Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), is made as of this 12th day of
July, 2004, by and between GigaBeam CORPORATION, a Delaware corporation, with
its corporate headquarters located at 00000-X Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, XX
00000, its successors and assigns (hereinafter collectively referred to as
"Company"), and XXXXXX X. XXXXXXX, an individual residing at 000 Xxx Xxxxxx,
Xxxxxx, XX 00000 ("Executive").
BACKGROUND
WHEREAS, Executive is currently employed by Company as Senior Vice
President, Sales and Marketing; and
WHEREAS, Company intends to complete an Initial Public Offering ("IPO")
of Company common stock and warrants, and offer Executive the foregoing
Agreement contingent upon successful completion of the IPO;
WHEREAS, should Company complete the IPO, Company desires to continue
to employ Executive, and Executive desires to continue to be employed by the
Company, all upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the facts, mutual promises, and
covenants contained herein and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Employment. Subject to, and contingent upon, the successful
completion of the IPO, Company hereby employs Executive and Executive hereby
accepts employment by Company, for the period and upon the terms and conditions
set forth in this Agreement, subject to earlier termination pursuant to Section
6 below.
2. Office and Duties.
(a) During the term of this Agreement, Executive
shall serve as Senior Vice President of Sales and Marketing of Company, and
shall report directly to the Company's Chief Executive Officer and be subject to
his supervision, control and direction.
(b) In his capacity as Senior Vice President of Sales
and Marketing of Company, Executive shall have such authority, perform such
duties, discharge such responsibilities and render such services as are
customary to, and consistent with his position, subject to the authority and
direction of the Chief Executive Officer, and shall perform such additional
duties and responsibilities as may be from time to time assigned to him by the
Chief Executive Officer, the Company's Board of Directors ("Board") or committee
established by the Board.
(c) The Executive shall render his services
diligently, faithfully and to the best of his ability, and shall devote all of
his working time, energy, skill and best efforts to the performance of his
duties hereunder, in a manner that will further the business and interests of
Company.
(d) During the term of this Agreement, Executive
shall not be engaged in any business activity which, in the reasonable judgment
of the Board, conflicts with Executive's duties hereunder, whether or not such
activity is pursued for pecuniary advantage.
3. Term. This Agreement shall be effective for a term
commencing on the date the IPO is successfully completed ("Effective Date") and
ending on the Third anniversary thereof (the "Expiration Date"), unless sooner
terminated as hereinafter provided or further extended by the mutual written
agreement of Company and Executive (the "Term").
4. Compensation.
(a) Base Salary. In consideration of the services
rendered by Executive to Company during the term hereof, Executive shall receive
an annual base salary of Two Hundred Thousand and 00/100 Dollars ($200,000.00)
("Base Salary"), payable in equal periodic installments in accordance with
Company's regular payroll practices in effect from time to time. Executive's
Base Salary shall be reviewed annually by the Board and/or a committee of the
Board which has been delegated responsibility for executive compensation matters
(such committee to be referred to herein as the "Compensation Committee") in
accordance with the compensation policies and guidelines of Company, and may be
modified as a result of such review at the sole discretion of the Board and/or
the Compensation Committee.
(b) Bonus Plans/Incentive Compensation Programs. In
addition to Base Salary, during the Term, Executive shall be eligible to
participate in any bonus plans or incentive compensation programs, if any, as
may be in effect from time to time, at a level consistent with his position and
with Company's then current policies and practices ("Bonus").
(c) Benefits. During the Term, Executive also shall
be entitled to participate in all fringe benefits, if any, as may be in effect
from time to time which are generally available to Company's senior executive
officers, and such other fringe benefits as the Board and/or Compensation
Committee shall deem appropriate, subject to eligibility requirements thereof
(collectively, the "Benefits").
(d) Vacation. During the Term, Executive shall be
entitled to the number of paid vacation days in each calendar year as determined
by Company from time to time for its senior executive officers. Vacation days
which are not used during any calendar year may not be accrued or carried-over
to the next year, nor shall Executive be entitled to compensation for unused
vacation days.
(e) Business Expenses. During the Term, Company shall
pay or reimburse Executive for all reasonable expenses incurred or paid by
Executive in the performance of Executive's duties hereunder, upon timely
presentation of expense statements or vouchers and such other information as
Company may reasonably require and in accordance with the generally applicable
policies and practices of Company.
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(f) Withholding. All payments made pursuant to this
Agreement shall be subject to such withholding taxes as may be required by any
applicable law.
5. Representations of Executive. Executive represents to
Company that: (a) there are no restrictions, agreements or understandings
whatsoever to which Executive is a party that would prevent, or make unlawful,
his execution of this Agreement and his employment hereunder; (b) his execution
of this Agreement and his employment hereunder shall not constitute a breach of
any contract, agreement or understanding, oral or written, to which he is a
party, or by which he is bound; and (c) he is of full capacity, free and able to
execute this Agreement and to enter into this Agreement with Company.
6. Termination. This Agreement shall continue until the
Expiration Date, unless terminated earlier by Company or Executive as provided
herein, or further extended by the mutual written agreement of Company and
Executive. Unless otherwise extended by the mutual written agreement of Company
and Executive, this Agreement shall terminate automatically on the Expiration
Date, without any notice, severance pay, termination pay or any severance
obligation whatsoever. If, however, this Agreement is terminated prior to the
Expiration Date by Company or Executive, the provisions contained in Section 7,
Payments Upon Termination, shall apply.
(a) Termination by Company for Cause. Company shall
have the right to terminate this Agreement at any time for "Cause". For purposes
of this Agreement, the term "Cause" shall mean the following:
(i) Executive commits fraud or theft against
Company or any of its subsidiaries, affiliates, joint ventures and related
organizations (collectively referred to as "Affiliates"), or is indicted,
convicted of, or pleads guilty or nolo contendere to, a felony; or
(ii) In carrying out his duties hereunder,
the Executive engages in conduct that constitutes gross neglect or willful
misconduct and that results, in either case, in material economic harm to
Company or its Affiliates; or
(iii) Executive materially breaches any
provision of this Agreement (including but not limited to the restrictive
covenants contained in Paragraph 8 below) or breaches any fiduciary duty or duty
of loyalty owed to Company or its Affiliates; or
(iv) Executive engages in conduct tending to
bring Company or its Affiliates into public disgrace or disrepute; or
(v) Executive repeatedly neglects or refuses
to perform duties or responsibilities as directed by Company or the Board, or
violates any express direction of any lawful rule or regulation established by
Company or the Board which is consistent with the scope of Executive's duties
under this Agreement; or
(vi) Executive commits any acts or omissions
resulting in or intended to result in direct personal gain to the Executive at
the expense of Company or its Affiliates; or
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(vii) Executive compromises trade secrets or
other confidential and proprietary information of Company or its Affiliates.
"Cause" shall not include a bona fide disagreement over a
corporate policy, so long as Executive does not willfully violate on a
continuing basis specific written directions from the Board, which directions
are consistent with the provisions of this Agreement. Action or inaction by
Executive shall not be considered "willful" unless done or omitted by him
intentionally and without his reasonable belief that his action or inaction was
in the best interests of Company or its Affiliates, and shall not include
failure to act by reason of total or partial incapacity due to physical or
mental illness.
(b) Termination by Company upon the Death or
Disability of Executive. Company shall have the right to terminate this
Agreement at any time upon the death or Disability of Executive. The term,
"Disability", as used herein, means any physical or mental illness, disability
or incapacity which prevents Executive from performing the essential functions
of his job, with or without reasonable accommodations, hereunder for a period of
not less than one hundred fifty (150) consecutive days or for an aggregate of
one hundred eighty (180) days during any period of twelve (12) consecutive
months. During any period of Disability, Executive agrees to submit to
reasonable medical examinations upon the reasonable request, and at the expense,
of Company.
(c) Termination By Company Without Cause. Company
shall have the right to terminate this Agreement at any time without "Cause"
and/or without the occurrence of Executive's death or Disability upon thirty
(30) days written notice to Executive.
(d) Termination By Executive For Good Reason.
Executive shall have the right to terminate his employment at any time during
the Term of this Agreement for "Good Reason" upon sixty (60) days prior written
notice to Company's Board. For purposes of this Agreement, "Good Reason" shall
mean any of the following:
(i) the assignment to Executive by Company
of any duties inconsistent with Executive's status with Company or a substantial
alteration in the nature or status of Executive's responsibilities from those in
effect on the Effective Date hereof, or a reduction in Executive's titles or
offices as in effect on the Effective Date hereof, except in connection with the
termination of his employment for Cause or Disability or as a result of
Executive's death, or by Executive other than for Good Reason;
(ii) a reduction by Company in Executive's
Base Salary as in effect on the Effective Date or as the same may be increased
from time to time during the term of this Agreement;
(iii) the relocation of Executive to a
Company office located more than one hundred and fifty (150) miles from
Chantilly, Virginia; or
(iv) any material breach by Company of a
material term or provision contained in this Agreement, which breach is not
cured within thirty (30) days following the receipt by the Board of written
notice of such breach.
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(e) Termination by Executive for Other than Good
Reason. If Executive shall desire to terminate his employment hereunder for
other than Good Reason, he shall first give Company not less than ninety (90)
days prior written notice of termination. Upon a termination of Executive's
employment with Company under this Section 6(e), the effective date of
termination shall be the date set forth in executive's resignation notice
(assuming such date is in compliance with the notice provisions of this Section
6(e)) or an earlier date after Company's receipt of such notice as determined by
Company, in its sole discretion, but not earlier than the date on which Company
learned of Executive's decision to terminate his employment for other than Good
Reason.
(f) Notice of Termination. Any termination, except
for death, pursuant to this Section 6 shall be communicated by a Notice of
Termination. For purposes of this Agreement, a "Notice of Termination" shall
mean a written notice which shall indicate those specific termination provisions
in this Agreement relied upon and which sets forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of the
Executive's employment under the provisions so indicated. The Notice of
Termination shall also set forth Executive's employment is terminated and be
delivered in accordance with the terms of this Agreement.
Notwithstanding anything to the contrary set forth herein, the
provisions of Sections 8 and 9 shall survive the termination of Executive's
employment hereunder for any reason, and shall remain in full force and effect
thereafter.
7. Payments Upon Termination.
(a) Termination for Cause. In the event Executive's
employment hereunder is terminated for Cause, all of Executive's rights to his
Base Salary, Benefits and Bonus, if any, shall immediately terminate as of the
date of such termination, except that Executive shall be entitled to any earned
and unpaid portion of his Base Salary and accrued Benefits up to the date of
termination, less all deductions or offsets for amounts owed by Executive to
Company. Company shall have no further obligations to Executive under the
Agreement.
(b) Termination Due to Death or Disability. In the
event Executive's employment hereunder is terminated due to his death or
Disability, all of Executive's rights to his Base Salary, Benefits and Bonus, if
any, shall immediately terminate as of the date of such termination, except that
Executive (or, in the event that Executive's employment hereunder is terminated
due to Executive's death, Executive's heirs, personal representative or estate)
shall be entitled to any earned and unpaid portion of his Base Salary and
accrued Benefits up to the date of termination less all deductions or offsets
for amounts owed by Executive to Company. Company shall have no further
obligations to Executive under the Agreement.
(c) Termination By Company Without Cause or By
Executive For Good Reason. If Company terminates Executive's employment other
than for Cause or the occurrence of Executive's death or Disability, or if
Executive terminates his employment for Good Reason, all of Executive's rights
to his Base Salary (so long as Executive is not in breach of this Agreement)
shall continue as severance payments until, and terminate upon, the twelve (12)
month anniversary of the date of such termination (the "Severance Period"),
provided that Executive executes, and does not revoke, a General Release of all
claims relating to his employment and termination from employment in a form
provided by Company. Executive understands that should he fail or refuse to
execute the General Release provided by Company, or revoke such General Release,
he shall not be entitled to any severance payments under this section.
Executive's Base Salary referred to in this paragraph shall be payable during
the Severance Period in equal periodic installments in accordance with Company's
regular payroll practices then in effect, but shall cease immediately if
Executive is in breach of this Agreement. Company shall have no further
obligations to Executive under the Agreement.
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(d) Termination By Executive For Other Than Good
Reason. In the event Executive terminates his employment for other than Good
Reason, all of Executive's rights to his Base Salary, Benefits and Bonus, if
any, shall immediately terminate as of the date of termination, except that
Executive shall be entitled to any earned and unpaid portion of his Base Salary
and accrued Benefits up to the date of termination. Company shall have no
further obligations to Executive under the Agreement.
(e) Recognition. Executive recognizes and accepts
that Company shall not, in any case, be responsible for any additional amount,
severance pay, termination pay, severance obligation or other damages whatsoever
arising from the termination of Executive's employment, above and beyond those
specifically provided for herein.
8. Restrictive Covenants.
(a) Non-Competition. During the Term, and for a
period of twenty-four (24) months thereafter, Executive will not, in any
capacity (including, but not limited to, owner, partner, member shareholder,
consultant, advisor, financier, agent, executive, officer, director, manager or
otherwise), directly or indirectly, for his own account or for the benefit of
any natural person, corporation, partnership, trust, estate, joint venture, sole
proprietorship, association, cooperative or other entity ("Person"), establish,
engage in, work for, or be connected with, except as an executive of Company,
any business in competition with the Business of Company (as defined in Section
8(i) below), if such business competes with the Business of Company in any
State, county, or municipality where Company or its Affiliates conduct business,
are preparing to conduct business or have conducted business during the Term.
(b) Non-Solicitation/Non-Piracy. During the Term, and
for a period of twenty-four (24) months thereafter, Executive will not, directly
or indirectly, for his own account or for the benefit of any Person or entity:
(i) solicit, service, contact, or aid in the
solicitation or servicing of any Person or entity which is or was a customer,
prospective customer, client, prospective client, contractor, subcontractor or
supplier of Company or its Affiliates within three (3) years prior to
Executive's termination ("Company Customers/Clients"), for the purpose of (a)
selling services or goods in competition with the Business of Company; (b)
inducing Company Customers/Clients to cancel, transfer or cease doing business
in whole or in part with Company or its Affiliates or (c) inducing Company
Customers/Clients to do business with any Person or business entity in
competition with the Business of Company.
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(ii) solicit, aid in solicitation of,
induce, contact for the purpose of, encourage or in any way cause any executive
of Company or its Affiliates to leave the employ of Company or its Affiliates,
or interfere with such executive's relationship with Company or its Affiliates.
(c) Non-Disclosure. Other than in furtherance of the
Business of Company, in the ordinary course in his capacity as an executive
hereunder, Executive will not, at any time, except with the express prior
written consent of the Board, directly or indirectly, disclose, communicate or
divulge to any Person or entity, or use for the benefit of any Person or entity,
any secret, confidential or proprietary knowledge or information with respect to
the conduct or details of the Business of Company including, but not limited to,
customer and client lists, customer and client accounts and information,
prospective client, customer, contractor and subcontractor lists and
information, services, techniques, methods of operation, pricing, costs, sales,
sales strategies and methods, marketing, marketing strategies and methods,
products, product development, research, know-how, policies, financial
information, financial condition, business strategies and plans and other
information of Company or its Affiliates which is not generally available to the
public and which has been developed or acquired by Company or its Affiliates
with considerable effort and expense. Upon the expiration or termination of
Executive's employment under this Agreement, Executive shall immediately deliver
to Company all memoranda, books, papers, letters, and other data (whether in
written form or computer stored), and all copies of same, which were made by
Executive or otherwise came into his possession or under his control at any time
prior to the expiration or termination of his employment under this Agreement,
and which in any way relate to the Business of Company as conducted or as
planned to be conducted by Company or its Affiliates on the date of the
expiration or termination.
(d) Intellectual Property. Executive will promptly
communicate to Company, in writing when requested, all software, designs,
techniques, concepts, methods and ideas, other technical information, marketing
strategies and other ideas and creations pertaining to the Business of Company
which are conceived or developed by Executive alone or with others, at any time
(during or after business hours) while Executive is employed by Company or its
Affiliates. Executive acknowledges that all of those ideas and creations are
inventions and works for hire, and will be Company's exclusive property.
Executive will sign any documents which Company deems necessary to confirm its
ownership of those ideas and creations, and Executive will cooperate with
Company in order to allow Company to take full advantage of those ideas and
creations.
(e) Non-Disparagement. Executive will not, at any
time, publish or communicate disparaging or derogatory statements or opinions
about Company or its Affiliates, including but not limited to, disparaging or
derogatory statements or opinions about Company's or its Affiliates' management,
products or services, to any third party. It shall not be a breach of this
section for Executive to testify truthfully in any judicial or administrative
proceeding or to make statements or allegations in legal filings that are based
on Executive's reasonable belief and are not made in bad faith.
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(f) Enforcement. Executive acknowledges that the
covenants and agreements of this Section 8 ("Covenants") herein are of a special
and unique character, which give them peculiar value, the loss of which cannot
be reasonably or adequately compensated for in an action at law. Executive
further acknowledges that any breach or threat of breach by him of any of the
Covenants will result in irreparable injury to Company for which money damages
could not be adequate to compensate Company. Therefore, in the event of any such
breach or threatened breach, Company shall be entitled, in addition to all other
rights and remedies which Company may have at law or in equity, to have an
injunction issued by any competent court enjoining and restraining Executive
and/or all other Persons involved therein from committing a breach or continuing
such breach. The remedies granted to Company in this Agreement are cumulative
and are in addition to remedies otherwise available to Company at law or in
equity. The Covenants contained in this Section 8 are independent of any other
provision of this Agreement, and the existence of any claim or cause of action
which Executive or any such other Person may have against Company shall not
constitute a defense or bar to the enforcement of any of the Covenants. If
Company is obliged to resort to litigation to enforce any of the Covenants which
has a fixed term, then such term shall be extended for a period of time equal to
the period during which a material breach of such Covenant was occurring,
beginning on the date of a final court order (without further right of appeal)
holding that such a material breach occurred, or, if later, the last day of the
original fixed term of such Covenant.
(g) Acknowledgements. Executive acknowledges that
prior to entering into this Agreement he has had the opportunity to obtain
independent advice from his legal counsel, accountants and tax advisors in
connection with this Agreement and has done so to the extent he deemed it
appropriate. Executive expressly acknowledges that the Covenants are a material
part of the consideration bargained for by Company, and, without the agreement
of Executive to be bound by the Covenants, Company would not have agreed to
enter into this Agreement. Executive further acknowledges and agrees that the
Business of Company and its services are highly competitive, and that the
Covenants contained in this Section 8 are reasonable and necessary to protect
Company's legitimate business interests. In addition, Executive acknowledges
that in the event his employment with Company terminates, he will still be able
to earn a livelihood without violating this Agreement, and that the Covenants
contained in this Section 8 are material conditions to my employment and
continued employment with Company.
(h) Scope. If any portion of any Covenant or its
application is construed to be invalid, illegal or unenforceable, then the
remaining portions and their application shall not be affected thereby, and
shall be enforceable without regard thereto. If any of the Covenants is
determined to be unenforceable because of its scope, duration, geographical area
or similar factor, then the court or other trier of fact making such
determination shall modify, reduce or limit such scope, duration, area or other
factor, and enforce such Covenant to the extent it believes is lawful and
appropriate.
(i) Business of Company. The term "Business of
Company", as used herein, shall mean the design, manufacture, service or sale by
Company or its Affiliates of high data rate millimeter wave frequency (gigabit
class) point to point wireless communications equipment. The term shall also
mean the provision by Company or its Affiliates of intake, assessment and
referral, case management and network management services to governmental
agencies and provider networks, and any other business in which Company or its
Affiliates were actually engaged or planning to be engaged during the Term.
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(j) Indemnification. Executive shall indemnify,
defend and hold harmless Company in respect of all liabilities, charges,
damages, losses, expenses, fees, and costs of any nature (including reasonable
attorney's fees and costs of litigation) that result from a failure by Executive
to fully perform or comply with any Covenant contained in this Section 8.
9. Miscellaneous.
(a) Indulgences, Etc. Neither the failure, nor any
delay, on the part of either party to exercise any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege preclude any
other or further exercise of the same, or of any other right, remedy, power or
privilege, nor shall any waiver of any right, remedy, power or privilege with
respect to any occurrence be construed as a waiver of such right, remedy, power
or privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
(b) Controlling Law; Consent to Arbitration; Service
of Process.
(i) This Agreement and all questions
relating to its validity, interpretation, performance and enforcement
(including, without limitation, provisions concerning limitations of actions),
shall be governed by and construed in accordance with the laws of the State of
Delaware (notwithstanding any conflict-of-laws doctrines of such state or other
jurisdiction to the contrary), and without the aid of any canon, custom or rule
of law requiring construction against the draftsman.
(ii) Except to the extent provided for in
Section 8 above (relating to injunctive relief and other equitable remedies),
Company and Executive agree that any claim, dispute or controversy arising under
or in connection with this Agreement, or otherwise in connection with
Executive's employment by Company or termination of his employment (including,
without limitation, any such claim, dispute or controversy arising under any
federal, state or local statute, regulation or ordinance or any of Company's
executive benefit plans, policies or programs) shall be resolved solely and
exclusively by binding, confidential, arbitration. The arbitration shall be held
in Chantilly, Virginia (or at such other location as shall be mutually agreed by
the parties). The arbitration shall be conducted in accordance with the National
Rules for the Resolution of Employment Disputes (the "Rules") of the American
Arbitration Association ("the AAA") in effect at the time of the arbitration,
except that the arbitrator shall be selected by alternatively striking from a
list of five arbitrators supplied by the AAA. All fees and expenses of the
arbitration, including a transcript if either requests, shall be borne equally
by the parties, however, all costs for the services of the arbitrator shall be
borne solely by Company. Each party is responsible for the fees and expenses of
its own attorneys, experts, witnesses, and preparation and presentation of
proofs and post-hearing briefs (unless the party prevails on a claim for which
attorney's fees are recoverable under law). In rendering a decision, the
arbitrator shall apply all legal principles and standards that would govern if
the dispute were being heard in court. This includes the availability of all
remedies that the parties could obtain in court. In addition, all statutes of
limitation and defenses that would be applicable in court, will apply to the
arbitration proceeding. The decision of the arbitrator shall be set forth in
writing, and be binding and conclusive on all parties. Any action to enforce or
vacate the arbitrator's award shall be governed by the Federal Arbitration Act,
if applicable, and otherwise by applicable state law. If either Company or
Executive improperly pursues any claim, dispute or controversy against the other
in a proceeding other than the arbitration provided for herein, the responding
party shall be entitled to dismissal or injunctive relief regarding such action
and recovery of all costs, losses and attorney's fees related to such action.
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(iii) Each of the parties hereto hereby
consents to process being served in any suit, action or proceeding of any
nature, by the mailing of a copy thereof by registered or certified first-class
mail, postage prepaid, return receipt requested, to them at their respective
addresses set forth in Section 9(c) hereof. Each of parties hereto hereby
irrevocably waives, to the fullest extent permitted by applicable law, all
claims of error by reason of any such service pursuant to the terms hereof (but
does not waive any right to assert lack of subject matter jurisdiction) and
agrees that such service (A) shall be deemed in every respect effective service
of process in any such suit, action or proceeding and (B) shall, to the fullest
extent permitted by applicable law, be taken and held to be valid personal
service.
(iv) Nothing in this Section 9(b) shall
affect the right of any party hereto to serve process in any manner permitted by
law or affect the right of any party to bring proceedings against any other
party in the courts of any jurisdiction or jurisdictions.
(c) Notices. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made and received only when
delivered (personally, by courier service such as Federal Express, or by other
messenger) or when deposited in the United States mails, registered or certified
mail, postage prepaid, return receipt requested, addressed as set forth below:
(i) If to Executive:
Xxxxxx X. Xxxxxxx
000 Xxx Xxxxxx
Xxxxxx, XX 00000
(ii) If to Company:
GigaBeam Corporation
00000-X Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Board of Directors
In addition, notice by mail shall be by air mail if posted outside of
the continental United States.
Any party may alter the addresses to which communications or copies are
to be sent by giving notice of such change of address in conformity with the
provisions of this Section for the giving of notice.
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(d) Assignment of Agreement. The rights and
obligations of both parties under this Agreement shall inure to the benefit of
and shall be binding upon their heirs, successors and assigns. Company may
assign or otherwise transfer its rights under this Agreement, including but not
limited to all Covenants contained in Section 8 above, to any successor or
affiliated business or corporation whether by sale of stock, merger,
consolidation, sale of assets or otherwise. This Agreement may not, however, be
assigned by Executive to a third party, nor may Executive delegate his duties
under this Agreement.
(e) Execution in Counterparts. This Agreement may be
executed in any number of counterparts, including by facsimile, each of which
shall be deemed to be an original as against any party whose signature appears
thereon, and all of which shall together constitute one and the same instrument.
This Agreement shall become binding when one or more counterparts hereof,
individually or taken together, shall bear the signatures of all of the parties
reflected hereon as the signatories.
(f) Provisions Separable. The provisions of this
Agreement are independent of and separable from each other, and no provision
shall be affected or rendered invalid or unenforceable by virtue of the fact
that for any reason any other or others of them may be invalid or unenforceable
in whole or in part.
(g) Entire Agreement. This Agreement contains the
entire understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings between the parties, inducements or conditions, express or
implied, oral or written, except as herein contained. The express terms hereof
control and supersede any course of performance and/or usage of the trade
inconsistent with any of the terms hereof. This Agreement may not be modified or
amended other than by an agreement in writing.
(h) Section Headings. The Section headings in this
Agreement are for convenience only; they form no part of this Agreement and
shall not affect its interpretation.
(i) Gender, Etc. Words used herein, regardless of the
number and gender specifically used, shall be deemed and construed to include
any other number, singular or plural, and any other gender, masculine, feminine
or neuter, as the context indicates is appropriate.
(j) Number of Days. In computing the number of days
for purposes of this Agreement, all days shall be counted, including Saturdays,
Sundays and holidays; provided, however, that if the final day of any time
period falls on a Saturday, Sunday or holiday on which entities which are
provincially regulated are or may elect to be closed, then the final day shall
be deemed to be the next day which is not a Saturday, Sunday or such holiday.
(k) Costs, Expenses in the Event of Breach. In the
event that either Executive or Company breaches this Agreement, the
non-breaching party shall be entitled to reimbursement for all costs and
expenses associated with enforcing such non-breaching party's rights and
remedies under this Agreement, including but not limited to legal fees and costs
of litigation.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement, intending to be legally bound hereby, as of the date first above
written.
GIGABEAM CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Executive Officer and
Chairman of the Board
XXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxxx
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[Signature Page to Employment Agreement of Xxxxxx X. Xxxxxxx]
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