Exhibit 10.11
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of June
1,2002 (the "Effective Date") between Xxxxxxx X. Xxxxxx ("Employee") and Winncom
Technologies Corp., a Maryland corporation (the "Company"). For purposes of this
Agreement, each of Employee and the Company is individually referred to as a
"Party", and Employee and the Company are referred to collectively as the
"Parties".
Recital
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The Company desires to retain the services of Employee and Employee has
offered to provide services to the Company pursuant to the terms of this
Agreement.
Agreement
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In consideration of the premises and of the mutual covenants included in
this Agreement, the Parties agree as follows:
1. Services. The Company retains Employee, and Employee shall perform
services for the Company as set forth in this Agreement on behalf of the Company
for the period and under the terms and conditions set forth in this Agreement.
2. Term. This Agreement shall be for a two and one half year period
commencing on the Effective Date, subject, however, to review and termination as
provided herein.
3. Duties. Employee shall perform the following services for the Company:
3.1 Employee shall serve as President and Chief Executive Officer of
the Company, or in such other position as determined by the Company's Board
Of Directors (the "Board"), subject to the direction of the Board, and in
that capacity shall work with the Company to pursue the Company's plans as
directed by the Board. "). In the event the Board directs Employee to act
in a different capacity other than as the Chief Executive Officer will
effect a non-cause termination of this Agreement and Employee shall be
entitled to receive severance equal to the balance due Employee per the
terms of this Agreement.
3.2 During the term of this Agreement, Employee shall devote all of
Employee's business time to the performance of Employee's duties under this
Agreement. Without limiting the foregoing, Employee shall perform services
on behalf of the Company for at least 40 hours per week and Employee shall
be available at the request of the Company at other times, including
weekends and holidays, to meet the needs and requests of the Company's
customers. Other than through a change in control, acquisition,
consolidation, reorganization or merger, in the event the Board directs
Employee to act in a capacity different than as the Chief Executive Officer
of the Company the employee will have thirty days from the effective date
of such directed new capacity to effect a non-cause termination of this
Agreement. If Employee elects to effect a non-cause termination of this
Agreement pursuant to the terms hereof, Employee shall be entitled to
receive severance equal to the balance due Employee per the terms of this
Agreement payable on a biweekly basis over the remaining term of this
Agreement.
3.3 During the term of this Agreement, Employee will not engage in any
other activities or undertake any other commitments that conflict with or
take priority over Employee's responsibilities and obligations to the
Company and the Company's customers, including without limitation those
responsibilities and obligations incurred pursuant to this Agreement.
3.4 As an officer of the Company, Employee shall have the right to
review all intercompany charges.
4. Compensation. The Company shall pay Employee for the performance of
services pursuant to this Agreement as follows:
4.1 Commencing as of the Effective Date and continuing until December
31, 2004, the Company shall pay Employee for the performance of services
pursuant to this Agreement a salary at an annual rate of $300,000 (the
"Base Salary").
4.2 The Company shall pay the Employee a bonus for the period from
January 1, 2002 through December 31, 2002 and for the periods January 1,
2003 through December 31, 2003, and January 1, 2004 through December 31,
2004 (the "Bonus") if the Employee meets the criteria set forth in Exhibit
A attached hereto for the respective periods. The amount of the Bonus shall
be as set forth in Exhibit A for each set of criteria set forth in Exhibit
A. The Bonus paid under this Section 4.2 shall not be payable until the
completion of the annual audit by the Company's designated auditors but
shall be payable within 60 days after the completion of the audit of
Antennas America, Inc. (the "Parent"), for the respective fiscal years
pursuant to this Agreement
4.3 Any payments that the Company is required to make to the 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 tax and other laws or regulations, and
(ii) such amounts as Employee may owe to the Company at any time and from
time to time.
5. Reimbursement Of Expenses. Employee shall be reimbursed for reasonable
expenses incurred on behalf of the Company in the performance of Employee's
duties and services pursuant to this Agreement. Employee shall provide the
Company with a written invoice containing a detailed description of expenses
incurred not later than the 30th day following the calendar month in which the
expenses were incurred on behalf of the Company. The Company shall pay this
invoice within 30 days of its receipt.
6. Additional Benefits:
6.1. Employee shall be entitled to take reasonable amounts of paid
time off for vacation and other personal reasons.
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 including an
Executive Physical performed by an independent medical doctor selected by
Employee.
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7. Termination.
7.1 Employee may terminate this Agreement at any time without further
liability or obligation hereunder if the Company has breached a material
provision of this Agreement or the Company has otherwise materially
breached any other obligation to Employee, such termination to be effected
by Employee's giving the Company written notice of termination, including a
description of the specific breach or breaches that are the basis for that
termination, at least 30 days prior to the date for termination and the
Company's failure to cure the breach prior to the date set for termination
in that notice.
7.2 At the option of the Company, this Agreement may be terminated for
cause, with such termination to be effected by the Company's giving
Employee written notice of termination, including the specific "cause" or
"causes" upon which the Company is basing its notice of termination and
steps necessary to cure the breach. Notice shall be given at least 30 days
prior to the date for termination except for (iii)(A) and (B) defined
below. The term "for cause" shall include termination of employment as a
result of any of the following: (i) a breach by Employee of a material
provision of this Agreement; or (ii) a breach by Employee of any other
material obligation of Employee to the Company; or (iii) 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) breached the Employee's fiduciary duty
to the Company. With respect to any breach for which a termination notice
is given, except for a breach pursuant to Section 6.2 (iii)(A) or
6.2(iii)(B), to the extent the Company believes the breach can be cured in
a manner that the Company believes it would be in the Company's interest
for the Employee to remain employed pursuant to this Agreement, the
Company's notice of termination shall state the manner in which it believes
the Employee should cure the breach.
7.3 The Company may terminate this Agreement for any reason by giving
30 days' written notice of termination at any time after this Agreement has
been in effect for at least six months, which notice shall include a
commitment to pay Employee's compensation in accordance with terms of this
Agreement that would be payable during the remaining term of this Agreement
at the times provided for in this Agreement It is further understood that
in the event the Agreement is terminated per this Section 7.3. that any
other outstanding amounts owing to Employee by Company as of the date of
termination shall be paid in full to Employee no later than 60 days from
the date of termination.
7.4 In the event Employee's employment terminates, for any reason,
Employee agrees to return to the Company all Company documents (and all
copies thereof), any other Company property in Employee's possession or
control, and any materials of any kind that contain or embody any
proprietary or confidential material of the Company. In addition, all
unaccrued salary obligations of the Company to Employee shall cease as of
the date of termination except as otherwise expressed herein.
8. Representations And Warranties.
8.1. The Company represents and warrants to Employee as follows: (i)
the Company has been duly formed as a corporation under the laws of the
State of Maryland; and (ii) the execution of this Agreement has been duly
authorized by the Company and does not require the consent of or notice to
any party not previously obtained or given.
8.2. Employee represents and warrants to the Company that the
execution of this Agreement and the performance of Employee's obligations
hereunder do not require the consent of or notice to any party not
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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.
9. Covenants. Each of Employee and the Company covenants to diligently and
skillfully do and perform the acts and duties required herein.
10. Miscellaneous.
10.1.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.
10.2. Notice. All notices, requests, demands, directions and other
communications ("Notices") concerning this Agreement shall be in writing
and shall be mailed or sent by telecopier or facsimile to the applicable
Party at the address of such Party set forth below in this Section 9.2.
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 sent by telecopier or facsimile, each such Notice shall be
effective on the day on which it is 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. When sent by telecopier, Notice shall
be supplemented by overnight courier; provided that failure to send by
overnight courier shall not cause a Notice by telecopier to be considered
invalid. Each such Notice shall be addressed to the Party to be notified as
shown below:
The Company: Winncom Technologies Corp.
c/o Xxxxxxx X. Xxxx
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxx 00000-0000
Facsimile No. (000) 000-0000
Employee: Xxxxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxx
Xxxxx, Xxxx 00000
Facsimile No. (000) 000-0000
Either Party may change its address for purposes of this Section 10.2
by giving the other Party written notice of the new address in the manner
set forth above.
10.3.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 becomes
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.
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10.4 Non-Assignability. It is understood that this Agreement has been
entered into personally by the Parties. Neither Party shall have the right
to assign, transfer, commute, encumber or dispose of any duties, rights or
payments due hereunder, which duties, rights and payments with respect
hereto, are expressly declared to be non-assignable and non-transferable,
being based upon the personal services of Employee, and any attempted
assignment or transfer shall be null and void and without binding effect on
either Party; provided, however, that the Company may assign this Agreement
to any affiliate or to any entity into which it merges or with which it
becomes consolidated.
10.5.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.
10.6.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.
10.7.Headings. The headings in this Agreement are for convenience
only; they form no part of this Agreement and shall not affect its
interpretation.
IN WITNESS WHEREOF, this Agreement is executed on the dates set forth below
to be effective as of the Effective Date.
EMPLOYEE:
Date: August 1, 2002
/X/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, individually
WINNCOM TECHNOLOGIES CORP.
Date: August 1, 2002
By: /X/ Xxxxxxx X. Xxxx
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Chief Executive Officer
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Exhibit A
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Bonus Criteria
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January 1, 2002 - December 31, 2002
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Revenues Earnings (EBIDTA) Bonus
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$20.0 million and higher $900,000 and higher $90,000
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$20.0 million and higher $700,000 and higher $70,000
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$20.0 million and higher $500,000 and higher $60,000
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$19.0 million and higher $250,000 and higher $50,000
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January 1, 2003 - December 31, 2003
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Revenues Earnings (EBIDTA) Bonus
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$25.0 million and higher $2.5 million and higher $250,000
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$25.0 million and higher $1 million and higher $100,000
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$25.0 million and higher $500,000 and higher $50,000
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$23.0 million and higher $250,000 and higher $25,000
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January 1, 2004 - December 31, 2004
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Revenues Earnings (EBIDTA) Bonus
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$30.0 million and higher $3.0 million and higher $300,000
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$30.0 million and higher $2.0 million and higher $200,000
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$30.0 million and higher $1.0 million and higher $100,000
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$30.0 million and higher $500,000 and higher $50,000
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Note: EBIDTA is calculated before expensing the Bonus provided for in this
Agreement.
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