Exhibit 10.10
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EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of July 1, 2000
("Effective Date") between Xxxxx X. Xxxxxx ("Employee") and Antennas America,
Inc. a Utah Corporation ("Company"). For purposes of this Agreement, each of
Employee and 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 an initial period of three years
("Term") commencing on the Effective Date and terminating on June 30, 2003
subject, however, to review and termination during the Term as provided herein.
The Parties agree to negotiate in good faith the continuation of the employment
relationship of Employee with Company following the Term upon such terms as the
Parties may agree; provided however, that in the event that either Party does
not desire to continue the employment relationship beyond the Term, that Party
shall deliver notice to the other Party of that intention on or before 90 days
prior to the expiration of the Term and the Parties shall not be obligated to
negotiate the continuation of the employment relationship. If the employment
relationship does not continue beyond the Term, Employee agrees to cooperate
with Company and Company's new management 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 Chief Executive Officer and
Treasurer of Company and in that capacity shall work with Company to pursue
Company's plans as directed by Company's Board of Directors (the "Board"). In
the event the Board directs Employee to act in a different capacity other than
as Chief Executive Officer, Employee shall have the option to terminate this
Agreement per the terms of Section 7.1. of this Agreement.
3.2. During the Term, 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 be on Company's premises
performing services on behalf of Company or traveling on behalf of Company on a
full time basis and Employee shall be available at the request of Company at
other times, including weekends and holidays, to meet the needs of Company's
business.
3.3. During the Term, 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 Company and
Company's business, including without limitation those responsibilities and
obligations incurred pursuant to 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 of $250,000, payable in
at least bi-weekly installments.
4.2. Employee shall also receive an annual incentive bonus equal
to five percent of EBITDA with a guaranteed minimum of $150,000 if EBITDA is at
least $1. For the year 2000, the guaranteed minimum incentive bonus will be
equal to the pro-rated portion of the $150,000 calculated using the Effective
Date. In subsequent years the incentive bonus shall be determined according to
the audited year-end financial statements of Company and shall be payable on or
before 10 business day after the filing by Company with the SEC of Company's
Annual Report on Form 10-KSB or Form I0-K, or the successor such Form, with
respect to that fiscal year.
4.3. Employee shall also receive Stock Options to purchase
8,400,000 shares of Company common stock, the exercise price of which will be
equal to the weighted average trading price on the Effective Date, which will
also be employee's first day of employment, and the term of the options will be
five years from the Effective Date. On the employee's first anniversary date,
2,800,000 of the options will become exercisable with an expiration date four
years from the first anniversary date; on the Employee's second anniversary date
2,800,000 of options will be come exercisable with an expiration date three
years from the second anniversary date; and on the Employee's third anniversary
date 2, 800,000 options will become exercisable with the expiration date two
years from the third anniversary date. However, if the Company is acquired or
has a change of control, as defined in Section 7.4. below, or if Employee's
employment with Company is terminated without cause, or due to death or
disability, all remaining unexercisable options will become exercisable
immediately on the date any of these events occurs. Any options that have become
exercisable as the result of any of the triggering events described above in
this Section 4.3., will expire on the fifth anniversary of the Effective Date.
Per IRS Code and per Company's 1997 Stock Option and Compensation Plan, some of
the 8,400,000 options can be classified as Qualified Options and the remainder
must be classified as Non-Qualified Options. The specific number of options
classified as Qualified Options will be determined after the exercise price of
the options has been calculated as described above in this Section 4.3. Per IRS
Code, the maximum number of Qualified Options that can be granted to an Employee
in each calendar year is equal to $100,000 divided by the exercise price for
those options.
4.3.1. In the event that Employee terminates his employment
with Company voluntarily prior to the third anniversary of the Effective Date or
if Employee's employment is terminated for cause by the Board of Directors, any
unexercised options will expire 90 calendar days from the Employee's termination
date per this Section 4.3.1., and any remaining unexercisable options will
expire on the Employee's termination date per this Section 4.3.1.
4.4. 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 tax and other laws or regulations, and (ii) such amounts as
Employee may owe to Company at any time and from time to time.
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4.5. Employee shall be eligible for participation in any present
or future pension or retirement plan of Company of which other employees 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 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 provided to all other managers or directors of
Company.
7. Termination:
7.1. Employee may terminate this Agreement at any time without
further liability or obligation hereunder if Company has breached a material
provision of this Agreement or Company has otherwise materially breached any
other obligation to Employee, 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.
7.2. 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 reasonable;, 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.
7.3. Within the first twenty four months of the effective date of
this Agreement, Company may terminate this Agreement immediately by Company's
giving written notice of termination to Employee by the Company's paying
Employee a severance, in twelve equal monthly installments, of $400,000. After
twenty four months Company may terminate this Agreement by giving written notice
of termination to Employee and by the Company's paying Employee's compensation
of in accordance with the terms of this Agreement for a period beginning on the
date of termination and ending on the earlier to occur of 90 days after the date
of termination and the end of the Term of this Agreement in accordance with
Section 2. of this Agreement. It is further understood that in the event the
Agreement is terminated per this Paragraph 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.
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7.4. At the option of either Party, this Agreement may be
terminated within six months after the date of a "Change in Control" of Company,
as defined below, by giving 90 days' prior written notice of termination to
Employee. A Change in Control shall mean the sale, liquidation, dissolution,
consolidation, merger or other business combination of or involving Company,
which consolidation , merger or other business combination results in persons
and/or entities, other than shareholders of Company immediately prior to the
transaction, owning a majority of Company's outstanding common stock, or the
change in ownership of more than 50 percent of Company, or the transfer of all
or substantially all of Company's assets.
7.5. 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.
7.6. 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 understands that Employee
has access to certain information concerning Company and its business that is
provided solely in connection with Employee's employment with Company. Any other
use of this information at any time during or after the term of this Agreement
is prohibited. Further, Employee understands that Company is a publicly traded
company and it is important for Company to protect the rights of its
shareholders. Employee understands that applicable federal securities laws
impose significant restrictions concerning the use or disclosure of certain
non-public information in general and in buying or selling, or disclosing with
others the possibility of buying or selling Company's stock by persons who have
access to material information concerning Company which is not generally
available to members of the general public. Employee understands that Employee
is subject to the restrictions. During and after Employee's employment, Employee
agrees that Employee will not at any time disclose, to any person or entity for
any reasons or purpose whatsoever, nor use for Employee's own personal benefit
or the benefit of any person or entity, any information concerning the financial
or business or other operations of the company that is not publicly known,
provided that this restriction shall not apply to information required to be
disclosed under applicable laws, regulation, court order or subpoena to which
Employee is subject. Upon the termination of the Employee's employment under
this Agreement for any reason, the Employee hereby agrees to return to Company
all data and information relating to the business of Company or any of its
subsidiaries or affiliates that Employee obtained during or prior to the time of
Employee's employment. It is expressly agreed that the terms and conditions of
this Section 8. shall apply after any termination, whether voluntary or
involuntary, of Employee's employment under this 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 limitations, 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 Section 9. are wage
claims, claims for benefits under the worker's compensation laws or claims for
unemployment insurance benefits, which will be resolved pursuant to those laws.
Binding arbitration will be conducted in either Arapahoe, Denver or Jefferson
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County, 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' fees or whether one Party will pay all or part of the other
Party's attorney's 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 reasonable restricting Employee's future employment 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 (a) induce customers, agents or other
sources of distribution of Company's business to reduce, alter or divert
business with or from Company; (b) reveal any proprietary information regarding
Company, or (c) manage, support, consult or work on any project which is
intended to directly compete with a Company product which was completed or in
development during Employee's period of employment with Company.
11. Representations and Warranties:
11.1. Company represents and warrants to Employee as follows: (i
) Company 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 nor
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
Section 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 is 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 Section
13.2. When sent by telecopier or facsimile, each such Notice shall be effective
on the day on which it was sent provided that 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
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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:
To Company: Antennas America, Inc.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxx 00000
To Employee: Xxxxx X. Xxxxxx
000 Xxxxx Xxxxx Xxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
Either Party may change its address for purposes of this Section 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 by 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 is
interpretation.
IN WITNESS WHEREOF, this Agreement is executed on the date(s) set
forth below to be effective as of the Effective Date.
EMPLOYEE:
7-30-00 /s/ Xxxxx X. Xxxxxx
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Date Xxxxx X. Xxxxxx
ANTENNAS AMERICA, INC.
June 30, 2000 /s/ Xxxxxxx X. Xxxx
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Date Xxxxxxx X. Xxxx
Chief Executive Officer
