Exhibit 10.4
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), effective as of September
1, 2003, is made and entered by and between Xxxx Xxxxxx (the "Executive") and
MobilePro Corp., a Delaware corporation (the "Company").
AGREEMENT
WHEREAS, the Company desires to engage the Executive to provide services
pursuant to the terms of this Agreement; and
WHEREAS, the Executive desires to provide such services to the Company
pursuant to the terms of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements set forth below, the parties hereto agree as follows:
1. Term of Employment. The term of the Executive's employment under this
Agreement shall commence on September 1, 2003 and end on the second anniversary
of such date (the "Term of Employment"). If the Company or the Executive does
not deliver to the other party at least 60 days prior written notice that the
Term of Employment shall end on the second anniversary of the date hereof, the
Term of employment shall automatically continue for an additional one-year
period. At the end of such one year period, the Term of employment shall
automatically continue for successive one year terms unless either party
delivers at least 60 days prior written notice that the Term or employment shall
end at the end of such one-year renewal period.
2. Duties.
(a) During the Term of Employment, the Executive shall serve as the
Chief Executive Officer and Chairman of the Board of the Company
with such authority and duties as are generally associated with
such positions and as may be assigned to him from time to time by
the Board of Directors of the Company that are consistent with
such authority and duties. The Executive shall report only to the
Board of Directors of the Company.
(b) During the Term of Employment and except as provided in Section
2(d), the Executive shall devote his full business time and best
efforts to the business and affairs of the Company. The Executive
agrees to continue to serve during the Term as a Director and a
member of any committee of the Boards of Directors of the Company,
provided that the Executive is indemnified for serving in any and
all such capacities on a basis no less favorable than is provided
to any other Director of the Company. The Company agrees to use
its best efforts to cause the Executive to be elected and
continued in office throughout the Term of Employment as a member
of the Board of Directors of the Company and as Chairman of the
Board of Directors and shall include him in the management slate
for election as a Director of the Company at every stockholders'
meeting of the Company at which his term as a Director would
otherwise expire.
(c) The Company hereby acknowledges and agrees that the Executive need
not maintain a permanent residence in the Commonwealth of Virginia
in order to fulfill his duties hereunder. The Executive agrees to
devote such time as he determines, in his sole discretion, is
necessary at the headquarters of the Company in order to perform
his duties hereunder.
(d) Anything herein to the contrary notwithstanding, nothing in this
Agreement shall preclude the Executive from (i) serving on the
boards of directors of a reasonable number of other corporations
or the boards of a reasonable number of trade associations and/or
charitable organizations, (ii) engaging in charitable activities
and community affairs and (iii) managing his personal investments
and affairs, provided that such activities do not materially
interfere with the proper performance of his duties and
responsibilities under this Agreement.
3. Compensation and Related Matters.
(a) Salary. During the Term, the Executive shall receive a base salary
(the "Base Salary") at the rate of $250,000 per annum. Such Base
Salary shall be payable in accordance with the Company's policies
in effect from time to time, but in any event no less frequently
than monthly. The Executive will initially receive a reduced
paid-out amount of the salary as mutually agreed with the Board of
Directors with the balance unpaid salary to be deferred. The Board
of Directors from time to time may increase, but not decrease, the
Base Salary, unless mutually agreed with the Executive.
(b) Bonus. The Executive shall be eligible for an annual bonus in such
amount as the Board of Directors may designate. Payment of any
annual bonus shall be made at the same time that other
senior-level executives receive their bonus but in no event later
than 60 days following the year to which such bonus relates.
(c) Stock Options. To induce the Executive to enter into this
Agreement, Executive will be granted an option (the "Stock
Options") by the Company to purchase 4,000,000 shares of common
stock of the Company (the "Common Stock") and be granted an
additional 6,000,000 shares of common stock in the form of a
warrant (the "Stock Warrant"). The Stock Options and Stock Warrant
shall be memorialized in separate agreements, dated this same
date, between the Company and the Executive. The exercise price of
the Stock Options and Stock Warrant will be the fair market value
per share of Common Stock as of the close of business on September
2, 2003 and the Stock Options and Stock Warrants will expire on
the fifth anniversary of this Agreement. 2,000,000 of the Stock
Options shall vest September 2, 2003, 1,000,000 shall vest
December 1, 2003, and 1,000,000 shall vest March 1, 2004. All
outstanding options will vest immediately upon a "Change of
Control" which shall mean (a) the sale of all or substantially all
of the assets of the Company, (b) the dissolution or liquidation
of the Company, or (c) any merger, share exchange, consolidation
or other reorganization or business combination of the Company if
immediately after such transaction either (A) persons who were
directors of the Company immediately prior to such transaction do
not constitute at least a majority of the directors of the
surviving entity, or (B) persons who hold over 50% of the voting
capital stock of the surviving entity are not persons who held
voting capital stock of the Company immediately prior to such
transaction. The Company shall use its best efforts to register
the shares underlying the Stock Options and Stock Warrant on
Securities and Exchange Commission Form S-8, including the
registration of any shares underlying Stock Options vested prior
to the date of filing such Form S-8, or other registration to be
filed as soon as practicable. The Stock Options will be granted
under the Company's stock option plan, which will be subject to
shareholder approval. The Company shall use its best efforts to
cause such new stock option plan to be approved by the
stockholders at the next stockholders' meeting. Failure to obtain
such approval will constitute a breach of this Agreement by the
Company.
(d) Expenses. The Executive is authorized to incur reasonable expenses
in carrying out his duties and responsibilities under this
Agreement and the Company shall promptly reimburse him for all
business expenses incurred in connection therewith, including the
use of a cell phone, subject to documentation in accordance with
the Company's policy. Without limiting the generality of the
foregoing, the Company shall promptly reimburse the Executive for
the expenses incurred by the Executive in connection with any and
all travel between the Company's headquarters and the Executive's
permanent residence.
(e) Employee Benefits. During the Term of Employment, the Executive
shall be entitled to participate in or receive benefits under any
and all employee benefit plans, programs and arrangements on terms
no less favorable than those generally applicable to senior
executives of the Company, subject to and on a basis consistent
with the terms, conditions and overall administration of such
employee benefit plans, programs and arrangements. The Executive
shall also be eligible to participate in the Company's executive
perquisites in accordance with the terms and provisions of the
arrangements as in effect from time to time for the Company's
senior executives.
(f) Car Allowance. The Company shall reimburse the Executive for car
expenses at the same level afforded other senior executives.
(g) Vacation. The Executive shall be entitled to four weeks of paid
vacation for each 12-month period during the Term of Employment,
which shall be taken at such times and intervals as shall be
determined by the Executive, subject to the reasonable business
needs of the Company. The Executive shall also be entitled to the
paid holidays and other paid leave set forth in the Company's
policies, a copy of which has been provided to the Executive.
Vacation days and holidays during any year that are not used by
the Executive during such year may be used in any subsequent year.
(h) Payment upon Change of Control. In the event of a Change of
Control of the Company, the Company shall issue to the Executive
2,000,000 shares of Common Stock (or, if the Common Stock was
modified, exchanged or converted in connection with such Change of
Control, the cash, securities or other property that such
2,000,000 shares would represent at the time of termination if
they had been modified, exchanged or converted in connection with
such Change of Control). Such Common Stock will be registered by
the Company at the time of, or as soon as
possible after, such issuance. For purposes of this Section 3(g),
a Change of Control will be deemed to occur if:
(i) Any person, other than the Company or an employee benefit
plan of the Company, acquires directly or indirectly the
Beneficial Ownership (as defined in Section 13(d) of the
Securities Exchange Act of 1934 as in effect on the date of
this Agreement) of any voting security of the Company and
immediately after such acquisition such person is, directly
or indirectly, the Beneficial Owner of voting securities
representing 50% or more of the total voting power of all
then outstanding voting securities of the Company;
(ii) The stockholders of the Company approve a merger,
consolidation, recapitalization or reorganization of the
Company, a reverse stock-split of outstanding voting
securities, or consummation of any such transaction, other
than any such transaction which would result in at least 75%
of the total voting power represented by the voting
securities of the surviving entity outstanding immediately
after such transaction being Beneficially Owned by at least
75% of the holder of outstanding, voting securities of the
Company immediately prior to such transaction, with the
voting power of each such continuing holder relative to
other such continuing holders not substantially altered in
the transaction;
(iii) The stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company of all or a substantial portion
of the Company's assets (i.e., 50% or more of the total
assets of the Company); or
(iv) Continuing Directors cease for any reason to constitute a
majority of the Board of Directors of the Company. For this
purpose, "Continuing Directors" means any member of the
Board of Directors of the Company who is (I) a member of the
Board of Directors on the date that the Board of Directors
is increased from two to five or more members and at least
three new members of the Board of Directors are elected to
fill three new Board of Directors seats or (II) is nominated
for election or elected to the Board of Directors of the
Company with the affirmative vote of a majority of the
Continuing Directors who were members of the Board of
Directors of the Company at the time of such nomination or
election.
(i) Deductions and Withholdings; Tax Gross-up in Certain
Circumstances. All amounts payable or which become payable
hereunder shall be subject to all deductions and withholding
required by law. Notwithstanding the foregoing, if as a result
of the termination of the Executive's employment under this
Agreement or a Change of Control the Executive becomes subject
to Section 280G of the Internal Revenue Code (or any successor
provision) which imposes an excise tax in respect of the
issuance of any payment to the Executive under this Agreement,
then the Company shall pay to the Executive, in cash at the time
of such termination or Change of Control, a "tax gross-up" equal
to the amount of the Executive's tax liability resulting from
such
excise tax (including any tax on the amount so paid to cover
this obligation calculated at the highest marginal federal
and state income tax rates).
4. Termination of Employment.
(a) Termination Due to Death. In the event the Executive's
employment is terminated due to his death, his estate or
his beneficiaries, as the case may be, shall be entitled
to and their sole remedies under this Agreement shall be:
(i) Base Salary through the date of death which shall be paid in
a single lump sum not later than 45 days following the
Executive's death;
(ii) the balance of any bonus awarded and earned but not paid at
the time of termination, which shall be paid in a single
lump sum not later than 45 days following the Executive's
death; and
(iii) other or additional benefits then due or earned in
accordance with applicable plans and programs of the
Company.
(b) Termination Due to Disability. In the event the Executive
becomes Disabled (as defined below), the Company may terminate
his employment upon notice to that effect. Upon such a
termination, the Executive or his representative, as the case
may be, shall be entitled to, and their sole remedies under
this Agreement shall be:
(i) Base Salary through the date of termination, which shall be
paid in a single lump sum not later than 45 days following
such termination;
(ii) the balance of any bonus awarded and earned but not paid at
the time of termination, which shall be paid in a single
lump sum not later than 45 days following the date of
termination; and
(iii) other or additional benefits then due or earned in
accordance with applicable plans and programs of the
Company.
For the purpose of this subsection, the Executive shall have a "Disability" at
such time as he becomes entitled to benefits under the Company's long-term
disability insurance plan as in effect from time to time.
(c) Termination by the Company for Cause.
(i) "Cause shall mean:
(A) willful and material breach by Executive of Section
5 or 6 of this Agreement;
(B) conviction of the Executive for a felony or
misdemeanor involving moral turpitude;
(C) breach by the Executive of any alcohol, drug, sexual
harassment or other policy of the Company which
provides for termination of employment for
violation; or
(D) engagement by the Executive in conduct that
constitutes gross neglect or willful gross
misconduct in carrying out his duties under this
Agreement
For purposes of this Agreement, an act or failure to act on Executive's part
shall be considered "willful" if it was done or omitted to be done by him not in
good faith, and shall not include any act or failure to act resulting from any
incapacity of Executive.
(ii) In the event the Company terminates the Executive's
employment for Cause, he shall be entitled to and his sole
remedies under this Agreement shall be:
(A) Base Salary through the date of the termination of his
employment for Cause, which shall be paid in a single
lump sum not later than 45 days following the
Executive's termination of employment;
(B) the balance of any bonus awarded and earned but not
paid at the time of termination, which shall be paid
in a single lump sum not later than 45 days following
the date of termination; and
(C) other or additional benefits then due or earned in
accordance with applicable plans or programs of the
Company.
(d) Termination Without Cause or Constructive Termination Without
Cause. In the event the Executive's employment with the Company
is terminated without Cause (which termination shall be effective
as of the date specified by the Company in a written notice to
the Executive), other than due to death or Disability, or in the
event there is a Constructive Termination Without Cause (as
defined below), the Executive shall be entitled to and his sole
remedies under this Agreement shall be:
(i) Base Salary through the date of termination of the
Executive's employment, which shall be paid in a single lump
sum not later than 15 days following the Executive's
termination of employment;
(ii) Base Salary, at the annualized rate in effect on the date of
termination of the Executive's employment for a period of
two years after the termination of employment (the
"Severance Period") payable in accordance with the Company's
standard payroll practices;
(iii) the balance of any bonus awarded and earned but not paid at
the time of termination, which shall be paid in a single
lump sum not later than 45 days following the date of
termination;
(iv) immediate vesting of all stock options which are unvested
but scheduled to vest during the Severance Period, all of
which will be exercisable during the Severance Period or for
the remainder of the exercise period, if less;
(v) continued participation in all medical, health and life
insurance plans at the same benefit level at which he was
participating on the date of the termination of his
employment until the earlier of:
(A) the end of the Severance Period; or
(B) the date, or dates, he receives equivalent coverage
and benefits under the plans and programs of a
subsequent employer (such coverage and benefits to be
determined on a coverage-by-coverage, or
benefit-by-benefit, basis); provided that (1) if the
Executive is precluded from continuing his
participation in any employee benefit plan or program
as provided in this clause (vi), he shall receive
cash payments equal on an after-tax basis to the cost
to him of obtaining the benefits provided under the
plan or program in which he is unable to participate
for the period specified in this clause (vi), (2)
such cost shall be deemed to be the lowest reasonable
cost that would be incurred by the Executive in
obtaining such benefit himself on an individual
basis, and (3) payment of such amounts shall be made
quarterly in advance; and
(vi) other or additional benefits then due or earned in
accordance with applicable plans and programs of the
Company.
"Termination Without Cause" shall mean the Executive's employment
is terminated by the Company for any reason other than Cause (as defined in
Section 4(c)) or due to death.
"Constructive Termination Without Cause" shall mean a termination
of the Executive's employment at his initiative as provided in this Section 4(d)
following the occurrence, without the Executive's written consent, of one or
more of the following events (except as a result of a prior termination):
(A) a material diminution or change, adverse to
Executive, in Executive's positions, titles, or
offices as set forth in Section 2;
(B) an assignment of any duties to Executive which are
inconsistent with his status as Chief Executive
Officer and Chairman of the Board of the Company;
(C) any other failure by the Company to perform any
material obligation under, or breach by the Company
of any material provision of, this Agreement that is
not cured within 30 days; or
(D) any failure to secure the agreement of any successor
corporation or other entity to the Company to fully
assume the Company's obligations under this
Agreement.
(e) Termination following Non-renewal. In the event that the Company
notifies the Executive in writing at least 60 days prior to the
expiration of the then current Term of Employment that it is electing
to terminate this Agreement at the expiration of the then current Term
of Employment and the Executive's employment terminates upon such
expiration, whether at the Company's initiative or the Executive's
initiative, the Executive shall be entitled to:
(i) Base Salary through the date of termination of the
Executive's employment, which shall be paid in a single lump
sum not later than 45 days following such termination;
(ii) the balance of any bonus awarded and earned but not paid at
the time of termination, which shall be paid in a single
lump sum not later than 45 days following the date of
termination;
(iii) continued participation in all medical and dental plans at
the same benefit level at which he was participating on the
date of the termination of his employment until the earlier
of:
(A) the end of the Non-renewal Severance Period; or
(B) the date, or dates, he received equivalent coverage
and benefits under the plans and programs of a
subsequent employer (such coverage and benefits to be
determined on a coverage-by-coverage, or
benefit-by-benefit, basis);
provided that (x) if the Executive is precluded from continuing
his participation in any employee benefit plan or program as
provided in this clause (iii) of this Section 4(e), he shall
receive cash payments equal on an after-tax basis to the cost to
him of obtaining the benefits provided under the plan or program
in which he is unable to participate for the period specified in
this clause (iii) of this Section 4(e), (y) such cost shall be
deemed to be the lowest cost that would be incurred by the
Executive in obtaining such benefit himself on an individual
basis, and (z) payment of such amounts shall be made quarterly in
advance; and
(iv) other or additional benefits then due or earned in
accordance with applicable plans and programs of the
Company.
(f) Voluntary Termination. In the event of a termination of
employment by the Executive on his own initiative, other than a
termination due to death, Disability or a Constructive
Termination Without Cause, the Executive shall have the same
entitlements as provided in Section 4(c)(ii) above for a
Termination for Cause. A voluntary termination under this Section
4(f) shall be effective upon 30 days prior written notice to the
Company or such shorter period as may be determined by the
Company and shall not be deemed a breach of this Agreement.
(g) No Mitigation, No Offset. In the event of any termination of
employment under this Section 4, the Executive shall be under no
obligation to seek other employment; amounts due the Executive
under this Agreement shall not be offset by any remuneration
attributable to any subsequent employment that he may obtain.
(h) Nature of Payments. Any amounts due under this Section 4 are in
the nature of severance payments considered to be reasonable by
the Company and are not in the nature of a penalty.
5. Confidentiality.
(a) During the Term of Employment and thereafter, the Executive shall
not, without the prior written consent of the Company, disclose
to anyone (except in good faith in the ordinary course of
business to a person who will be advised by the Executive to keep
such information confidential) or make use of any Confidential
Information (as defined below) except in the performance of his
duties hereunder or when required to do so by legal process, by
any governmental agency having supervisory authority over the
business of the Company or by any administrative or legislative
body (including a committee thereof) that requires him to
divulge, disclose or make accessible such information. In the
event that the Executive is so ordered, he shall give prompt
written notice to the Company in order to allow the Company the
opportunity to object to or otherwise resist such order.
(b) "Confidential Information" shall mean all information concerning
the business of the Company or any subsidiary relating to any of
their products, product development, trade secrets, customers,
suppliers, finances, and business plans and strategies. Excluded
from the definition of Confidential Information is information
(i) that is or becomes part of the public domain, other than
through the breach of this Agreement by the Executive, (ii)
regarding the Company's business or industry properly acquired by
the Executive in the course of his career as an executive in the
Company's industry and independent of the Executive's employment
by the Company, (iii) that becomes available to the Executive on
a non-confidential basis from a source other than the Company,
provided that such source is not known by the Executive to be
subject to a confidentiality agreement or other obligation of
secrecy or confidentiality (whether pursuant to a contract, legal
or fiduciary obligation or duty or otherwise) to the Company or
any other person or entity or (iv) approved for release by the
Company or which the Company makes generally available to third
parties without an obligation of confidentiality. For this
purpose, information known or available generally within the
trade or industry of the Company or any subsidiary shall be
deemed to be known or available to the public.
6. Non-Competition; Non-Solicitation. The Executive acknowledges that
his employment with the Company will, of necessity, provide him with
specialized, unique knowledge and confidential information and that, in light of
the competitive nature of the Company's business, the Company could be harmed if
such knowledge and information were used in competition with the Company. The
Executive further acknowledges that the Company would not enter into this
Agreement and undertake the substantial obligations under this Agreement without
the Executive's agreement to the following provisions of this Section 6:
(a) During the Restricted Period (as defined below) he will not,
directly or indirectly, as an officer, director, stockholder,
partner, associate, employee, consultant, owner, agent,
co-venturer or otherwise, become or be interested in or be
associated with any other corporation, firm or business engaged
in the manufacture, marketing or sale of products which compete
with products of the Company. The Executive's ownership, directly
or indirectly, of not more than three percent (3%) of the issued
and outstanding stock of any corporation or other entity, the
shares of which are traded on a national securities exchange or
the Nasdaq Stock Market, shall not in any event be deemed to be a
violation of the provisions of this Section 6(a).
(b) During the Restricted Period, the Executive shall not call upon,
solicit, divert or take away, or attempt to call upon, solicit,
divert or take away, business of a type the same or similar to
the business as conducted by the Company prior to the date of
termination of the Executive's employment with the Company from
any of the Customers of the Company upon whom he called or whom
he solicited or to whom he catered or with whom he became
acquainted after entering the employ of the Company.
(c) The Executive acknowledges and agrees that during the time of his
employment with the Company, he will gain valuable information
about the identity, qualifications and on-going performance of
the employees of the Company. During the Restricted Period, the
Executive shall not (i) hire, employ, offer employment to, or
seek to hire, employ or offer employment to, any of the Company's
senior level employees with whom he had contact prior to such
termination of employment or (ii) solicit or encourage any such
senior level employee to seek or accept employment with any other
person or entity.
(d) The Executive represents and warrants that the knowledge, skills
and abilities he currently possesses are sufficient to permit
him, in the event of his termination of employment hereunder for
any reason, to earn a livelihood satisfactory to himself without
violating any provision of this Agreement.
(e) For the purposes of this Section 6, "Restriction Period" shall
mean the period beginning on the date hereof and ending with:
(i) in the case of a termination of the Executive's employment
without Cause or a Constructive Termination Without Cause,
the end of the Severance Period;
(ii) in the case of a termination of the Executive's employment
for Cause, the first anniversary of such termination;
(iii) in the case of a termination of the Executive's employment
upon the expiration of the Term of Employment that results
in the commencement of the Non-renewal Severance Period
pursuant to Section 4(e) above, the end of the Non-renewal
Severance Period; or
(iv) in the case of a voluntary termination of the Executive's
employment pursuant to Section 4(f) above, the date of such
termination; provided, however, that within 10 days after
the Executive announces his resignation from the Company the
Company may notify the Executive that it will cause the
Restriction Period to be 12 months and, in consideration for
such period, the Company will pay to the Executive, within
30 days after his employment terminates, an amount in cash
equal to the annual Base Salary in effect at the time the
Executive gives his notice of termination. Failure by the
Company to timely make such payment will release the
Executive from this obligation.
7. Remedies. In addition to whatever other rights and remedies the
Company may have at equity or in law, if the Executive breaches any of the
provisions contain in Sections 5 or 6 above, the Company (a) shall have the
right to immediately terminate all payments and benefits due under this
Agreement and (b) shall have the right to seek injunctive relief. The Executive
acknowledges that such a breach would cause irreparable injury and that money
damages would not provide an adequate remedy for the Company.
8. Resolution of Disputes. Any disputes arising under or in connection
with this Agreement shall be resolved by binding arbitration, to be held in
Washington, D.C. in accordance with the rules and procedures of the American
Arbitration Association, except that disputes arising under or in connection
with Sections 5 and 6 above shall be submitted to a court of appropriate
jurisdiction. Judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof. Each party shall bear his or
its own costs of the arbitration or litigation, including, without limitation,
attorneys' fees. Pending the resolution of any arbitration or court proceeding,
the Company shall continue payment of all amounts and benefits due the Executive
under this Agreement.
9. Indemnification.
(a) The Company agrees that if the Executive is made a party, or is
threatened to be made a party, to any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that he is or was a
director, officer or employee of the Company or any subsidiary or
is or was serving at the request of the Company or any subsidiary
as a director, officer, member, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit
plans, whether or not the basis of such Proceeding is the
Executive's alleged action in an official capacity while serving
as a director, officer, member, employee or agent, the Executive
shall be indemnified and held harmless by the Company to the
fullest extent legally permitted or authorized by the Company's
certificate of incorporation or bylaws or resolutions of the
Company's certificate of incorporation or by laws or resolutions
of the Company's Board of Directors or, if greater, by the laws
of the State of Delaware, against all cost, expense, liability
and loss (including, without limitation, attorney's fees,
judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered
by the Executive in connection therewith, and such
indemnification shall continue as to the Executive even if he has
ceased to be a director, member, officer, employee or agent of
the Company or other entity and shall inure to the benefit of the
Executive's heirs, executors and administrators. The Company
shall advance to the Executive all reasonable costs and expenses
incurred by him in connection with a Proceeding within 20 days
after receipt by the Company of a written request for such
advance. Such request shall include an undertaking by the
Executive to repay the amount of such advance if it shall
ultimately be determined that he is not entitled to be
indemnified against such costs and expenses.
(b) Neither the failure of the Company (including its board of
directors, independent legal counsel or stockholders) to have
made a determination prior to the commencement of any proceeding
concerning payment of amounts claimed by the Executive under
Section 9(a) above that indemnification of the Executive is
proper because he has met the applicable standard of conduct, nor
a determination by the Company (including its board of directors,
independent legal counsel or stockholders) that the Executive has
not met such applicable standard of conduct, shall create a
presumption that the Executive has not met the applicable
standard of conduct.
(c) The Company agrees to continue and maintain a directors and
officers' liability insurance policy covering the Executive to
the extent the Company provides such coverage for its other
executive officers.
10. Effect of Agreement on Other Benefits. Except as specifically
provided in this Agreement, the existence of this Agreement shall not be
interpreted to preclude, prohibit or restrict the Executive's participation in
any other employee benefit or other plans or programs in which he currently
participates.
11. Assignability; Binding Nature. This Agreement shall be binding
upon and inure to the benefit of the Parties and their respective successors,
heirs (in the case of the Executive) and permitted assigns. No rights or
obligations of the Company under this Agreement may be assigned or transferred
by the Company except that such rights or obligations may be assigned or
transferred in connection with the sale or transfer of all or substantially all
of the assets of the Company, provided that the assignee or transferee is the
successor to all or substantially all of the assets of the Company and such
assignee or transferee assumes the liabilities, obligations and duties of the
Company, as contained in this Agreement, either contractually or as a matter of
law. The Company further agrees that, in the event of a sale or transfer of
assets as described in the preceding sentence, it shall take whatever action it
legally can in order to cause such assignee or transferee to expressly assume
the liabilities, obligations and duties of the Company hereunder. No rights or
obligations of the Executive under this Agreement may be assigned or transferred
by the Executive other than his rights to compensation and benefits, which may
be transferred only by will or operation of law, except as provided in Section
17 below.
12. Warranty of Executive. As an inducement to the Company to enter
into this Agreement, the Executive represents and warrants that he is not a
party to any other agreement or obligation for personal services, and that there
exists no impediment or restraint, contractual or otherwise, on his power, right
or ability to enter into this Agreement and to perform his duties and
obligations hereunder.
13. Company Representations. The Company represents to the Executive
that this Agreement has been duly authorized, executed and delivered by the
Company and is a legal, valid and binding obligation of the Company and that the
execution, delivery and performance of this Agreement by the Company will not
breach or be in conflict with any agreements to which the Company is a party or
by which it is bound.
14. Entire Agreement. This Agreement contains the entire understanding
and agreement between the parties concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, between the parties with respect thereto.
15. Amendments; Waivers. No provision in this Agreement may be amended
unless such amendment is agreed to in writing and signed by the Executive and an
authorized officer of the Company. No waiver by either Party of any breach by
the other Party of any condition or provision contained in this Agreement to be
performed by such other Party shall be deemed a waiver of a similar or
dissimilar condition or provision at the same or any prior or subsequent time.
Any waiver must be in writing and signed by the Executive or an authorized
officer of the Company, as the case may be. No failure to exercise and no delay
in exercising any right, remedy or power hereunder shall preclude any other or
further exercise of any other right, remedy or power provided herein or by law
or in equity.
16. Severability of Provisions. In the event that any provision or any
portion thereof should ever be adjudicated by a court of competent jurisdiction
to exceed the time or other limitations permitted by applicable law, as
determined by such court in such action, then such provisions shall be deemed
reformed to the maximum time or other limitations permitted by applicable law,
the parties hereby acknowledging their desire that in such event such action be
taken. In addition to the above, the provisions of this Agreement are severable,
and the invalidity or unenforceability of any provision or provisions of this
Agreement or portions thereof shall not affect the validity or enforceability of
any other provision, or portion of this Agreement, which shall remain in full
force and effect as if executed with the unenforceable or invalid provision or
portion thereof eliminated. Notwithstanding the foregoing, the parties hereto
affirmatively represent, acknowledge and agree that it is their intention that
this Agreement and each of its provisions are enforceable in accordance with
their terms and expressly agree not to challenge the validity or enforceability
of this Agreement or any of its provisions, or portions or aspects thereof, in
the future. The parties hereto are expressly relying upon this representation,
acknowledgment and agreement in determining to enter into this Agreement.
17. Beneficiaries/References. The Executive shall be entitled, to the
extent permitted under any applicable law, to select and change a beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder following
the Executive's death by giving the Company written notice thereof. In the event
of the Executive's death or a judicial determination of his incompetence,
reference in this Agreement to the Executive shall be deemed, where appropriate,
to refer to his beneficiary, estate or other legal representative.
18. Governing Law. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of the Commonwealth of Virginia
without reference to principles of conflict of laws. The parties hereby
irrevocably consent to the service of any and all process in any action or
proceeding arising out of or relating to this Agreement by the mailing of copies
of such process to the parties at the address specified in Section 19 hereof.
19. Notices. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given when received if personally delivered;
when transmitted if transmitted by telecopy, electronic or digital transmission
method upon receipt of telephonic or electronic confirmation; the day after it
is sent, if sent for next day delivery to a domestic address by a recognized
overnight delivery service (e.g., Federal Express); and upon receipt, if sent by
certified or registered mail, return receipt requested. In each case notice
shall be sent to the Company c/o the Board of Directors at the Company's
principal executive offices and to the Executive at his last known permanent
address, or to such other place as either party may designate as to itself or
himself by written notice to the other.
20. Headings. The headings of the sections contained in this Agreement
are for convenience only and shall not be deemed to control or affect the
meaning or construction of any provision of this Agreement.
21. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
MOBILEPRO CORP.
By:__/Xxxxxx Xxxxxxxx/_____________________
Title:_Director____________________________
/Xxxx Xxxxxx/______________________________
Xxxx Xxxxxx
DC\ 7001657.3
