ERIC HAGER EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.1 Employment
Agreement of Xxxx
Xxxxx
Exhibit 10.1 to Form 8-K of
China WI-Max Communications, Inc. dated November 3, 2010
XXXX XXXXX EXECUTIVE
EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (“Agreement”) made and entered into this 1st day of
October 2010 (the “Effective Date”), by and between CHINA WI MAX Communications,
INC., a Nevada corporation (the “Company”) and Xxxx Xxxxx (the
“Executive”).
W I T N E S S E T
H:
WHEREAS,
the Company wishes to secure the services of the Executive subject to the
contractual terms and conditions set forth herein; and
WHEREAS,
the Executive is willing to enter into this Agreement upon the terms and
conditions set forth herein.
NOW,
THEREFORE, in consideration of the mutual promises and agreements set forth
herein, the parties hereto agree as follows:
1. Employment. The
Company hereby agrees to employ the Executive, and the Executive hereby agrees
to accept such employment with the Company, all upon the terms and conditions
set forth herein.
A. Term. Subject
to the terms and conditions of this Agreement, the Executive shall be employed
for a term commencing on the Effective Date and ending on the first (1st)
anniversary of the Effective Date (the “Term”) unless sooner terminated as
provided for herein. The Term shall renew automatically for
additional one (1) year terms, unless either party gives written notice no less
than ninety (90) days prior to the expiration of the Term that it does not
intend to extend the Term.
B. Duties and
Responsibilities
C. and
Capacity. During the Term, the Executive shall serve in the
capacity of Senior Vice President, Business Development, subject to the
supervision of the President and Chief Executive Officer of the
Company. Executive will be permitted to perform his primary duties,
as appropriate, from his principal work location in or near his current
residence and will not be required to relocate to any other location unless
agreed to by Executive. Failure to relocate shall not be deemed a
“for Cause” termination event.
C. Full-Time
Duties. During the Term, and excluding any periods of
disability, vacation or sick leave to which the Executive is entitled, the
Executive shall devote substantially all of his business time, attention and
energies to the business of the Company for an average amount of time equal to
approximately 160 hours per month. During the Term, it shall not be a
violation of this Agreement for the Executive to (i) serve on corporate,
university, civic, or charitable boards or committees (ii) deliver lectures or
fulfill speaking engagements and (iii) manage personal investments, so long as
such activities do not materially interfere with the performance of the
Executive’s responsibilities as an employee of the Company in accordance with
this Agreement.
D. Standard of
Performance. The Executive will perform his duties under this
Agreement with fidelity and loyalty, to the best of his ability, experience and
talent and in a manner consistent with his duties and
responsibilities.
2. Compensation.—Base
Salary
A. Beginning
on October 1, 2010 (but deferring and accruing receipt of payment until the
Company receives “Institutional Financing” in a minimum amount of $500,000), the
Executive shall receive a Base Salary of $6,000 per month. The Base Salary shall
be payable in accordance with the general payroll practices of the Company in
effect from time to time. During the remainder of the Term, the Base Salary
shall be reviewed at least annually by the Board after consultation with the
Executive and may from time to time be increased (but not decreased) as solely
determined by the Board. Effective as of the date of any such
increase, the Base Salary as so increased shall be considered the new Base
Salary for all purposes of this Agreement and may not thereafter be
reduced. Any increase in Base Salary shall not limit or reduce any
other obligation of the Company to the Executive under this
Agreement.
B. Annual Performance
Bonus. The Executive shall be eligible for annual
discretionary bonus awards payable in cash or common stock of the Company, as so
determined solely by the Board, based on performance objectives submitted
annually by senior management and approved by the Board.
C. Long-Term
Incentives. Upon the
execution of this Agreement, the Company agrees to issue the Executive a grant
of 750,000 shares, in addition to the grant of options previously
provided. The Executive shall be eligible for grants of stock
options, restricted stock and/or other long-term incentives, in the discretion
of the Board on the same basis as other similarly situated senior executives of
the Company.
D. Benefits.
(1) If
and to the extent that the Company maintains employee benefit plans (including,
but not limited to, pension, profit-sharing, disability, accident, medical, life
insurance, and hospitalization plans) (it being understood that the Company may
but shall not be obligated to do so);
(1) The
Executive shall be entitled to participate therein in accordance with the
Company’s regular practices with respect to similarly situated senior
executives.
(2) The
Executive shall be entitled to prompt, normally 15 days or less from receipt of
approved expense report, reimbursement from the Company for reasonable
out-of-pocket expenses incurred by him in the course of the performance of his
duties hereunder, upon the submission of appropriate documentation in accordance
with the practices, policies and procedures applicable to other senior
executives of the Company.
(3) The
Executive shall be entitled to such vacation, holidays and other paid or unpaid
leaves of absence as are consistent with the Company’s normal policies available
to other senior executives of the Company or as are otherwise approved by the
Board. Notwithstanding the foregoing, vacation will be a minimum of
three weeks per year, accrued monthly beginning on the Effective
Date.
3. Termination of
Employment. Notwithstanding the provisions of Section 2
hereof, the Executive’s employment hereunder shall terminate under any of the
following conditions:
A. Death. The
Executive’s employment under this Agreement shall terminate automatically upon
his death.
B. Total
Disability. The Company shall have the right to terminate this
Agreement if the Executive becomes Totally Disabled. For purposes of
this Agreement, “Totally Disabled” means that the Executive is not working and
is currently unable to perform the substantial and material duties of his
position hereunder as a result of sickness, accident or bodily injury for a
period of three consecutive months. Prior to a determination that
Executive is Totally Disabled, but after Executive has exhausted all sick leave
and vacation benefits provided by the Company, Executive shall continue to
receive his Base Salary, offset by any disability benefits he may be eligible to
receive that are provided directly or indirectly by the Company.
C. Termination by Company for
Cause. The Executive’s employment hereunder may be terminated
for Cause upon written notice by the Company. For purposes of this
Agreement, “Cause” shall mean:
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(1)
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conviction
of the Executive by a court of competent jurisdiction of any felony or a
crime involving moral turpitude;
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(2)
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the
Executive’s willful and intentional failure or willful and intentional
refusal to follow reasonable and lawful instructions of the President and
CEO and/or Board;
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(3)
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the
Executive’s material breach or default in the performance of his
obligations under this Agreement;
or
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(4)
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the
Executive’s act of misappropriation, embezzlement, intentional fraud or
similar conduct involving the
Company.
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Executive
may not be terminated for Cause pursuant to subsections (2) and (3) above unless
Executive is given written notice of the circumstances constituting “Cause” and
a reasonable period to cure such circumstances, which period shall be no less
than thirty (30) days.
D. Termination for Good
Reason. The Executive’s employment hereunder may be terminated
by the Executive for Good Reason on written notice by Executive to the
Company. For purposes of this Agreement, “Good Reason” means the
occurrence of any of the following circumstances without the Executive’s
consent:
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(1).
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a
material reduction in the Executive’s salary or benefits excluding the
substitution of substantially equivalent compensation and benefits
provided that a reduction in the level of compensation payable to a
substantial portion of the Company’s employees or to substantially all of
the Company’s officers as part of a unilateral cost-cutting program of the
Company will not be taken into account for acceleration or
vesting;
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(2)
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a
material diminution of the Executive’s duties, authority or
responsibilities as in effect immediately prior to such diminution;
or
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(3)
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the
failure of a successor to assume and perform under this
Agreement.
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4. Payments Upon
Termination.
A. Upon
termination of Executive’s employment hereunder for any reason as so provided
for in Section 3 hereof, the Company shall be obligated to pay and the Executive
shall be entitled to receive, on such terms and conditions as is customary in
the normal course of business (based on past practice and experience), Base
Salary which has accrued for services performed to the date of termination and
which has not yet been paid. In addition, the Executive shall be
entitled to any vested benefits to which he is entitled under the terms of any
applicable Executive benefit plan or program, vested restricted stock plan and
stock option plan of the Company, and, to the extent applicable, short-term or
long-term disability plan or program with respect to any disability, or any life
insurance policies and the benefits provided by such plan, program or policies,
or applicable law as duly adopted from time to time by the Board.
B. Upon
termination of Executive’s employment by the Company without Cause or by the
Executive for Good Reason, the Company shall be obligated to pay and the
Executive shall be entitled to receive:
(1) all
of the amounts and benefits described in Section 4.A. hereof;
and
(2) Base
Pay for a total of three (3) months, payable in the normal course of business
according to the Company’s payment policy at that time; and
(3) continued
participation in all Executive welfare benefit programs of the Company for three
(3) months from the Executive’s termination of employment.
Payments
under Section 4.B., with the exception of amounts due pursuant to Section
4.B(1), are conditioned on the execution by the Executive of a release of all
employment-related claims; provided, however, that such release shall be
contingent upon the Company’s satisfaction of all terms and conditions of this
Section.
C. Upon
termination of the Executive’s employment upon the death of Executive pursuant
to Section 3.A., the Company shall be obligated to pay, and the Executive shall
be entitled to receive:
(1) all
of the amounts and vested benefits described in Section 4.A.;
(2) any
death benefit payable under a plan or policy provided by the Company;
and
(3) continued
participation by the Executive’s dependents in the welfare benefit programs of
the Company for a period of time no longer than (i) three months or (ii) the
amount of time remaining in the Term.
D. Upon
termination of the Executive’s employment upon the Disability of the Executive
pursuant to Section 3.B., the Company shall be obligated to pay, and the
Executive shall be entitled to receive:
(1) all
of the amounts and vested benefits described in Section 4.A.;
(2) the
Base Salary, at the rate in effect immediately prior to the date of his
termination of employment due to Disability, for a period no longer than (i)
three-months or (ii) the amount of time remaining in the Term, offset by any
payments the Executive receives under the Company’s long-term disability plan
and any supplements thereto, whether funded or unfunded, which is adopted by the
Company for the Executive’s benefit and not attributable to the Executive’s own
contributions; and
(3) continued
participation by the Executive and his dependents in the welfare benefit
programs of the Company for a period of time no longer than (i) three months or
(ii) the amount of time remaining in the Term.
Payments
under Section 4.D., with the exception of amounts due pursuant to Section
4.D(1), are conditioned on the execution by the Executive or the Executive’s
representative of a release of all employment-related claims; provided, however,
that such release shall be contingent upon the Company’s satisfaction of all
terms and conditions of this Section.
E. Upon
voluntary termination of employment by the Executive (other than for Good Reason
as described in Section 4.B.) or termination by the Company for Cause, the
Company shall have no further liability under or in connection with this
Agreement, except to provide the amounts set forth in Section 4.A.
F. Upon
voluntary or involuntary termination of employment of the Executive for any
reason whatsoever or expiration of the Term, the Executive shall continue to be
subject to the provisions of Section 5, hereof (it being understood and agreed
that such provisions shall survive any termination or expiration of the
Executive’s employment hereunder for any reason whatsoever).
5. Confidentiality, Return of
Property, and Covenant Not to Compete.
(1) Company
Information. The Company agrees that it will provide the
Executive with Confidential Information, as defined below that will enable the
Executive to optimize the performance of the Executive’s duties to the
Company. In exchange, the Executive agrees to use such Confidential
Information solely for the Company’s benefit. The Company and the
Executive agree and acknowledge that its provision of such Confidential
Information is not contingent on the Executive’s continued employment with the
Company. Notwithstanding the preceding sentence, upon the termination
of the Executive’s employment for any reason, the Company shall have no
obligation to provide the Executive with its Confidential
Information. “Confidential Information” means any Company proprietary
information, technical data, trade secrets or know-how, including, but not
limited to, research, product plans, products services, customer lists and
customers (including, but not limited to, customers of the Company on whom the
Executive called or with whom the Executive became acquainted during the term of
the Executive’s employment), markets, software, developments, inventions,
processes, formulas, technology, designs, drawings, engineering, hardware
configuration information, marketing finances or other business information
disclosed to the Executive by the Company either directly or indirectly in
writing, orally or by drawings or observation of parts or
equipment. Confidential Information does not include any of the
foregoing items that have become publicly known and made generally available
through no wrongful act of the Executive or of others who were under
confidentiality obligations as to the item or items involved or improvements or
new versions.
The
Executive agrees at all times during the Term and thereafter, to hold in
strictest confidence, and not to use, except for the exclusive benefit of the
Company, or to disclose to any person or entity without written authorization of
the Board of Directors of the Company, any Confidential Information of the
Company.
(2) /Former Employer
Information. The Executive agrees that he will not, during his
employment with the Company, improperly use or disclose any proprietary
information or trade secrets of any former employer or other person or entity
and that the Executive will not bring onto the premises of the Company any
unpublished document or proprietary information belonging to any such employer,
person or entity unless consented to in writing by such employer, person or
entity.
(3) Third-Party
Information. The Executive recognizes that the Company has
received and in the future will receive from third parties their confidential or
proprietary information subject to a duty on the Company’s part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. The Executive shall hold all such confidential or
proprietary information in the strictest confidence and not disclose it to any
person or entity or use it except as necessary in carrying out the Executive’s
work for the Company consistent with the Company’s agreement with such third
party.
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a.
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Returning Company
Documents. At the time of leaving the employ of the
Company, the Executive will deliver to the Company (and will not keep in
the Executive’s possession) specifications, drawings blueprints, sketches,
materials, equipment, other documents or property, or reproductions of any
aforementioned items developed by the Executive pursuant to the
Executive’s employment with the Company or otherwise belonging to the
Company, its successors or assigns.
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b.
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Notification of New
Employer. In the event that the Executive leaves the
employ of the Company, the Executive hereby grants consent to notification
by the Company to the Executive’s new employer about the Executive’s
rights and obligations under this
Agreement.
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c.
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Solicitation of
Employees. The Executive agrees that for a period of
twenty-four (24) months immediately following the termination of the
Executive’s relationship with the Company for any reason, the Executive
shall not either directly or indirectly solicit, induce or recruit any of
the Company’s employees to leave their employment, or take away such
employees, or attempt to solicit, induce, recruit, encourage or take away
employees of the Company, either for himself or for any other person or
entity.
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d.
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Covenant Not to
Compete.
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(1). The
Executive agrees that during the course of his employment and for twenty-four
(24) months following the termination of the Executive’s relationship with the
Company for any reason, the Executive will not compete, without the prior
written consent of the Company, as a partner, employee, consultant, officer,
director, manager, agent, associate, investor, or otherwise, directly or
indirectly, own, purchase, organize or take preparatory steps for the
organization of, build, design, finance, acquire, lease, operate, manage, invest
in, work or consult for or otherwise affiliate with any business, in competition
with the Company’s Chinese communications business; provided, however,
that the beneficial ownership by
Executive of up to 5% of the voting stock of any corporation subject to the
periodic reporting requirements of the Securities and Securities Exchange Act of
1934 shall not violate this
Section 5. The foregoing covenant shall cover the
Executive’s activities in every part of the Territory in which the Executive may
conduct business during the term of such covenant as set forth
above. “Territory” shall mean the Peoples Republic of
China.
(2). The
Executive acknowledges that he will derive significant value from the Company’s
agreement in Section 5.A(1) to provide the Executive with that Confidential
Information to enable the Executive to optimize the performance of the
Executive’s duties to the Company. The Executive further acknowledges
that his fulfillment of the obligations contained in this Agreement, including,
but not limited to, the Executive’s obligation neither to disclose nor to use
the Company’s Confidential Information other than for the Company’s exclusive
benefit and the Executive’s obligation not to compete contained in
subsection (1) above, is necessary to protect the Company’s Confidential
Information and, consequently, to preserve the value and goodwill of the
Company. The Executive further acknowledge the time, geographic and
scope limitations of the Executive’s obligations under subsection (1) above
are reasonable, especially in light of the Company’s desire to protect its
Confidential Information, and that the Executive will not be precluded from
gainful employment if the Executive is obligated not to compete with the Company
during the period and within the Territory as described above.
(3). The
covenants contained in subsection (1) above shall be construed as a series
of separate covenants, one for each city, county and state of any geographic
area in the Territory. Except for geographic coverage, each such
separate covenant shall be deemed identical in terms to the covenant contained
in subsection (1) above. If, in any judicial proceeding, a court
refuses to enforce any of such separate covenants (or any part thereof), then
such unenforceable covenant (or such part) shall be eliminated from this
Agreement to the extent necessary to permit the remaining separate covenants (or
portions thereof) to be enforced. In the event the provisions of
subsection (1) above are deemed to exceed the time, geographic or scope
limitations permitted by Nevada law, then such provisions shall be reformed to
the maximum time, geographic or scope limitations, as the case may be, then
permitted by such law.
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e.
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Representations. The
Executive agrees to execute any proper oath or verify any proper document
required to carry out the terms of this Agreement. The
Executive represents that his performance of all the terms of this
Agreement will not breach any agreement to keep in confidence proprietary
information acquired by the Executive in confidence or in trust prior to
the Executive’s employment by the Company. The Executive has
not entered into, and the Executive agrees that he will not enter into,
any oral or written agreement in conflict
herewith.
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6. Arbitration. Any
dispute or controversy arising under or in connection with this Agreement (other
than any dispute or controversy arising from a violation or alleged violation by
the Executive of the provisions of Section 5) shall be settled exclusively
by final and binding arbitration in Milwaukee, Wisconsin, in accordance with the
Employment Arbitration Rules of the American Arbitration Association
(“AAA”). The arbitrator shall be selected by mutual agreement of the
parties, if possible. If the parties fail to reach agreement upon
appointment of an arbitrator within thirty days following receipt by one party
of the other party’s notice of desire to arbitrate, the arbitrator shall be
selected from a panel or panels of persons submitted by the AAA. The
selection process shall be that which is set forth in the AAA Employment
Arbitration Rules then prevailing, except that, if the parties fail to select an
arbitrator from one or more panels, AAA shall not have the power to make an
appointment but shall continue to submit additional panels until an arbitrator
has been selected. This agreement to arbitrate shall not preclude the
parties from engaging in voluntary, non-binding settlement efforts including
mediation.
7. Notices All notices
and other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in person, by
registered or certified mail (return receipt requested and with postage prepaid
thereon)
or by
facsimile transmission to the respective parties.
Xxxxxx X.
Xxxxxx, President and CEO
Grafton
Square, 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000
cc: Xxxxx
Xxxxxxxx, Chairman of the Board
cc: Xxxxxxx Xxxxxxx,
Attorney-at-Law (same address as above)
If to
Executive:
Xxxx Xxxxx
00000
Xxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000
7. Amendment;
Waiver. The terms and provisions of this Agreement may be
modified or amended only by a written instrument executed by each of the parties
hereto, and compliance with the terms and provisions hereof may be waived only
by a written instrument executed by each party entitled to the benefits
thereof. No failure or delay on the part of any party in exercising
any right, power or privilege granted hereunder shall constitute a waiver
thereof, nor shall any single or partial exercise of any such right, power or
privilege preclude any other or further exercise thereof or the exercise of any
other right, power or privilege granted hereunder.
8. Entire
Agreement. This Agreement and all Exhibits attached hereto
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all prior written or oral agreements or
understandings between the parties relating thereto.
9. Severability. In
the event that any term or provision of this Agreement is found to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining terms and provisions hereof shall not be in any way affected or
impaired thereby, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained
therein.
10. Binding Effect;
Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective successors and assigns (it being
understood and agreed that, except as expressly provided herein, nothing
contained in this Agreement is intended to confer upon any other person or
entity any rights, benefits or remedies of any kind or character
whatsoever). The Executive may not assign this Agreement without the
prior written consent of the Company. Except as otherwise provided in
this Agreement, the Company may assign this Agreement to any of its affiliates
or to any successor (whether by operation of law or otherwise) to all or
substantially all of its business and assets without the consent of the
Executive. For purposes of this Agreement, “affiliate” means any
entity in which the Company owns shares or other measure of ownership
representing at least 40% of the voting power or equivalent measure of control
of such entity.
11. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Wisconsin (except that no effect shall
be given to any conflicts of law principles thereof that would require the
application of the laws of another jurisdiction).
12. Headings. The
headings of the sections contained in this Agreement are for convenience only
and shall not be deemed to control or affect the meaning or construction of any
provision of this Agreement.
13. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
IN
WITNESS THEREOF, the Company has caused this Agreement to be executed by its
duly authorized officer and the Executive has signed this Agreement as of the
Effective Date.
| CHINA WI MAX COMMUNICATIONS, INC. | |||
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/s/ Xxxxxx X. Xxxxxx | |
| By: Xxxxxx X. Xxxxxx, President and CEO | |||
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EXECUTIVE
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/s/ Xxxx Xxxxx | |
| Xxxx Xxxxx |
