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Exhibit 10.17
AGREEMENT OF EMPLOYMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), as of April 9, 2000 by and among
INDEPENDENT WIRELESS ONE CORPORATION, a Delaware Corporation ("IWO"), IWO
Holdings Inc., a Delaware Corporation ("Holdings" and together with IWO the
"Corporation") and, XXXXXX X. XXXXXXX, residing at 0000 Xxxxx Xxxxxxxx Xxxx, XX,
Xxxxxxxx, Xxxxxxxxxx 00000, hereinafter called the ("Employee").
RECITALS
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WHEREAS, the Corporation desires to induce and secure the employment of the
Employee as Chief Financial Officer and Employee desires to be so employed by
the Corporation, beginning as of May 1, 2000. ("Effective Date")
AGREEMENTS
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1. Employment and Term. Subject to the provisions for earlier termination
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and extension as hereinafter provided in Paragraph 7 below, the Corporation
hereby employs the Employee and the Employee agrees to serve the Corporation for
a term commencing upon the Effective Date and extending until December 31, 2002.
2. Duties of Employee.
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(a) The Employee shall serve as Chief Financial Officer of the
Corporation, and of any subsidiary or affiliated corporation if elected by the
appropriate Board of Directors, and shall perform such duties as are appropriate
to such office and not inconsistent therewith as may be assigned to him by the
Chief Executive Officer of the Corporation.
(b) So long as this Agreement shall continue in effect, the Employee
shall devote substantially his full business time and energies to
the business and affairs of the Corporation, and to any
subsidiary or affiliate of the Corporation as directed by the
Corporation, and use his best efforts, skills and abilities to
promote its interests.
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3. Compensation.
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(a) Basic Salary. The Corporation will pay the Employee during the
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term hereof for all services to be rendered hereunder a basic salary at the rate
of two hundred thousand dollars ($200,000) per annum from the Effective Date
through December 31, 2000; two hundred five thousand dollars ($205,000) per
annum from January 1, 2001 through December 31, 2001; and two hundred ten
thousand dollars ($210,000) per annum from January 1, 2002 to December 31, 2002.
The foregoing basic salary shall be paid in such regular installments as are
applied generally to salary period payments to other employees of the
Corporation, but in no event less than twice monthly.
(b) Cash Bonus Compensation. As an added inducement for the Employee
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to use his best efforts to enhance the business of the Corporation, the
Corporation shall pay to the Employee, as additional compensation hereunder, an
annual cash bonus in the following amount and subject to the following terms and
conditions:
(i) for and in respect of each fiscal year (or partial fiscal
year) of the Corporation during the term of Employee's
employment by the Corporation whether or not such employment
is under this Agreement or any extension hereof, commencing
with the portion of the fiscal year beginning January 1,
2000, which succeeds the Effective Date hereof, amounts,
payable as provided below, equal to up to 100% of the basic
compensation ("Annual Bonus") described in subparagraph (a)
above. Such bonus shall be payable pro rata to Employee to
the extent, and only to the extent, that business plan
targets (including by way of example only, such targets as
Earnings Before Interest, Taxes, Depreciation and
Amortization ("EBITDA"), revenue, and/or target service
levels) and individual management performance targets (as
both such business plan and individual performance targets
have been developed by the Corporation's Chief Executive
Officer and Board of Directors in consultation with Employee
and issued within forty-five (45) days after the commencement
of the relevant fiscal year of the Corporation (or portion
thereof) have been exceeded or met by at least 75% of target
with respect to the relevant fiscal year (or portion of the
relevant fiscal year) of the Corporation and not to exceed
100% of the Annual Bonus; and
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(ii) Employee must be employed full-time on the last day of the
applicable period for which the cash bonus is paid to
receive the bonus.
(c) Other Emoluments and Benefits. The Employee shall be entitled to
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participate in all rights and benefits for which he shall be eligible under any
stock option plan, bonus, participation or extra compensation plans, pensions,
dental, vision, life, and disability group insurance or other benefits which the
Corporation may provide for its executive employees generally from time to time
during the term of this Agreement. Employee shall also be entitled to:
(i) A computer and appropriate peripherals, a wireless
telephone (tolls and charges paid), leased vehicle for
business use, an allowance of three hundred dollars
($300.00) per month during the period prior to availability
of such leased vehicle to defray the costs of the use of an
automobile for business purposes only; and
(ii) For the period extending from the Effective Date until the
earlier of the date Employee acquires a new residence in the
vicinity of Albany, New York, or one hundred twenty (120)
days after the date hereof, the Corporation will lease on
Employee's behalf an executive residential quarters at a
cost no greater than One-Thousand Five Hundred Dollars
($1,500.00) per month.
(iii) Relocation money of approximately $100,000 pursuant to the
Relocation and Expense Agreement entered into by the
Employee and the Corporation as of the date hereof. Such
Agreement is incorporated herein as Exhibit A.
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(d) Vacation. Employee shall be entitled annually to 248 hours of
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time-off from the Employee Paid Time Off Pool as such computation is customarily
administered by the Corporation. Time-off not used during the calendar year or
partial calendar year in which earned may be carried forward to subsequent
calendar years or partial calendar years ("Carry Forward Time"). However,
Employee may not carry over more than 40 hours of Carry Forward Time in any one
year and may not aggregate more than 160 hours of Carry Forward Time in total.
All time off is subject to approval by the CEO and in no event shall annual
vacation exceed 4 weeks.
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(e) Stock Incentive Plan. In addition to the basic compensation and
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cash bonus compensation provided herein, Employee shall be entitled during the
term of his employment to participate in the Management Stock Incentive Plan of
the Corporation, dated as of December 20, 1999, and pursuant thereto has been
granted certain options pursuant to a Stock Option Agreement entered into
between the Employee and the Corporation as of the date hereof. Such Agreement
is incorporated herein as Exhibit B.
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4. Expenses. The Corporation shall provide Employee with a
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Corporate credit card, and further shall pay or reimburse the Employee for all
reasonable traveling and other expenses incurred or paid by the Employee in
connection with the performance of his services under this Agreement upon
presentation of expense statements or vouchers and any such other supporting
information in such form as the Corporation may from time to time request;
provided, however, that the amount available for such traveling and other
expenses shall be consistent with general corporate policy guidelines
established by the Corporation.
5. Payment. Expenses, benefits and allowances due Employee
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hereunder shall be paid not later than thirty (30) days following Employee's
entitlement to same, which, in the case of expenses, shall commence with the
Employee's request for reimbursement. Employee bonuses shall be paid within
forty-five (45) days following year end.
6. Restrictive Covenants. In consideration of payment to Employee
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of the compensation specified in Paragraph 3 above, Employee hereby covenants
and agrees as follows:
(a) Employee shall treat either as trade secrets or as confidential or
as proprietary information of the Corporation (i) any data or information
acquired during the course of or as a result of his employment, which is not
otherwise available to Employee except by reason of his employment, including
but not limited to such items as reports or findings from tests, investigative
studies, consultations or the like, methodology, proposals, systems, programs or
marketing techniques, and strategies developed by but not generally released by
the Corporation or peculiar to the business of any customer or client of the
Corporation and all particularized information relating thereto; (ii) names or
lists of the Corporation's clients or information, data or services
made available to such clients not made public by the Corporation and non-public
information relating to the operating methods or plans or requirements of any
customer or client of the Corporation; and (iii) any other data or information
designated either by the Corporation or by any of its customers or clients as
confidential or proprietary.
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(b) All improvements, discoveries, programs, process, innovations, and
inventions, and inventions conceived (whether or not deemed patentable),
devised, made, developed or perfected by Employee during any period of his
employment by the Corporation or any period prior to the effective date hereof
during which Employee was in the service of any entity acquired by the
Corporation or any period prior to the effective date hereof during which
Employee was in the service of any entity acquired by the Corporation and
related in any material way to the business, including development and research
of the Corporation, shall be fully and promptly disclosed to the Corporation and
the same shall be the sole and absolute property of the Corporation. Upon
request of the Corporation, the Employee will execute all documents reasonably
deemed appropriate by the Corporation to secure the foregoing rights and for
obtaining the grants of patents, both domestic and foreign, with respect to such
improvements, discoveries, programs, processes, innovations or inventions and
for vesting title to such patents in the Corporation provided, however, that
Employee shall not be required to incur any costs or legal expenses in
conjunction with the compliance of any such request.
(c) Employee agrees to refrain, except as properly required in the
business of the Corporation, or as authorized in writing by the Corporation, (i)
from using for Employee's own benefit any matters to be treated as trade secrets
or as confidential or proprietary information under Paragraph (a) above; (ii)
from using these matters for the benefit of any other person, firm or
corporation; (iii) from disclosing these matters to any other person, firm or
corporation; and (iv) from authorizing or permitting such disclosure during the
term of his employment or thereafter.
(d) Employee agrees to surrender to the Corporation at any time upon
request and in any event upon termination of employment, except as the
Corporation may otherwise consent in writing, all written documents, sketches,
records or information whether copyrighted or patented or not, or any copies of
imitations thereof, whether made by Employee or not, which embody or contain or
describe in any way those matters to be treated as trade secrets or as
confidential or proprietary information under Paragraph (a) above. The
Corporation shall not unreasonably withhold authorization for Employee to retain
any matters covered by this Paragraph 6, the continued possession of which by
Employee will not, in the Corporation's sole but reasonable, opinion, be
detrimental to the best interest of the Corporation.
(e) Employee agrees, during the term of his employment and for a period
of two (2) years after the termination thereof, whether such termination be
voluntary or not, that the Employee will not, except at the direction of the
Corporation, either directly or indirectly, for himself as a proprietor,
principal partner, director, officer, employee, agent or other representative
acquire or attempt to acquire the business then conducted by the Corporation
with any customer of the Corporation under any contracts existing or proposals
submitted on or before the date of termination of his employment.
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The term "Customer of the Corporation" for purposes hereof shall mean
any individual or entity which is the ultimate user or recipient of the
Corporation's (or any subsidiary of the Corporation) services and products
whether the same be made available directly to such entity or through an
intermediate purchaser of such services and products.
(f) Employee agrees to refrain, during the term of his employment and
for one (1) year thereafter, from hiring or offering to hire, except with the
written permission of the Corporation, any employee of the Corporation or from
enticing away or in any other manner persuading or attempting to persuade any
employee of the Corporation to discontinue his relationship with the
Corporation, provided, however, that nothing herein shall prohibit Employee from
hiring or offering to hire, any employee of the Corporation where the initial
hiring inquiry was solely initiated by any such employee or a third party
without the direction from Employee.
(g) No provision of this paragraph 6 is intended to limit Employee's
right to use or disclose information which is in the public domain or a matter
of common knowledge, or which is generally known in the industry, or acquired by
him from a third party not prohibited from making such disclosure to him, or
which information was already known to Employee other than by breach of this
Agreement; nor is it intended to limit the Employee's obligation to comply with
lawful subpoenas or other lawful process.
(h) No act or failure to act shall be a waiver of any right conveyed
hereunder, except an express waiver in writing. The rights reserved to the
Corporation under this Paragraph 6 of this Agreement are necessarily of a
special, unique, unusual and extraordinary character, which gives them a
peculiar value, the loss of which cannot reasonably or adequately be compensated
for in damages in an action at law, and the breach by Employee of any of the
provisions in this Paragraph 6 will cause the Corporation irreparable injury.
Therefore, in addition to any other available remedies, the Corporation shall be
entitled to an injunction to restrain any violation of this Agreement by
Employee, his agents, servants or employees and all persons, firms, or
corporations acting for or with him. The obligations of the Employee under the
covenants herein contained shall not cease upon termination of his employment
for whatever reason, except where otherwise limited in time above.
These covenants contained in this Paragraph 6 on the part of the
Employee shall each be construed as an agreement independent of any other
provision in this Agreement, and the existence of any claim or cause of action
of Employee against the Corporation, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Corporation
of such covenants. It is the intention of both parties to make the covenants of
this Paragraph 6 binding only to the extent that it may be lawfully done under
existing applicable laws. In the event that any part of any covenant of this
Paragraph 6 is determined by a court of law to be overly broad thereby making
the covenant unenforceable, the parties hereto agree, and it is their desire,
that such court shall substitute a reasonable judicially enforceable limitation
in place of the offensive part of the covenant, and that as so modified the
covenant shall be as fully enforceable as set forth herein by the parties
themselves in the modified form.
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7. Terms and Earlier Termination.
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(a) Subject to the provisions for earlier termination as herein
provided, the term of this Agreement shall commence and terminate as specified
above.
(b) This Agreement shall terminate prior to the expiration date
hereinafter set forth in the event that the Board of Directors shall determine
that the Employee has become disabled, or the Employee shall be dismissed for
cause, as hereinafter provided:
(i) The Board of Directors of the Corporation may determine
that the Employee has become disabled, for purposes of this
Agreement, in the event that the Employee shall fail,
because of illness or incapacity, to render for one hundred
twenty (120) successive days in excess of the number of days
provided for in the Corporation's then applicable sick leave
policy or for shorter periods aggregating one hundred twenty
(120) days or more in excess of the number of days provided
for in the Corporation's then applicable sick leave policy
during the term hereof, services of the character
contemplated by this Agreement, and thereupon this Agreement
and the employment of the Employee hereunder shall be deemed
to have been terminated as of the end of the calendar month
in which such determination was made. Any termination under
this Paragraph 7(b)(i) shall not be deemed to be a
termination "for cause" for any purpose under the Agreement
or under any other contract or arrangement between the
Employee and the Corporation relating to employment services
or compensation between them.
(ii) The Board of Directors may dismiss the Employee for cause
in the event that it determines that the Employee has
committed: (A) fraud or material dishonesty; (B) intentional
or willful or grossly negligent injury to the Corporation;
(C) criminal conduct in relation to his employment; or (D)
continued neglect of his duties hereunder which continues
subsequent to fifteen (15) days written notice to cure,
provided that if a longer cure period is required, Employee
shall diligently pursue such cure; and thereupon, this
Agreement shall terminate and the Employee shall be removed
from all positions held by him with the Corporation and any
subsidiary corporation, effective upon the delivery of
notice to the Employee by the Board of Directors that it has
made such determination; any other termination by the
Corporation shall be considered termination without cause
for purposes of this
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(iii) Agreement and any other contract or arrangement between the
parties hereto. In the event that the Board of Directors
shall desire to dismiss the Employee based on any
determination referred to in the preceding sentence, such
determination shall be effective only upon the following
conditions complied with in the following order: (A)
Employee shall be furnished with a written statement
specifying in reasonable detail the actions or events
supporting such determination; (B) at the request of the
Employee, there shall be convened a Special Meeting of the
Board of Directors no later than fifteen (15) business days
after Employee's receipt of the notice referred to in (A)
above at which meeting the Employee may, with assistance of
counsel or other representation, present evidence to refute
or in mitigation of such actions or events or to establish
that the actions or events have been cured; and (C) within
five (5) business days after the adjournment of such Special
Meeting, the Board of Directors shall furnish a written
statement to Employee that, based upon Employee's
representations and upon other relevant evidence, such
determination has either been confirmed or rescinded.
(iv) The Board of Directors may terminate this Agreement and
dismiss the Employee, without cause and for any reason
deemed sufficient by the Board of Directors. In the event
that the Board of Directors shall decide to dismiss the
Employee and terminate this Agreement based on any
determination referred to in the preceding sentence, such
determination shall be effective as of such date as shall be
designated by notice in writing from the Board of Directors
to the Employee (the "Effective Termination Date"). In the
event that this Agreement is terminated pursuant to this
subparagraph (iii), Employee shall be entitled to payment on
the Effective Termination Date of an amount equal to
(A) the lesser of the basic salary due pursuant to
paragraph 3(a) to accrue during the remainder of the
initial three-year term of this Agreement or the basic
salary that would be due under paragraph 3(a) for the
twelve (12) month period following the Effective
Termination Date; plus (B) such cash bonus compensation
prorated to the Effective Termination Date otherwise due
Employee pursuant to paragraph 3(b); and (C) the benefits
to be paid to Employee pursuant to paragraph 3(c), 3(d) and
3(e) prorated to the Effective Termination Date.
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(c) Notwithstanding anything to the contrary contained herein, any
termination of Employee's employment by the Corporation pursuant to the terms of
this paragraph, shall not affect or diminish: (i) any rights accruing to the
Employee under this Agreement prior to the effective date of such termination
and in such event Employee rights to all compensation, including, but not
limited to, Paragraphs 3 and 4 above, shall be calculated and paid for and in
respect of any period prior to such effective date; and (ii) any rights or
remedies available to the Corporation by reason of any breach or threatened
breach of the provisions of Paragraph 7 hereof, the force and effect of which
provisions shall survive the termination of this Agreement, however such
termination occurs.
(d) In the event Employee gives his notice to terminate prior to the
expiration of the Initial Term, Employee shall be entitled to any rights
accruing to the Employee under this Agreement prior to the effective date of
termination and in such event Employee rights to all compensation shall be
calculated and paid for to such effective date, including but not limited to,
his basic salary as described in 3(a), his emoluments and benefits as described
in paragraph 3(c), any unused vacation as set forth in paragraph 3(d), and any
incurred or paid expenses as set forth in paragraph 4. Additionally, Employee
shall be entitled to any vested Stock Incentive Payments as described in
paragraph 3(e).
8. Partial Invalidity. All paragraphs, subparagraphs, and portions
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of this Agreement shall be considered as separate and distinct from one another,
and if, for any reason any paragraph, subparagraph or portion of this Agreement
shall be held to be invalid or unenforceable, it is agreed that the same shall
not be held to affect the validity or enforceability of the remaining
paragraphs, subparagraphs or portions of this Agreement.
9. Notice. Any notices, requests, demands or other communications
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required or permitted under this Agreement shall be in writing and shall be
deemed to have been given when delivered personally, one (1) day after being
sent by recognized overnight courier service with all charges prepaid or charges
to the sender's account, or three (3) days after being mailed by certified mail,
return receipt requested, addressed to the party
being notified at the address of such party first set above, or at such other
address as such party may hereafter have designated by notice; provided,
however, that any notice of change of address shall not be effective until its
receipt by the party to be charged therewith. Copies of any notices or other
communications to the Corporation shall simultaneously be sent by first class
mail to:
Independent Wireless One Corporation
000 Xxxxx Xxxx Xxxxxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
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Notice to Holdings shall be as follows:
c/o Investcorp International Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxxxxxx X. Xxxxxxx
With a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
10. Corporation Defined. The terms "Independent Wireless One Corporation"
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and "IWO Holdings, Inc." as used in this Agreement, shall include, respectively,
IWO and Holdings, and its respective successors and/or assigns, any subsidiary
corporation of IWO and Holdings, and any corporation into which or which IWO or
Holdings may be merged or consolidated or to which all, or substantially all, of
their respective businesses and/or assets are transferred.
11. Waiver of Breach. The waiver by either party of a breach of any
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provision of this Agreement, shall not operate or be construed as a waiver of
any subsequent breach by the same party.
12. Integration: Entire Agreement. This instrument contains the entire
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agreement of the parties with regard to the subject matter hereof and supersedes
all prior oral or written understandings, memoranda or communications with
regard to the terms or conditions of Employee's employment by the Corporation.
This Agreement may not be changed orally, but only by an agreement in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
13. Binding Effect. Except as otherwise provided hereinabove, this
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contract shall inure to the benefit of, and be binding upon, the heirs,
executors, administrators, successors and assigns of the parties hereto.
14. Assignment. Corporation may assign all or any portion of
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Corporation's rights or delegate all or any portion of Corporation's duties
under this Agreement to any Affiliate or to any entity that acquires all or a
substantial portion of the business of the Corporation and Affiliates. However,
any such assignment or delegation shall not relieve Corporation of its financial
obligations to Employee under this Agreement. Except
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in conjunction with his estate planning or in the event of death, Employee may
not assign any rights under this Agreement or delegate any duties under this
Agreement.
15. Counterparts. This Agreement may be executed in counterparts,
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including facsimile counterparts, all of which taken together shall constitute
but one agreement.
IN WITNESS WHEREOF, IWO and Holdings have caused this Agreement to be
signed by their respective officers hereunto duly authorized, and the Employee
has hereunto set his hand and seal, effective as of the day and year first above
written.
INDEPENDENT WIRELESS ONE CORPORATION
BY: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: President & CEO
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IWO HOLDINGS, INC.
BY: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: President & CEO
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EMPLOYEE
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
