Exhibit 10.12
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement ("Agreement") is entered
into by Eagle Broadband, Inc. ("Company") and Xxxxx Xxxxx ("Employee"), to be
effective as of May 12, 2005 the "Effective Date"). This Agreement fully amends
and supersedes that certain Employment Agreement between the Company and
Employee dated November 15, 2004.
WITNESSETH:
WHEREAS, Employee has been employed by Company since November 15, 2004;
and
WHEREAS, the Company desires to continue to employ Employee from and
after the Effective Date pursuant to the terms and conditions and for the
consideration set forth in this Agreement, and Employee desires to continue to
be employed by Company pursuant to such terms and conditions and for such
consideration.
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants, and obligations contained herein, the Company and Employee agree as
follows:
ARTICLE 1: EMPLOYMENT AND DUTIES:
1.1 The Company agrees to employ Employee, and Employee agrees to be employed by
the Company, beginning as of the Effective Date and continuing until the date of
termination of Employee's employment ("Termination Date") or the expiration of
this Agreement by its terms at the end of the Term and any renewals thereof
("Expiration Date"), subject to the terms and conditions of this Agreement. The
"Employment Period," as used herein, shall mean the period commencing on the
Effective Date, and ending on the earlier of the Termination Date or the
Expiration Date. The "Term," as used herein, shall mean the three (3) year
period commencing on the Effective Date, and expiring at midnight of the day
before the third (3rd) anniversary of the Effective Date.
(a) At least thirty (30) days prior to the expiration of the
Term (and each mutually agreed to extension thereof), the Board of
Directors of the Company (the "Board") shall notify the Employee, in
writing pursuant to Section 5.1, of the Board's desire to continue
Employee's employment beyond the end of the Term (or any mutually
agreed to extension thereof). If the Board desires to retain the
Employee, then the parties shall amend this agreement to extend the
Employment Period for an additional two (2) year period ("Extension
Period"), and the Term (or any mutually agreed to extension thereof)
shall be extended for an additional two (2) years, or a new employment
agreement (on substantially the same terms as this Agreement) shall be
negotiated, prepared, and put into effect prior to the end of the Term
(or any mutually agreed to extension thereof); however if the parties
cannot agree to the terms of a new agreement by the expiration of the
Term (or any mutually agreed to extension thereof), then Employee's
employment shall terminate at the end of the Term (or any mutually
agreed to extension thereof), and shall be subject to Section 3.2(b).
(b) For the avoidance of doubt it is the parties'
understanding that if this Agreement is extended for an Extension
Period or any subsequent Extension Period, at the end of any such
Extension Period, the provisions of Section 1.1 (a) shall apply, and
any reference in this Agreement to the Term shall include any mutually
agreed extension thereof, whether or not expressly noted.
1.2 Beginning as of the Effective Date and throughout the Term (and
mutually agreed to extension thereof), Employee shall be employed as President
and Chief Executive Officer of the Company. Employee shall report to the Board.
Employee agrees to serve in such position, and to perform diligently and to the
best of Employee's abilities the duties and services pertaining to such
positions as reasonably determined and assigned by the Board, as well as such
additional or different duties and services appropriate to such positions which
the Employee from time to time may be directed to perform by the Board.
1.3 Employee shall at all times comply with and be subject to such
policies and procedures as the Company may establish from time to time,
including, without limitation, the Company's Employee Handbook and Code of
Business Ethics.
1.4 Employee shall, during the Employment Period, devote Employee's
full business time, energy, and best efforts to the business and affairs of the
Company. Employee may not engage, directly or indirectly, in any other business,
investment, or activity that interferes with Employee's performance of
Employee's duties hereunder, is contrary to the interest of the Company or any
of its affiliated subsidiaries and divisions (collectively, "Eagle Broadband,
Inc."), or requires any significant portion of Employee's business time. The
foregoing notwithstanding, the parties recognize and agree that Employee may
engage in passive personal investments and other business activities that do not
conflict with the business and affairs of the Company or interfere with
Employee's performance of his duties hereunder. Employee shall be eligible to
serve on the Board of directors or committees thereof of entities other than
Eagle Broadband, Inc. during Employee's employment by the Company, subject to
the Board's advance consideration and approval thereof. Employee shall be
permitted to retain any compensation received for approved service on any
unaffiliated corporation's Board of directors or committees thereof.
1.5 Employee acknowledges and agrees that Employee owes a fiduciary
duty of loyalty, fidelity, and allegiance to act at all times in the best
interests of the Company and to do no act which would, directly or indirectly,
injure any such entity's business, interests, or reputation. It is agreed that
any direct or indirect interest in, connection with, or benefit from any outside
activities, particularly commercial activities, which interest might in any way
adversely affect the Company or involves a possible conflict of interest. In
keeping with Employee's fiduciary duties to the Company, Employee agrees that
during the Employment Period Employee shall not knowingly become involved in a
conflict of interest with the Company, or upon discovery thereof, allow such a
conflict to continue. Moreover, during the Employment Period Employee shall not
engage in any activity that might involve a possible conflict of interest
without first obtaining approval in accordance with this Agreement and the
Company's policies and procedures.
ARTICLE 2: COMPENSATION AND BENEFITS:
2.1 During the Employment Period, the Employee shall receive a base
salary ("Base Salary") of Two Hundred Seventy Five Thousand Dollars ($275,000)
per annum, less all required deductions, including but not limited federal
withholding, social security and other taxes, and payable bi-weekly on the
Company's regular payroll schedule. In the future, after each anniversary date
during the Employment Period hereof, Employee's salary shall be reviewed by the
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Board or the Compensation Committee thereof and may be increased as determined
from time to time by the Board. Any increase in the Base Salary shall not serve
to limit or reduce any other obligation to the Employee under this Agreement.
During the Term (and each mutual extension thereof), the Base Salary (as
increased from time to time) shall not be reduced.
2.2 Employee shall be eligible to be paid an annual bonus based upon
Employee's or the Company's attainment of certain targeted goals. The Employee
and the Chair of the Compensation Committee shall each year agree to annual
bonus targets and shall evidence same by a written letter or agreement.
2.3 In addition to the payment of Base Salary, the Company hereby
grants to the Employee, as an incentive to maximize the potential of the
Company, the following equity incentives:
The Company has previously issued to Employee non-qualified
stock options (the "Stock Options") to purchase 500,000 shares
of common stock from the Company exercisable at $.61 per
share. Such stock options vest monthly in equal increments
over a thirty-six (36) month period beginning November 15,
2004, unless there is a Change of Control (as defined below)
in which case all such Stock Options shall vest immediately.
The Stock Option Agreement pertaining to the Stock Options
shall contain a cashless conversion feature as well as
standard anti-dilution provisions. The Stock Option Agreement
shall also provide that the Stock Options are non-transferable
and expire at the close of business on October 31, 2009.
The Company shall, in addition to the above Stock Options,
issue to Employee Stock Options to purchase 6,700,000 shares
of common stock from the Company exercisable at the closing
market price on the date of this Agreement. Such Stock Option
vest monthly in equal increments over a thirty-six (36) month
period beginning the date of this Agreement, unless (a) there
is a Change of Control, (b) Employee is terminated without
Cause or terminates for Good Reason, in both of which cases
all such Stock Options shall vest immediately. All Stock
Options will remain exercisable for a period of twenty-four
(24) months following termination. The Stock Option Agreement
pertaining to the Stock Options shall contain a cashless
conversion feature as well as standard anti-dilution
provisions. The Stock Option Agreement shall also provide that
the Stock Options are non-transferable and expire at the close
of business on October 31, 2009.
The Company shall also grant to the Employee 2,000,000 shares
of Restricted Stock. Such Stock shall become vested based upon
Employee's or the Company's attainment of certain targeted
goals. The Employee and the Chair of the Compensation
Committee shall agree to Restricted Stock bonus targets and
shall evidence same by a written letter or agreement.
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The Stock Options and Common Stock issuable thereunder shall be registered under
a Form S-8 immediately upon issuance of the Stock Options. Restricted Stock
shall be registered under Form S-8 no later than upon vesting of same.
"Change of Control" is defined to be any of the following events: (i) the
stockholder's approval of a plan of complete liquidation of Company; or (ii) the
consummation of the sale of disposition by Company of all or substantially all
of Company's assets; or (iii) any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities and Exchange Act of 1934, as amended) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 or 13d-5 under said
Act), directly or indirectly, of securities of Company representing 50% or more
of the total voting power represented by Company's then outstanding voting
securities; or (iv) the date of the consummation of a merger or consolidation of
Company with any other corporation that has been approved by the stockholders of
Company, other than a merger or consolidation which would result in persons who
were the direct or indirect owners of voting securities of Company outstanding
immediately prior to the consummation of such merger or consolidation becoming,
immediately after such consummation, the direct or indirect owners of voting
securities representing more than fifty (50) percent of the total voting power
represented by the then-outstanding voting securities of the surviving
corporation, in substantially the same respective proportions as such persons'
ownership of the voting securities of Company immediately before such
consummation. A transaction shall not constitute a Change of Control if its sole
purpose is to change the state of Company's incorporation or to create a holding
company that will be owned in substantially the same proportions by the persons
who held Company's securities immediately before such transaction.
o 2.4 During the Employment Period (or after as necessary), the
Employee shall be entitled to the following fringe benefits:
o $750 per month car and insurance allowance;
o Premium 3rd party health, eye and dental insurance for the
Employee and his family, 100% paid for by the Company;
o Premium 3rd party short term and long term disability
insurance for the Employee, paid by the Company;
o Membership in South Shore Harbor or equivalent executive level
health club;
o D&O insurance that covers Employee from his inception date and
during the entirety of his Employment Period and following the
conclusion of his Employment Period;
o Up to $12,000 per year in financial tax planning and/or
outside company related legal expenses, paid by the Company;
o Up to $3,000 per year for reimbursement of existing monthly
personal life insurance policy premiums;
o Reimbursement of Employee's attorneys fees incurred in the
negotiation and review of this Agreement, up to $5,000;
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o Any increase in payment necessary to Employee to compensate
Employee for excise taxes incurred as a result of any
severance payment pursuant to Article 3 of this Agreement or
payment made as a result of a Change of Control and any income
or excise taxes incurred on the gross-up payments..
Employee shall also be permitted to participate in incentive, savings, and
retirement plans, and other standard benefit plans afforded to executive-level
employees of the Company, including, without limitation, travel accident
insurance plans and other programs of the Company and not listed above, to the
extent Employee is otherwise eligible under the terms and conditions of the
applicable plan or policy, and as such plans or policies may be from time to
time be amended, modified or terminated by the Company without prior notice.
Dependents of Employee may participate in such plans to the extent allowed for
other dependents of executive level employees of the Company as allowed by the
applicable plan. This Agreement shall not be construed to limit in any respect
the Company's right to establish, amend, modify, or terminate any benefit plan
or policy. Furthermore, the Company shall not by reason of this Article 2 be
obligated to institute, maintain, or refrain from changing, amending, or
discontinuing, any incentive compensation, employee benefit, or stock or stock
option program or plan, so long as such actions are similarly applicable to
covered employees generally.
During Employee's employment and after his employment ends, Employee shall, at
the request of Company, render all reasonable assistance and perform all lawful
acts that Company reasonably considers necessary or advisable in connection with
any litigation involving Company or any director, officer, employee,
shareholder, agent, representative, consultant, client or vendor of Company;
provided, however, that if such assistance or performance occurs after his
employment with Company ends, Employee shall be compensated for his time at an
hourly rate commensurate with his Base Salary pay rate on the date his
employment with Company is terminated, and reasonable efforts will be made to
accommodate Employee's schedule.
2.5 During the Employment Period, the Company shall pay or reimburse
Employee for all actual, reasonable, and customary expenses incurred by Employee
in the course of his employment, including business-related travel expenses,
subject to the terms of and Employee's compliance with the Company's Expense
Policy, as amended from time to time, and any other applicable Company policies
related to business expenses.
2.6 During the Employment Period, the Employee shall be entitled to
four weeks of vacation and sick days, fully paid, per calendar year. Any unused
vacation can be carried over each year and will be paid as compensation upon
termination of employment.
2.7 The Company may withhold from any compensation, benefits, or
amounts payable under this Agreement all federal, state, city, or other taxes as
may be required pursuant to any law or governmental regulation or ruling.
2.8 The Company shall reimburse the Employee, upon submission of
reasonably detailed receipts or other reasonable evidence of payment by
Employee, all reasonable and necessary expenses incurred by Employee after the
effective date of this Agreement in connection with his relocation from his
current residence to Houston, Texas (not to exceed $100,000), including, but not
limited to transportation to and from Plano, Texas, hotel, meals and other
approved and documented temporary living and commuting, relocation costs
incurred by Employee in both Plano and Houston, Texas that include but are not
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limited to real estate fees, selling expenses, buying points, buying related
expenses, costs of moving household goods and automobiles and expenses incurred
by Employee's spouse during house hunting trips. In the event that any amounts
reimbursed by the Company under this Section 2.7 are deemed to constitute
ordinary taxable income of the Employee for federal tax purposes for the 2005
calendar year, the Company shall pay to Employee on or before April 15, 2006 an
amount equal to 35% of the total amount reimbursed and deemed taxable to the
Employee under this Section 2.7.
2.9 The Company shall indemnify the Employee against all liabilities
and reasonable expenses that may be incurred in any threatened, pending or
completed action, suit or proceeding with respect to matters relating to the
Employee's services as an officer and/or director of the Company or any of its
affiliates to the fullest extent set forth in the Company's Bylaws as amended
from time to time and in accordance with the terms of any other indemnification
which is generally available to executive officers of the Company or any
affiliate that may be provided by the Company or any affiliate from time to
time. The Company shall pay for the reasonable expenses incurred by the Employee
in the defense of or participation in any proceeding to which Employee is a
party because of his service to the Company. The foregoing indemnity is
contractual and shall survive any adverse amendment to or repeal of the Bylaws.
The Company shall also cover Employee under a policy of officers' and directors'
liability insurance providing coverage that is comparable to that provided now
or hereafter to any other executive officer or director of the Company. The
provisions of this Section shall survive the termination of Employee's
employment for any reason and the term of this Agreement.
ARTICLE 3: TERMINATION OF EMPLOYMENT
AND EFFECTS OF SUCH TERMINATION:
3.1 (a) Employee's employment shall be terminated during the Employment
Period by reason of the following circumstances:
(i) Death of Employee.
(ii) Permanent Disability. "Permanent Disability" shall mean
Employee's physical or mental incapacity to perform his usual duties,
with such condition likely to remain continuously and permanently as
determined by the Board or Board of Directors. The decisions as to
whether and as of what date Employee has become permanently disabled
are delegated to the Board or Board of Directors for determination, and
any dispute of Employee with any such decision shall be limited to
whether the Board or Board of Directors reached such decision in good
faith.
(iii) Voluntary Termination. "Voluntary Termination" shall
mean a termination of employment at the election of Employee without
Good Reason. "Good Reason" is defined to be (1) a Change in Control;
(2) a reduction in base salary or increase in agreed upon bonus
targets; (3) a material decrease in the level of responsibility, title
or benefits to Employee; (4) relocation of the Company headquarters
more than 50 miles from its current headquarters; or (5) the Company
willfully breaches a material term of this Agreement and fails to cure
same after written notice from Employee and ten (10) business days
thereafter such breach remains uncured. Employee will provide the
Company with thirty (30) days advance notice of his intent to terminate
his employment voluntarily (except for (5) above). Employee shall
continue to remain an employee of the Company through the thirty (30)
day notice period and will perform such duties, if any, assigned to him
by the Company during the notice period. Notwithstanding the foregoing,
the Company may, at its option, waive the Employee's obligation to
remain an employee during all or any portion of the thirty (30) day
notice period, in which case Employee's employment shall cease
immediately. If the Company waives the thirty (30) day notice period,
Company shall pay Employee for the full thirty (30) day period if
Employee has terminated for Good Reason.
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(iv) Termination by Company for Cause. "Termination for Cause"
shall mean a termination of employment immediately upon written notice
to the Employee from the Company that an event constituting "Cause" has
occurred. For purposes of this Agreement, the term "Cause" shall be
defined as: (a) a material act of dishonesty or fraud; (b) a knowing
and material violation of any written policy of the Company or
applicable to the Company's operations; (c) a knowing and material
violation of an applicable law, rule, or regulation that exposes the
Company to damages or liability; (d) a material breach of fiduciary
duty; (e) conviction of a felony or (f) a failure to follow the
reasonable directions of the Board or the Board of Directors; provided
that Employee shall be provided ten (10) business days to cure any
default under this subparagraph (f). In the event that Employee is
terminated for Cause, Employee shall be provided with notice of such
termination in accordance with Section 5.1 below. In the event that
Employee is terminated for Cause, Employee shall be provided with
notice of such termination in accordance with Section 5.1 below.
(b) In the event Employee's employment terminates as a result of any of
the circumstances described in Section 3.1(a)(i) through (iv) above except for
Employee's voluntary termination for Good Reason, all future compensation to
which Employee would otherwise be entitled and all future benefits for which
Employee is eligible shall cease and terminate as of the Termination Date,
except as specifically provided in this Section 3.1, for prorated portions of
any bonuses earned or due Employee, and the terms of any of the Company's health
or welfare plans. Employee shall also receive payment, if any, for accrued and
unused vacation days.
(c) Notwithstanding anything contained in Section 3.1(b), in the event
that Employee's employment terminates as a result of death or permanent
disability resulting from any accident or incident beyond Employee's control
that occurs while Employee is traveling on Company business or is in the course
and scope of employment (excluding any accident or incident occurring when
Employee is traveling within Houston and to or from his normal place of business
or his residence), the preceding paragraph shall not apply, and instead Employee
(or his Estate, as the case may be) shall be entitled to receive payment subject
to and calculated in accordance with the provisions of Sections 3.2(a) and
3.2(a)(i) through (iii) below.
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3.2 The Company reserves the right to terminate Employee's employment
for any reason other than the circumstances described in Sections 3.1(a)(i)
through 3.1(a)(iv) above.
(a) If the Termination Date occurs during the Term (or any
mutual extension thereof) other than because of the circumstances
described in Sections 3.1(a)(i) through 3.1(a)(iv) above, or if
Employee voluntarily terminates for Good Reason, after Company's
receipt of a full release of all claims against the Company (excluding
only payments called for under this Agreement, claims for
indemnification pursuant to Section 2.9 or benefits and payments to be
payable after Termination Date under any of the Company's health or
welfare plans) Company shall pay Employee a lump sum, within thirty
(30) days after the Termination Date, a termination payment (subject to
required taxes and withholdings) consisting of the following:
(i) pro rata Base Salary through the Termination Date
and prorated bonuses earned through the Termination Date;
(ii) payment, if any, for accrued and unused vacation
days; and
(iii) the Employee's Base Salary for an eighteen (18)
month period.
Company shall also maintain Employee's health insurance for
the required 18 month COBRA period, paying the premiums called
for under such statute to maintain such insurance if Employee
does not obtain substitute health insurance with another
Employer.
(b) Termination of the employment relationship as a result of
expiration of the Term of this Agreement shall not require any notice
of termination, and Employee shall only be entitled to the payments
stipulated in (i) and (ii) above, but not any other payments.
3.3 Any Termination Payment paid to Employee pursuant to Section 3.2
shall be in consideration of Employee's continuing obligations under Article 4.
Nothing contained in this Article 3 shall be construed to be a waiver by
Employee of any benefits accrued for or due Employee under any employee benefit
plan (as such term is defined in the Employee Retirement Income Security Act of
1974, as amended), maintained by the Company except that Employee shall not be
entitled to any severance benefits pursuant to any severance plan or program of
the Company.
3.4 Termination of the employment relationship does not terminate those
obligations imposed by this Agreement that are continuing obligations, including
Employee's obligations under Article 4.
ARTICLE 4: OWNERSHIP AND PROTECTION OF INTELLECTUAL
PROPERTY AND CONFIDENTIAL INFORMATION; NON
COMPETITION AGREEMENT:
4.1 All information, ideas, concepts, improvements, discoveries, and
inventions, whether patentable or not, which are conceived, made, developed or
acquired by Employee, individually or in conjunction with others, during
Employee's employment by the Company (whether during business hours or otherwise
and whether on the Company's premises or otherwise) which relate to the
business, products or services of the Company (including, without limitation,
all such information relating to corporate opportunities, confidential financial
information, research and development activities, sales data, pricing and
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trading terms, evaluations, opinions, interpretations, acquisition prospects,
the identity of customers or potential customers and their requirements, the
identity of key contacts within the customers' organizations or within the
organizations of acquisition prospects, marketing and merchandising techniques,
prospective names, and marks), and all writings or material of any type
embodying any of such items, shall be the sole and exclusive property of the
Company.
4.2 Employee acknowledges that the businesses of the Company are highly
competitive and that their strategies, methods, books, records, and documents,
their technical information concerning their products, equipment, services, and
processes, procurement procedures and pricing techniques, the names of and other
information (such as credit and financial data) concerning their customers and
business affiliates (including but not limited to the products and/or services
marketed, advertised, and/or sold to customers and prospective customers, and
the prices charged or quoted to them for such products and/or services, and the
business activities, needs, and requirements for products and/or services of
such customers or prospective customers) all comprise confidential business
information and trade secrets which are valuable, special, and unique assets
which the Company use in their business to obtain a competitive advantage over
their competitors. Employee further acknowledges that protection of such
confidential business information and trade secrets against unauthorized
disclosure and use is of critical importance to the Company in maintaining their
competitive position. Employee hereby agrees that Employee will not, at any time
during or after the Employment Period, make any unauthorized disclosure of any
confidential business information or trade secrets of the Company, or make any
use thereof, except in the carrying out of his employment responsibilities
hereunder. Confidential business information shall not include information that
is now in, or hereafter becomes part of, the public domain, whether by
publication, patenting or otherwise than as a result of the Employee's breach of
this Agreement; information that the Employee can show, through documentary
evidence, already was in its possession prior to its receipt from the Company
hereunder; information which, subsequent to its receipt hereunder, is disclosed,
without obligation or confidence, to the Employee hereunder by a third party not
known to be under an obligation of confidence to Company hereunder; or
information that the Company authorizes for public release. The above
notwithstanding a disclosure shall not be unauthorized if (i) it is required by
law or by a court of competent jurisdiction or (ii) it is in connection with any
judicial arbitration, dispute resolution or other legal proceeding in which
Employee's legal rights and obligations as an Employee or under this Agreement
are at issue; provided, however, that Employee shall, to the extent practicable
and lawful in any such events, give prior notice to the Company of his intent to
disclose any such confidential business information in such context so as to
allow the Company or the applicable an opportunity (which Employee will
cooperate with and will not oppose) to obtain such protective orders or similar
relief with respect thereto as may be deemed appropriate.
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4.3 All written materials, records, and other documents made by, or
coming into the possession of, Employee during the Employment Period which
contain or disclose confidential business information or trade secrets of the
Company shall be and remain the property of the Company, as the case may be.
Upon termination of Employee's employment with the Company, for any reason,
Employee promptly shall deliver the same and all copies thereof to the Company.
4.4 To enable Employee to perform the duties contemplated by this
Agreement, the Company promises that it will disclose confidential information,
including confidential business information and trade secrets of the nature
described or referenced in Sections 4.1 - 4.3 above, during the Employment
Period and before termination of the employment relationship established by this
Agreement. In return for and ancillary to the promise made by the Company to
make such disclosure, (and ancillary to the other covenants of the Company under
this Agreement)" Employee hereby makes a reciprocal promise designed to enforce
the Company's interest in protecting its confidential information and its
goodwill. Accordingly, Employee promises to comply with the obligations set
forth in Sections 4.1 through 4.3 above, and furthermore, Employee agrees that,
during Employee's employment with the Company and for eighteen (18) months
following the termination of Employee's employment, the Employee will not,
directly or through any other person, firm, or corporation:
(a) in any state of the United States of America in which the
Company presently does business or does business during Employee's
employees perform services as an employee, officer, director or
independent contractor for any Competing Enterprise (as defined below);
(b) be an owner, shareholder (except for the ownership by
Employee of less than Five Percent (5%) of the equity securities of any
publicly-traded company), agent, or partner of, or serve in an
executive position with, any Competing Enterprise;
(c) call on or otherwise communicate with any customer or
prior customer of the Company or any business referral sources or
vendors to the Company including any respective successors and assigns,
for the purpose of soliciting business for a Competing Enterprise or
for someone other than the Company; or
(d) do anything to interfere with the normal operation of the
businesses of the Company including, without limitation, make any
effort personally or through others to recruit, hire, or solicit any
employee or independent contractor of the Company to leave the Company,
or to interfere in any way with the Company's relationships with its
customers or suppliers.
For purposes of this Section, the term "Competing Enterprise" shall mean: any
person or any business organization of whatever form, excluding the Company,
engaged directly or indirectly in any business or enterprise whose business
activities involve the lines of business described in the Company's most recent
Form l0K filed with the Securities & Exchange Commission at the time of
termination of this Agreement, along with any lines of business added by the
Company from the date of filing such 10-K to the date of termination of the
Employee's employment.
ARTICLE 5: MISCELLANEOUS:
5.1 For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when received by or tendered to Employee or the Company, as
applicable, by pre paid courier or by United States registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
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If to the Company, to
Eagle Broadband, Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxx 00000
If to Employee, to his last known personal residence.
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
Notwithstanding the foregoing, any Notice of Termination pursuant to Article 3
may be delivered to the Employee in accordance with the above sentences in this
Section 5.1, or by e-mail to the Employee's Company e-mail address, and in the
event of such delivery by e-mail, the Delivery Date shall be conclusively
determined to be the date when such e-mail was received on the Company's server
regardless of the date when such e-mail was opened by the Employee.
5.2 This Agreement shall be governed by and construed and enforced, in
all respects in accordance with the law of the State of Texas, without regard to
principles of conflicts of law, unless preempted by federal law, in which case
federal law shall govern; provided, however, that the dispute resolution process
in Section 5.5 shall govern in all respects with regard to the resolution of
disputes hereunder.
5.3 No failure by either party hereto at any time to give notice of any
breach by the other party of, or to require compliance with, any condition or
provision of this Agreement shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.
5.4 It is a desire and intent of the parties that the terms,
provisions, covenants, and remedies contained in this Agreement shall be
enforceable to the fullest extent permitted by law. If any such term, provision,
covenant, or remedy of this Agreement or the application thereof to any person,
association, or entity or circumstances shall, to any extent, be construed to be
invalid or unenforceable in whole or in part, then such term, provision,
covenant, or remedy shall be construed in a manner so as to permit its
enforceability under the applicable law to the fullest extent permitted by law.
In any case, the remaining provisions of this Agreement or the application
thereof to any person, association, or entity or circumstances other than those
to which they have been held invalid or unenforceable, shall remain in full
force and effect.
5.5 It is the mutual intention of the parties to have any dispute
concerning this Agreement resolved out of court. Accordingly, the parties agree
that any claim or controversy of whatever nature arising from or relating in any
way to this Agreement or the employment of the Employee by the Company, and any
continuing obligations under this Agreement, including disputes arising under
the common law or federal or state statutes, laws or regulations and disputes
with respect to the arbitrability of any claim or controversy, shall be resolved
exclusively by final and binding arbitration before a single experienced
employment arbitrator selected by the parties and conducted in accordance with
the agreement of the parties or as determined by the arbitrator. If the parties
are unable to agree to an arbitrator, an arbitrator will be selected in
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accordance with the Employment Dispute Resolution ("EDR") Rules of the American
Arbitration Association ("AAA"). The arbitration will be conducted in League
City, Texas, pursuant to the EDR Rules of the AAA, and the arbitrator shall have
full authority to award or grant all remedies provided by law. Judgment upon the
award may be enforced by any court having jurisdiction thereof. Each party shall
pay the fees of their respective attorneys, the expenses of their witnesses, and
any other expenses incurred by such party in connection with the arbitration.
The prevailing party, as determined by the Arbitrator, may seek to recover its
reasonable attorney fees and costs in accordance with applicable laws.
Notwithstanding the foregoing provisions, either party shall be entitled to seek
a restraining order or injunction in any court of competent jurisdiction to
prevent any breach or the continuation of any breach of the provisions of
herein.
5.6 This Agreement shall be binding upon and inure to the benefit of
the Company, and any other person, association, or entity which may hereafter
acquire or succeed to all or substantially all of the business or assets of the
Company by any means whether direct or indirect, by purchase, merger,
consolidation, or otherwise. Employee's rights and obligations under this
Agreement are personal and such rights, benefits, and obligations of Employee
shall not be voluntarily or involuntarily assigned, alienated, or transferred,
whether by operation of law or otherwise, without the prior written consent of
the Company.
5.7 This Agreement replaces and extinguishes any previous agreements
and discussions pertaining to the subject matter covered herein, including the
prior agreement of the parties dated November 15, 2004. This Agreement
constitutes the entire agreement of the parties with regard to the terms of
Employee's employment, termination of employment and severance benefits, and
contains all of the covenants, promises, representations, warranties, and
agreements between the parties with respect to such matters. Each party to this
Agreement acknowledges that no representation, inducement, promise, or
agreement, oral or written, has been made by either party with respect to the
foregoing matters which is not embodied herein, and that no agreement,
statement, or promise relating to the employment of Employee by the Company that
is not contained in this Agreement shall be valid or binding, except as set
forth in any applicable Employee benefit plan. It is understood that, by signing
below, Employee acknowledges that this Agreement supersedes any agreements or
understandings regarding the subject matter covered herein made prior to the
Employee signing this document. Any modification of this Agreement will be
effective only if it is in writing and signed by each party whose rights
hereunder are affected thereby, provided that any such modification must be
authorized or approved by the Board of Directors or its delegate, as
appropriate.
IN WITNESS WHEREOF, the Company and Employee have duly executed this
Agreement in multiple originals to be effective on the Effective Date.
Eagle Broadband, Inc.
By: /S/ X. X. XXXXXXXXXXX
------------------------------------------
Printed Name: X. X. XXXXXXXXXXX
--------------------------------
Title: CHAIRMAN
---------------------------------------
Date: 5/12/2005
----------------------------------------
Employee
/S/ XXXXX XXXXX
---------------------------------------------
Xxxxx Xxxxx
Date: 5/12/05
----------------------------------------
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