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EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made effective as of the
27th day of December, 2000, by and between o2wireless Solutions, Inc., a Georgia
corporation (the "Company") and Xxxxxxx X. Xxxxx, a Georgia resident
("Employee").
WHEREAS, the Company and Employee desire to continue the employment of
Employee with the Company under the terms and conditions set forth herein; and
WHEREAS, the Company and Employee desire to set forth in writing all of
the covenants, terms and conditions of their agreement and understanding as to
such employment.
NOW THEREFORE, in consideration of the foregoing, the mutual promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
1. EMPLOYMENT AND DUTIES. The Company hereby employs Employee,
and Employee hereby accepts such employment. Employee shall serve as Chief
Operating Officer and/or President of the Company or such other managerial or
executive position(s) as agreed to by the parties. Employee agrees to serve in
such capacities and to faithfully and diligently perform such duties,
responsibilities and services that are incidental thereto, as well as such other
duties, responsibilities and services as may be requested by the Chief Executive
Officer or the Board of Directors of the Company from time to time and agreed to
by Employee. Employee shall devote his full time, attention and best efforts to
the performance of his duties, responsibilities and services to the Company in a
lawful manner and in accordance with all policies of and instructions from the
Company.
2. TERM. The term of this Agreement will commence on the date set
forth above and will terminate one (1) year thereafter, unless said Agreement is
terminated at an earlier date as provided herein. The Agreement shall
automatically renew for identical and successive one (1) year term(s) unless
either party notifies the other of its intention not to renew the Agreement at
least 30 days prior to the expiration of the one year term then in effect;
provided, however, that all post-termination rights and obligations hereunder
shall survive termination or expiration of this Agreement as provided herein.
3. COMPENSATION AND EMPLOYEE BENEFITS.
(a) Compensation. Employee shall receive an annualized
salary (the "Base Salary") of Two Hundred Ten Thousand Dollars ($210,000.00),
which shall be paid in accordance with the Company's regular payroll practices
and subject to any and all withholdings pursuant to applicable law.
Employee is also eligible to receive additional annualized
incentive compensation if the Company meets the revenue, gross profit, EBITDA,
and working capital targets and the
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Employee attains the specified management business objectives set forth on, and
in accordance with, Exhibit "A," which is attached hereto and incorporated
herein by reference. The Employee's right to receive incentive compensation
hereunder will be measured on a quarterly basis and, if earned, will be payable
quarterly.
(b) Stock Options. Pursuant and subject to the terms and
conditions of the Amended and Restated 1998 Stock Option Plan between the
Company and Employee of even date herewith (the "Stock Option Plan"), Employee
has received stock options to purchase up to four hundred fifty thousand
(450,000) shares of the common stock of the Company at an exercise price of
$6.375 per share, (the "Stock Options"), in accordance with the stock option
agreement attached hereto and incorporated herein by reference as Exhibit B
("Stock Option Agreement"). Provided, however, Employee acknowledges and agrees
that his rights to the Stock Options shall be forfeited, and such Stock Options
shall not ever vest, if he voluntarily leaves the employ of the Company before
December 27, 2001. In the event Employee is employed with the Company and a
Change of Control occurs, the Stock Options will vest and become exercisable in
full on the date of such Change of Control.
(c) Employee/Fringe Benefits. Employee shall be eligible
to participate in all employee benefit programs and fringe benefits (including,
but not limited to, medical, dental, vision, life, accidental death and
dismemberment, travel, accident and short-term/long-term disability insurance
plans or programs, paid time-off, paid holidays, etc.) generally made available
to executive employees of the Company, subject to any and all terms, conditions,
and eligibility requirements for said programs and benefits, as may from time to
time be prescribed by the Company.
(d) Other Business Expenses. The Company shall reimburse
Employee for his actual out-of-pocket, business expenses that are incurred by
Employee and are reasonable and necessary in relation to and in furtherance of
Employee's performance of his duties to the Company. Such reimbursement shall be
subject to compliance with the Company's reimbursement policies and the
provision of substantiating documents of said expenses as may be reasonably
requested by the Company.
(e) Vacation. Employee shall be entitled to twenty-one
(21) days Paid Time Off (PTO) per year for vacation. Illness, other personal
time away from work, and holidays shall be allowed in accordance with the
Company's normal policies; provided, that vacation shall be taken at such times
as shall not unreasonably interfere with the Employee's responsibilities
hereunder.
4. TERMINATION. This Agreement may be terminated prior to the
expiration of the term as follows:
(a) Death or Disability. Employee's employment hereunder
shall terminate automatically upon Employee's death. In such event, Employee's
estate shall be entitled to receive any earned and unpaid Base Salary and bonus,
prorated through the date of death. If Employee is prevented from performing his
material duties hereunder as a result of physical or
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mental illness, injury or incapacity for either (i) a period of ninety (90)
consecutive days or (ii) more than one hundred-eighty (180) days in the
aggregate in any twelve (12) month period, then the Company may terminate
Employee's employment upon written notice to Employee. While receiving
disability income payments under the Company's disability income plan, Employee
shall not be entitled to receive any Base Salary hereunder, but shall continue
to participate in the Company's benefit plans, to the extent permitted by such
plans, until the termination of his employment.
(b) For Cause. The Company may terminate Employee's
employment hereunder for Cause at any time upon notice to Employee setting forth
in reasonable detail the nature of such Cause. In the event that the Company
terminates Employee's employment for Cause (or Employee resigns from his
employment with the Company), the Company shall not be obligated to pay any
salary, severance, or other compensation to Employee after the effective date of
termination, other than accrued and unpaid Base Salary and bonus earned through
the date of termination.
(c) Without Cause. In the event the Company terminates
this Agreement without Cause prior to December 27, 2001, or the parties do not
agree to renew this Agreement for a successive one (1) year term, after December
26, 2001, then Employee shall be entitled to (i) severance pay in the form of
continuation of his annualized Base Salary through December 26, 2002, which
shall be paid in accordance with the Company's regular payroll practices and
subject to any and all withholdings pursuant to applicable law, and (ii) a pro
rata portion of his incentive bonus, if any, contemplated by Section 3(a) for
the quarter in which his employment terminated based upon the number of days in
the quarter elapsed prior to such termination. In addition, the Company shall
continue to provide, through COBRA or otherwise, medical insurance coverage
contemplated by Section 3(c) for a period of twelve months following the date of
Employee's termination without Cause prior to December 27, 2001, or until
Employee's earlier commencement of employment with any other entity. Payment of
the severance benefits set forth herein shall be subject to Employee's continued
compliance with the provisions of Section 5 hereof.
5. PROTECTIVE COVENANTS. Employee is, and will become during the
course of employment, intimately familiar with Confidential Information, Trade
Secrets, products and services, and other property of the Company. The
protection of the Company requires that all such property and information must
remain the sole and private property of the Company to be used only for the
Company's benefit, not to be disclosed to any other party nor used by Employee
against the Company or for the benefit of any other person. Employee shall, upon
request of the Company, and without request promptly on termination of
employment, deliver all Company Property in Employee's possession or control to
the Company. Employee acknowledges and agrees that title to all Company Property
is vested in the Company. In addition, Employee warrants, represents, covenants
and agrees, during the term of his employment and for the periods described
below, as follows:
(a) Covenant Not to Solicit Business from Certain
Customers. By virtue of his position with the Company, Employee shall be given
an opportunity to, and shall have an
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obligation to, participate in strategic planning with respect to competitors of
the Company and shall be made privy to the Company's marketing strategy, product
development, pricing, timing and other matters specifically designed to address
market competition. In addition, Employee acknowledges that during the course of
his employment by the Company, Employee shall have a duty to, and shall be given
an opportunity to, make contact with and strengthen ties with Customers and
potential Customers of the Company. For a period through December 27, 2002,
Employee shall not, directly or indirectly, for himself or any other person or
entity, solicit any Customer for the purchase or license by such Customer of any
product or service competitive with any of the products and services which the
Company offered within, or, with Employee's knowledge, contemplated offering
during, the one-year period preceding termination of Employee's employment.
(b) Covenant Not to Solicit Employees. For a period of
two (2) years following the date of termination of his employment with the
Company or expiration of this Agreement, Employee shall not, directly or
indirectly, for himself or any other person or entity, employ or solicit the
employment of any employee of the Company for the purpose of causing such
employee to take employment with Employee or any other person or entity until
such employee or former employee has ceased to be employed by the Company for a
period of six (6) months.
(c) Covenant Not to Disclose Confidential Information or
Trade Secrets. Employee shall not disclose to any person whatsoever or use any
Trade Secrets or Confidential Information of the Company, other than as
necessary in the fulfillment of his duties to the Company in the course of
employment. This paragraph shall be effective during the term of this Agreement
and for a period of two (2) years after termination of employment with the
Company or expiration of this Agreement with respect to all Confidential
Information, and shall remain in effect with respect to all Trade Secrets so
long as such information remains a trade secret under applicable law.
(d) Assistance in Litigation. Employee shall, upon
reasonable notice, furnish such information and assistance to the Company as may
reasonably be required by the Company in connection with any litigation in which
it is, or may become, a party, and which arises out of facts and circumstances
known to Employee. The Company shall promptly reimburse Employee for his
out-of-pocket expenses incurred in connection with the fulfillment of his
obligations under this subsection. Provided, however, that Employee's
obligations under this subsection shall only exist during the term of this
Agreement and during the period, if any, during which he receives compensation
from the Company following the termination or expiration of this Agreement.
(e) Breach or Invalidity of Covenant. The parties
expressly acknowledge and agree that the severance benefits provided for in
Section 4 hereof are in consideration for, and are directly dependent upon, the
Employee's agreement to be bound by and performance of the provisions of this
Section 5, and in the event Employee breaches the covenants contained herein,
then the parties agree that there shall be a total failure of consideration for
the severance
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obligations set forth in Section 4, and Employee shall not be entitled to
receive any severance benefits.
6. WORK PRODUCT; INVENTIONS.
(a) Ownership by the Company. The Company shall own all
right, title and interest in and to all work product developed by Employee in
Employee's provision of services to the Company, including without limitation,
all preliminary designs and drafts, all other works of authorship, all
derivative works and patentable and unpatentable inventions and improvements,
all copies of such works in whatever medium such copies are fixed or embodied,
and all worldwide copyrights, trademarks, patents or other intellectual property
rights in and to such works (collectively the "Work Product"). All copyrightable
materials of the Work Product shall be deemed a "work made for hire" for the
purposes of U.S. Copyright Act, 17 U.S.C. ss. 101 et seq., as amended.
(b) Assignment and Transfer. In the event any right,
title or interest in and to any of the Work Product (including without
limitation all worldwide copyrights, trademarks, patents or other intellectual
property rights therein) does and shall not vest automatically in and with the
Company, Employee agrees to and hereby does irrevocably assign, convey and
otherwise transfer to the Company, and the Company's respective successors and
assigns, all such right, title and interest in and to the Work Product with no
requirement of further consideration from or action by Employee or the Company.
(c) Registration Rights. The Company shall have the
exclusive worldwide right to register, in all cases as "claimant" and when
applicable as "author," all copyrights in and to any copyrightable element of
the Work Product, and file any and all applicable renewals and extensions of
such copyright registrations. The Company shall also have the exclusive
worldwide right to file applications for and obtain (i) patents on and for any
of the Work Product in Employee's name and (ii) assignments for the transfer of
the ownership of any such patents to the Company.
(d) Additional Documents. Employee agrees to execute and
deliver all documents requested by the Company regarding or related to the
ownership and/or other intellectual property rights and registrations specified
herein. Employee hereby further irrevocably designates and appoints the Company
as Employee's agent and attorney-in-fact to act for and on Employee's behalf and
stead to execute, register and file any such assignments, applications,
registrations, renewals and extensions and to do all other lawfully permitted
acts to further the registration, prosecution and issuance of patents, copyright
or similar protections with the same legal force and effect as if executed by
Employee.
7. EMPLOYEE'S OBLIGATIONS UPON TERMINATION. Upon the termination
of Employee's employment hereunder for whatever reason, Employee shall, if
requested by the Company, immediately tender Employee's resignation from any
office Employee may hold with the Company, and Employee shall not at any time
thereafter represent himself to be connected or to have any connection with the
Company or its related entities.
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8. ASSIGNMENT. Due to the personal service nature of Employee's
obligations, Employee may not assign this Agreement. Subject to the restrictions
in this Section, this Agreement shall be binding upon and benefit the parties
hereto, and their respective heirs, successors or assigns.
9. LEGALITY AND SEVERABILITY. The parties covenant and agree that
the provisions contained herein are reasonable and are not known or believed to
be in violation of any federal, state, or local law, rule or regulation. In the
event a court of competent jurisdiction finds any provision herein (or subpart
thereof) to be illegal or unenforceable, the parties agree that the court shall
modify said provision(s) (or subpart(s) thereof) to make said provision(s) (or
subpart(s) thereof) and this Agreement valid and enforceable. Any illegal or
unenforceable provision (or subpart thereof), or any modification by any court,
shall not affect the remainder of this Agreement, which shall continue at all
times to be valid and enforceable.
10. MUTUAL NON-DISPARAGEMENT; PRESS RELEASES.
(a) Mutual Non-Disparagement. The Company and Employee
agree that neither party will undertake any disparaging or harassing conduct
directed at the other at any time during the term of this Agreement or following
termination hereof.
(b) Press Releases. Other than as required by applicable
law, the parties agree that no public announcement or similar publicity with
respect to this Agreement or the termination of Employee's employment with the
Company will be issued, if at all, unless the parties agree in writing as to the
time, manner and content of such announcement or publicity. Unless consented to
by the Company in advance or required by law, Employee shall keep this Agreement
strictly confidential and may not make any disclosure of this Agreement or any
of its terms or provisions to any person. The parties will consult with each
other in good faith concerning the means by which the Company's employee's,
customers and suppliers and others having dealings with Employee will be
informed of the termination of Employee's employment with the Company.
11. ENTIRE AGREEMENT; MODIFICATION; GOVERNING LAW. This Agreement
constitutes the entire understanding between the parties regarding the subject
matters addressed herein and supersedes any prior oral agreements between the
parties. This Agreement can only be modified by a writing signed by both
parties, and shall be interpreted in accordance with and governed by the laws of
the State of Georgia without regard to the choice of law provisions thereof.
Notwithstanding the foregoing, the protective provisions contained in Paragraph
5 hereof shall be governed and enforced in accordance with the laws of the State
of Georgia.
12. NEGOTIATED AGREEMENT. Employee and the Company agree that this
Agreement shall be construed as drafted by both of them.
13. REVIEW AND VOLUNTARINESS OF AGREEMENT. Employee acknowledges
Employee has had an opportunity to read, review, and consider the provisions of
this Agreement, that
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Employee has in fact read and does understand such provisions, and that Employee
has voluntarily entered into this Agreement.
14. ATTORNEYS' FEES. In the event that either party initiates
litigation as to a claim for damages, injunction, specific performance or
recovery of money (as against the other party) due by reason of this Agreement
or breach of such other party's obligations under any of the terms or provisions
hereof, the non-prevailing party in any such cause of action shall pay, in
addition to such sums as may be due or such other relief to which the prevailing
party may be entitled, reasonable attorneys' fees and related costs of the
prevailing party.
15. NON-WAIVER. The failure of a party to insist upon or enforce
strict performance of any provision of this Agreement or to exercise any rights
or remedies thereunder will not be construed as a waiver by such party to assert
or rely upon any such provision, right or remedy in that or any other instance.
16. NO CONFLICTING OBLIGATIONS. Employee hereby acknowledges and
represents that Employee's execution of this Agreement and performance of
employment-related obligations and duties for the Company as set forth hereunder
will not cause any breach, default or violation of any other employment,
non-disclosure, confidentiality, non-competition or other agreement to which
Employee may be a party or otherwise bound. Employee hereby agrees that he will
not use in the performance of his duties for the Company (or otherwise disclose
to the Company) any trade secrets or confidential information of any prior
employer or other person or entity if and to the extent that such use or
disclosure may cause a breach or violation of any obligation or duty owed to
such employer, person, or entity under any agreement or applicable law.
17. FORUM; ENFORCEMENT. In the event of litigation arising from
this Agreement, each party hereby expressly consents to jurisdiction and venue
in any State or Federal Court sitting in Xxxx County, State of Georgia, and
waives any objections to such jurisdiction and venue. Employee further agrees
that if Employee were to breach the provisions of Section 5 or 6 hereof, the
Company would be irreparably harmed and therefore, in addition to any other
remedies available at law, the Company shall be entitled to seek equitable
relief, including without limitation, specific performance and preliminary and
permanent injunction, against any breach or threatened breach of said Sections 5
and 6, without having to post bond.
18. NOTICES. Any notice or other communications under this
Agreement shall be in writing, signed by the party making the same, and shall be
delivered personally or sent by certified or registered mail, postage prepaid,
addressed as follows:
If to Employee: Xxxxxxx X. Xxxxx
000 Xxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
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If to the Company: o2wireless Solutions, Inc.
000 Xxxxxxxxxx Xxxxx Xxxx.
Xxxxxxx, XX 00000
Attention: Chief Executive Officer
or to such other address as may hereafter be designated by either party
hereto. All such notices shall be deemed given on the date received.
19. DEFINITIONS. As used in this Agreement, the following terms
shall have the following meanings:
(a) "CAUSE." Cause shall exist:
(i) In the event of Employee's willful and
persistent inattention to his duties hereunder or Employee's
commission of acts amounting to gross negligence or willful
misconduct to the detriment of the Company;
(ii) If Employee is convicted of (from which
conviction no appeal may be taken or the time in which to take
an appeal has expired), pleads guilty to, enters a plea of
nolo contendre for or confesses to any felony upon or any act
of fraud or embezzlement of funds or property;
(iii) If Employee has breached or violated any
covenant, warranty or agreement that he has entered into with
the Company or its affiliate(s) or has engaged in a dishonest
act to the material damage or prejudice of the Company or its
affiliate(s), or conduct or in activities that would likely
damage the business or reputation of the Company or its
affiliate(s);
(iv) If Employee has failed without reasonable
cause to devote his full business time to his employment by
the Company hereunder and such failure continues for a period
of thirty (30) days after notice to Employee from the Board of
Directors regarding such failure; or
(v) If Employee fails to follow directions set
out in written resolutions passed by the Board of Directors
and such failure continues for a period of thirty (30) days
after notice to Employee from the Board of Directors regarding
such failure.
(b) "CHANGE OF CONTROL" shall mean, and shall be deemed
to have occurred as of the first day that any one or more of the following
conditions shall have been satisfied:
(i) Upon the consummation of any transaction in
which any person (or persons acting in concert), partnership,
corporation or other organization shall, after the date of
this Agreement, own, control, or hold with the power to vote
more than 50% of any class of voting securities of the
Company; provided,
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however, that any such transaction by shareholders of the
Company who, as of the date of this Agreement, own 25% or more
of the voting securities of the Company, shall not be a Change
of Control; or
(ii) Upon the consummation of any transaction,
after the date of this Agreement, in which the Company, or
substantially all of the assets of the Company, shall be sold
or transferred to, or consolidated or merged with, another
corporation which is not a majority owned subsidiary of the
Company; provided, however, if the Company shall become a
subsidiary of another corporation or shall be merged or
consolidated into another corporation and a majority of the
outstanding voting shares of the parent or surviving
corporation are owned immediately after such acquisition,
merger, or consolidation by the owners of a majority of the
voting shares of the Company immediately before such
acquisition, merger, or consolidation, then no Change of
Control shall be deemed to have occurred.
(c) "COMPANY PROPERTY." All property, including, without
limitation, real, personal, tangible or intangible, including all computer
programs, electronic data, educational or instructional materials, inventions,
Confidential Information, Trade Secrets, facilities, trade names, logos,
patents, copyrights and all tangible materials and supplies (whether originals
or duplicates and including, but not in any way limited to, computer diskettes,
brochures, materials, sample products, video tape cassettes, film, catalogs,
books, records, manuals, sales presentation literature, training materials,
calling or business cards, customer records, customer files, customer names,
addresses and phone numbers, directives, correspondence, documents, contracts,
orders, messages, memoranda, notes, circulars, agreements, bulletins, invoices
and receipts), which in any way pertain to the Company's business, whether
furnished to Employee by the Company or prepared, compiled or acquired by
Employee while employed by the Company, all being the sole property of the
Company.
(e) "CONFIDENTIAL INFORMATION." All information or
material regarding the Company's business that has or could have commercial
value or other utility in the business in which the Company is engaged or
contemplates engaging with Employee's knowledge, or information which if
disclosed without authorization could be detrimental to the business of the
Company, including, but not limited to, its business plans, marketing plans,
methods of operation, products, software programs, documentation of computer
programs, programming procedures, algorithms, formulas, equipment, techniques,
existing and contemplated services, inventions, systems, devices (whether or not
patentable), financial information and practices, plans, pricing, selling and
marketing techniques, proposals or bids for actual or potential customers,
names, addresses and phone numbers of the Company's customers, credit
information and financial data of the Company and the Company's customers,
particular business requirements of the Company's customers, and special methods
and processes involved in designing, producing and selling the Company's
products and services, all shall be deemed Confidential Information and the
Company's exclusive property; provided, however, that Confidential Information
shall not include information that has entered the public domain other
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than through the actions of Employee. Confidential Information shall also
include the foregoing types of information with respect to all affiliates of the
Company.
(f) "CUSTOMER." Customer means any customer or
prospective customer of the Company with whom Employee had Material Contact
during the twelve (12) months immediately preceding the termination of the
Employee's employment with the Company.
(g) "MATERIAL CONTACT." Material Contact means
significant interaction between the Employee and the customer or potential
customer which takes place in an effort to further the business relationship,
and shall be deemed to exist between the Employee and each customer or potential
customer of the Company with whom the Employee dealt.
(h) "TRADE SECRETS." All information, without regard to
form, including, but not limited to, technical or nontechnical data, a formula,
a pattern, a compilation, a program, a device, a method, a technique, a drawing,
a process, financial data, financial plans, product plans, or a list of actual
or potential customers or suppliers which is not commonly known by or available
to the public and which information:
(i) Derives economic value, actual or potential,
from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use; and
(ii) Is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.
IN WITNESS WHEREOF, the parties hereto have hereunto affixed their
hands and seals as of the date first above written.
THE COMPANY:
O2WIRELESS SOLUTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Chief Financial Officer
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EMPLOYEE:
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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