EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into this 1st day of
November, 2007 ("Effective Date") between Xxxxx Xxxxx ("Employee") and ARC
Wireless Communications, Inc. a Utah Corporation ("ARC" or the "Company"). For
purposes of this Agreement, each of the Employee and the Company is individually
referred to as a "Party", and Employee and Company are referred to collectively
as the "Parties".
RECITAL
Company desires to retain the services of Employee and Employee has offered to
provide services to Company pursuant to the terms of this Agreement.
AGREEMENT
In consideration of the premises and of the mutual covenants included in this
Agreement, the Parties agree as follows:
1. Services: Company retains Employee and Employee shall perform services
for Company as set forth in this Agreement on behalf of Company for the period
and under the terms and conditions set forth in this Agreement.
2. Term: This Agreement shall be for a period commencing on the Effective
Date and terminating on December 31, 2011 (the "Term"); subject, however, to
review and termination during the Term as provided herein. If the employment
relationship does not continue beyond the Term, Employee agrees to reasonably
cooperate with Company and with respect to the transition of the new management
in the operations previously performed by Employee.
3. Duties: Employee shall perform the following services for Company:
3.1 Employee shall serve as President and Chief Technical Officer of ARC
Wireless Communications Solutions Division (the "Division"), a division of the
Company and in that capacity shall work with Company to pursue Company's plans
as directed by ARC's CEO or Board of Directors (the "Board").
3.2 During the Term, Employee shall devote all of Employee's business
time to the performance of Employee's duties under this Agreement.
4. Compensation: Company shall pay Employee for the performance of services
pursuant to this Agreement as follows:
4.1 Company shall pay Employee for the performance of services pursuant
to this Agreement a salary at the annual rate as detailed in Exhibit "A" of this
Agreement, payable in at least bi-weekly installments.
4.2 Employee shall also be eligible to receive a Bonus occurring during
each year of Employee's employment with Company, as detailed in Exhibit "B" of
this Agreement.
4.3 Any payments that Company is required to make to Employee pursuant
to this Agreement shall be reduced by (i) such amounts as are required to be
withheld with respect to those amounts under and for the purposes of any of the
applicable taxes and other laws or regulations, and (ii) such amounts as
Employee may owe to Company at any time and from time to time.
4.4 Employee shall be eligible for participation in any present or
future pension or retirement plan of Company of which other Officers of Company
are generally eligible. It is understood, however, that entitlements that may
accrue to Employee pursuant to such arrangements may differ from those that
accrue to other employees, such differences being based on the discretion of the
Board.
5. Reimbursement of Expenses: Employee shall be reimbursed for reasonable
expenses incurred on behalf of Company in the performance of Employee's duties
and services pursuant to this Agreement. Employee shall provide Company with an
expense report containing a detailed description of expenses incurred by the
60th day following the calendar month in which the expenses were incurred on
behalf of Company. The description of expenses shall contain such information as
may be required in order to permit such reimbursements as proper deductions to
Company under the Internal Revenue Code, as amended, and the rules and
regulations adopted pursuant thereto and in effect at that time. Company shall
pay this invoice within 30 days of its receipt.
6. Additional Benefits:
6.1 Employee shall be entitled to reasonable time off for vacation and
other personal matters.
6.2 Employee and his family, if any, shall be entitled to receive such
benefits under medical insurance plans, life and disability insurance and
otherwise, as are offered to all other officers of Company.
7. Termination:
7.1 Company may terminate this Agreement at any time For Cause, with
such termination to be effected by the Company's giving Employee written notice
of termination. The term "For Cause" shall include termination of employment as
a result of any of the following: (i) a material breach of this Agreement by
Employee; or (ii) as a result of a determination by the Board, acting
reasonably, that the Employee has (A) committed a criminal act or an act
constituting moral turpitude, or (B) committed any fraudulent act, or (C)
through actions or inaction, caused, or such action or inaction is reasonably
likely to cause, material loss to the Division and/or the Company.
7.2 Company may terminate this Agreement immediately by Company's giving
written notice of termination to Employee and by Company's paying Employee's
compensation in accordance with the terms of this Agreement for a period
beginning on the date of termination and ending one year after the date of
termination, irrespective of the date of the end of the Term of this Agreement.
It is further understood that in the event the Agreement is terminated per this
Paragraph 7.2 that Employee's health insurance will be paid for one year, and
any other outstanding amounts owing to Employee by Company shall be paid no
later than 60 days from the date of termination. Severance payments shall be
conditioned upon Employee signing a standard separation agreement including an
agreement not to xxx the Company for other amounts.
7.3 The Employee may terminate his employment hereunder for "Good
Reason," such termination to be effected at least 90 days prior to the date for
termination and Company's failing to cure the breach prior to the date set for
termination in that notice. The following shall constitute Good Reason for
termination by the Employee:
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7.3.1 Material diminution in the nature or scope of the Employee's
responsibilities, duties or authority;
7.3.2 Failure of the Company to continue to employ the Employee in
the positions of Chief Technology Officer or President of the Division;
7.3.3 Material breach by the Company in its obligations to provide
the Employee the compensation and benefits in accordance with the terms of
Paragraph 4 hereof;
7.3.4 A material reduction in employee benefits; or
7.3.5 The transfer of Employee's place of work to a location more
than twenty (20) miles from Employee's current home address of 0000 Xxxx 0xx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx.
Xx the event of the termination by the Employee for Good Reason, the Company
agrees to: (i) pay the Employee a Severance in bi-weekly installments of one
year salary; (ii) earned unpaid salary, expense reimbursement and accrued
vacation, (iii) if the Employee is eligible for, and chooses to elect, health
insurance continuation in accordance with COBRA, pay the premium payments for
the Employee and his dependents under COBRA for a period of one year, subject to
any Employee contribution applicable to the Employee on the date of termination.
7.4 This Agreement shall terminate upon the death of Employee or if
Employee becomes permanently disabled. Employee shall be considered permanently
disabled if, and on the date on which, Employee has been unable to perform a
substantial and material portion of Employee's duties hereunder, for a period of
90 continuous days, because of sickness, injury, or disability, as determined by
a majority vote of the Board.
7.5 In the event Employee's employment is terminated, then all unaccrued
salary obligations of Company to Employee shall cease as of the date of
termination except as otherwise expressed herein.
8. Corporate Data and Information: Employee and Company are concurrently
entering into a Proprietary Information and Inventions Agreement.
9. Alternative Dispute Resolution: Employee agrees that any and all
disputes that Employee has with Company, or any of Company's employees, which
arise out of Employee's employment or under the terms of this Agreement shall be
resolved through final and binding arbitration, as specified herein. This shall
include, without limitation, disputes relating to this Agreement, Employee's
employment with Company or the termination thereof, claims for breach of
contract or breach of the covenant of good faith and fair dealing, and any
claims of discrimination or other claims under any federal, state or local law
or regulation now in existence or hereinafter enacted and as amended from time
to time concerning in any way the subject of Employee's employment with Company
or its termination. The only claims not covered by this Paragraph 9, are wage
claims, claims for benefits under the workers' compensation laws or claims for
unemployment insurance benefits, which will be resolved pursuant to those laws.
Binding arbitration will be conducted in the City and County of Denver, Colorado
in accordance with the rules and regulations of the American Arbitration
Association Employment Dispute Resolution Rules. Each Party will split the cost
of the arbitration filing and hearing fees, and the cost of the arbitrator. The
arbitrator also will determine whether each Party will pay its own attorneys'
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fees or whether one Party will pay all or part of the other Party's attorneys'
fees. Employee understands and agrees that the arbitration shall be instead of
any civil litigation and that the arbitrator's decision shall be final and
binding to the fullest extent permitted by law and enforceable by any court
having jurisdiction thereof. Employee further represents that he is making a
voluntary and knowing waiver of his right to pursue any and all
employment-related claims in court.
10. Non-Compete: Employee acknowledges and recognizes the highly
competitive nature of Company's business and that Employee's duties hereunder
justify reasonably restricting Employee's future employment activities following
any termination of employment with Company. Employee agrees that while Employee
is employed with Company, and for a period of two years following termination of
employment with Company, Employee will not, in any manner, use, disclose, or
reveal any proprietary or trade secret information regarding Company that is not
already available to the public.
11. Representations and Warranties:
11.1 Company represents and warrants to Employee as follows: (i) ARC has
been duly formed as a corporation under the laws of the State of Utah; and (ii)
the execution of this Agreement has been duly authorized by Company and does not
require the consent of or notice to any party not previously obtained or given.
11.2 Employee represents and warrants to Company that the execution of
this Agreement and the performance of Employee's obligations hereunder does not
require the consent of or notice to any party not previously obtained or given,
and there is nothing that prohibits or restricts the execution by Employee of
this Agreement or his performance of the obligations hereunder.
12. Covenants: Each of Employee and Company covenants to diligently and
skillfully do and perform the acts and duties required herein.
13. Miscellaneous:
13.1 Entire Agreement: This Agreement constitutes the entire agreement
between the Parties with respect to the subject matter of this Agreement and
supersedes all prior and contemporaneous agreements between the Parties with
respect to the subject matter of this Agreement.
13.2 Notice: All notices, requests, demands, directions and other
communications ("Notices") concerning this Agreement shall be in writing and
shall be mailed or delivered personally or sent by telecopier or facsimile to
the applicable Party at the address of such Party set forth below in this
Paragraph 13.2. When mailed, each such Notice shall be sent by first class,
certified mail, return receipt requested, enclosed in a postage prepaid wrapper,
and shall be effective on the fifth business day after it has been deposited in
the mail. When delivered personally, each such Notice shall be effective when
delivered to the address for the respective Party set forth in this Paragraph
13.2. When sent by telecopier or facsimile, each such Notice shall be effective
on the day on which it was sent provided that it is sent on a business day and
further provided that it is sent prior to 5:00 p.m., local time of the Party to
whom the Notice is being sent, on that business day; otherwise, each such Notice
shall be effective on the first business day occurring after the Notice is sent.
Each such Notice shall be addressed to the Party to be notified as shown below:
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To Company: ARC Wireless Communications, Inc.
00000 X. 00xx Xxx.
Xxxxx Xxxxx, Xxxxxxxx 00000
Attn: CEO
Attn: CFO
To Employee: Xxxxx Xxxxx
0000 X. 0xx Xxx.
Xxxxxxxxxx, XX 00000
Either Party may change its address for purposes of this Paragraph 13.2, by
giving the other Party written Notice of the new address in the manner set forth
above.
13.3 Severability: Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, and if any provision of this Agreement shall be or become
prohibited or invalid in whole or in part for any reason whatsoever, that
provision shall be ineffective only to the extent of such prohibition or
invalidity without invalidating the remaining portion of that provision or the
remaining provisions of this Agreement.
13.4 Non-waiver: The waiver of either Party of a breach or violation of
any provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach or violation of any provision of this Agreement.
13.5 Amendment: No amendment or modification of this Agreement shall be
deemed effective unless and until it has been executed in writing by the Parties
to this Agreement. No term or condition of this Agreement shall be deemed to
have been waived, nor shall there be any estoppel to enforce any provision of
this Agreement, except by a written instrument that has been executed by the
Party charged with such waiver or estoppel.
13.6 Inurement: This Agreement shall be binding upon, and inure to the
benefit of, Employee and Company, and their respective heirs, successors and
assigns. Notwithstanding the foregoing, this Agreement shall not be assignable
by either Party. There are no third party beneficiaries to this Agreement.
13.7 Headings: The headings in this Agreement are for convenience only;
they form no part of this Agreement and shall not affect its interpretation.
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IN WITNESS WHEREOF, this Agreement is executed on the date(s) set forth
below to be effective as of the Effective Date
EMPLOYEE:
Date: November 1, 2007 /s/ Xxxxx Xxxxx
------------------
Xxxxx Xxxxx
ARC WIRELESS SOLUTIONS, INC.
Date: November 7, 2007 By: /s/ Xxxxxxx X. Xxxx
------------------------
Xxxxxxx X. Xxxx
CEO
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EXHIBIT "A"
Calendar Year Salary
--------------------
2007 $200,000
2008 $215,000
2009 $225,000
2010 $235,000
2011 $245,000
EXHIBIT "B"
Bonus
Bonus is paid to Employee for the net income (as determined by generally
accepted accounting principles as consistently applied by the Company) of the
Division, which shall also include net income of the Hong Kong subsidiary of the
Company attributable to sales by the Antennas Division of the Company. Bonus is
to be paid after completion of annual audit.
Net Income Bonus
---------- -----
$250,000-$499,999 $5,000
$500,000-$749,999 $10,000
$750,000-$999,999 $30,000
$1,000,000-$1,499,999 $50,000
$1,500,000-$1,999,999 $75,000
$2,000,000 and higher $100,000
ARC WIRELESS SOLUTIONS, INC.
PROPRIETARY INFORMATION AND INVENTION AGREEMENT
This Agreement is made between ARC Wireless Solutions, Inc., a Utah corporation
(the "Company"), and Xxxxx Xxxxx.
In consideration of my employment or my continued employment by the
Company, I agree as follows:
I. PROPRIETARY INFORMATION
A. Company Information.
1. I agree at all times during the term of my employment and thereafter
to hold in strictest confidence, and not to use, except for the benefit of the
Company, or to disclose to any person, firm or corporation, without the written
authorization of the Board of Directors of the Company, any trade secrets,
confidential knowledge, data or other proprietary information of the Company. By
way of illustration and not limitation, this shall include information relating
to services, products, processes, know-how, designs, formulae, source code,
methods, samples, developmental or experimental work, improvements, discoveries,
plans for research and new products, plans for marketing and selling, business
plans, budgets and unpublished financial statements, licenses, prices and costs,
suppliers and customers, and information regarding the skills and compensation
of other employees of the Company. Notwithstanding the foregoing, it is
understood that, at all such times, I am free to use information which is
generally known in the trade or industry, which is not gained as a result of a
breach of this Agreement, and my own skill, knowledge, know-how and experience
to whatever extent and in whichever way I wish.
2. I agree that all files, letters, memoranda, reports, records, data,
sketches, drawings, laboratory notebooks, program listings, or other written,
electronic, photographic, or other tangible material containing Proprietary
Information, whether created by the Employee or others, which shall come into my
custody or possession, shall be and are the exclusive property of the Company to
be used by me only in the performance of my duties for the Company. All such
materials or copies thereof and all tangible property of the Company in my
custody or possession shall be delivered to the Company, upon the earlier of (i)
a request by the Company or (ii) the termination of my employment. After such
delivery, I shall not retain any such materials or copies thereof or any such
tangible property.
B. Former Employer Information. I agree that I will not, during my
employment with the Company, improperly use or disclose any proprietary
information or trade secrets of my former or concurrent employers or companies,
if any, and that I will not bring onto the premises of the Company any
unpublished documents or any property belonging to my former or concurrent
employers or companies unless previously and specifically consented to in
writing by the particular employer or company.
C. Third Party Information. I recognize that the Company has received and
in the future will receive confidential or proprietary information from third
parties subject to a duty on the Company's part to maintain the confidentiality
of such information and, in some cases, to use it only for certain limited
purposes. I agree that I owe the Company and such third parties, both during the
term of my employment and thereafter, a duty to hold all such confidential or
proprietary information in the strictest confidence and not to, except as is
consistent with the Company's agreement with the third party, disclose it to any
person, firm or corporation or use it for the benefit of anyone other than the
Company or such third party, unless expressly authorized to act otherwise by an
officer of the Company.
II. ASSIGNMENT OF INVENTIONS AND ORIGINAL WORKS
A. Inventions and Original Works Assigned to the Company. I agree that I
will make prompt written disclosure to the Company, will hold in trust for the
sole right and benefit of the Company, and hereby assign to the Company all my
right, title and interest in and to any ideas, inventions, original works of
authorship, developments, improvements or trade secrets (i) which I may solely
or jointly conceive or reduce to practice, or cause to be conceived or reduced
to practice, during the period of my employment with the Company, (ii) which I
previously solely or jointly conceived or reduced to practice as a result of any
work performed by me as an employee of or consultant to the Company, (iii) or
which I previously developed at any time after I first served as an employee of
or consultant to the Company, using the Company's, supplies, facilities, trade
secrets or inventions. I recognize that, in the event of a specifically
applicable state law, regulation, rule or public policy ("Specific Inventions
Law"), this Agreement will not be deemed to require assignment of any invention
which qualifies fully for protection under a Specific Inventions Law by virtue
of the fact that any such invention was, for example, developed entirely on my
own time without using the Company's equipment, supplies, facilities or trade
secrets and neither related to the Company's actual or anticipated business,
research or development, nor resulted from work performed by me for the Company.
In the absence of a Specific Inventions Law, the preceding sentence will not
apply. This Agreement does not require me to assign or offer to assign to the
Company any invention that I developed entirely on my own time without using the
Company's equipment, supplies, facilities or trade secret information except for
those inventions that either: (i) relate at the time of conception or reduction
to practice of the invention to the Company's business, or actual or
demonstrably anticipated research or development of the Company; or (ii) result
from any work performed by me for the Company ("Excepted Information").
B. Works Made for Hire. I acknowledge that all original works of authorship
which are or were made by me (solely or jointly with others) within the scope of
my employment or my consulting arrangements with the Company and which are
protectable by copyright are "works made for hire," as that term is defined in
the United States Copyright Act (17 U.S.C., Section 101).
C. Inventions and Original Works Assigned to the United States. I hereby
assign to the United States government all my right, title and interest in and
to any and all inventions, original works of authorship, developments,
improvements or trade secrets whenever full title to same is required to be in
the United States by a contract between the Company and the United States or any
of its agencies.
D. Obtaining Letters Patent, Copyright Registrations and Other Protections.
1. While employed by the Company, I will assist the Company in every
proper way to obtain and enforce United States and foreign proprietary rights
relating to any and all inventions, original works of authorship, developments,
improvements or trade secrets of the Company in any and all countries. To that
end I will execute, verify and deliver (A) such documents and perform such other
acts (including appearing as a witness) as the Company may reasonably request
for use in applying for, obtaining, perfecting, evidencing, sustaining and
enforcing such proprietary rights and the assignment thereof and (B) assignments
of such proprietary rights to the Company or its designee.
2. My obligation to assist the Company with respect to proprietary
rights in any and all countries shall not continue beyond the termination of my
employment, but the Company may request my services. If my services, which will
not be unreasonably withheld, are provided, the Company shall compensate me at a
reasonable rate for the time actually spent by me at the Company's request on
such assistance.
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E. Obligation to Keep the Company Informed. In addition to my obligations
under paragraph 2(b) above, during the period of my employment, I will preserve
the confidentiality of any invention that does not qualify fully for protection
under a Specific Inventions Law. I agree to keep and maintain adequate records
(in the form of notes, sketches, or drawings or in any other form that may be
required by the Company) of all proprietary information developed by me and all
inventions made by me during the period of my employment at the Company, which
records shall be available to and remain the sole property of the Company at all
times.
III. NO CONFLICTING OBLIGATIONS
I represent that my performance of all the terms of this Agreement and as
an employee of the Company does not and will not breach any agreement or
obligation of mine relating to any time prior to my employment by the Company. I
have not entered into, and I agree I will not enter into, any agreement either
written or oral in conflict with this Agreement or my employment.
IV. RETURN OF COMPANY DOCUMENTS
When I leave the employ of the Company, I will deliver to the Company (and
will not keep in my possession, recreate or deliver to anyone else) any and all
devices, records, data, notes, reports, proposals, lists, correspondence,
specifications, drawings, blueprints, sketches, materials, equipment, other
documents or property, together with all copies thereof (in whatever medium
recorded) belonging to the Company, its successors or assigns whether kept at
the Company, home or elsewhere. I further agree that any property situated on
the Company's premises and owned by the Company, including disks and other
storage media, filing cabinets or other work areas, is subject to inspection by
Company personnel at any time with or without notice.
V. LEGAL AND EQUITABLE REMEDIES
Because my services are personal and unique and because I may have access
to and become acquainted with the proprietary information of the Company, the
Company shall have the right to enforce this Agreement and any of its provisions
by injunction, specific performance or other equitable relief, without bond and
without prejudice to any other rights and remedies that the Company may have for
a breach of this Agreement.
VI. GENERAL PROVISIONS
A. Not an Employment Contract. I agree and understand that nothing in this
Agreement shall confer any right with respect to continuation of my employment
by the Company, nor shall it interfere in any way with my right or the Company's
right to terminate my employment at any time, with or without cause.
B. Governing Law; Consent to Personal Jurisdiction. This Agreement will be
governed by and construed according to the laws of the State of Colorado,
excluding conflicts of laws principles. I hereby expressly consent to the
personal jurisdiction of the state courts located in Denver, Colorado and the
federal courts located in Denver, Colorado for any lawsuit filed there against
me by the Company arising from or relating to this Agreement.
C. Entire Agreement. This Agreement sets forth the final, complete and
exclusive agreement and understanding between the Company and me relating to the
subject matter hereof and supersedes all prior and contemporaneous
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understandings and agreements relating to its subject matter. No modification of
or amendment to this Agreement, nor any waiver of any rights under this
Agreement, will be effective unless in writing with a specific reference to this
Agreement and signed by both the Company and me.
D. Severability. If one or more of the provisions in this Agreement are
deemed unenforceable by law, then the remaining provisions will continue in full
force and effect.
E. Survival. The provisions of this Agreement shall survive the termination
of my employment and the assignment of this Agreement by the Company to any
successor in interest or other assignee.
F. Waiver. No waiver by the Company of any breach of this Agreement shall
be a waiver of any preceding or succeeding breach. No waiver by the Company of
any right under this Agreement shall be construed as a waiver of any other
right. The Company shall not be required to give notice to enforce strict
adherence to all terms of this Agreement.
G. Notice. All notices required or permitted hereunder shall be given to
the appropriate party at the address specified below or at such other address as
the party shall specify in writing. Such notice shall be deemed given upon
personal delivery or, if sent by certified or registered mail, postage prepaid,
five (5) days after the date of mailing.
This Agreement shall be effective as of the first day of the term of my
employment pursuant to the Employment Agreement with the Company, namely:
November 1, 2007,
I UNDERSTAND THAT THIS AGREEMENT AFFECTS MY RIGHTS TO INVENTIONS I MAKE
DURING MY EMPLOYMENT WITH THE COMPANY, AND RESTRICTS MY RIGHT TO DISCLOSE OR USE
THE COMPANY'S PROPRIETARY INFORMATION DURING OR SUBSEQUENT TO MY EMPLOYMENT WITH
THE COMPANY.
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I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE
COMPLETELY FILLED OUT EXHIBIT A TO THIS AGREEMENT.
Date: November 1, 2007 /s/ Xxxxx Xxxxx
-------------------------------
Signature
Xxxxx Xxxxx
[Printed Name]
--------------------------------
Address
ACCEPTED AND AGREED TO:
ARC WIRELESS SOLUTIONS, INC.
By: /s/ Xxxxxxx X. Xxxx
--------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Executive Officer
00000 X. 00xx Xxx.
Xxxxx Xxxxx, XX 00000
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