EXHIBIT 10.10
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of April 1, 2000 between CellPoint Inc. (the
"Company"), and Xxxxx Xxxxxxxxxx ("Executive").
W I T N E S S E T H:
WHEREAS, the Company is engaged in the business of [developing and
marketing products related to its cellular network tracking system] (as such
business is from time to time conducted by the Company and its affiliates during
the term of this Agreement, the "Business");
WHEREAS, the Company wishes to assure itself of the availability of
the advice and services of Executive in connection with the Business; and
WHEREAS, Executive wishes to be employed by the Company;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements set forth herein, the parties hereto agree as follows:
1. EMPLOYMENT AND TERM. Subject to the terms and conditions of this
Agreement, and unless earlier terminated as set forth herein, the Company agrees
to employ Executive, and Executive hereby accepts employment by the Company, for
the two-year period commencing on the date hereof; PROVIDED, HOWEVER, that
commencing on the date one year after the date hereof, and on each annual
anniversary of such date (such date and each annual anniversary thereof is
hereinafter referred to as the "Renewal Date"), the term of this Agreement shall
be automatically extended so as to terminate two years from such Renewal Date,
unless at least 60 days prior to the Renewal Date, either Executive or the
Company shall give notice that the term of this Agreement shall not be so
extended (the initial term, together with all renewal terms, is sometimes
referred to herein as the "Term"). This contract refers to the duties carried
out by Executive in the UK and in the USA.
2. DUTIES. During the Term, Executive shall serve the Company as its
President, and shall perform such executive and other duties for the Company, or
any division, subsidiary, affiliate or joint venture of the Company, as are
incident to such position and as may reasonably be requested by the Board of
Directors of the Company and under their direction. During the Term, Executive
shall devote his entire business time, attention and energies, on a full-time
basis, to his duties under this Agreement.
3. COMPENSATION.
a. BASE SALARY. During the Term, the Company shall pay to Executive,
in equal installments no less frequently than twice per month (or at such other
intervals as are in effect from time to time for other executive employees of
the Company), an annual base salary of (pound)132,000 (SUCH amount, as the same
may hereafter be modified by mutual agreement of Executive and the Company, to
be reviewed once per year, being referred to herein as the "Base
Salary"). In addition, Executive may be awarded, at the Company's sole and
exclusive discretion, bonus compensation. Any such bonus compensation shall be
payable at such times as the Company may determine, but only if Executive is, as
of the date of such payment, an employee in good standing and not subject to any
of the notices described in Section 4.
b. BENEFITS. Executive shall be entitled to participate in such
benefit plans, including stock option, medical, health, retirement and other
plans, as may be established and maintained from time to time for executive
employees of the Company generally.
c. REIMBURSEMENT OF EXPENSES. Executive shall be entitled to
reimbursement for all normal and reasonable travel, entertainment and other
expenses necessarily incurred by him in the performance of his duties hereunder.
Executive shall submit on a timely basis such itemized accounts of such
expenses, together with such vouchers or receipts for individual expense items,
as the Company may from time to time require under its established policies and
procedures. The Company's payments hereunder shall be made within a reasonable
time following its receipt of such itemized accounts.
d. VACATION. Executive shall be entitled to 6 weeks' vacation each
calendar year during the Term (such period to be pro-rated based on the actual
number of working days for which Executive is employed during a calendar year).
Executive shall be entitled to additional compensation for any vacation time not
taken in respect of any calendar year, and Executive shall be entitled to carry
over into any succeeding year any unused vacation time.
e. DISABILITY. Except as hereinafter provided, the Company shall pay
Executive, for any period (up to a maximum of six months during the Term) in
which he is unable fully to perform his duties because of physical or mental
disability or incapacity, an amount equal to the Base Salary due him for such
period pursuant to Section 3(a), less the aggregate amount of all income
disability benefits which for such period he may receive by reason of (i) any
group health insurance plan, or disability insurance plan paid for by the
Company, in each case which is intended to function as a salary replacement
plan, (ii) any applicable compulsory state disability law, (iii) the Federal
Social Security Act, (iv) any applicable workmen's compensation law or similar
law and (v) any plan towards which the Company or any subsidiary or affiliate of
the Company (including any predecessor of any thereof) has contributed or for
which it has made payroll deductions, such as group accident or health policies,
other than those that reimburse for actual medical expenses.
f. KEY MAN INSURANCE. Executive agrees that the Company may obtain
key man life insurance with respect to Executive, and in connection therewith,
agrees to submit to all reasonable and customary examinations by the provider of
such life insurance.
4. TERMINATION OF EMPLOYMENT.
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a. CAUSE. The Company shall have the right, at any time effective
upon notice to Executive, to terminate Executive's employment for "Cause,"
defined, for purposes hereof, as (i) malfeasance, gross neglect or willful
misconduct in the performance of Executive's duties hereunder; (ii) conviction
of a felony; (iii) failure to perform any of Executive's material obligations
under this Agreement (other than by reason of death or disability contemplated
by Section 3(e) or 4); (iv) fraud, dishonesty or unlawful conduct against the
Company or any of its or its affiliates' employees; or (v) a material breach of
this Agreement by Executive; PROVIDED, in the case of any default under clause
(iii), (iv) or (v) that is susceptible to cure, that such default continues
uncured 15 days after written notice thereof from the Company to Executive.
b. DISABILITY; DEATH. In the event that Executive, due to physical
or mental disability or incapacity, is unable to substantially perform his
duties hereunder for a period of more than six months during the Term, the
Company or Executive shall have the right to terminate this Agreement and
Executive's employment hereunder upon 30 days' prior written notice and
termination shall be effective on the 30th day after receipt of such notice by
the other party. In the event that Executive is able to and recommences
rendering services and performing his duties hereunder within such 30-day notice
period, Executive shall be reinstated and such notice shall be without further
force or effect. If Executive dies during the Term, this Agreement shall
terminate immediately upon his death.
c. TERMINATION BY EXECUTIVE FOR GOOD REASON. Executive may terminate
his employment hereunder, such termination to be effective on written notice to
the Company, for any of the following reasons:
(i) the assignment to Executive of any duties inconsistent in any
material respect with Executive's position (including status, office,
titles and reporting requirements), authority, duties or responsibilities
as contemplated by this Agreement, or any other action by the Company
which results in a material diminution in such position, authority, duties
or responsibilities; or
(ii) the Company materially breaches its obligations under this
Agreement;
PROVIDED that any such action or default shall not have been remedied by the
Company within 15 days after receipt of notice thereof given by Executive.
d. VOLUNTARY TERMINATION BY EXECUTIVE. Executive may terminate his
employment under this Agreement on six months' written notice to the Company at
any time.
5. EFFECTS OF TERMINATION.
a. In the event that Executive's employment is terminated pursuant
to Section 4(a) or 4(d) hereof, (i) Executive's employment hereunder shall
immediately cease, (ii) the
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Company shall pay to Executive his accrued and unpaid salary, accrued vacation
time and expense reimbursement through the date of termination in accordance
with the Company's usual procedures, and (iii) all then non-exercisable stock
options shall immediately and automatically terminate. Once the amounts referred
to in clause (ii) are paid, however, the Corporation shall have no further
obligation to Executive.
b. In the event that Executive's employment is terminated pursuant
to Section 4(b) hereof as a result of Executive's death, (i) Executive's
employment hereunder shall cease in accordance with Section 4(b), (ii) the
Company shall pay to Executive his accrued and unpaid salary, accrued vacation
time and expense reimbursement through the date of termination in accordance
with the Company's usual procedures, (iii) all then non-exercisable stock
options shall immediately and automatically terminate, and (iv) any vested
options shall be transferred in accordance with Executive's will; PROVIDED that
nothing in this paragraph (b) shall alter any right of Executive (or his legal
representative) to receive death benefits provided in accordance with the terms
of a benefit plan in which Executive participates if Executive's employment is
terminated pursuant to Section 4(b) hereof.
c. In the event that Executive's employment is terminated pursuant
to Section 4(b) hereof as a result of Executive's disability, (i) the Company
shall pay to Executive his accrued and unpaid salary, accrued vacation time and
expense reimbursement through the date of termination in accordance with the
Company's usual procedures, (ii) the Company shall continue to pay to Executive
his Base Salary, and all associated benefits, for a period of six months
following such date of termination, in accordance with the Company's usual
procedures; (iii) any nonexercisable stock options which would otherwise have
become vested in accordance with their terms within such six-month period if
Executive's employment shall have continued shall be vested; and (iv) any stock
options which are not vested at the end of such six-month period shall
automatically terminate at the end of such six-month period; PROVIDED that
nothing in this paragraph (c) shall alter any right of Executive (or his legal
representative) to receive disability benefits provided in accordance with the
terms of a benefit plan in which Executive participates if Executive's
employment is terminated pursuant to Section 4(b) hereof.
d. In the event that Executive's employment hereunder is terminated
by the Company other than pursuant to Section 4(a) or (b) or if Executive's
employment is terminated pursuant to Section 4(c), then: (i) Executive shall be
entitled to receive, and the Company shall continue to pay to Executive, the
Base Salary specified in Section 3(a) for one year following the effective date
of such termination, (ii) Executive shall be entitled, during the period during
which such severance payment is being paid, to receive all benefits under the
Company's medical insurance, disability insurance, life insurance and other
benefit plans as are then in effect for executives of the Company, (iii) any
nonexercisable stock options which would otherwise have become vested in
accordance with their terms within such one-year period if Executive's
employment shall have continued shall be vested; and (iv) any stock options
which are not vested at the end of such one-year period shall automatically
terminate at the end of such one-year period.
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e. Executive's obligations pursuant to Sections 6 and 7 hereof shall
survive any termination of this Agreement for any reason whatsoever.
f. TERMINATION IN CERTAIN CIRCUMSTANCES AFTER A CHANGE OF CONTROL.
If any of the following shall occur:
(i) The acquisition by any person, entity or "group" (within the
meaning of Section 13(d)(3) of the Securities Exchange Act if 1934, as
amended (the "Exchange Act")) (other than the Company, its affiliates or
any Company benefit plan that acquires beneficial ownership of voting
securities of the Company) of beneficial ownership (within the meaning of
Rule 13d-3 under the Exchange Act) of 50% or more of the combined voting
power of the Company's then outstanding voting securities entitled to vote
generally in the election of directors; or
(ii) The failure of the individuals who, as of the date hereof,
constitute the Board of Directors of the Company (the "Incumbent Board"),
to constitute at least a majority of the Board of Directors; PROVIDED that
any person who becomes a director subsequent to the date hereof whose
recommendation, election or nomination for election by the Company's
stockholders was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be deemed to be a
member of the Incumbent Board; or
(iii) The consummation by the Company of a reorganization, share
exchange, merger or consolidation in which the persons who were the
stockholders of the Company immediately prior to such reorganization,
share exchange, merger or consolidation do not, immediately thereafter,
own more than 50% of the combined voting power entitled to vote in the
election of directors of the reorganized, merged or consolidated company;
and if Executive's employment is terminated within twelve months of any of the
foregoing events (other than pursuant to Sections 4(a), 4(b) or 4(d) hereof, (x)
the Company shall pay to the Executive, as severance pay or liquidated damages
or both, during the twelve four-month period immediately following such
termination, the amount of Base Salary that the Executive would have been
entitled to receive during such period had the Executive's employment not been
so terminated; (y) Executive shall be entitled, during the period during which
such severance payment is being paid, to receive all benefits under the
Company's medical insurance, disability insurance, life insurance and other
benefit plans as are then in effect for executives of the Company, and (z) any
nonexercisable stock options which would otherwise have become vested in
accordance with their terms within such one-year period if Executive's
employment shall have continued shall be vested.
6. CONFIDENTIALITY.
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a. Executive understands and acknowledges that, as a result of
Executive's employment with the Company, he shall necessarily become informed
of, and shall have access to, confidential information of the Company,
including, without limitation, the contents of this Agreement, inventions, trade
secrets, technical information, know-how, plans, marketing plans and
information, pricing information, identity of providers and their patients and
prospective providers and their patients and identity of suppliers, and that
such information, even though it may be developed or otherwise acquired by
Executive, is the exclusive property of the Company to be held by Executive in a
fiduciary capacity and solely for the Company's benefit. Executive shall not at
any time, either during or subsequent to his employment hereunder, reveal,
report, publish, transfer or otherwise disclose to any person, company or other
entity, or use for his own benefit, any of the Company's confidential
information which Executive, in the exercise of reasonable diligence, knows or
should know to be confidential, without the written consent of the Company,
except for use on behalf of the Company in connection with the Business, and
except for such information which is or becomes of general public knowledge from
authorized sources other than Executive.
b. Upon the termination of his employment with the Company for any
reason, Executive shall promptly deliver to the Company all manuals, letters,
notes, notebooks, reports, documents and copies thereof and all other materials,
including, without limitation, those of a secret or confidential nature,
relating to the Business that are in Executive's possession or control.
c. For purposes of this Section 6, the term "Company" includes the
Company, any predecessor company, and any of their respective affiliates.
7. NON-COMPETITION.
a. Subject to the provisions of paragraph (b) hereof, Executive
agrees that, for the period commencing on the date hereof and ending two years
after the termination of his employment with the Company for any reason, he
shall not, in any country in the world in which the Company then engages in the
Business (or in such lesser area or for such lesser period as may be determined
by a court of competent jurisdiction to be a reasonable limitation on the
competitive activity of Executive), directly or indirectly:
(i) engage, as an employee, officer, independent contractor or in
any other capacity, in any activity for or on behalf of any person or
entity (other than the Company) in a line of business competitive with the
Business or any aspect thereof or engage in any manner in the Business;
(ii) except for the benefit of the Company, solicit or attempt to
solicit business of entities who were providers for, or customers of, the
Company at any time within the prior two years (including prospective
providers or customers solicited by the Company) for products or services
the same or similar to those offered, sold, produced or under
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development by the Company, or dealt in by Executive, during his
employment therewith;
(iii) interfere with the Company, the Business or the conduct
thereof by the Company, or otherwise divert or attempt to divert from the
Company any business whatsoever;
(iv) hire, solicit or attempt to solicit for participation or
employment in any business endeavor any employee of the Company;
(v) use the name of the Company or any name used by the Company, or
any name similar to any thereof, whether or not registered; or
(vi) render any services as an officer, director, employee, partner,
consultant or otherwise to, or have any interest as a member, stockholder,
partner, lender or otherwise in, any person or entity that is engaged in
activities which, if performed by Executive, would violate this Section 7.
The foregoing shall not prevent Executive from purchasing up to five percent of
the voting securities of any other entity, the securities of which are
publicly-traded, during the time which the Executive is actively employed by the
Company.
b. In the event Executive's employment is terminated under the
circumstances contemplated by paragraphs (c) or (d) of Section 5, the
obligations of Executive set forth under this Section 7 shall only continue in
effect so long as the Company continues to pay to Executive his Base Salary (in
the intervals set forth in Section 3(a)) during the one-year period following
termination of such employment.
c. Executive agrees that the restrictions on competition set forth
in this Section 7 are reasonable and are properly required for the adequate
protection of the Business of the Company. Executive represents that his
experience, capabilities and circumstances are such that the provisions of this
Section 7 will not prevent him from earning an appropriate livelihood.
8. REMEDIES AND SURVIVAL. Because the Company does not have an
adequate remedy at law to protect its interest in its confidential information
and its Business from Executive's competition, the Company shall be entitled to
injunctive relief, in addition to such other remedies and relief that would, in
the event of a breach of the provisions of Sections 6 or 7, be available to the
Company. The provisions of Sections 5 through 8 of this Agreement shall survive
any termination of Executive's employment with the Company.
9. ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding of the parties hereto with respect to its subject matter, merges
and supersedes any prior or contemporaneous agreements or understandings with
respect to its subject matter and shall not be
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modified or terminated except by another agreement in writing executed by the
Company and Executive.
10. SEVERABILITY. If any provision of this Agreement is held to be
invalid or unenforceable by any court or tribunal of competent jurisdiction, the
remainder of this Agreement shall not be affected by such judgment, and such
provision shall be carried out as nearly as possible according to its original
terms and intent to eliminate such invalidity or unenforceability.
11. SUCCESSORS AND ASSIGNS. Neither party shall have the right to
assign this personal Agreement, or any rights or obligations hereunder, without
the consent of the other party; PROVIDED, HOWEVER, that upon the sale or
transfer of all or substantially all of the assets and business of the Company
to another party, or upon the merger or consolidation of the Company with
another Company, this Agreement shall inure to the benefit of, and be binding
upon, both Executive and the party purchasing or acquiring such assets, business
and goodwill, or surviving such merger or consolidation, as the case may be, in
the same manner and to the same extent as though such other party were the
Company. Subject to the foregoing, this Agreement shall inure to the benefit of,
and bind, the parties hereto and their legal representatives, heirs, successors
and permitted assigns.
12. CONSTRUCTION; COUNTERPARTS. The headings contained in this
Agreement are for convenience only and shall in no way restrict or otherwise
affect the construction of the provisions hereof. This Agreement may be executed
in multiple counterparts, each of which shall be an original and all of which
together shall constitute one and the same instrument.
13. ARBITRATION; GOVERNING LAW. This Agreement shall be governed by
the laws of the State of Nevada applicable to agreements made and fully to be
performed therein by residents thereof. Any dispute arising out of or in
connection with this Agreement, including, without limitation, disputes over the
nature of any termination hereof, shall be finally determined by binding
arbitration in New York before a single arbitrator chosen in accordance with the
rules of the American Arbitration Association then and there obtaining. The
arbitration shall be conducted in accordance with such rules, and the arbitrator
shall have the authority to order such injunctive relief as he may determine, to
determine how the parties shall bear the costs of such arbitration, and to award
such damages (but not any punitive or exemplary damages) as are appropriate.
Each of the parties hereby waives any and all objections he or it may have with
respect to the jurisdiction of such arbitral forum or the inconvenience of its
venue.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first set forth above.
CellPoint Inc.
BY: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: Vice President
/s/ Xxxxx Xxxxxxxxxx
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Executive
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