Exhibit 10.5 Employment Agreement of Xxxx Xxxxxx
EMPLOYMENT AGREEMENT
This AGREEMENT (the "Agreement") is made as of December 27, 2001 (the
"Effective Date"), by and between International Wireless, Inc., a Delaware
corporation with its headquarters located at 000 Xxxxxxxxxxxx Xxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx (the "Employer"), and Xxxx X. Xxxxxx (the "Executive") of
0 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000. In consideration of the mutual
covenants contained in this Agreement, the Employer and the Executive agree as
follows:
6. Employment. The Employer agrees to employ the Executive and the
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Executive agrees to be employed by the Employer on the terms and conditions set
forth in this Agreement.
7. Capacity. The Executive shall serve the Employer as the Treasurer
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and Corporate Controller for the Employer. In such capacity or capacities, the
Executive shall perform such services and duties in connection with the
business, affairs and operations of the Employer as assigned to the position of
Treasurer and Corporate Controller.
8. Term. Subject to the provisions of Section 6, the term of
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employment pursuant to this Agreement (the "Term") shall be three (3) years from
the Effective Date and shall be renewed automatically for periods of one (1)
year commencing at the third anniversary of the Effective Date and on each
subsequent anniversary thereafter unless either party terminates this agreement
as permitted herein.
9. Compensation and Benefits. The regular compensation and benefits
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payable to the Executive under this Agreement shall be as follows:
10. Salary. For all services rendered by the Executive under this
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Agreement, the Employer shall pay the Executive a salary (the "Salary") at an
initial annual rate of $60,000 ($5,000 per month), commencing January 15, 2002,
increasing to $67,500 ($5,625 per month) on August 1, 2002. Based on the company
meeting, or substantially meeting certain revenue goals laid out in the
quarterly forecast of the company, the Executive's salary shall further increase
to $80,000 ($6,666.67 per month) on January 15, 2003 and a further 4%
semi-annually thereafter. These goals will be agreed to by the Executive and the
Company prior to Feb 1, 2002. Should the Executive complete a Masters Degree in
Business Administration, Finance, Accounting or other business related field
during the Term, the Executive's salary shall immediately increase to $120,000
per year ($10,000 per month) and shall continue to increase upon the first
anniversary of this agreement a further 4%, semi-annually thereafter. The
Executive's salary is subject to further increases subject from time to time at
the discretion of the Board of Directors. The Salary shall be payable in
periodic installments in accordance with the Employer's usual practice for its
employees.
(a) Performance Bonus. The Executive shall be paid a performance
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bonus under terms outlined by the Executive Compensation Committee of
International Wireless, Inc., with a minimum annual bonus of 5% of the
Executive's average annual salary, to be paid at the end of each year.
(b) Commission. The Executive shall be paid a commission on all
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sales, revenue, mergers, acquisitions, asset sales/purchases, partnership
transactions or arrangements in which the Executive initiated, or substantially
effected a positive outcome, to the benefit of the Employer. The commission
shall be no less than half the total available commission being paid by the
Employer. In the case that such a transaction yields a recurring financial
benefit to the Employer, the Executive shall continue to receive the established
commission for the life of the transaction, regardless of the Executive's status
with the Employer, including, but not limited to, termination for any reason or
the expiration of this contract.
(b) Automobile Allowance. Starting on September 1, 2002, the
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Executive shall be entitled to a $400 per month automobile allowance for the
remaining term of his employment based on the company meeting, or substantially
meeting certain revenue goals laid out in the quarterly forecast of the company.
These goals will be agreed to by the Executive and the Company prior to Feb 1,
2002. This allowance shall continue regardless of the Executive's status with
the Employer, including, but not limited to, termination for any reason or the
expiration of this contract.
(c) Benefits. The Executive shall be entitled to participate in
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any employee benefit plans which the Employer may from time to time put in
effect for executives, provided that the Executive is eligible for such
benefits, including but not limited to short and long term disability plans,
retirement plans, and other group plans. The Executive shall receive fully paid
coverage of health and dental insurance, provided the Executive is eligible for
such benefits, life insurance equal to two (2) times annual salary, four (4)
weeks paid vacation, personal time and floating holidays, subject to the
approval of the Board of Directors. The Executive shall also be reimbursed for
all business related expenses in accordance with the Employer's policies. In
addition, educational expenses incurred by the Executive in the area of general
business administration, finance, or other business related fields, shall be
paid by the Employer and considered as professional development. The Employer
shall reimburse the Executive for all other educational expenses, up to the
maximum allowed by law, currently $4,000.00 per year. Such participation in
benefits shall be subject to applicable law.
(d) Taxation of Payments and Benefits. The Employer shall
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undertake to make deductions, withholdings and tax reports with respect to
payments and benefits under this Agreement to the extent that it reasonably and
in good faith believes that it is required to make such deductions, withholdings
and tax reports. Payments under this Agreement shall be in amounts net of any
such deductions or withholdings. Nothing in this Agreement shall be construed
to require the Employer to make any payments to compensate the Executive for any
adverse tax effect associated with any payments or benefits or for any deduction
or withholding from any payment or benefit.
6. Stock Options for the Executive. As part of the Executive's
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compensation throughout 2001, the Executive shall receive from the Employer
112,500 fully registered, qualified statutory stock options, at $0.46 per share,
contingent upon the Employer closing its Merger with Origin Investment Group,
Inc. (Appendix A) as of the Effective Date and in accordance with the Employer's
Stock Option Plan. These options shall vest quarterly in equal pro rata
installments over three (3) years, beginning March 31, 2002, but will be fully
vested upon an IPO, merger, acquisition, or sale of the Company, further than
those referenced above. This vesting schedule may be changed upon mutual
agreement of the Executive and the Board of Directors of the Employer.
Notwithstanding any other provision in this agreement or other agreements, the
vested options shall survive termination of this Agreement and shall remain
exercisable subject to the terms of the Stock Option Plan and the applicable
Stock Option Agreement. The Executive shall also receive additional incentive
Stock Options from time to time under the Employer's 2002 Stock Option Plan as
determined by the Board of Directors at their sole discretion.
6. Termination and Termination Benefits. Notwithstanding the
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provisions of Section 3, the Executive's employment under this Agreement shall
terminate under the following circumstances set forth in this Section 6. Unless
otherwise specifically provided in this Agreement or otherwise required by law,
all compensation and benefits payable to the Executive under Section 5 of this
Agreement shall terminate on the date of termination of the Executive's
employment under this Agreement, except as to wages, bonus and benefits accrued
through the date of termination.
(a) Termination by the Employer for Cause. The Executive's
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employment under this Agreement may be terminated for cause without further
liability on the part of the Employer effective immediately upon a vote of the
Board of Directors and written notice to the Executive. Only the following
shall constitute "cause" for such termination:
(i) the conviction of the Executive for a felony involving
moral turpitude, deceit, dishonesty or fraud;
(ii) gross negligence, willful misconduct or insubordination
of the Executive with respect to the Employer or any affiliate of the Employer ,
which the Executive fails to cure within thirty (30) days of receiving a notice
from the Employer of such gross negligence, willful misconduct or
insubordination.
(b) Termination by the Executive. The Executive, may terminate
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the Executive's employment under this Agreement, by written notice to the Board
of Directors, at any time and without penalty to the Executive.
(c) Termination by the Employer Without Cause. Subject to the
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payment of Termination Benefits pursuant to Section 6(d), the Executive's
employment under this Agreement may be terminated by the Employer without cause
upon written notice to the Executive by a vote of the Board of Directors.
(d) Certain Termination Benefits. Notwithstanding the foregoing,
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in the event of termination of the Executive's employment with the Employer
pursuant to Section 6(c) above, or Section 6(f) below, the Employer shall
provide to the Executive (or to the Executive's estate, if applicable) the
following termination benefits ("Termination Benefits"):
(i) vesting of 100% of all stock options, and payment to the
Executive of a sum equal to six month's salary at the rate in effect under
Section 4(a) and paid in a lump sum, on the last effective date of employment of
the Executive; and
(iv) continuation of group health plan benefits to the extent
authorized by and consistent with 29 U.S.C. Sec. 1161 et seq. (commonly known as
"COBRA"), with the cost of the regular premium for such benefits shared in the
same relative proportion by the Employer and the Executive as in effect on the
date of termination.
(v) If the business entity known as International Wireless,
Inc. is sold either in whole or in part or otherwise disposed of, the Executive
shall be entitled to a cash payment equal to four (4) times the Executive's base
salary on the effective date of the transaction
Notwithstanding the foregoing, nothing in this Section 6(d) shall be construed
to affect the Executive's right to receive COBRA continuation entirely at the
Executive's own cost to the extent that the Executive may continue to be
entitled under law to COBRA continuation after the Executive's right to cost
sharing under Section 6(d)(ii) ceases.
(e) Death or Disability. If the Executive shall die, the Employer
shall pay the Executive's estate an amount equal to the Executive's full Salary
that would have been payable for a period of time equal to six (6) months from
the time of death or disability. If the Executive shall be disabled so as to be
unable to perform the essential functions of the Executive's then existing
position or positions under this Agreement with reasonable accommodation as
reasonably determined by the Board of Directors, the Board of Directors may
remove the Executive from any responsibilities and/or reassign the Executive to
another position with the Employer for the remainder of the Term or during the
period of such disability. Notwithstanding any such removal or reassignment,
the Executive shall continue to receive the Executive's full Salary (less any
disability pay or sick pay benefits to which the Executive may be entitled under
the Employer's policies) and benefits under Section 4 of this Agreement (except
to the extent that the Executive may be ineligible for one or more such benefits
under applicable plan terms) for a period of time equal to the remainder of the
Term. Nothing in this Section 6(e) shall be construed to waive the Executive's
rights, if any, under existing law including, without limitation, the Family and
Medical Leave Act of 1993, 29 U.S.C. Sec.2601 et seq. and the Americans with
Disabilities Act, 00 X.X.X. Xxx.00000 et seq.
(f) Termination Following a Corporate Transaction. If, within one
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(1) year following a Corporate Transaction described in Section 6(f)(i), the
Executive's employment is terminated by the Employer (or its successor) or the
Executive as a result of the occurrence of any of the Changes in Circumstances
listed in Section 6(f)(ii), the Employer (or its successor) shall provide to the
Executive (or the Executive's estate, if applicable) the Termination Benefits
pursuant to Section 6(d) above.
(i) Corporate Transaction shall mean the occurrence of one or
more of the following events:
(A) the closing of a merger or consolidation of the
Employer with any other corporation or other entity, other than (1) a merger or
consolidation which would result in the voting securities of the Employer
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than fifty percent (50%) of the combined voting power of
the voting securities of the Employer or such surviving entity outstanding
immediately after such merger or consolidation or (2) a merger or consolidation
effected to implement a recapitalization of the Employer (or similar
transaction) in which no "person" (as hereinabove defined) acquires more than
fifty percent (50%) of the combined voting power of the Employer's then
outstanding securities; or
(B) the closing of a plan of complete liquidation of
the Employer or the closing of the sale or disposition by the Employer of all or
substantially all of the Employer's assets.
(ii) It shall be a "Change in Circumstances" referred to in
Section 6(f) above if any one of the following occurs and is not cured by the
Employer (or its successor) within thirty (30) days of notice by the Executive:
(A) a reduction of the Executive's salary; or
(B) a significant change in the Executive's
responsibilities and/or duties which constitutes, when compared to the
Executive's responsibilities and/or duties before the Change of Control; or
(C) a material loss of title or office, which term shall
include without limitation the failure of the Board of Directors to elect the
Executive to the positions listed in Section 2; or
(D) the relocation of the offices at which the Executive
is principally employed as of the Corporate Transaction to a location more than
thirty (30) miles from such offices, which relocation is not approved by the
Executive.
7. Confidential Information, Noncompetition and Cooperation.
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(a) Definitions. For purposes of this Section 7, the following
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terms shall have the following meanings:
(i) "Confidential Information" means information belonging to
the Employer whether reduced to writing (or in a form from which such
information can be obtained, translated, or derived into reasonably usable
form), or maintained in any other manner, which derives independent economic
value from not being readily known to or ascertainable by proper means by others
who can obtain economic value from the disclosure or use of such information,
including without limitation, financial information, reports, and forecasts;
inventions, improvements and other intellectual property; trade secrets;
know-how; designs, processes or formulae; software; market or sales information
or plans; customer lists; and business plans, prospects and opportunities (such
as possible acquisitions or dispositions of businesses or facilities) which have
been discussed or considered by the management of the Employer. Confidential
Information also includes information developed by the Executive in the course
of the Executive's employment by the Employer. Confidential Information also
includes the confidential information of others with which the Employer has a
business relationship. Notwithstanding the foregoing, Confidential Information
does not include information (A) of which the Executive presently has knowledge
or which is in the Executive's possession on the date hereof and of which he did
not learn through its contact with the Employer previous to the date hereof; (B)
which is presently publicly available or a matter of public knowledge generally
or becomes publicly known through no wrongful act of the Executive; (C) which is
lawfully received by the Executive from a third party who is or was not bound in
any confidential relationship to the Employer; (D) disclosure of which is
necessary to comply with law or the valid order or requirement of a governmental
agency or court of competent jurisdiction; or (E) which is disclosed by the
Employer to a third party without similar restrictions regarding further
disclosures.
(ii) "Inventions and Developments" means any and all
inventions, developments, creative works and useful ideas of any description
whatsoever, whether or not patentable, including without limitation, discoveries
and improvements which consist of or relate to any form of Confidential
Information.
(iii) "Employer-Related Inventions and Developments" means
all Inventions and Developments which relate at the time of conception or
development to the actual or demonstrably anticipated business or research and
development activities of the Employer, and either (A) result from or relate to
any work performed for the Employer, whether or not during normal business
hours; (B) are developed on Employer work time; or (C) are developed through the
use of Confidential Information, or the Employer's equipment, software, or other
facilities or resources. Notwithstanding any other provision of this Agreement,
specifically excluded from this Agreement are Inventions and Developments and
Businesses conceived or managed by the Executive or specifically related to
Atlantic Ventures Management, Young Technology Fund, L.P., Young Technology Fund
II, L.P., Young Management Group, L.P., Standard MEMS, Inc., or TeleHubLink,
Inc.
(iv) "Business" means business endeavors that the Employer
currently engages in or may commence or prepare to commence during the Term.
(v) "Restricted Term" means the Term including any and all
renewals thereof and the period ending five (5) business days following the
termination of the Executive's employment with the Employer, regardless of
reason.
(b) Confidentiality. The Executive understands and agrees that
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the Executive's employment creates a relationship of confidence and trust
between the Executive and the Employer with respect to all Confidential
Information. At all times, both during the Executive's employment with the
Employer and after its termination, the Executive will keep in confidence and
trust all such Confidential Information, and will not use or disclose any such
Confidential Information without the written consent of the Employer, except as
may be necessary in the ordinary course of performing the Executive's duties to
the Employer. In the event that the Executive is ordered by a court or tribunal
or otherwise subpoenaed to provide testimony, information, documents or things
that could include Confidential Information, the Executive agrees that he shall
make reasonable efforts to give prompt notice of such order to the Employer.
(c) Documents, Records, etc. All documents, records, data,
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apparatus, equipment and other physical property, whether or not pertaining to
Confidential Information, which are furnished to the Executive by the Employer
or are produced by the Executive in connection with the Executive's employment
will be and remain the sole property of the Employer. The Executive will return
to the Employer all such materials and property as and when requested by the
Employer,. In any event, the Executive will return all such materials and
property immediately upon termination of the Executive's employment for any
reason, with the exception of the Executive's personal computer, provided by the
Employer . The Executive will not retain with the Executive any such material or
property or any copies thereof after such termination.
(d) Assignment of Inventions and Developments. The Executive
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agrees that all Employer-Related Inventions and Developments which he conceives
or develops, in whole or in part, either alone or jointly with others, during
the term of his employment with the Employer will be the sole property of the
Employer. The Employer will be the sole owner of all patents, trademarks,
copyrights and other proprietary rights in and with respect to such
Employer-Related Inventions and Developments. To the fullest extent permitted
by law, such Employer-Related Inventions and Developments will be deemed works
made for hire. The Executive hereby transfers and assigns to the Employer any
proprietary rights which he may have or acquire in any such Employer-Related
Inventions and Developments, and he waives any other special rights which he may
have or accrue therein. The Executive agrees to execute any documents and take
any actions that may be required to effect and confirm such transfer, assignment
and waiver. The provisions of this Section 7(d) will apply to all
Employer-Related Inventions and Developments which are conceived or developed by
the Executive during the term of his employment with the Employer, whether or
not further development or reduction to practice may take place after
termination of his employment.
The Executive agrees promptly to disclose to the Employer, or to persons
designated by it, all Employer-Related Inventions and Developments which are or
may be subject to the provisions of this Section 7(d).
The Executive further agrees to assist the Employer, at the Employer's
request from time to time and at its expense, to obtain and enforce patents,
trademarks, copyrights or other proprietary rights with respect to
Employer-Related Inventions and Developments in any and all countries. The
Executive will execute all documents reasonably necessary or appropriate for
this purpose. This obligation will survive the termination of the Executive's
employment, provided that the Employer will compensate him at a reasonable rate
after such termination for time actually spent by the Executive at the
Employer's request on such assistance. In the event the Employer is unable,
after reasonable effort, to secure the Executive's signature on any letters
patent, copyright or other analogous protection relating to an Invention,
whether because of his physical or mental incapacity or for any other reason
whatsoever, the Executive hereby irrevocably designates and appoints the
Employer and its duly authorized officers and agents as his agent and
attorney-in-fact, to act for and in his behalf and stead to execute and file any
such application or applications and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent, copyright or other
analogous protection thereon with the same legal force and effect as if executed
by the Executive. This power of attorney shall survive any termination of this
Agreement.
(e) Noncompetition and Nonsolicitation. During the Restricted
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Term, the Executive (i) will not, directly or indirectly, whether as owner,
partner, shareholder, consultant, agent, employee, co-venturer or otherwise,
engage, participate, assist or invest in any Competing Business (as hereinafter
defined); (ii) will refrain from directly or indirectly employing, attempting to
employ, recruiting or otherwise soliciting, inducing or influencing any employee
of the Employer to leave employment with the Employer (other than terminations
of employment of subordinate employees undertaken in the course of the
Executive's employment with the Employer); and (iii) will refrain from
soliciting or encouraging any customer or supplier to terminate or otherwise
modify adversely its business relationship with the Employer. The Executive
understands that the restrictions set forth in this Section 7(e) are intended to
protect the Employer's interest in its Confidential Information and established
employee, customer and supplier relationships and goodwill, and agrees that such
restrictions are reasonable and appropriate for this purpose. For purposes of
this Agreement, the term "Competing Business" shall mean a business conducted
anywhere in the United States which is competitive with any business which the
Employer conducts, or which to the Executive's knowledge the Employer has
specifically contemplated, at any time during the employment of the Executive.
(f) Third-Party Agreements and Rights. The Executive hereby
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confirms that, to his knowledge, the Executive is not bound by the terms of any
agreement with any previous employer or other party which restricts in any way
the Executive's use or disclosure of information or the Executive's engagement
in Mitigo's stated business. The Executive represents to the Employer that the
Executive's execution of this Agreement, the Executive's employment with the
Employer and the performance of the Executive's proposed duties for the Employer
will not, to his knowledge, violate any obligations the Executive may have to
any such previous employer or other party subject to restrictions. In the
Executive's work for the Employer, the Executive will not disclose or make use
of any information in violation of any agreements with or rights of any such
previous employer or other party, and the Executive will not bring to the
premises of the Employer any copies or other tangible embodiments of non-public
information belonging to or obtained from any such previous employment or other
party.
(g) Litigation and Regulatory Cooperation. The Executive shall
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cooperate fully with the Employer in the defense or prosecution of any claims or
actions now in existence or which may be brought in the future against or on
behalf of the Employer which relate to events or occurrences that transpires
while the Executive was employed by the Employer. The Executive's full
cooperation in connection with such claims or actions shall include, but not be
limited to, being available to meet with counsel to prepare for discovery or
trial and to act as a witness on behalf of the Employer at mutually convenient
times. During the Executive's employment, the Executive also shall cooperate
fully with the Employer in connection with any investigation or review of any
federal, state or local regulatory authority as any such investigation or review
relates to events or occurrences that transpires while the Executive is employed
by the Employer. This obligation will survive the termination of the Executive's
employment, provided that the Employer will compensate him at a reasonable rate
after such termination for time actually spent by the Executive at the
Employer's request on such assistance.
(h) Injunction. The Executive agrees that it would be difficult
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to measure any damages caused to the Employer which might result from any breach
by the Executive of the promises set forth in this Section 7, and that in any
event money damages would be an inadequate remedy for any such breach.
Accordingly, subject to Section 9 of this Agreement, the Executive agrees that
if the Executive breaches, or proposes to breach, any portion of this Agreement,
the Employer shall be entitled, in addition to all other remedies that it may
have, to an injunction or other appropriate equitable relief to restrain any
such breach without showing or proving any actual damage to the Employer.
8. Arbitration of Disputes. Any controversy or claim arising out of
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or relating to this Agreement or the breach thereof or otherwise arising out of
the Executive's employment or the termination of that employment (including,
without limitation, any claims of unlawful employment discrimination whether
based on age or otherwise) shall, to the fullest extent permitted by law, be
settled by arbitration in any forum and form agreed upon by the parties or, in
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the absence of such an agreement, under the auspices of the American Arbitration
Association ("AAA") in Boston, Massachusetts in accordance with the Employment
Dispute Resolution Rules of the AAA, including, but not limited to, the rules
and procedures applicable to the selection of arbitrators. In the event that
any person or entity other than the Executive or the Employer may be a party
with regard to any such controversy or claim, such controversy or claim shall be
submitted to arbitration subject to such other person or entity's agreement.
Judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. This Section 8 shall be specifically enforceable.
Notwithstanding the foregoing, this Section 8 shall not preclude either party
from pursuing a court action for the sole purpose of obtaining a temporary
restraining order or a preliminary injunction in circumstances in which such
relief is appropriate; provided that any other relief shall be pursued through
an arbitration proceeding pursuant to this Section 8 .
9. Consent to Jurisdiction. To the extent that any court action is
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permitted consistent with or to enforce Section 8 of this Agreement, the
parties hereby consent to the jurisdiction of the Superior Court of the
Commonwealth of Massachusetts and the United States District Court for the
District of Massachusetts. Accordingly, with respect to any such court action,
the Executive (a) submits to the personal jurisdiction of such courts; (b)
consents to service of process; and (c) waives any other requirement (whether
imposed by statute, rule of court, or otherwise) with respect to personal
jurisdiction or service of process.
10. Integration. This Agreement constitutes the entire agreement
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between the parties with respect to the subject matter hereof and supersedes all
prior representations, understandings or agreements, whether written or oral,
between the parties with respect to any related subject matter.
11. Assignment; Successors and Assigns, etc. Neither the Employer nor
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the Executive may make any assignment of this Agreement or any interest herein,
by operation of law or otherwise, without the prior written consent of the other
party; provided that the Employer may assign its rights under this Agreement
without the consent of the Executive in the event that the Employer shall effect
a reorganization, consolidate with or merge into any other corporation,
partnership, organization or other entity, or transfer all or substantially all
of its properties or assets to any other corporation, partnership, organization
or other entity. This Agreement shall inure to the benefit of and be binding
upon the Employer and the Executive, their respective successors, executors,
administrators, heirs and permitted assigns.
12. Enforceability. If any portion or provision of this Agreement
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(including, without limitation, any portion or provision of any section of this
Agreement) shall to any extent be declared illegal or unenforceable by a court
of competent jurisdiction, then the remainder of this Agreement, or the
application of such portion or provision in circumstances other than those as to
which it is so declared illegal or unenforceable, shall not be affected thereby,
and each portion and provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
13. Waiver. No waiver of any provision hereof shall be effective
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unless made in writing and signed by the waiving party. The failure of any
party to require the performance of any term or obligation of this Agreement, or
the waiver by any party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
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14. Notices. Any notices, requests, demands and other communications
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provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by a nationally recognized overnight courier service or by
registered or certified mail, postage prepaid, return receipt requested, to the
Executive at the last address the Executive has filed in writing with the
Employer or, in the case of the Employer, at its main offices, attention of the
Chief Executive Officer, and shall be effective on the date of delivery in
person or by courier or three (3) days after the date mailed.
15. Amendment. This Agreement may be amended or modified only by a
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written instrument signed by the Executive and by a duly authorized
representative of the Employer.
16. Governing Law. This is a Massachusetts contract and shall be
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construed under and be governed in all respects by the laws of the Commonwealth
of Massachusetts, without giving effect to the conflict of laws principles of
such Commonwealth. With respect to any disputes concerning federal law, such
disputes shall be determined in accordance with the law as it would be
interpreted and applied by the United States Court of Appeals for the First
Circuit.
17. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which when so executed and delivered shall be taken to be
an original; but such counterparts shall together constitute one and the same
document
IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument
by the Employer, by its duly authorized Treasurer, and by members of the Board
of Directors, and by the Executive, as of the Effective Date.
EMPLOYER: International Wireless, Inc.
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By:
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Name: Xxxxxxx X. Xxxxx
Title: Chairman and CEO
EXECUTIVE:
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By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Treasurer and Corporate Controller
BOARD MEMBERS:
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By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Chairman and CEO
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: President and Chief Operating Officer
Xxxx X. Xxxxxx Employment Agreement:
Schedule A
Performance Bonus Terms and Conditions:
Performance Bonus
Up to 50% of base salary based on the Company meeting certain revenue targets.
Revenue targets will be set annually and mutually agreed upon by the Board and
the Employee in writing and attached as an addendum to this employment
agreement.
Bonus is payable quarterly based on reaching milestones as follows:
Q1 5% of cumulative total revenue goal
Q2 20% of cumulative total revenue goal
Q3 50% of cumulative total revenue goal
Q4 100% of cumulative total revenue goal
Revenues must reach at least 60% of revenue goal each quarter to qualify for
bonus.
Revenue Qualification
70% of target revenues = 60% of quarterly bonus paid
80% of target revenues = 70% of quarterly bonus paid
90% of target revenues = 80% of quarterly bonus paid
100% of target revenues =100% of quarterly bonus paid
Yearly Revenue Target Exceeded
If yearly revenue target is exceeded, performance bonus percentage will increase
to match the percentage of revenue exceeded. For example, if the Company
realizes 110% of projected revenue, the Employee performance bonus would equal
50% of base salary as figured above, plus an additional 10% of base salary. All
such additional bonus amounts would be paid to the Employee within 30 days after
the end of the International Wireless, Inc. fiscal year.
