EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of September
28, 1999 among Innovative Communications Technologies, Inc., a Delaware
Corporation with a principal offices located at 0000 Xxxxxxx Xxxx, Xxxxxxxxxxxx,
Xxxxxxxx 00000 ("Employer"), Advanced Remote Communications Solutions, Inc., a
California Corporation with an address at 00000 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000,
Xxx Xxxxx, Xxxxxxxxxx 00000 ("Parent") and Xxxxxxxx X. Xxxxxxxx, an individual,
with an address at 0000 Xxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 ("Employee"),
with reference to the following facts:
RECITALS:
A. The Employer is currently a wholly owned Subsidiary of Parent.
B. Employee is experienced in managing the business formerly conducted
by Innovative Communications Technologies, Inc., a Maryland Corporation
("ICTI").
C. ICTI has been merged into Employer pursuant to the Agreement of
Merger and Plan of Reorganization entered into as of September 28, 1999 among
ICTI, Employer, Parent and the Shareholders of ICTI (the "Merger Agreement").
D. Employer desires to employ Employee to perform the duties and
responsibilities described herein on the terms and conditions hereinafter set
forth.
E. Certain other capitalized terms used in this Agreement are defined
in attached Exhibit G.1.
1. Employment. Employer hereby employs Employee and Employee hereby accepts such
employment upon the terms and conditions hereinafter set forth.
2. Duties. Subject to the terms and provisions of this Agreement, Employee
hereby is employed by Employer as the President of Employer. Employee's duties
shall consist of such duties as customarily are associated with service in such
capacity, and shall perform such duties as are more fully described on attached
Exhibit G.2. Employee shall report directly to the Chief Executive Officer of
Employer or his designee. During the Term of this Agreement, it is understood
that Employee may be requested from time to time to provide assistance or
consultative or other services to, or act temporarily as an executive of Parent
or any of its Affiliates or Subsidiaries other than (and in addition to) the
Employer and any Subsidiaries of the Employer. Employee shall perform such
services and, if elected as an officer or director of any such other entity,
shall hold such office (and discharge its duties) without additional
compensation other than the compensation set forth in this Agreement. Parent and
the Employer shall indemnify and hold harmless Employee from any claim asserted
against him as an employee, officer or director of the Employer (or Parent,
Affiliates and/or Subsidiaries, if applicable) to the fullest extent permitted
by applicable State law or as permitted under Employer's bylaws unless such
claim arises from the gross negligence, willful misconduct or a material breach
of this Agreement.
3. Scope of Services. Employee shall devote substantially all of his business
time, attention, energies, skills, learning and efforts to Employer's Business.
The principal place of employment of Employee shall be within a forty (40) mile
radius of Gaithersburg, Maryland or such other location as is consented to by
Employee. It is, however, understood and agreed that Employee may be required,
in connection with the performance of his duties, to travel from time to time to
other locations designated by the Chairman or the Board of Directors or as
required in connection with the Employer's Business; provided, that such travel
shall not exceed thirty percent (30%) of Employee's time. When required to
travel to and/or spend time at such other locations, Employee's reasonable
traveling and temporary living expenses shall be reimbursed to him by the
Employer, upon his submittal of detailed written vouchers, supported by
appropriate documentation and subject to the then prevailing travel and
reimbursement policies of Parent with respect to Executives.
4. Term of Employment. The employment of Employee pursuant to this Agreement
shall commence as of the execution of this Agreement and continue until
terminated on the earlier to occur of: (i) the third anniversary of the
execution of this Agreement; or (ii) the first date on which such employment is
terminated in accordance with Section 7 hereof (the "Term" or the "Term of
Employment").
5. Compensation. The Employer shall pay Employee, as compensation for
all of the services to be rendered by him hereunder during the Term, the Base
Compensation and Benefits as defined, provided for and determined pursuant to
this Agreement.
5.1. Employee's annual base compensation ("Base Compensation") under this
Agreement prorated for any partial year, shall be $120,000 per year, commencing
on the execution of this Agreement. The Base Compensation shall be payable in
accordance with the ordinary payroll procedures of Employer. Any increases in
Base Compensation relative to Employee's performance shall be in the sole and
absolute discretion of Employer.
6. Other Rights and Benefits. Employee shall also be entitled to those Benefits
afforded to Executives of the Parent and its Subsidiaries (taking into
consideration the applicable Employer's policies, Employee's years of employment
position and responsibilities with ICTI for purposes of establishing vesting
rights and level of Benefits), commencing as of the execution of this Agreement,
including the following (collectively, the "Benefits").
6.1. The type and amount of Benefits to be afforded Employee under this
Agreement shall be provided on terms not less comprehensive than provided by
ICTI to Employee immediately prior to the execution of this Agreement, as set
forth on attached Exhibit G.3 (the "ICTI Employee Benefits"). If, as of the
execution of this Agreement, it is determined that the level of any Benefit
provided by Employer to Employee is less comprehensive than the ICTI Employee
Benefits, then Employer shall, for each such Benefit, maintain the corresponding
ICTI Employee Benefit. If, during the Term of Employment it is determined that
the level of any Benefit provided by Employer to Employee is either less
comprehensive than the ICTI Employee Benefit immediately prior to the execution
of this Agreement, then Employer shall at Employer's option either: (i) provide
Employee a Benefit comparable to the corresponding ICTI Employee Benefit that
existed immediately prior to the execution of this Agreement; or (ii) make such
equitable adjustment as may be necessary to compensate Employee for the cost of
the ICTI Employee Benefits valued as of execution of this Agreement.
6.2. Employee shall be reimbursed for business use of personal automobile(s) in
accordance with the policy of the Parent and its Subsidiaries and the applicable
IRS regulations.
6.3. Employee shall participate in Parent's Bonus Plan consistent with that
afforded to other executives of Parent and its Subsidiaries with comparable
seniority.
7. Termination. The employment of Employee may be terminated as follows:
7.1. Termination by Mutual Agreement. Employer and Employee may mutually agree
in writing to terminate Employee's employment. If not previously terminated,
this Agreement and Employee's employment shall automatically terminate on the
third anniversary of the execution of this Agreement unless Employer and
Employee agree in writing to continue employment.
7.2. Termination for Death. If Employee dies during the Term: (i) his employment
under this Agreement shall automatically terminate on the date of death; and
(ii) the Employer shall immediately pay to the estate of the Employee such Base
Compensation and Benefits, earned but not yet paid, as would otherwise have been
payable to the Employee up to the date of death.
7.3. Termination Upon Disability. Employee's employment shall terminate if
Employee should become totally and permanently disabled. For purposes of this
Agreement, Employee shall be considered "totally and permanently disabled" if
Employee is treated as permanently "disabled" under any permanent disability
insurance policy maintained by Employer and is entitled to full benefits payable
under such policy upon a total and permanent disability. If any such policy is
either not in force or the benefits are not available under such policy, then
"total and permanent disability" shall mean the inability of Employee, as a
result of substance abuse, any mental, nervous or psychiatric disorder, or
physical condition, injury or illness to perform substantially all of his duties
on a full-time basis continuously for a period of six (6) consecutive months, as
determined by a licensed physician selected by the Board of Directors of
Employer and acceptable to Employee, in his reasonable judgment, which
physician's decision shall be final and binding upon the parties hereto.
Employer covenants to pay the premiums on such disability insurance policy
during the Term of Employment unless the premiums and/or coverage becomes
commercially unreasonable in which event the provision of Section 6.1(ii) shall
apply. If this Agreement is terminated as a result of Employee's disability,
Employer will pay Employee his Base Compensation and Benefits through the
remainder of the calendar month during which termination is effective and for
such period until disability insurance benefits commence under the disability
insurance coverage furnished by the Employer to the Employee.
7.4. Termination by Employer for Good Cause. Employer may terminate this
Agreement: (a) at will, for any reason, or for no reason at all, on or after the
third anniversary of the Closing; or (b) for "Good Cause" after applicable
notice and opportunity to cure in accordance with Section 7.6 herein. For
purposes of this Agreement, "Good Cause" shall mean the existence or occurrence
of any of the following:
7.4.1. Employee's conviction of a crime of moral
turpitude or of any crime punishable as a felony.
7.4.2. Employee's conviction of theft, embezzlement
or fraud.
7.4.3. Employee's willful violation of a reasonable
Employer policy previously made known to him in writing
or a reasonable directive of the Board of Directors of Employer previously
provided to him in writing.
7.4.4. Employee's breach of his obligations set
forth in Sections 8 and 10, inclusive, of this Agreement.
7.4.5. Any repeated neglect or willful breach of duty
by Employee under this Agreement, or any repeated and
willful failure by Employee to perform under this Agreement.
7.4.6. Employee's breach of any material provision
of this Agreement, on his part to be performed.
7.4.7. Employee's breach of any material term of
the Merger Agreement or the Transaction Documents as
defined in the Merger Agreement.
7.4.8. Employee's actual termination of his
employment without Good Reason.
7.4.9. Employee's breach of any material provision
of the Covenant Not to Compete Agreement.
If Employee's employment is terminated by Employer for "Good Cause" hereunder,
then Employee shall be entitled to receive only the following payments: (a) any
portion of the Base Compensation and Benefits accrued to the date of such
termination and not theretofore paid to him, and (b) reimbursement for any
expenses properly incurred by Employee prior to such termination and which have
not theretofore been reimbursed.
7.5. Termination by Employee for Good Reason. Employee may terminate Employee's
employment for "Good Reason", after applicable notice and opportunity to cure in
accordance with Section 7.6 herein. For purposes of this Agreement, "Good
Reason" shall mean the existence or occurrence of any of the following:
7.5.1. The Parent adopting of a plan of dissolution or liquidation.
7.5.2. Employer's or Parent's breach of any material provision of this
Agreement, on its part to be
performed
7.5.3. Parent's and/or Employer's breach of any material term of the
Merger Agreement or the Transaction
Documents as defined in the Merger Agreement.
7.5.4. Employer's actual termination of Employee's employment without
Good Cause.
7.5.5. A breach of Section 9.3 of the Merger
Agreement.
If Employee's employment is terminated by Employee for "Good Reason" hereunder,
then, in addition to any other rights that Employee may have under applicable
law for Employer's breach of the Agreement, the Employer shall, subject to
Employee's obligation to mitigate damages as provided by applicable law, if any,
continue to pay Employee Base Compensation and provide Benefits to Employee
through the third anniversary of the execution of this Agreement as if the
Agreement had not been terminated.
7.6. Cure of Default. No failure or default by Employer or Employee under this
Agreement shall result in the termination of Employee's employment or this
Agreement or any right hereunder unless and until the terminating Party shall
have provided written notice to the other Party (Section 23 herein) of such
failure or default and the Party in default shall have failed to remedy such
failure or cure such default within seven (7) days of the receipt of such
notice.
8. Representations and Warranties. Employee hereby represents and warrants that
as of the date of execution of this Agreement: (i) this Agreement will not cause
or require Employee to breach any obligation to, or agreement or confidence
with, any other person; (ii) Employee is not representing, or otherwise
affiliated in any capacity with, any other lines of products, manufacturers,
vendors or customers of Employer; and (iii) Employee has not been induced to
enter into this Agreement by any promise or representation other than as
expressly set forth in this Agreement, the Merger Agreement and the Transaction
Documents.
9. Proprietary Information.
9.1. For purposes of this Agreement, "Proprietary Information" shall mean any
information, observation, data, written material, record, document, computer
program, software, firmware, invention, discovery, improvement, development,
tool, machine, apparatus, appliance, design, promotional idea, customer list,
practice, process, formula, method, technique, trade secret, product, customer
lists, product design information, performance standards and/or research related
to the actual or anticipated research, marketing strategies, pricing
information, business records, financial statements, reports and other financial
data, development, products or organization (as the foregoing is demonstrated by
contemporaneous written evidence) that relates to Employer's Business.
"Proprietary Information" shall not include: (i) that which is in the public
domain as of or after the execution of this Agreement except through any act or
omission of Employee; (ii) that which is released by Employer, Parent or their
respective Subsidiaries and Affiliates before or after the execution of this
Agreement; (iii) that which qualifies fully under the provisions of California
Labor Code Section 2870 or any similar or successor statute; or (iv) that which
relates to a "Business Opportunity" that Employee notifies Employer of (except
as otherwise provided in Section 7.5 herein) and Employer does not invest in,
participate in or otherwise be affiliated with pursuant to Section 10 of this
Agreement (collectively, the "Qualified Information").
9.2. Except as otherwise provided herein, all right, title and interest of every
kind and nature whatsoever in and to the Proprietary Information made,
discussed, developed, created, invented, devised, conceived, discovered,
secured, obtained or learned (collectively, "Discovered") by Employee during the
Term of this Agreement, or the 60-day period immediately following the
Termination Date of this Agreement and the period of Employee's employment with
Employer's predecessor in title and interest, ICTI (the "Proprietary Information
Period"), shall be the sole and exclusive property of Employer for any purposes
or uses whatsoever, and shall be disclosed promptly by Employee to Employer. The
covenants set forth in the preceding sentence shall apply regardless of whether
any Proprietary Information is Discovered (a) solely or jointly with others, (b)
during the usual hours of work or otherwise, (c) at the request and upon the
suggestion of Employer or otherwise, or (d) with Employer's materials, tools,
instruments or on Employer's premises or otherwise. All Proprietary Information
Discovered by Employee during the Proprietary Information Period that are
subject to copyright protection are explicitly considered by Employee and
Employer to be works made for hire to the extent permitted by law. Employee
hereby assigns to Employer all of Employee's right, title and interest in and to
the Proprietary Information. Employee hereby forever fully releases and
discharges Employer, any Affiliates of Employer and their respective officers,
directors and employees, from and against any and all claims, demands, damages,
liabilities, costs and expenses of Employee arising out of, or relating to,
Employee's alleged ownership of title to compensation with respect to any
Proprietary Information assigned or conveyed to Employer under this Agreement.
Employee shall execute any documents and, at Employer's cost and expense, take
any action Employer may deem necessary or appropriate to effectuate Employer's
rights in and to the Proprietary Information Discovered by the Employee during
the Proprietary Information Period, including without limitation, assisting
Employer in obtaining and/or maintaining patents, copyrights or similar rights
to any such Proprietary Information assigned by Employee to Employer, if
Employer, in its sole discretion, requests such assistance. Employee shall
comply with any reasonable rules established from time to time by Employer for
the protection of the confidentiality of any Proprietary Information. Employee
irrevocably appoints the Chairman of ARCOMS to act as Employee's agent and
attorney-in-fact to perform all acts necessary to obtain and/or maintain
patents, copyrights and similar rights to any Proprietary Information assigned
by Employee to Employer under this Agreement if (a) Employee refuses to perform
those acts, or (b) is unavailable, within the meaning of any applicable laws.
Employee acknowledges that the grant of the foregoing power of attorney is
coupled with an interest and shall survive the death or disability of Employee.
Employee shall promptly disclose to Employer, in confidence (a) all Proprietary
Information that Employee Discovered during the Term of this Agreement, and (b)
all patent applications filed by Employee within six (6) months after the
Termination Date of this Agreement. Any application for a patent, copyright
registration or similar right filed by Employee within six months after the
Termination Date of this Agreement shall be presumed to relate to Proprietary
Information created by Employee during the Term of this Agreement, unless
Employee can prove otherwise. Nothing contained in this Agreement shall be
construed to preclude Employer from exercising all of its rights and privileges
as sole and exclusive owner of all of the Proprietary Information owned by or
assigned to Employer under this Agreement. Employer, in exercising such rights
and privileges with respect to any particular item of Proprietary Information,
may decide not to file any patent application or any copyright registration on
such Proprietary Information, may decide to maintain such Proprietary
Information as secret and confidential, or may decide to abandon such
Proprietary Information or dedicate it to the public. Employee shall have no
authority to exercise any rights or privileges with respect to the Proprietary
Information owned by or assigned to Employer under this Agreement. This
Agreement does not apply to any Proprietary Information that qualifies fully
under the provisions of California Labor Code Section 2870 or any similar or
successor statute.
9.3. Employee hereby acknowledges that Employer has made (or may make) available
to Employee during the Term of Employment, or Employee may Discover, certain
Proprietary Information (as defined in Sections 9.1 and 9.2 above) of Employer
and its Affiliates or Parent and its Subsidiaries (collectively, the
"Confidential Material"). Except as essential to Employee's obligations under
this Agreement, Employee shall not make any disclosure of any of the
Confidential Material. Except as essential to Employee's obligations under this
Agreement, Employee shall not make any duplication or other copy of any of the
Confidential Material. Immediately upon request from Employer, Employee shall
return to Employer all Confidential Material. Nothing contained in this Section
9 shall be construed as preventing Employee from providing Confidential Material
in compliance with a valid court order issued by court of competent
jurisdiction, providing Employee takes reasonable steps to prevent dissemination
of such Confidential Material. Employee shall comply with any reasonable rules
established from time to time by Employer for the protection of the
confidentiality of any Proprietary Information. Immediately upon request from
Employer, Employee shall return to Employer all Confidential Material. Employee
shall notify each person to whom any disclosure is made that such disclosure is
made in confidence, that the Confidential Material shall be kept in confidence
by such person, and that such person shall be bound by the provisions of this
Section.
10. Business Opportunities. Notwithstanding anything contained herein to the
contrary, during the Term of this Agreement, if Employee (or any agent,
employee, officer or independent contractor of or retained by Employee) becomes
aware of, or develops, creates, invests, devises, conceives or discovers, any
concept, technique, product, project, investment, venture, business or other
opportunity (any of the preceding, a "Business Opportunity") that is similar to,
competitive with, related to or in the same field as Employer or any Affiliate,
or any project, investment, venture, or business of Employer, Parent or any
Affiliate, or Subsidiary thereof, then Employee shall so notify Employer
immediately in writing of such Business Opportunity and shall use Employee's
good-faith efforts to cause Employer to have the opportunity to invest in,
participate in or otherwise become affiliated with such Business Opportunity. If
Employer decides to not invest in, participate in or otherwise become affiliated
with such Business Opportunity within two (2) months after being presented with
the Business Opportunity in writing by Employee, then Employee shall be free to
invest in any such Business Opportunity (to any extent within Employee's sole
and absolute discretion) and make such Business Opportunity available to any
other party(ies) (within Employee's sole and absolute discretion), subject to
Employee's compliance with all other terms of this Agreement.
11. Section Headings. The section headings or captions in this Agreement are for
convenience of reference only and do not form a part hereof, and do not in any
way modify, interpret or construe the intent of the Parties or affect any of the
provisions of this Agreement.
12. Survival. The Sections of this Agreement which relate to acts or events
subsequent to the Termination Date hereunder shall survive the termination of
this Agreement and Employee's employment and shall remain fully effective
thereafter according to their terms.
13. Venue and Jurisdiction. For purposes of venue and jurisdiction, this
Agreement shall be deemed made and to be performed in the City of San Diego,
California.
14. Arbitration.
14.1. Any claim, dispute or other controversy (a "Controversy") relating to this
Agreement shall be settled and resolved by binding arbitration in San Diego
County, California, before the American Arbitration Association ("AAA"). The
arbitration shall be conducted in accordance with AAA's rules and procedures,
except as expressly modified by this Section. The Parties to this Agreement (the
"Parties") shall be entitled to full discovery regarding the Controversy as
permitted by the California Code of Civil Procedure. The arbitrator's decision
on the Controversy shall be a final and binding determination of the Controversy
and shall be fully enforceable as an arbitration award in any court having
jurisdiction and venue over the Parties. The arbitrator shall also award the
prevailing Party any attorneys' fees and expenses the prevailing Party incurs in
connection with the arbitration, and the other Party shall pay the arbitrator's
fees and expenses. The arbitrator shall determine who is the prevailing Party.
Each Party submits to the exclusive jurisdiction of the courts located in San
Diego County, California, for purposes of Section 14.2 below compelling
arbitration or giving legal confirmation of any arbitration award. Each Party
also agrees to accept service of process for all arbitration proceedings in
accordance with AAA's rules.
14.2. The obligation to arbitrate shall not be binding upon either Party with
respect to requests for temporary restraining orders, preliminary injunctions or
other procedures in a court of competent jurisdiction to obtain interim relief
when deemed necessary by such court to preserve the status quo or prevent
irreparable injury pending resolution by arbitration of the actual dispute
between the parties.
14.3. The provisions of this Section shall be construed as independent of any
other covenant or provision of this Agreement; provided that if a court of
competent jurisdiction determines that any such provisions are unlawful in any
way, such court shall modify or interpret such provisions to the minimum extent
necessary to have them comply with the law.
14.4. This arbitration provision shall be deemed to be self-executing and shall
remain in full force and effect after expiration or termination of this
Agreement. In the event either Party fails to appear at any properly noticed
arbitration proceeding, an award may be entered against such Party by default or
otherwise notwithstanding said failure to appear.
15. Severability. Should any one or more of the provisions of this Agreement be
determined to be illegal or unenforceable in any relevant jurisdiction, then
such illegal or unenforceable provision shall be modified by the proper court,
if possible, but only to the extent necessary to make such provision
enforceable, and such modified provision and all other provisions of this
Agreement shall be given effect separately from the provision or portion thereof
determined to be illegal or unenforceable and shall not be affected thereby.
16. Waiver. The failure of any Party to enforce any provision of this Agreement
shall not be construed as a waiver of any such provision, nor prevent such party
thereafter from enforcing such provision or any other provision of this
Agreement. The rights granted the Parties herein are cumulative and the election
of one shall not constitute a waiver of such Parties' right to assert all other
legal remedies available under the circumstances.
17. Parties in Interest. Nothing in this Agreement, whether express or implied,
is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the Parties to this Agreement and their
respective heirs, executors, successors and permitted assigns, nor is anything
in this Agreement intended to relieve or discharge the obligation or liability
of any third person to any Party to this Agreement, nor shall any provision give
any third person any right of action over or against any Party to this
Agreement. Notwithstanding the foregoing sentence, Parent and its permitted
successors in interest (but no other persons) shall be deemed to be third-party
beneficiaries of this Agreement.
18. Assignment. The rights and obligations under this Agreement shall be binding
upon, and inure to the benefit of, the heirs, executors, permitted successors
and permitted assigns of the Parties. Except as specifically provided in this
Section 18, no Party may assign this Agreement or delegate their respective
responsibilities under this Agreement without the consent of the other Party
hereto. Upon the permitted assignment, sale, exchange or other transfer of
substantially all of the assets of Employer, Employer shall assign this
Agreement to such assignee/transferee; provided, that Employer shall make it a
condition of any such assignment, sale, exchange or transfer that such
assignee/transferee shall assume and be obligated to perform all of Employer's
duties and obligations under this Agreement. No assignment, sale, exchange or
transfer of this Agreement or substantially all of the assets of Employer shall
relieve Employer of, and Employer shall remain obligated to perform, its duties
and obligations under this Agreement, including, without limitation, payment of
the Base Compensation and Benefits set forth in Sections 5 and 6, above. No such
assignment, sale, exchange or transfer shall derogate Parent's guarantee of the
obligations of the Employer hereunder
19. Attorneys' Fees. In the event of any suit, action or arbitration to enforce
any of the terms or provisions of this Agreement, the prevailing Party shall be
entitled to its reasonable attorneys' fees and costs. The foregoing entitlement
shall also include attorneys' fees and costs of the prevailing party on any
appeal of a judgment and for any action to enforce a judgment.
20. Modification. This Agreement may be modified only by a contract in writing
executed by the Parties to this Agreement against whom enforcement of such
modification is sought.
21. Prior Understandings. This Agreement contains the entire agreement between
the Parties to this Agreement with respect to the subject matter of this
Agreement, is intended as a final expression of such Parties' agreement with
respect to such terms as are included in this Agreement, is intended as a
complete and exclusive statement of the terms of such agreement, and supersedes
all negotiations, stipulations, understandings, agreements, representations and
warranties, if any, with respect to such subject matter, which precede or
accompany the execution of this Agreement.
22. Exhibits. The following Exhibits are made a part of this Agreement:
(a) Exhibit G.1 - Definitions
(b) Exhibit G.2 - Employee's Duties
(c) Exhibit G.3 - ICTI Employee Benefits
23. Notices. Any notice provided for or permitted under this Agreement
will be treated as having been given when: (a) delivered personally; (b) sent by
confirmed telecopy; (c) sent by commercial overnight courier with written
verification of receipt; or (d) mailed postage prepaid by certified or
registered mail, return receipt requested, to the Party to be notified, at the
address set forth below, or at such other place of which the other Party has
been notified in accordance with the provisions of this Section 23.
To Employee: Xxxxxxxx X. Xxxxxxxx
0000 Xxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
To Employer and Parent: c/o Advanced Remote Communication Solutions,
Inc.
00000 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
With copy to: Xxxxxxx Xxxx Seidenwurm & Xxxxx, LLP
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Such notice will be treated as having been received upon actual
receipt.
24. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
25. Applicable Law. This Agreement and the rights and obligations of the parties
hereunder shall be construed under, and governed by, the laws of the State of
California without giving effect to conflict of laws provisions.
26. Drafting Ambiguities. The Parent and each Party to this Agreement have
reviewed and revised this Agreement. The Parent and each Party to this Agreement
have had the opportunity to have their respective legal counsel review and
revise this Agreement. The rule of construction that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Agreement or of any amendments or exhibits to this Agreement. ///
IN WITNESS WHEREOF, the Parent and the Parties have signed and delivered this
Agreement containing eleven (11) pages and the Exhibits
identified in Section 22 above.
EMPLOYER:
ATTEST: INNOVATIVE COMMUNICATIONS TECHNOLOGIES, INC.,
a Delaware corporation
____________________________ By: Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X.Xxxxxxxxx
Name
Chairman
Title
September 28, 1999
Date
EMPLOYEE:
Xxxxx X. Xxxxxxxx /s/ Xxxxxxxx X. Xxxxxxxx
Witness Name Xxxxxxxx X. Xxxxxxxx
September 28, 1999
Date
The performance of all of the obligations of the Employer under this Agreement
is unconditionally guaranteed by Parent.
PARENT:
ATTEST: ADVANCED REMOTE
COMMUNICATION
SOLUTIONS, INC., a California Corporation
____________________________ By:/s/Xxxxxxx X. Xxxxxxxxx
XXXXXXX X.XXXXXXXXX
CHAIRMAN
September 28, 1999
EXHIBIT G.1
DEFINITIONS
1. Definitions. As used in the Agreement, the following terms
shall have the meanings set forth below:
1.1. "Affiliate" shall mean a corporation which, directly or
indirectly, controls, is controlled by or is under common control with Parent,
or which is a successor in interest to Parent, and for purposes hereof,
"Control" shall mean the ownership of 50% or more of the voting shares of the
corporation in question.
1.2. "Agreement" shall mean the Agreement and all Exhibit
identified in Section 22 thereto.
1.3. "Base Compensation" shall have the meaning assigned
to it in Subsection 5.1 of the Agreement.
1.4. "Benefits" shall have the meaning assigned to it in
Section 6 of the Agreement.
1.5. "Business Opportunity" shall have the meaning
ssigned to it in Section 10 of the Agreement.
1.6. "Confidential Material" shall have the meaning
assigned to it in Section 9 of the Agreement.
1.7. "Employee" shall have the meaning assigned to it in
the introduction located on page 1 of the Agreement.
1.8. "Employer" shall have the meaning assigned to it in
the introduction located on page 1 of the Agreement.
1.9. "Employer's Business" shall mean the business that the
Employer conducts as of the execution of the Agreement and through the Term.
1.10. "Good Cause" shall have the meaning assigned to it in
Subsection 7.4 of the Agreement.
1.11. "Good Reason" shall have the meaning assigned to it
in Subsection 7.5 of the Agreement.
1.12. "herein" or "hereof" refers to the entirety of the
Agreement and not to a particular provision.
1.13. "ICTI" shall have the meaning assigned to it in
Recital "B" of the Agreement.
1.14. "Merger Agreement" shall have the meaning assigned to
it in Recital "C" of the Agreement.
1.15. "Parent" shall have the meaning assigned to it in
the introduction located on page 1 of the Agreement.
1.16. "Parties" shall mean Employee and Employer
collectively and "Party" means any one of them.
1.17. "Proprietary Information" shall have the meaning
assigned to it in Subsection 10.1 of the Agreement.
1.18. "Qualified Information" shall have the meaning
assigned to it in Subsection 10.1 of the Agreement.
1.19. "Subsidiary" shall mean a Corporation, 50% or more of
the outstanding voting shares of which is owned or controlled directly or
indirectly by the Company, or by Parent, as the case may be.
1.20. "Term" or "Term of Employment" shall have the
meaning assigned to it in Section 4 of the Agreement.
1.21. "Termination Date" shall mean the date on which
Employee's Term of Employment ends as provided in Section 4 of the Agreement.
The Agreement shall also terminate as of the Termination Date, subject to the
survival provision set forth in Section 12 of the Agreement.
1.22. "total and permanent disability" shall have the
meaning assigned to it in Subsection 7.3 of the Agreement.
Whenever the context so requires in the Agreement, all words used in the
singular shall be construed to have been used in the plural (and vice versa),
each gender shall be construed to include any other genders, and the word
"person" shall be construed to include a natural person, a corporation, a firm,
a partnership, a joint venture, a trust, an estate or any other entity. Where
used in the Agreement, the terms "include" or "including" mean include or
including, as applicable, without limitation.
EXHIBIT G.2
EMPLOYEE'S DUTIES
Title: President
Duties:
Generally devoting all of Employee's productive time, ability and
attention to the business of the Employer including:
1. Duties consistent with the duties of a President of a Subsidiary of a Public
Company.
2. Preparing budgets and operating reports to immediate supervisor and if
necessary to the Board of Directors.
3. Supervising senior staff of ICTI.
4. Maintaining corporate ethical standards.
5. Seeking out new opportunities in related fields.
6. Representing Parent Company when requested at meetings on the East Coast.
