EXHIBIT 10.18
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of the 7th
day of July, 1995, by and between Xxxxxxx X. Xxxxxxx ("Employee") and METAWAVE
COMMUNICATIONS, INC., a Delaware corporation (the "Company"). In consideration
of the mutual covenants and conditions set forth herein, the parties hereby
agree as follows:
1. Employment. Company hereby employs Employee to serve as its Chief
Technical officer and Employee hereby accepts such employment. In such capacity,
Employee shall perform such duties during the term hereof as the Board of
Directors of the Company shall, from time to time, reasonably direct. Employee
agrees to utilize his skills and to render services to the best of his ability
on a full-time basis during the term of this Agreement.
2. Term. Employee's employment hereunder shall continue until terminated
pursuant to the provisions of paragraph 6 below.
3. Compensation. For all services rendered by Employee under this
Agreement, Employee shall receive a monthly salary at an annual rate of
$144,000, or such annual rate as the Board of Directors of the Company may from
time to time establish in its sole discretion, provided, that the Investors and
the Founders (as defined in the Founders Stock Repurchase Agreement dated as of
the date hereof,) hereby agree to work in good faith within the six (6) months
after the date of this Agreement to develop an executive compensation plan to
consist of salary and a bonus based on performance. In addition, Employee shall
receive such bonuses as may be declared from time to time by the Board of
Directors in its sole discretion and shall be eligible for consideration for
participation in stock option or stock purchase plans adopted by the Company, in
the sole discretion of the Board of Directors consistent with the terms of such
plans and applicable law.
4. Benefits. During the term of employment hereunder, Employee shall be
entitled to participate fully in any benefits and policies,. including, but not
limited to, vacation and sick leave and group medical and life insurance which
may be made available to the employees of the Company generally. The Company
shall pay or reimburse Employee for all reasonable travel and other expenses
incurred or paid by Employee in connection with the performance of services
under this Agreement upon presentation of expense vouchers and such other
supporting information as the company may from time to time reasonably request.
5. Warranties and Indemnification. Employee represents to the Company
that Employee is free to enter into this Agreement and that Employee has no
commitment, arrangement or understanding to or with any third party which
restrains or is in conflict with this
Agreement or which would operate to prevent Employee from performing the
services to the Company which employee hereby has agreed to provide. Employee
agrees to indemnify and hold the Company harmless from and against any and all
liabilities or claims, including costs, expenses and reasonable attorney's fees
arising out of any acts by Employee which, the foregoing representation or
warranty to the contrary notwithstanding, shall be in violation of or shall
constitute a breach of any such commitment, arrangement or understanding. The
provisions of this Paragraph 5 shall survive any termination of this Agreement
for any reason. Employee agrees to execute the Company's Proprietary Information
Agreement upon his acceptance of employment with the Company. Employee further
agrees that at all times both during his employment by the Company and after its
termination, he will keep in confidence and trust, and will not use or disclose,
any confidential or proprietary information of the Company.
6. Termination.
(a) Employee's employment hereunder may be terminated by Employee or
Company at any time for any reason, with or without Cause by delivering to the
other party written notice of such termination; provided however:
(b) All other compensation and benefits will terminate upon the
effective date of termination of Employee's employment. Notwithstanding the
foregoing, Company's obligations to continue Employee's salary will immediately
terminate upon Employee's breach of his obligations pursuant to paragraph 7 of
this Agreement. Notwithstanding anything herein to the contrary, (other than the
immediately preceding sentence) if the Company terminates Employee's employment
without cause prior to the first anniversary of the execution of this agreement,
Employee shall be entitled to receive the salary and benefits referred to in
paragraphs 3 and 4 for a period of one year following such termination. If the
Company terminates Employee's employment without cause after the first
anniversary of the date of this Agreement, Employee shall be entitled to
benefits provided in paragraphs 3 and 4 for a period of 6 months following such
determination.
(c) Company's obligation to pay salary, benefits, and any and all
other forms of compensation to Employee shall immediately terminate on the
effective date of Employee's voluntary termination of employment or any
termination of Employee's employment for Cause. For purposes of this Agreement,
"Cause" shall mean (i) the Employee's engaging in misconduct which is
demonstrably injurious to Company; (ii) the Employee's being convicted of a
felony; (iii) any act of Employee, which in the reasonable judgment of a
majority of the Board of Directors of the Company, constitutes dishonesty,
larceny, fraud, deceit or gross negligence by Employee in the performance of his
duties to the Company, or willful misrepresentation to shareholders, directors
or officers of the Company; or (iv) the Employee's breach of this-
Employment Agreement or any confidentiality or proprietary information agreement
between the Employee and Company.
(d) In the event of Employee's death during the Employment Period,
Company shall pay to Employee's estate within ten (10) days of Employee's death
any unpaid salary earned by Employee through the date of Employee's death. All
other payments shall cease.
(e) Termination by Employee. Employee may terminate his employment at
any time upon at least fifteen (15) days written notice. Einployee's right to
the benefits described in paragraphs 3 and 4 above shall terminate upon the
effective date of such termination.
7. (a) Covenant Not to Compete. For a period beginning on the date of
this Agreement and ending one year following the date of termination of
Employee's employment hereunder for any reason, Employee hereby agrees that he
will not, directly or indirectly, enter into the employment of, render services
to or acquire any interest whatsoever in (whether for his own account as an
individual proprietor, or as a partner, associate, shareholder, officer,
director, consultant, trustee or otherwise), any person or entity engaged in any
operations in competition in North America, Asia, Europe or Latin America, with
any aspect of the business of the Company as presently conducted and as said
businesses may evolve in the ordinary course of business between the date of
this Agreement and the termination of Employee's employment hereunder (including
products under active development at such time); provided, however, that nothing
herein shall prevent the purchase or ownership by Employee, by way of
investment, shares of any class stock with a value of $100,000 or less at the
time of investment, in any publicly-held corporation, or prevent the employment
of or the rendering of services by Employee where he does not contribute to the
development or sale of products which compete with products of the Company. The
parties agree that the areas within which these business activities are carried
on and where the goodwill of the Company has been established reasonably
includes North America, Asia, Europe and Latin America.
(b) Non-solicitation. Without limiting the foregoing, Employee
agrees that he will not call on or otherwise solicit business from any of the
customers or potential customers of the Company which, at the time of
termination of his employment, were listed (or ought to have been listed) in the
Company's records, as to any product that competes with any product provided or
marketed by or actually under development by the Company at the time of
Employee's termination. Employee further agrees that he will not solicit the
employment of or hire any employee of the Company throughout the term of this
covenant.
8. Remedies. Employee agrees that damages for breach of his covenants
under paragraph 7 above will be difficult to determine and inadequate to remedy
the harm which may
be caused thereby, and therefore consents that these covenants may be enforced
by temporary or permanent injunction without the necessity of bond. such
injunctive relief shall be in addition to and not in place of any other remedies
available at law or in equity. Employee believes that the provisions of this
Agreement are reasonable and that Employee is capable of gainful employment
without breaching this Agreement. However, should any court or tribunal decline
to enforce any provision of paragraph 7 of this Agreement as written, the
parties hereby agree that this Agreement shall, to the extent applicable to that
circumstance before such court, be deemed to be modified to restrict Employee's
competition with the Company to the maximum extent of time, scope and geography
which the court shall find enforceable, and such provisions shall be so
enforced. The prevailing party in any enforcement proceedings hereunder shall be
awarded its costs and reasonable attorneys' fees at all levels of such
proceedings.
9. Agreement Relating to Sale and Repurchase of Shares. As a condition
of the employment of Employee by the Company, Employee agrees to execute and
deliver an agreement in substantially the form of Exhibit B attached hereto.
10. Entire Agreement: Modification. The provisions and documents
contained and referenced herein constitute the entire Agreement between the
parties with respect to the subject matter hereof and any waiver, alteration or
modification of any provisions of this Agreement, or the replacement of this
Agreement, shall not be valid unless in writing and signed by all the parties
signing hereunder.
11. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Washington.
12. No Waiver. No waiver or modification of any of the terms or
provisions hereof shall be valid unless in writing signed by the party against
which the enforcement of such waiver or modification is sought, nor shall any
waiver or failure to enforce any right hereunder be deemed to be a waiver of the
same or any other right in any other instance.
13. Arbitration. Employee agrees that any and all disputes that Employee
has with the Company or any of its employees, which arise out of Employee's
employment, the termination of employment or otherwise under the terms of this
Agreement shall be resolved through final and binding arbitration. This shall
include, without limitation, disputes relating to this Agreement, any disputes
regarding Employee's employment by the Company or the termination thereof,
claims for breach of contract or breach of the covenant of good faith and fair
dealing, and any claims of discrimination or other claims under any federal,
state or local law or regulation now in existence or hereinafter enacted and as
amended from time to time concerning in any way the subject of Employee's
employment with the Company or its termination. The only claims not covered by
this paragraph 13 are claims for benefits under the workers'
compensation laws or unemployment insurance laws. Binding arbitration will be
conducted in Seattle, Washington, in accordance with the rules and regulations
of the American Arbitration Association then in effect. Each party will bear
one-half of the cost of the arbitration filing and hearing fees, and the cost of
the arbitrator; each side will bear its own attorneys' fees, unless otherwise
decided by the arbitrator. Employee understands and agrees that the arbitration
shall be instead of any civil litigation and that the arbitrator's decision
shall be final and binding to the fullest extent permitted by law and
enforceable by any court having jurisdiction thereof.
Signed by the parties as of the date first written above.
METAWAVE COMMUNICATIONS CORPORATION
By /s/ Xxxxxx Xxxxxx
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Its Chairman/Secretary
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Address: c/x Xxxxxxx Xxxxxxxx et al.
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 0000 ,
Xxxxxxx, Xxxxxxxxxx 00000
Signature:____________________________
