OFFICER/DIRECTOR EMPLOYMENT CONTRACT
This contract for employment of an officer and/or director (the "agreement")
is entered into between Pacific Link Internet, Inc., a California corporation
d.b.a. "Global Pacific Internet" as a subsidiary of Worldwide Wireless
Networks, Inc., a Nevada corporation, with its principal place of business
located at 000 Xxx Xxxx Xxxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx 00000
(hereinafter known collectively as the "employer"), and Xxxxxxx X. Xxxxx, an
individual.
ARTICLE 1. TERM OF EMPLOYMENT
Specified Period
Section 1.01 Employer hereby employs employee and employee hereby accepts
employment with employer for a period of five (5) years, beginning on January
1, 2000, and terminating on December 31, 2004.
Automatic Renewal
Section 1.02 This agreement shall be renewed automatically for Four (4)
additional consecutive terms of One (1) year each, unless either party gives
notice to the other at least Ninety (90) days prior to the expiration of any
term of its intention not to renew.
"Employment Term" Defined
Section 1.03 As used herein, the phrase "employment term" refers to the
entire period of employment of employee by employer hereunder, whether for the
periods provided above, or whether terminated earlier, renewed, or otherwise
extended by mutual agreement of the parties.
ARTICLE 2. DUTIES AND OBLIGATIONS OF EMPLOYEE
General Duties
Section 2.01 Employee shall serve as President and COO (Chief Operating
Officer) for an interim period of sixty (60) days from the initiation date of
this contract. After such time, employee shall transition to the position of
CEO (Chief Executive Officer) and remain in that position until termination of
this contract by lapse of time or other provisions provided for
hereunder. Employee shall also become a member of the Board of Directors as
of the date of this agreement. In his capacity as President and COO, employee
shall use his best efforts and do and preform all services, acts, or things
necessary or advisable to manage and conduct the business of employer, subject
at all times to the policies set by Employer's Board of Directors and subject
to the consent of the Board of Directors when required by the terms of this
agreement. During this interim period, employee and the company through its
officers, managers and Board of Directors, shall develop and agree upon a
"point sheet," to be signed by the parties hereto and attached to this
agreement as Exhibit "A" prior to employee taking his position as CEO, said
"point sheet" to contain an outline, listing and description of the duties,
authorities, obligations, rights and responsibilities (relative to other
officers, managers and directors) of the CEO position assumed by employee.
Devotion to Employer's Business
Section 2.02 Unless agreed to in writing by employer, (a) employee shall
devote his entire productive time, ability, energies, and attention to the
business of employer during the term of this contract.(b) Employee shall not
engage in any other business duties or pursuits whatsoever, or directly or
indirectly render any services of a business, commercial or other professional
nature to any other person or organization, for compensation in wages, equity
or otherwise, for any period of time longer than two calendar weeks, without
the prior written consent of employer's Board of Directors. (c) This
agreement shall not be interpreted to prohibit employee from making passive
personal investments or conducting private business affairs if those
activities do not materially interfere with the services required under this
agreement. However, employee shall not directly or indirectly acquire, hold
or retain any interest in excess of five (5%) per cent in any business
directly competing with the business of employer.
Indemnification for Negligence or Misconduct
Section 2.03 Employee and employer agree to mutually indemnify the other
and to hold the other harmless from liability for loss, damage, or injury to
persons or property resulting from any breach of this agreement by the other,
the definition of said breach to include but not be limited to negligence,
gross negligence, or other misconduct
Trade Secrets
Section 2.04 (a) The parties acknowledge and agree that during the term of
this agreement and in the course of the discharge of the duties hereunder,
Employee shall have access to and become acquainted with information
concerning the operation and process of Employer, including without
limitation, financial, personnel, sales, scientific, and other information
that is owned by or proprietary to Employer and regularly used in the
operation of Employer's business, and that such information constitutes trade
secretes.
(b) Employee specifically agrees that he shall not misuse,
misappropriate, or disclose any such trade secrets, directly or indirectly, to
any other person or use them in any way, either during the term of the
agreement or at any other time thereafter, except as is required in the course
of his employment hereunder.
(c) Employee acknowledges and agrees that the sale or
unauthorized use or disclosure of any of Employer's trade secrets obtained by
Employee during the course of his employment under this agreement, including
information concerning Employer's current or any future and proposed work,
services, or products, the fact that any such work, services, or products are
planned, under consideration, or in production, as well as any descriptions
thereof (Proprietary Information), constitute unfair competition. Employee
promises and agrees not to engage in any unfair competition utilizing
Employer's Proprietary Information.
(d) Employee further agrees that all files, records,
documents, drawings, specifications, equipment, and similar items relating to
Employer's business are and shall remain exclusively the property of Employer.
ARTICLE 3. OBLIGATIONS OF EMPLOYER
Section 3.01 Employer shall provide Employee with office facilities,
parking privileges, office equipment, supplies and other facilities and
services, suitable to Employee's position and adequate for the performance of
his duties.
Indemnification of Losses of Employee
Section 3.02 Employer shall indemnify Employee for all loses sustained by
Employee in direct consequence of the discharge of his duties on Employer's
behalf.
ARTICLE 4. COMPENSATION OF EMPLOYEE
Annual Salary
Section 4.01 (a) As compensation for the services to be performed
hereunder, Employee shall receive a guaranteed salary at the rate of One
Hundred Twenty Thousand ($120,000.00) dollars per year during the employment
term, to be paid pro rata two times per month. Said salary shall be reviewed
and renegotiated every three (3) months with the Directors of Employer. In
the event Employer's financial condition is such that it does not have the
funds necessary to pay Employee and the salaries of the two other top paid
executives for a period of two (2) consecutive months, Employer may, by action
of its board of directors, reduce Employee's salary by 50%, until such time as
Employer's financial condition improves. However, any such reduction shall be
on par with and at an equal pro rata reduction with, the other two top paid
executives of Employer. In such event, Employer shall, at the request of
Employee, provide Employee with financial data in support of such action. All
funds not paid during this period shall be repaid to Employee by Employer on
a "best efforts" basis. However, if such repayment does not occur within 6
months, Employee may elect to take the lost income in the form of a stock
grant under the same pricing, terms and conditions set forth in Section 5.01
of this agreement.
Tax Withholding
Section 4.02 Employer shall have the right to deduct or withhold from the
compensation due to Employee hereunder any and all sums required for federal
income and Social Security taxes and all state and local taxes now applicable
or that may be enacted and become applicable in the future.
ARTICLE 5. EMPLOYEE INCENTIVES
Restricted Stock Options
Section 5.01 Employee shall receive Five Hundred Eighty Thousand (580,000)
restricted cashless options at a strike price of Three Dollars ($3.00) drawn
from the company's Employment Stock Option Program. The stock will vest as
follows:
a) One Hundred Thousand (100,000) shares will vest in full upon the
date of this agreement.
b) Twenty Thousand (20,000) shares will vest each month, with the
basis being the average of the last five (5) trading days of the
month, for the first twenty four (24) months of employment,
totaling Four Hundred Eighty Thousand (480,000)options.
The option/exercise period shall be from the date of vesting through the date
seven (7) years from the date of vesting. However, the date of vesting shall
accelerate, and all stock options contemplated pursuant to this clause shall
vest immediately, at the strike price in effect on the date of acceleration,
upon the occurrence of any of the following:
Termination for cause pursuant to this contract;
Termination without cause pursuant to this contract;
Any event that could jeopardize the above referenced vesting schedule of
remaining options, including but not limited to any change in the
material terms of, or rights and obligations contained in, this
employment agreement, or any sale, merger, takeover or change in control
of the stock of company such that any single shareholder or group of
shareholders in concert and acting together shall gain control of 51% or
more of the outstanding shares of company.
Incentive Stock Option Program
Section 5.02 If the Board of Directors of Employer elects to institute an
Incentive Stock Option program, or other stock program not currently in
effect, Employee shall be eligible to participate in said program under the
guidelines set forth, and continue to participate in the Employment Stock
Option Program, the Board may elect to reduce Employee's participation in any
such incentive stock option program by 25% vis a vis other officers or
directors during the first two years of employee's employment. However, this
reduction can only apply to one stock option program if multiple programs are
in place.
Performance Bonus Eligibility
Section 5.03 Employer does not now maintain, but agrees to assemble and
propose to its Board of Directors, during and covering the calendar year 2000,
an Annual Performance Bonus Plan to include Employee and such other top
executives of Employer as the Board shall deem appropriate, subject to the
limitations set forth in Section 5.02, above.
ARTICLE 6. EMPLOYEE BENEFITS
Annual Vacation
Section 6.01. Employee shall be entitled to three (3) weeks vacation each
year, and those business days that fall between Christmas and New Year's day,
without loss of compensation. Employee may be absent from his employment for
vacation only at such times as Employer's Board of Directors shall determine
form time to time. In the event that Employee is unable for any reason to
take the total amount of vacation days authorized therein during the year, he
shall be entitled to use such un-taken vacation days in the next year of
employment.
ARTICLE 7. BUSINESS EXPENSES
Reimbursement of Business Expenses
Section 7.01 (a) Employer shall promptly reimburse Employee for all
reasonable business expenses incurred by Employee in connection with the
business of Employer.
(b) Each such expenditure shall be reimbursable only if it is
of a nature qualifying it as proper deduction on the federal and state income
tax return of Employer.
(c) Each such expenditure shall be reimbursable only if
Employee furnishes to Employer adequate records and other documentary evidence
required by federal and state statutes and regulations issued by the
appropriate taxing authorities for the substantiation of each such expenditure
as an income tax deduction. Notwithstanding the forgoing, Employee shall not
incur expenses in excess of Five Hundred ($500.00) dollars, excluding expenses
incurred in connection with travel outside of the metropolitan Los Angeles
area, without obtaining the prior consent of Employer, which consent shall not
be unreasonably withheld or delayed.
(d) Employee shall be reimbursed for the use of his privately
owned vehicle at $500 per month. If business mileage exceeds this, he will
also be reimbursed for the difference at standard government rates.
Repayment of Disallowed Expenses
Section 7.02. In the event that any expenses paid for Employee or any
reimbursement of expenses paid to Employee shall, on audit or other
examination of employer's income tax returns, be determined not to be
allowable deductions from Employer's gross income because of Employee's
misrepresentation or characterization of such expenses, and in the further
event that this determination shall be acceded to by the Employer or made
final by the appropriate federal or state taxing authority or a final judgment
of a court of competent jurisdiction, and no appeal is taken from the judgment
or the applicable period for filing notice of appeal has expired, Employee
shall repay to Employer the full amount of the disallowed expenses.
ARTICLE 8. RELOCATION OF EMPLOYEE
Section 8.01. Employee shall be reimbursed Five Hundred Dollars ($500.00) per
month for temporary lodging while relocating, up to a maximum period of six
months from the effective date of this agreement.
Section 8.02 Employee shall be reimbursed for one trip to Virginia every
three weeks while relocating, with roundtrip airfares of no more than $450.00,
for a maximum period of six months. Employee's Spouse may take one or more of
these trips in the place of Employee, under the same conditions of this
Section.
Section 8.03 Employee will be reimbursed for realtor fees, up to 3 % of the
sale price, on the sale of his home in Virginia. If realtor fees exceed 3% of
the sale price, the difference will be reimbursed to Employee by a stock grant
under the same terms and conditions set forth herein under Section 5.01.
Section 8.04 Employee will be reimbursed for moving and shipping costs
related to relocation up to a maximum of Twelve Thousand Five Hundred Dollars
($12,500.00).
ARTICLE 9. TERMINATION OF EMPLOYMENT
Termination for Cause
Section 9.01. (a) Employer reserves the right to terminate this agreement if
Employee 1) willfully breaches any of the terms of this agreement; 2)
habitually neglects the duties which he is required to perform under the terms
of this agreement, including those set forth in Exhibit "A," to be attached
hereto after agreement of the parties but prior to assumption of the CEO
position; 3) or commits such acts of dishonesty, fraud, misrepresentation or
other acts of moral turpitude as would prevent the effective performance of
his duties.
(b) Employer may at its option terminate this agreement for the
reasons stated in this section by giving written notice of termination to
Employee without prejudice to any other remedy to which employer maybe
entitled either at law, in equity, or under this agreement. Notwithstanding
the foregoing, as a condition precedent to such termination, Employer shall
have provided Employee with written notice of his breach, setting forth in
detail the cause thereof, and providing Employee with an opportunity to
respond to such claim and be heard upon his response by a meeting of the Board
of Directors. In terminating Employee for cause, Employer shall further
follow and adhere to any procedures and guidelines set forth in Employer's
"Employee Handbook" in addition to the termination requirements set forth
herein. If there are any conflicting terms or conditions regarding termination
between the Handbook and this agreement, the agreement shall prevail, whether
termination is for cause or without cause.
(c) The notice of termination required by this section shall
specify the ground for the termination and shall be supported by a statement
of relevant facts.
(d) Termination under this section shall be considered "for cause"
for the purposes of this agreement.
Termination Without Cause
Section 9.02 Notwithstanding any other termination clause hereunder, and
unfettered by any requirements or procedures set forth in Employer's "Employee
Handbook," Employer may terminate Employee without cause, upon thirty (30)
days notice, but shall at that time become obligated to pay to Employee a
severance payment equal to six (6) months of salary at the rate applicable on
the date of notice of termination. In such event, Employer shall also be
required to continue to furnish, under the Employee's existing health plan,
health insurance, for a period of one year from the date of termination, or
until such time as Employee is offered or eligible for health insurance from
any other employer.
Termination by Employee
Section 9.03. Employee may terminate his obligations under this agreement by
giving the Employer at least Thirty (30) days notice in advance. In the event
Employee shall terminate his obligations hereunder, Employee shall not be
entitled to any payment of unpaid annual salary from Employer, any other
severance, or continuation of health benefits as provided in Section 9.02,
above.
ARTICLE 10. GENERAL PROVISIONS
Notices
Section 10.01. Any notices to be given hereunder by either party to the other
shall be in writing and may be transmitted by personal delivery or by mail,
registered or certified, postage prepaid with return receipt requested.
Mailed notices shall be addressed to the parties at the addresses appearing in
the introductory paragraph of this agreement, but each party may change that
address by written notice in accordance with this section. Notices delivered
personally shall be deemed communicated as of the date of actual receipt;
mailed notice shall be deemed communicated as of the date of mailing.
Attorney's Fees and Costs
Section 10.02. If any action at law or in equity is necessary to enforce or
interpret the terms of this agreement, the prevailing party shall be entitled
to reasonable attorney's fees, costs, and necessary disbursements in addition
to any other relief to which that party may be entitled. This provision shall
be construed as applicable to the entire agreement. The parties hereto agree
that the Superior Court of Orange County shall have and retain exclusive
jurisdiction over any dispute under this agreement, and California law shall
govern in any controversy arising.
Consents
Section 10.03. Employer agrees that all consents required of it hereunder
shall neither be unreasonably withheld nor delayed.
Entire Agreement
Section 10.04. This agreement supersedes any and all other agreements, either
oral or in writing, between the parties hereto with respect to the employment
of Employee by Employer and contains all of the covenants and agreements
between the parties with respect to that employment in any manner whatsoever.
Each party to this agreement acknowledges that no representation, inducements,
promises, or agreements, orally or otherwise, have been made by any party, or
anyone acting on behalf of any party, which are not embodied herein, and that
no other agreement, statement, or promise not contained in this agreement
shall be valid or binding on either party.
Modifications
Section 10.05. Any modification of this agreement will be effective only if
it is in writing and signed by the party to be charged.
Effect of Waiver
Section 10.06. The failure of either party to insist on strict compliance
with any of the terms, covenants, or conditions of this agreement by the other
party shall not be deemed a waiver of that term, covenant, or condition, nor
shall any waiver or relinquishment of any right or power at any one time or
times be deemed a waiver or relinquishment of that right or power for all or
any other times.
Partial Invalidity
Section 10.07. If any provision in this agreement is held by court of
competent jurisdiction to be invalid, void, or unenforceable, the remaining
provision shall nevertheless continue in full force without being impaired or
invalidated in any way.
Facsimile Signatures
Section 10.08 Any signed copy of this agreement or of any other document or
agreement referred to herein, or copy or counterpart thereof, delivered by
facsimile transmission, shall for all purposes be treated as if it were
delivered containing an original manual signature of the party whose signature
appears in the facsimile, and shall be binding upon such party in the same
matter as though an originally signed copy had been delivered.
Executed on Jan 1 , 2000, at Orange, California.
Employer: /s/ Xxxxxxx X. Xxxxx
Worldwide Wireless Networks, Inc., a Nevada Corporation
Pacific Link Internet, Inc., a California corporation d.b.a. Global Pacific
Internet
by:/s/ Xxxxxxx X. Xxxxx
its: President & COO
Executed on January 1, 2000, at Orange, California.
Employee :
Xxxxxxx X. Xxxxx
