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Exhibit 10.9
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 20th day of November, 1997, by and
between Cycomm International Inc. (the "Corporation"), a corporation
organized under the laws of the State of Wyoming, and Xxxx X. Xxxxxxxx
("Employee").
In consideration of the mutual covenants herein contained, and upon the
other terms and conditions hereinafter provided, the parties hereby agree as
follows:
1. POSITION AND RESPONSIBILITIES. Effective as of the date hereof and
during the period of his employment hereunder, Employee agrees to serve as Chief
Operating Officer.
2. TERMS AND DUTIES.
(a) The term of this Agreement shall be deemed to have commenced as
of the effective date of this Agreement, and shall continue for one (1) year.
Thereafter, this Agreement shall be deemed to continue for an additional twelve
(12) months and each succeeding twelve (12) months, unless terminated as
provided herein.
(b) During the period of his employment hereunder, except for
periods of absence occasioned by illness, reasonable vacation periods, and
reasonable leaves of absence, Employee shall devote his business time,
attention, skill and effort to the faithful performance of his duties hereunder.
3. COMPENSATION AND REIMBURSEMENT.
(a) The Corporation shall pay Employee as compensation a salary at
the annual rate of $125,000, payable in equal bi-monthly installments. In
addition to the salary provided in this paragraph 3(a), the Corporation shall
provide Employee, at no additional cost to Employee, with all such other
benefits as are provided to executives of the Corporation.
(b) In addition to the salary and benefits provided for by paragraph
3(a), the Corporation shall pay or reimburse Employee for all reasonable
business class travel and other ordinary and necessary expenses incurred by
Employee performing his obligations under this Agreement and professional
obligations in such form and such amounts as the Board of Directors of the
Corporation may determine.
(c) The Corporation will provide Employee an appropriate automobile
and services related thereto, the aggregate monthly cost of which will not
exceed $400.
(d) The Corporation shall grant an option for Employee to purchase
200,000 shares of stock, as set forth in the Stock Option Agreement dated the
date hereof and incorporated herein by reference. Employee agrees to the
cancellation of the stock options and
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warrants totaling 120,000 shares which were granted as part of Employee's
initial employment agreement dated May 15, 1995.
(e) The Employee shall be entitled to participate in any stock or
option plan, retirement or pension plan or profit sharing plan on terms no less
favorable than to the other executives.
(f) The Employee shall be entitled to take vacation(s) not exceeding
four weeks in any one fiscal year.
4. TERMINATION; PAYMENTS TO EMPLOYEE UPON TERMINATION.
(a) This Agreement, subject to paragraph 5 below, may be terminated
by the Employee upon one month's notice.
(b) In the event that Employee's employment is terminated by the
Corporation for any reason other than for willful misconduct, Employee shall
receive a lump sum payment equal to six (6) months salary and continue to
receive benefits set forth in paragraph 3 hereof.
5. CHANGE IN DUTIES.
This Agreement shall be deemed to be terminated pursuant to paragraph 4(b)
if (i) without his consent, the Employee is assigned any duties or
responsibilities that are inconsistent with his position, duties,
responsibilities or status at the commencement of this Agreement; (ii) without
his consent, the Employee's salary and benefits set forth in paragraph 3 hereto
are reduced in any year by a percentage greater than the average reduction in
the salary and benefits experienced by all executives of the Corporation; (iii)
without his consent, the Employee is transferred to a location which is an
unreasonable distance from Portland, Oregon or McLean, Virginia or is required
to engage in an unreasonable amount of travel; or (iv) a Change of Control, as
defined in Item 1(a) of Form 8-K, of the Corporation occurs.
6. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior employment agreement between the Corporation or
any predecessor of the Corporation and Employee, except that this Agreement
shall not affect or operate to reduce any benefit or compensation inuring to
Employee of a kind elsewhere provided. No provision of this Agreement shall be
interpreted to mean that Employee is subject to receiving fewer benefits than
those available to him without reference to this Agreement.
7. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under
this Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment,
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encumbrance, charge, pledge, or hypothecation, or to execution, attachment,
levy, or similar process or assignment by operation of law, and any attempt,
voluntary or involuntary, to affect any such action shall be null, void, and of
no effect.
(b) This Agreement shall be binding upon, and inure to the benefit
of, Employee and the Corporation and their respective successors and assigns.
8. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have
been waived, nor shall there by any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party charged
with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any other
than that specifically waived.
9. SEVERABILITY. If, for any reason, any provision of this Agreement, or
any part of any provision, is held invalid, such invalidity shall not affect any
other provision of this Agreement or any part of such provision not held so
invalid, and each such other provision and part thereof shall to the full extent
consistent with law continue in full force and effect.
10. HEADINGS FOR REFERENCE ONLY. The headings of paragraphs herein are
included for convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
11. GOVERNING LAW. This Agreement has been executed and delivered in
Virginia, and its validity, interpretation, performance, and enforcement shall
be governed by the laws of Virginia.
12. PAYMENT OF LEGAL FEES. All legal fees paid or incurred by Employee
pursuant to any dispute or question of interpretation relating to this Agreement
shall be paid or reimbursed by the Corporation, if Employee is successful.
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SIGNATURES. IN WITNESS WHEREOF, the Corporation has caused this Agreement
to be executed and its seal to be affixed hereunto by its directors thereunto
duly authorized, and Employee has signed this Agreement, all as of the day and
year first above written.
ATTEST: Cycomm International Inc.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title:President and CEO
WITNESS: EMPLOYEE
/s/ Xxxxx Xxxx /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
