One Hundred Eighty-Five Thousand and 00/100 Dollars ($185,000.00)
("Base Salary"), payable in equal periodic installments in accordance with
Company's regular payroll practices in effect from time to time. Executive's
Base Salary shall be reviewed annually by the Board and/or a committee of the
Board which has been delegated responsibility for executive compensation matters
(such committee to be referred to herein as the "Compensation Committee") in
accordance with the compensation policies and guidelines of Company, and may be
modified as a result of such review at the sole discretion of the Board and/or
the Compensation Committee.
(b) Bonus Plans/Incentive Compensation Programs. In addition to Base
Salary, during the Term, Executive shall be eligible to participate in any bonus
plans or incentive compensation programs, if any, as may be in effect from time
to time, at a level consistent with his position and with Company's then current
policies and practices ("Bonus"); provided, however, that for 2004 Executive is
entitled to receive a cash bonus of up to $23,125 based on objectives to be
established by Company and subject to performance of Company.
(c) Benefits. During the Term, Executive also shall be entitled to
participate in all fringe benefits, if any, as may be in effect from time to
time which are generally available to Company's senior executive officers, and
such other fringe benefits as the Board and/or Compensation Committee shall deem
appropriate, subject to eligibility requirements thereof (collectively, the
"Benefits").
(d) Vacation. During the Term, Executive shall be entitled to the
number of paid vacation days in each calendar year as determined by Company from
time to time for its senior executive officers. Vacation days which are not used
during any calendar year may not be accrued or carried-over to the next year,
nor shall Executive be entitled to compensation for unused vacation days.
(e) Business Expenses. During the Term, Company shall pay or
reimburse Executive for all reasonable expenses incurred or paid by Executive in
the performance of Executive's duties hereunder, upon timely presentation of
expense statements or vouchers and such other information as Company may
reasonably require and in accordance with the generally applicable policies and
practices of Company.
(f) Commuting Expenses. Executive resides in the Raleigh-Durham,
North Carolina area. Company agrees to permit Executive to commute to its
corporate offices during at least the first two years of the Term; provided that
Executive works from the Company's corporate headquarters on average four days a
week during a year's period (not to include work-related travel to areas other
than where the Company's corporate offices are located). During the Term,
Company shall pay or reimburse Executive for reasonable travel expenses incurred
or paid by Executive for Executive to commute from the Raleigh-Durham North
Carolina area to Company's corporate headquarters and for reasonable
accommodations incurred or paid by Executive while Executive is working from the
Company's corporate headquarters upon timely presentation of expense statements
or vouchers and such other information as Company may reasonably require and in
accordance with the generally applicable policies and practices of Company.
2
(g) Relocation Expenses. If after two years of the Term have
expired, Company informs Executive that it wants Executive to relocate to the
Chantilly, Virginia area, Executive shall do so in which case Company shall pay
up to $20,000 for Executive to relocate to the Chantilly, Virginia area (which
includes moving costs, costs of moving vehicles and any fees associated with
selling and purchasing a residence). Executive must submit to Company
appropriate supporting expense documentation associated with such relocation.
(h) Withholding. All payments made pursuant to this Agreement shall
be subject to such withholding taxes as may be required by any applicable law.
5. Representations of Executive. Executive represents to Company that:
(a) there are no restrictions, agreements or understandings whatsoever to which
Executive is a party that would prevent, or make unlawful, his execution of this
Agreement and his employment hereunder; (b) his execution of this Agreement and
his employment hereunder shall not constitute a breach of any contract,
agreement or understanding, oral or written, to which he is a party, or by which
he is bound; and (c) he is of full capacity, free and able to execute this
Agreement and to enter into this Agreement with Company.
6. Termination. This Agreement shall continue until the Expiration
Date, unless terminated earlier by Company or Executive as provided herein, or
further extended by the mutual written agreement of Company and Executive.
Unless otherwise extended by the mutual written agreement of Company and
Executive, this Agreement shall terminate automatically on the Expiration Date,
without any notice, severance pay, termination pay or any severance obligation
whatsoever. If, however, this Agreement is terminated prior to the Expiration
Date by Company or Executive, the provisions contained in Section 7, Payments
Upon Termination, shall apply.
(a) Termination by Company for Cause. Company shall have the right
to terminate this Agreement at any time for "Cause". For purposes of this
Agreement, the term "Cause" shall mean the following:
(i) Executive commits fraud or theft against Company or any of
its subsidiaries, affiliates, joint ventures and related organizations
(collectively referred to as "Affiliates"), or is indicted, convicted of, or
pleads guilty or nolo contendere to, a felony; or
(ii) In carrying out his duties hereunder, the Executive engages
in conduct that constitutes gross neglect or willful misconduct and that
results, in either case, in material economic harm to Company or its Affiliates;
or
3
(iii) Executive materially breaches any provision of this
Agreement (including but not limited to the restrictive covenants contained in
Paragraph 8 below) or breaches any fiduciary duty or duty of loyalty owed to
Company or its Affiliates; or
(iv) Executive engages in conduct tending to bring Company or
its Affiliates into public disgrace or disrepute; or
(v) Executive repeatedly neglects or refuses to perform duties
or responsibilities as directed by Company or the Board, or violates any express
direction of any lawful rule or regulation established by Company or the Board
which is consistent with the scope of Executive's duties under this Agreement;
or
(vi) Executive commits any acts or omissions resulting in or
intended to result in direct personal gain to the Executive at the expense of
Company or its Affiliates; or
(vii) Executive compromises trade secrets or other confidential
and proprietary information of Company or its Affiliates.
"Cause" shall not include a bona fide disagreement over a corporate
policy, so long as Executive does not willfully violate on a continuing basis
specific written directions from the Board, which directions are consistent with
the provisions of this Agreement. Action or inaction by Executive shall not be
considered "willful" unless done or omitted by him intentionally and without his
reasonable belief that his action or inaction was in the best interests of
Company or its Affiliates, and shall not include failure to act by reason of
total or partial incapacity due to physical or mental illness.
(b) Termination by Company upon the Death or Disability of
Executive. Company shall have the right to terminate this Agreement at any time
upon the death or Disability of Executive. The term, "Disability", as used
herein, means any physical or mental illness, disability or incapacity which
prevents Executive from performing the essential functions of his job, with or
without reasonable accommodations, hereunder for a period of not less than one
hundred fifty (150) consecutive days or for an aggregate of one hundred eighty
(180) days during any period of twelve (12) consecutive months. During any
period of Disability, Executive agrees to submit to reasonable medical
examinations upon the reasonable request, and at the expense, of Company.
(c) Termination By Company Without Cause. Company shall have the
right to terminate this Agreement at any time without "Cause" and/or without the
occurrence of Executive's death or Disability upon thirty (30) days written
notice to Executive.
(d) Termination By Executive For Good Reason. Executive shall have
the right to terminate his employment at any time during the Term of this
Agreement for "Good Reason" upon thirty (30) days prior written notice to
Company's Board. For purposes of this Agreement, "Good Reason" shall mean any of
the following:
4
(i) the assignment to Executive by Company of any duties
inconsistent with Executive's status with Company or a substantial alteration in
the nature or status of Executive's responsibilities from those in effect on the
Effective Date hereof, or a reduction in Executive's titles or offices as in
effect on the Effective Date hereof, except in connection with the termination
of his employment for Cause or Disability or as a result of Executive's death,
or by Executive other than for Good Reason;
(ii) a reduction by Company in Executive's Base Salary as in
effect on the Effective Date or as the same may be increased from time to time
during the term of this Agreement; or
(iii) any material breach by Company of a material term or
provision contained in this Agreement, which breach is not cured within thirty
(30) days following the receipt by the Board of written notice of such breach.
(e) Termination by Executive for Other than Good Reason. If
Executive shall desire to terminate his employment hereunder for other than Good
Reason, he shall first give Company not less than thirty (30) days prior written
notice of termination. Upon a termination of Executive's employment with Company
under this Section 6(e), the effective date of termination shall be the date set
forth in executive's resignation notice (assuming such date is in compliance
with the notice provisions of this Section 6(e)) or an earlier date after
Company's receipt of such notice as determined by Company, in its sole
discretion, but not earlier than the date on which Company learned of
Executive's decision to terminate his employment for other than Good Reason.
(f) Notice of Termination. Any termination, except for death,
pursuant to this Section 6 shall be communicated by a Notice of Termination. For
purposes of this Agreement, a "Notice of Termination" shall mean a written
notice which shall indicate those specific termination provisions in this
Agreement relied upon and which sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provisions so indicated. The Notice of Termination shall
also set forth Executive's employment is terminated and be delivered in
accordance with the terms of this Agreement.
Notwithstanding anything to the contrary set forth herein, the
provisions of Sections 8 and 9 shall survive the termination of Executive's
employment hereunder for any reason, and shall remain in full force and effect
thereafter.
7. Payments Upon Termination.
(a) Termination for Cause. In the event Executive's employment
hereunder is terminated for Cause, all of Executive's rights to his Base Salary,
Benefits and Bonus, if any, shall immediately terminate as of the date of such
termination, except that Executive shall be entitled to any earned and unpaid
portion of his Base Salary and accrued Benefits up to the date of termination,
less all deductions or offsets for amounts owed by Executive to Company. Company
shall have no further obligations to Executive under the Agreement.
5
(b) Termination Due to Death or Disability. In the event Executive's
employment hereunder is terminated due to his death or Disability, all of
Executive's rights to his Base Salary, Benefits and Bonus, if any, shall
immediately terminate as of the date of such termination, except that Executive
(or, in the event that Executive's employment hereunder is terminated due to
Executive's death, Executive's heirs, personal representative or estate) shall
be entitled to any earned and unpaid portion of his Base Salary and accrued
Benefits up to the date of termination less all deductions or offsets for
amounts owed by Executive to Company. Company shall have no further obligations
to Executive under the Agreement.
(c) Termination By Company Without Cause or By Executive For Good
Reason. If Company terminates Executive's employment other than for Cause or the
occurrence of Executive's death or Disability, or if Executive terminates his
employment for Good Reason, all of Executive's rights to his Base Salary (so
long as Executive is not in breach of this Agreement) shall continue as
severance payments until, and terminate upon, the twelve (12) month anniversary
of the date of such termination (the "Severance Period"), provided that
Executive executes, and does not revoke, a General Release of all claims
relating to his employment and termination from employment in a form provided by
Company. Executive understands that should he fail or refuse to execute the
General Release provided by Company, or revoke such General Release, he shall
not be entitled to any severance payments under this section. Executive's Base
Salary referred to in this paragraph shall be payable during the Severance
Period in equal periodic installments in accordance with Company's regular
payroll practices then in effect, but shall cease immediately if Executive is in
breach of this Agreement. Company shall have no further obligations to Executive
under the Agreement.
(d) Termination By Executive For Other Than Good Reason. In the
event Executive terminates his employment for other than Good Reason, all of
Executive's rights to his Base Salary, Benefits and Bonus, if any, shall
immediately terminate as of the date of termination, except that Executive shall
be entitled to any earned and unpaid portion of his Base Salary and accrued
Benefits up to the date of termination. Company shall have no further
obligations to Executive under the Agreement.
(e) Recognition. Executive recognizes and accepts that Company shall
not, in any case, be responsible for any additional amount, severance pay,
termination pay, severance obligation or other damages whatsoever arising from
the termination of Executive's employment, above and beyond those specifically
provided for herein.
8. Restrictive Covenants.
(a) Non-Competition. During the Term, and for a period of
twenty-four (24) months thereafter, Executive will not, in any capacity
(including, but not limited to, owner, partner, member shareholder, consultant,
advisor, financier, agent, executive, officer, director, manager or otherwise),
directly or indirectly, for his own account or for the benefit of any natural
person, corporation, partnership, trust, estate, joint venture, sole
proprietorship, association, cooperative or other entity ("Person"), establish,
engage in, work for, or be connected with, except as an executive of Company,
any business in competition with the Business of Company (as defined in Section
8(i) below), if such business competes with the Business of Company in any
State, county, or municipality where Company or its Affiliates conduct business,
are preparing to conduct business or have conducted business during the Term.
6
(b) Non-Solicitation/Non-Piracy. During the Term, and for a period
of twenty-four (24) months thereafter, Executive will not, directly or
indirectly, for his own account or for the benefit of any Person or entity:
(i) solicit, service, contact, or aid in the solicitation or
servicing of any Person or entity which is or was a customer, prospective
customer, client, prospective client, contractor, subcontractor or supplier of
Company or its Affiliates within three (3) years prior to Executive's
termination ("Company Customers/Clients"), for the purpose of (a) selling
services or goods in competition with the Business of Company; (b) inducing
Company Customers/Clients to cancel, transfer or cease doing business in whole
or in part with Company or its Affiliates or (c) inducing Company
Customers/Clients to do business with any Person or business entity in
competition with the Business of Company.
(ii) solicit, aid in solicitation of, induce, contact for the
purpose of, encourage or in any way cause any executive of Company or its
Affiliates to leave the employ of Company or its Affiliates, or interfere with
such executive's relationship with Company or its Affiliates.
(c) Non-Disclosure. Other than in furtherance of the Business of
Company, in the ordinary course in his capacity as an executive hereunder,
Executive will not, at any time, except with the express prior written consent
of the Board, directly or indirectly, disclose, communicate or divulge to any
Person or entity, or use for the benefit of any Person or entity, any secret,
confidential or proprietary knowledge or information with respect to the conduct
or details of the Business of Company including, but not limited to, customer
and client lists, customer and client accounts and information, prospective
client, customer, contractor and subcontractor lists and information, services,
techniques, methods of operation, pricing, costs, sales, sales strategies and
methods, marketing, marketing strategies and methods, products, product
development, research, know-how, policies, financial information, financial
condition, business strategies and plans and other information of Company or its
Affiliates which is not generally available to the public and which has been
developed or acquired by Company or its Affiliates with considerable effort and
expense. Upon the expiration or termination of Executive's employment under this
Agreement, Executive shall immediately deliver to Company all memoranda, books,
papers, letters, and other data (whether in written form or computer stored),
and all copies of same, which were made by Executive or otherwise came into his
possession or under his control at any time prior to the expiration or
termination of his employment under this Agreement, and which in any way relate
to the Business of Company as conducted or as planned to be conducted by Company
or its Affiliates on the date of the expiration or termination.
(d) Intellectual Property. Executive will promptly communicate to
Company, in writing when requested, all software, designs, techniques, concepts,
methods and ideas, other technical information, marketing strategies and other
ideas and creations pertaining to the Business of Company which are conceived or
developed by Executive alone or with others, at any time (during or after
business hours) while Executive is employed by Company or its Affiliates.
Executive acknowledges that all of those ideas and creations are inventions and
works for hire, and will be Company's exclusive property. Executive will sign
any documents which Company deems necessary to confirm its ownership of those
ideas and creations, and Executive will cooperate with Company in order to allow
Company to take full advantage of those ideas and creations.
7
(e) Non-Disparagement. Executive will not, at any time, publish or
communicate disparaging or derogatory statements or opinions about Company or
its Affiliates, including but not limited to, disparaging or derogatory
statements or opinions about Company's or its Affiliates' management, products
or services, to any third party. It shall not be a breach of this section for
Executive to testify truthfully in any judicial or administrative proceeding or
to make statements or allegations in legal filings that are based on Executive's
reasonable belief and are not made in bad faith.
(f) Enforcement. Executive acknowledges that the covenants and
agreements of this Section 8 ("Covenants") herein are of a special and unique
character, which give them peculiar value, the loss of which cannot be
reasonably or adequately compensated for in an action at law. Executive further
acknowledges that any breach or threat of breach by him of any of the Covenants
will result in irreparable injury to Company for which money damages could not
be adequate to compensate Company. Therefore, in the event of any such breach or
threatened breach, Company shall be entitled, in addition to all other rights
and remedies which Company may have at law or in equity, to have an injunction
issued by any competent court enjoining and restraining Executive and/or all
other Persons involved therein from committing a breach or continuing such
breach. The remedies granted to Company in this Agreement are cumulative and are
in addition to remedies otherwise available to Company at law or in equity. The
Covenants contained in this Section 8 are independent of any other provision of
this Agreement, and the existence of any claim or cause of action which
Executive or any such other Person may have against Company shall not constitute
a defense or bar to the enforcement of any of the Covenants. If Company is
obliged to resort to litigation to enforce any of the Covenants which has a
fixed term, then such term shall be extended for a period of time equal to the
period during which a material breach of such Covenant was occurring, beginning
on the date of a final court order (without further right of appeal) holding
that such a material breach occurred, or, if later, the last day of the original
fixed term of such Covenant.
(g) Acknowledgements. Executive acknowledges that prior to entering
into this Agreement he has had the opportunity to obtain independent advice from
his legal counsel, accountants and tax advisors in connection with this
Agreement and has done so to the extent he deemed it appropriate. Executive
expressly acknowledges that the Covenants are a material part of the
consideration bargained for by Company, and, without the agreement of Executive
to be bound by the Covenants, Company would not have agreed to enter into this
Agreement. Executive further acknowledges and agrees that the Business of
Company and its services are highly competitive, and that the Covenants
contained in this Section 8 are reasonable and necessary to protect Company's
legitimate business interests. In addition, Executive acknowledges that in the
event his employment with Company terminates, he will still be able to earn a
livelihood without violating this Agreement, and that the Covenants contained in
this Section 8 are material conditions to my employment and continued employment
with Company.
8
(h) Scope. If any portion of any Covenant or its application is
construed to be invalid, illegal or unenforceable, then the remaining portions
and their application shall not be affected thereby, and shall be enforceable
without regard thereto. If any of the Covenants is determined to be
unenforceable because of its scope, duration, geographical area or similar
factor, then the court or other trier of fact making such determination shall
modify, reduce or limit such scope, duration, area or other factor, and enforce
such Covenant to the extent it believes is lawful and appropriate.
(i) Business of Company. The term "Business of Company", as used
herein, shall mean the design, manufacture, service or sale by Company or its
Affiliates of high data rate (gigabit class) millimeter wave frequency, point to
point wireless communications equipment. The term shall also mean the provision
by Company or its Affiliates of intake, assessment and referral, case management
and network management services to governmental agencies and provider networks,
and any other business in which Company or its Affiliates were actually engaged
or planning to be engaged during the Term.
(j) Indemnification. Executive shall indemnify, defend and hold
harmless Company in respect of all liabilities, charges, damages, losses,
expenses, fees, and costs of any nature (including reasonable attorney's fees
and costs of litigation) that result from a failure by Executive to fully
perform or comply with any Covenant contained in this Section 8.
9. Miscellaneous.
(a) Indulgences, Etc. Neither the failure, nor any delay, on the
part of either party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same, or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
(b) Controlling Law; Consent to Arbitration; Service of Process.
(i) This Agreement and all questions relating to its validity,
interpretation, performance and enforcement (including, without limitation,
provisions concerning limitations of actions), shall be governed by and
construed in accordance with the laws of the State of Delaware (notwithstanding
any conflict-of-laws doctrines of such state or other jurisdiction to the
contrary), and without the aid of any canon, custom or rule of law requiring
construction against the draftsman.
(ii) Except to the extent provided for in Section 8 above
(relating to injunctive relief and other equitable remedies), Company and
Executive agree that any claim, dispute or controversy arising under or in
connection with this Agreement, or otherwise in connection with Executive's
employment by Company or termination of his employment (including, without
limitation, any such claim, dispute or controversy arising under any federal,
state or local statute, regulation or ordinance or any of Company's executive
benefit plans, policies or programs) shall be resolved solely and exclusively by
binding, confidential, arbitration. The arbitration shall be held in Chantilly,
Virginia (or at such other location as shall be mutually agreed by the parties).
9
The arbitration shall be conducted in accordance with the National Rules for the
Resolution of Employment Disputes (the "Rules") of the American Arbitration
Association ("the AAA") in effect at the time of the arbitration, except that
the arbitrator shall be selected by alternatively striking from a list of five
arbitrators supplied by the AAA. All fees and expenses of the arbitration,
including a transcript if either requests, shall be borne equally by the
parties, however, all costs for the services of the arbitrator shall be borne
solely by Company. Each party is responsible for the fees and expenses of its
own attorneys, experts, witnesses, and preparation and presentation of proofs
and post-hearing briefs (unless the party prevails on a claim for which
attorney's fees are recoverable under law). In rendering a decision, the
arbitrator shall apply all legal principles and standards that would govern if
the dispute were being heard in court. This includes the availability of all
remedies that the parties could obtain in court. In addition, all statutes of
limitation and defenses that would be applicable in court, will apply to the
arbitration proceeding. The decision of the arbitrator shall be set forth in
writing, and be binding and conclusive on all parties. Any action to enforce or
vacate the arbitrator's award shall be governed by the Federal Arbitration Act,
if applicable, and otherwise by applicable state law. If either Company or
Executive improperly pursues any claim, dispute or controversy against the other
in a proceeding other than the arbitration provided for herein, the responding
party shall be entitled to dismissal or injunctive relief regarding such action
and recovery of all costs, losses and attorney's fees related to such action.
(iii) Each of the parties hereto hereby consents to process
being served in any suit, action or proceeding of any nature, by the mailing of
a copy thereof by registered or certified first-class mail, postage prepaid,
return receipt requested, to them at their respective addresses set forth in
Section 9(c) hereof. Each of parties hereto hereby irrevocably waives, to the
fullest extent permitted by applicable law, all claims of error by reason of any
such service pursuant to the terms hereof (but does not waive any right to
assert lack of subject matter jurisdiction) and agrees that such service (A)
shall be deemed in every respect effective service of process in any such suit,
action or proceeding and (B) shall, to the fullest extent permitted by
applicable law, be taken and held to be valid personal service.
(iv) Nothing in this Section 9(b) shall affect the right of any
party hereto to serve process in any manner permitted by law or affect the right
of any party to bring proceedings against any other party in the courts of any
jurisdiction or jurisdictions.
(c) Notices. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made and received only when delivered
(personally, by courier service such as Federal Express, or by other messenger)
or when deposited in the United States mails, registered or certified mail,
postage prepaid, return receipt requested, addressed as set forth below:
(i) If to Executive:
Xxx X. Xxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
10
(ii) If to Company:
GigaBeam Corporation
00000-X Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Board of Directors
In addition, notice by mail shall be by air mail if posted outside of
the continental United States.
Any party may alter the addresses to which communications or copies are
to be sent by giving notice of such change of address in conformity with the
provisions of this Section for the giving of notice.
(d) Assignment of Agreement. The rights and obligations of both
parties under this Agreement shall inure to the benefit of and shall be binding
upon their heirs, successors and assigns. Company may assign or otherwise
transfer its rights under this Agreement, including but not limited to all
Covenants contained in Section 8 above, to any successor or affiliated business
or corporation whether by sale of stock, merger, consolidation, sale of assets
or otherwise. This Agreement may not, however, be assigned by Executive to a
third party, nor may Executive delegate his duties under this Agreement.
(e) Execution in Counterparts. This Agreement may be executed in any
number of counterparts, including by facsimile, each of which shall be deemed to
be an original as against any party whose signature appears thereon, and all of
which shall together constitute one and the same instrument. This Agreement
shall become binding when one or more counterparts hereof, individually or taken
together, shall bear the signatures of all of the parties reflected hereon as
the signatories.
(f) Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(g) Entire Agreement. This Agreement contains the entire
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings between the parties, inducements or conditions, express or
implied, oral or written, except as herein contained. The express terms hereof
control and supersede any course of performance and/or usage of the trade
inconsistent with any of the terms hereof. This Agreement may not be modified or
amended other than by an agreement in writing.
(h) Section Headings. The Section headings in this Agreement are for
convenience only; they form no part of this Agreement and shall not affect its
interpretation.
11
(i) Gender, Etc. Words used herein, regardless of the number and
gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context indicates is appropriate.
(j) Number of Days. In computing the number of days for purposes of
this Agreement, all days shall be counted, including Saturdays, Sundays and
holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sunday or holiday on which entities which are provincially regulated
are or may elect to be closed, then the final day shall be deemed to be the next
day which is not a Saturday, Sunday or such holiday.
(k) Costs, Expenses in the Event of Breach. In the event that either
Executive or Company breaches this Agreement, the non-breaching party shall be
entitled to reimbursement for all costs and expenses associated with enforcing
such non-breaching party's rights and remedies under this Agreement, including
but not limited to legal fees and costs of litigation.
[The remainder of this page is intentionally left blank]
12
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement, intending to be legally bound hereby, as of the date first above
written.
GIGABEAM CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Executive Officer and
Chairman of the Board
XXX X. XXXX
/s/ Xxx X. Xxxx
--------------------------------------------
[Signature Page to Employment Agreement of Xxx X. Xxxx]
13
