EXHIBIT 10.38
AMENDED AND RESTATED STAY PUT BONUS AND EMPLOYMENT AGREEMENT
This Stay Put Bonus and Employment Agreement (the "Agreement") is made
and entered into as of February 1, 2003 (the "Effective Date"), by and between
Chadmoore Wireless Group, Inc., a dissolved Colorado corporation (the
"Company"), and Xxxxxx X. Xxxxx, the Company's current Chief Executive Officer
(the "Employee").
RECITALS
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WHEREAS, the Company entered into an Agreement and Plan of
Reorganization, dated August 21, 2000, as amended August 31, 2000, February 20,
2001, June 29, 2001, and November 16, 2001 (the "Asset Sale Agreement"), among
Nextel Communications, Inc. ("Nextel"), Nextel Finance Company, a wholly owned
subsidiary of Nextel, and the Company, under which Nextel Finance agreed to
acquire substantially all of the Company's operating assets, together with
limited liabilities, in exchange for shares of class A common stock of Nextel or
cash (the "asset sale");
WHEREAS, following the closing of the asset sale (the "Closing Date"),
the Company dissolved and liquidated its assets pursuant to the Plan of
Liquidation of Chadmoore Wireless Group, Inc. (the "Plan of Liquidation");
WHEREAS, the Company recognizes that the Employee possesses an intimate
and essential knowledge of the Company which is vital to the consummation of the
asset sale as well as to the orderly dissolution and liquidation of the Company,
the settlement of claims of creditors, the minimization of the Company's
liabilities and the maximization of the distributions to shareholders pursuant
to the Plan of Liquidation;
WHEREAS, the Company had previously granted certain stay-put options to
the Employee and also considered the granting of restricted stock to the
Employee in order to incentivize the Employee to remain with the Company up to
and following the closing of the asset sale, but because of a continuing decline
in the market price of Nextel common stock and certain other technical and
timing difficulties surrounding the exercise of the stay-put options or the
restricted shares, it was apparent that the Employee would not fully realize the
intended benefit of such stay-put options or restricted shares;
WHEREAS, in order to achieve the intended motivational effects, the
Board deemed it to be in the best interests of Chadmoore's shareholders to
cancel the stay-put options and instead to grant to the Employee a stay-put cash
payment, subject to forfeiture prior to the end of a period of six (6) months
from the Closing Date;
WHEREAS, in order to accomplish these goals, the Company and Employee
entered into a Stay Put Bonus and Employment Agreement as of February 1, 2002
(the "Initial Agreement"), pursuant to which the Employee's Amended and Restated
Employment Agreement was terminated in its entirety;
WHEREAS, the Initial Agreement contemplated that most of the Employee's
duties for the Company would be fulfilled on or before February 1, 2003;
WHEREAS, the consideration received by the Company in the asset sale
was cash, and because the resolution of the Company's outstanding liabilities
has taken longer than was anticipated, the Company contemplates that it will
need the Employee's services for longer than was expected at the time of the
Initial Agreement;
WHEREAS, the Company and the Employee desire to enter into this
Agreement in order to establish the terms of the Employee's continued retention
by the Company, to motivate and incentivize the Employee, to resolve certain
issues regarding the previous grant of stay put options to the Employee and to
encourage the Employee to continue his employment with the Company after the
asset sale and dissolution, to memorialize the terms of the Employee's
employment during the five-year liquidation period under Colorado law, and to
amend and restate, in its entirety, the Initial Agreement;
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements hereinafter set forth, the parties hereto, intending to be legally
bound, hereby agree as follows:
AGREEMENT
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1. Waiver and Release. In consideration of the confirmation of the
previous grant of the Stay Put Bonus as set forth in Section 2 hereof, the
Employee hereby waives and voluntarily relinquishes and releases any and all
claims against the Company with respect to the previous grant of stay-put
options by the Company or the proposed grant of stay-put restricted shares by
the Company.
2. Stay Put Bonus. Promptly after the Closing Date, the Company
deposited into an escrow account as a "stay put bonus" for the Employee the
amount of $840,000 (the "Stay Put Bonus"). The Employee acknowledges that he
received the Stay Put Bonus.
3. Retention, Term, And Duties.
(a) Retention. Effective as of the Closing Date, the Company
shall employ the Employee as its President and Chief Executive Officer, and the
Employee hereby accepts such employment upon the terms and subject to the
conditions of this Agreement.
(b) Initial Term. The initial term of employment of the
Employee by the Company shall be for the period commencing on the Closing Date,
and ending on the date six (6) months following the Closing Date (the "Initial
Term"), unless this Agreement is sooner terminated pursuant to Section 7 or
Section 9 hereof.
(c) Second Six Month Term. The term of Employee's employment
will be automatically extended for an additional six (6) month period commencing
on the day following the end of the Initial Term (the "Second Six Month Term"),
unless either party to this Agreement elects to terminate this Agreement by
providing written notice of such election to the other party
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not less than sixty (60) days prior to the expiration of the Initial Term. The
Initial Term and the Second Six Month Term may be referred to collectively as
"Stage 1."
(d) Stage 2. Upon the expiration of Stage 1, the term of the
Employee's employment will be automatically extended for an additional
three-month period, which additional three-month period will be automatically
extended for additional three-month periods (collectively, "Stage 2"), unless
and until (i) the Company elects to terminate Stage 2 by providing written
notice of such election to the Employee not less than forty-five (45) days prior
to the expiration of the then-current three month period or (ii) this Agreement
is terminated by either party in accordance with Section 7 or Section 9 of this
Agreement.
(e) Stage 3. Upon the termination of Stage 2 (the "Expiration
Date"), the term of Employee's employment will be automatically extended for an
additional one-year period ("Stage 3"), unless this Agreement is terminated by
either party in accordance with Section 7 or Section 9 of this Agreement. During
Stage 3, Employee shall receive compensation as provided in Section 4(c) of this
Agreement.
(f) Stage 4. Upon the expiration of Stage 3, the term of
Employee's employment will be automatically extended until February 6, 2007,
unless this Agreement is terminated by either party in accordance with Section 7
or Section 9 of this Agreement. During Stage 4, Employee shall receive
compensation as provided in Section 4(d) of this Agreement. Upon the expiration
of Stage 4, this Agreement shall be terminated and Employee shall resign as an
officer of the Company and the Company shall accept such resignation.
Notwithstanding anything to the contrary in this Agreement, during Stage 4,
Employee shall provide services to the Company on an as-needed basis, and will
not be required to provide full-time services to the Company. Stages 1, 2, 3 and
4 may be referred to collectively as the "Term."
(g) Duties. During the Term, the Employee shall report only to
the Company's Board of Directors. During the Term, the Employee shall devote
such amount of his business time, care, attention, and best efforts to the
Company's dissolution and liquidation as is reasonably necessary, as determined
by the Company's Board of Directors, with the Employee abstaining from such
determination if he is then a member of the Board. Until the termination of
Stage 3, the Employee shall work for the Company on a full-time basis.
Thereafter, Employee's work for the Company need not be on a full-time basis.
4. Compensation.
(a) Base. Until the Expiration Date, the Company shall pay to
the Employee an annualized base salary of $242,937.50 (the "Base Compensation"),
payable in equal installments, but no less often than semi-monthly. If this
Agreement is terminated for any reason prior to the Expiration Date, the Company
shall pay to the Employee his Base Compensation earned to the date of
termination.
(b) Year-end Bonus. In addition to the Base Compensation, upon
completion of Stage 1, the Employee was paid $242,937.50 (the "Year-end Bonus").
The Employee acknowledges that he received the Year-end Bonus.
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(c) Stage 3 Salary. During Stage 3, the Employee shall be paid
$7,500 per month. If this Agreement is terminated for any reason during Stage 3,
the Company shall pay to the Employee his Stage 3 Salary earned to the date of
termination. In addition, if this Agreement is terminated by the Company without
Cause or by the Employee with Good Reason during Stage 3, the Company shall pay
to the Employee the full amount of the salary that would have been paid to the
Employee during Stage 3.
(d) Stage 4 Salary. During Stage 4, the Employee shall be paid
$6,500 per month. If this Agreement is terminated for any reason during Stage 4,
the Company shall pay to the Employee his Stage 4 Salary earned to the date of
termination.
5. Other Benefits.
(a) Insurance Benefits. Until the Expiration Date, the Company
shall continue to make available to the Employee any benefits of a type, nature,
and amount comparable to those benefits which have been heretofore provided to
the Employee up to this time by the Company (including, without limitation, any
disability, medical, and life insurance benefits).
(b) Expenses. During the Term, the Company shall reimburse the
Employee for all reasonable and customary ordinary course business expenses
which the Employee shall incur in connection with the Employee's services to the
Company pursuant to this Agreement, subject to Employee's providing adequate
written support for such expenses at the reasonable request of the Company. Any
business expenses in excess of $10,000 shall require the prior written approval
of the Board.
6. Payment of Taxes. During the Term, all payments of any kind made to
Employee under this Agreement shall be subject to withholding under applicable
federal and state law including, but not limited to, federal and state income
taxes, FICA, and other similar taxes.
7. Death or Disability of Employee.
(a) Effect. This Agreement shall automatically terminate upon
the Employee's death or disability (as defined below). If Employee's death or
disability occurs during the Initial Term, the Company shall pay to the
Employee's estate or to Employee the full amount of the Stay Put Bonus. If
Employee's death or disability shall occur during the Second Six Month Term, the
Company shall pay to the Employee's estate or to Employee his salary and
Year-end Bonus, but prorated through the date of the Employee's death or
disability. Except as otherwise specified herein, the Employee's estate and/or
the Employee will not be entitled to any other benefits or compensation arising
out of the Employee's death or disability.
(b) Determination of Disability. For purposes of this
Agreement, the Employee shall be considered disabled if, due to illness or
injury, either physical or mental, he is unable to perform his customary duties
and responsibilities as required by this Agreement for more than two (2) months
in the aggregate out of any period of four (4) consecutive months.
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The determination that the Employee is disabled shall be made by the Board of
Directors of the Company (with the Employee abstaining from the decision if he
is then a member of such Board), based upon an examination and certification by
a physician based in Las Vegas, Nevada selected by the Board of Directors
subject to the Employee's approval, which approval shall not be unreasonably
withheld. The Employee agrees to submit timely to any required medical or other
examination, provided that such examination shall be conducted in Las Vegas and
that if the examining physician is other than the Employee's personal physician,
the Employee shall have the right to have such personal physician present at
such examination.
8. Indemnification And Insurance.
(a) Obligation. Upon receipt of an Indemnification Request (as
defined below), the Company shall indemnify and hold harmless, and in any
action, suit, or proceeding, defend the Employee against all expenses, costs,
liabilities, and losses (including attorney's fees, judgments, and fines and
amounts paid or to be paid in any settlement) (collectively "Indemnified
Amounts") reasonably incurred or suffered by the Employee arising out of the
course and scope of the Employee's service as an officer or director of the
Company or any affiliate (collectively, a "Covered Event") to the full extent
permitted by the Bylaws of the Company as in effect on the date of this
Agreement, or, if greater, as permitted by the Colorado Business Corporation Act
(the "CBCA"), provided that the indemnity afforded by the Company's Bylaws shall
never be greater than permitted by the CBCA. Upon the Company's receipt of an
undertaking in the form of Exhibit A, executed by the Employee, the Company
shall advance on behalf of Employee all Indemnified Amounts as they are
incurred. To the extent a change in the CBCA (whether by statute or judicial
decision) permits greater indemnification than is now afforded by the Bylaws and
a corresponding amendment shall not be made in said Bylaws, it is the intent of
the parties hereto that the Employee shall enjoy the greater benefits so
afforded by such change. For purposes of this Section 8, an "Indemnification
Request" shall mean a written request delivered to the Company in which the
Employee states, under oath, that the Employee (i) acted in good faith and in a
manner the Employee reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that the Employee's conduct was
unlawful, or (ii) in any Covered Event other than an action by or in the right
of the Company, the Employee was wholly successful, on the merits or otherwise,
in defense of the Covered Event.
(b) Determination. Any claims for indemnification asserted by
the Employee pursuant to Section 8(a) above shall be reviewed by independent
legal counsel selected by a quorum of the Board of Directors that does not
include the Employee, which counsel will determine whether such claim is proper
in a written opinion furnished to the Board of Directors, the Company, and the
Employee. In the event it is determined by such counsel that Employee is not
entitled to indemnification pursuant to this Section 8(b) (and if contested by
Employee, such determination is confirmed by the final non-appealable order of a
court of competent jurisdiction), or if a court of competent jurisdiction
determines in a final non-appealable order that Employee is not entitled to
indemnification, pursuant to the undertaking executed by the Employee, the
Employee shall promptly reimburse the Company for any/all advances of
Indemnified Amounts made by the Company on Employee's behalf.
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(c) Other Rights. The contract rights conferred by this
Section 8 shall not be exclusive of any other right which the Employee may have
or hereafter acquire under any statute, provision of the Articles of
Incorporation or Bylaws, agreement, vote of disinterested directors or
otherwise. This Section 8 shall not be deemed to affect any rights to
subrogation which may exist in any policy of directors and officers liability
insurance.
(d) Notice of Claims. The Employee shall promptly advise the
Company in writing of the institution of any action, suit, or proceeding which
is or may be subject to this Section 8, provided that Employee's failure to so
advise the Company shall not affect the indemnification provided for herein,
except to the extent such failure has a material and adverse effect on the
Company's ability to defend such action, suit, or proceeding.
(e) Indemnification Insurance. The Employee shall be covered
by insurance, to the same extent as other senior executives and directors of the
Company are covered by insurance, with respect to (a) directors and officers
liability (if and to the extent such is applicable), (b) errors and omissions,
and (c) general liability insurance. The Company shall maintain as necessary
reasonable and customary insurance of the type specified in parts (b) and (c) in
the preceding sentence. The Employee shall be a named insured or additional
insured, without right of subrogation against him, under any policies of
insurance carried by the Company. The Company will, in good faith, make efforts
to (x) maintain insurance coverage of the type specified in part (a) above at
commercially reasonable rates, and (y) make the Employee an express third party
beneficiary of any coverage carried by the Company of any type specified in this
section 8(e), but the failure to obtain such coverage or third party beneficiary
status shall not constitute a breach of the Company's obligations hereunder.
9. Termination.
(a) By the Company for "Cause." The Company may terminate this
Agreement for "Cause" at any time. For purposes of this Agreement, the term
"Cause," when used in connection with termination of the Agreement by the
Company under this Section 9(a), shall be limited to (i) the willful engaging by
the Employee in gross misconduct which is materially injurious to the Company,
(ii) conviction of the Employee of a felony involving any financial impropriety
or which would materially interfere with the Employee's ability to perform his
services required under this Agreement or otherwise be materially injurious to
the Company, or (iii) the willful refusal of the Employee to perform in a
material respect any of his material obligations under this Agreement without
proper justification after being notified with specificity by the Board of
Directors in writing of the particular respects in which the Board of Directors
asserts that Employee has not performed such material obligations.
(b) By the Employee for "Good Reason." The Employee may
terminate this Agreement for "Good Reason" at any time. For purposes of this
Agreement, the term "Good Reason," when used in connection with the termination
of the Agreement by the Employee under this Section 9(b), shall be limited to
the failure of the Company to perform in a material respect any of its material
obligations under this Agreement without proper justification.
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(c) Termination Without "Cause" or "Good Reason." Either the
Company or the Employee shall have the right to terminate this Agreement without
"Cause" or "Good Reason" and in its or his discretion, upon written notice to be
given to the other party not less than sixty (60) days prior to the effective
date of such termination. In such event, all amounts due and owing under this
Agreement shall be payable in accordance with their terms as set forth elsewhere
in this Agreement.
(d) Effect of Termination. If this Agreement is terminated for
any reason prior to the end of the Term, neither party shall have any further
obligation under this Agreement except with respect to those provisions of this
Agreement which, by their terms, require performance by the parties subsequent
to termination of this Agreement.
10. Confidentiality.
(a) Except as may be in furtherance of the Employee's
performance of his functions as the Company's chief executive officer or
otherwise with the consent of the Board of Directors, the Employee shall not,
throughout the Term or thereafter, disclose to any third party, or use or
authorize any third party to use, any material information relating to the
material interests of the Company which Employee knows to be confidential and
valuable to the Company (the "Confidential Information"). The Confidential
Information is and will remain the sole and exclusive property of the Company,
and, during the Term, the Confidential Information, when entrusted to the
Employee's custody, shall be deemed to remain at all times in the Company's sole
possession and control. Notwithstanding the foregoing, the Employee may, after
prior written notice to the Company (to the extent such notice is possible under
the circumstances) disclose such Confidential Information pursuant to subpoena
or other legal process, and promptly, thereafter shall advise the Company in
writing as to the Confidential Information which was disclosed and the
circumstances of such disclosure.
(b) Return of Documents. Upon termination of this Agreement
for any reason whatsoever, or whenever requested by the Board of Directors of
the Company, the Employee shall return or cause to be returned to the Company
all of the Confidential Information or any other property of the Company in the
Employee's possession or custody or at his disposal, which he has obtained or
been furnished, without retaining any copies thereof.
11. Interpretation. Employee and the Company agree that this Agreement
shall be interpreted in accordance with and governed by the laws of the State of
Colorado, other than such laws, rules and regulations that would require the
application of the law of a state other than Colorado, including all matters of
construction, validity, performance, and enforcement.
12. Successors and Assigns.
(a) Successors of the Company. The obligations under this
Agreement shall be binding upon the Company and its successors or assigns.
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(b) Heirs of Employee. This Agreement shall inure to the
benefit of and be enforceable by the Employee's personal and legal
representatives, executors, administrators, successors, heirs, distributees,
devises, and legatees.
13. Notices. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, as follows:
if to the Company:
Chadmoore Wireless Group, Inc.
0000 Xxxx Xxxxxxx Xxxx - Xxxxx X
The Pueblo Building
Las Vegas, Nevada 89120
Fax: 000-000-0000
With a copy to:
Holland & Xxxx LLP
Attn: Xxxxxxxxx Xxxxx, Esq.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Fax: 000-000-0000
and if to the Employee, at the address specified at the end of this Agreement.
Notice may also be given at such other address as either party may have
furnished to the other in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
14. Effectiveness/Validity. If any one or more of the provisions (or
any part thereof) of this Agreement shall be held invalid, illegal, or
unenforceable in any respect, the validity, legality, and enforceability of the
remaining provisions (or any part thereof) shall not in any way be affected or
impaired thereby.
15. Modification. This Agreement represents the entire agreement of the
parties with respect to the subject matter thereof and supersedes all prior
negotiations, agreements and understandings, whether written or oral. This
Agreement may only be modified or amended by a supplemental written agreement
signed by the Employee and the Company.
16. Further Action. The Company and the Employee each agree to execute
and deliver such further documents and to take such further actions as may be
reasonably necessary in order to give effect to the intentions expressed in this
Agreement.
17. Counterparts. This Agreement may be executed in two counterparts,
by facsimile signature or otherwise, each of which shall be an original, and
both of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement on April ___,
2003 to be effective as of the Effective Date.
CHADMOORE WIRELESS GROUP, INC.
By:
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Xxxx Xxxxxx, Chief Regulatory Officer
EMPLOYEE: XXXXXX X. XXXXX
------------------------------------------
Employee's Signature
Address for Notice to Employee:
c/o Chadmoore Wireless Group, Inc.
0000 Xxxx Xxxxxxx Xxxx - Xxxxx X
The Xxxxxx Xxxxxxxx
Xxx Xxxxx, Xxxxxx 00000
Fax: 000-000-0000
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EXHIBIT A
STATEMENT OF UNDERTAKING
STATE OF _______________ )
)
COUNTY OF _____________ )
I, __________________________________, being first duly sworn, depose
and say as follows:
1. This Statement of Undertaking is submitted pursuant to the Amended
and Restated Stay Put Bonus and Employment Agreement dated as of February 6,
2003, by and between Chadmoore Wireless Group, Inc., a Colorado corporation
("Company"), and me.
2. I am requesting the advancement of certain actual expenses that I
have reasonably incurred in defending a civil or criminal action, suit or
proceeding by reason of the fact that I am or was a director and/or officer of
the Company.
3. I hereby undertake to repay this advancement of expenses if it is
ultimately determined that I am not entitled to be indemnified by the Company.
4. I am requesting the advancement of expenses in connection with the
following action, suit or proceeding:
I have executed this Statement of Undertaking on ___________________.
Signature
Print Name
Subscribed and sworn to before me on _________________________.
_______________________________________
Notary Public in and for said state and
county
My commission expires: ___________________
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