EMPLOYMENT AGREEMENT
Exhibit 10.6
THIS EMPLOYMENT AGREEMENT effective as of the 1st day of January, 2006, by and between AIRBEE
WIRELESS, INC. (the “Corporation”), a Delaware corporation, and Xxxxxxxxxx Xxxx, residing
at 00000 Xxxxxx Xxxx, Xxxxxxxxxx, XX 00000 (the “Executive”).
W I T N E S S E T H:
WHEREAS, the Corporation has been formed as of August 9, 2002, and
WHEREAS, Executive is experienced in the technology industry; and
WHEREAS, Executive has fulfilled his prior employment agreement dated August 16, 2002 and which
terminated on December 31, 2005; and
WHEREAS, the Corporation desires to enter into this Employment Agreement in order to assure itself
of the service of Executive, and Executive desires to accept employment with the Corporation, upon
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter set forth,
the parties hereto agree as follows:
1. Employment of Executive. The Corporation hereby employs Executive as its Chief
Executive Officer (CEO) to perform the duties and responsibilities incident to such position,
subject at all times to the control and direction of the Board of Directors of the Corporation (the
“Board”).
2. Acceptance of Employment; Time and Attention. Executive hereby accepts such
employment and agrees that throughout the period of his employment hereunder, he will devote
substantially all his time, attention, knowledge and skills, faithfully, diligently and to the best
of his ability, in furtherance of the business of the Corporation, and will perform the duties and
responsibilities assigned to him pursuant to Paragraph 1 hereof, subject, at all times, to the
direction and control of the Board. As an executive officer, Executive shall perform such specific
duties and shall exercise such specific authority related to the management of the day-to-day
operations of the Corporation consistent with his position as CEO as is normally associated with
the position of CEO of a company (consistent with the governing documents of the corporation) and
also as may be assigned to Executive from time to time by the Board. Executive shall at all times
be subject to, observe and carry out such rules, regulations, policies, directions and restrictions
as the Corporation shall from time to time establish. During the period of his employment
hereunder, Executive shall not, directly or indirectly, accept employment or compensation from, or
perform services of any nature for, any business enterprise other than the Corporation. Executive
shall be elected to such offices of the Corporation as may from time to time be determined by the
Board. During the period of Executive’s employment hereunder, he shall not be entitled to
additional compensation for serving in any offices of the Corporation to
which he is elected or appointed.
3. Term. Except as otherwise provided herein, the term of Executive’s employment
hereunder shall commence as of the date of this Agreement and shall terminate on the 31st day of
December, 2006.
4. Compensation. As compensation for his services hereunder, the Corporation shall
pay to Executive a base salary at the rate of $175,000 per annum payable in equal installments no
less frequently than monthly. Additionally, Executive shall be eligible for stock options and
bonuses as set forth as set forth from time to time by the Board. All compensation paid to
Executive shall be subject to withholding and other employment taxes imposed by applicable law.
Executive’s base salary may be increased but not decreased during the Term.
5. Additional Benefits. In addition to such base salary, Executive (and his family)
shall be entitled to participate, to the extent he is (and they are) eligible under the terms and
conditions thereof, in any profit sharing, pension, retirement, hospitalization, insurance,
disability, medical service, stock option, bonus or other employee benefit plan available to the
executive officers of the Corporation that may be in effect from time to time during the period of
Executive’s employment hereunder. The Corporation shall be under no obligation to institute or
continue the existence of any such employee benefit plan.
6. Reimbursement of Expenses. The Corporation shall promptly reimburse Executive in
accordance with applicable policies of the Corporation for all expenses reasonably incurred by him
in connection with the performance of his duties hereunder and the business of the Corporation,
upon the submission to the Corporation of appropriate receipts or vouchers. .
7. Facilities and Personnel. Executive shall be provided with (or reimbursed for) an
office, secretarial services and such other facilities, supplies, personnel and services as shall
be required or reasonably requested for the performance of his duties hereunder.
8. Personal Time Off (PTO). Executive shall be entitled to 4 weeks of PTO in respect
of each 12-month period during the term of his employment hereunder, such PTO to include time off
for sickness, personal business, vacation which is to be taken at times mutually agreeable to
Executive and the Board. Payment for such PTO is included in Executive’s base salary.
9. Restrictive Covenant. In consideration of his employment hereunder, Executive
agrees that during the period of his employment hereunder and for two years thereafter, he will not
(a) directly or indirectly own, manage, operate, join, control, participate in, invest in, or
otherwise be connected with, in any manner, whether as an officer, director, employee, partner,
investor or otherwise, any business entity that is engaged in any other business in which the
Corporation is engaged as of termination, (1) in all locations in which the Corporation is doing
business, and (2) in all locations in respect of which the Corporation is
-2-
actively planning for
and/or pursuing a business opportunity; (b) for himself or on behalf of any other person,
partnership, corporation or entity, call on any customer of the Corporation for the
purpose of soliciting, diverting or taking away any customer from the Corporation (1) in all
locations in which the Corporation is doing business, and (2) in all locations in respect of which
the Corporation is actively planning for and/or pursuing a business opportunity, or (c) induce,
influence or seek to induce or influence any person engaged as an employee, representative, agent,
independent contractor or otherwise by the Corporation, to terminate his or her relationship with
the Corporation. Nothing herein contained shall be deemed to prohibit Executive from (x) investing
his funds in securities of an issuer if the securities of such issuer are listed for trading on a
national securities exchange or are traded in the over-the-counter market and Executive’s holdings
therein represent less than 2% of the total number of shares or principal amount of the securities
of such issuer outstanding, or (y) owning securities, regardless of amount, of the Corporation.
Executive acknowledges that the provisions of this Paragraph 9 are reasonable and necessary
for the protection of the Corporation, and that each provision, and the period or periods of time,
geographic areas and types and scope of restrictions on the activities specified herein are, and
are intended to be, divisible. In the event that any provision of this Paragraph 9, including any
sentence, clause or part hereof, shall be deemed contrary to law or invalid or unenforceable in
any respect by a court of competent jurisdiction, the remaining provisions shall not be affected,
but shall, subject to the discretion of such court, remain in full force and effect and any
invalid and unenforceable provisions shall be deemed, without further action on the part of the
parties hereto, modified, amended and limited to the extent necessary to render the same valid and
enforceable.
10. Confidential Information. Executive shall hold in a fiduciary capacity for the
benefit of the Corporation all information, knowledge and data relating to or concerned with its
operations, sales, business and affairs, and he shall not, at any time, use, disclose or divulge
any such information, knowledge or data to any person, firm or corporation (unless the Corporation
no longer treats such information as confidential) other than to the Corporation or its designees
and employees or except as may otherwise be required in connection with the business and affairs
of the Corporation; provided, however, that Executive may use, disclose or divulge
such information, knowledge or data that (i) was previously known by the Executive; or (ii) is or
becomes generally available to the public through no wrongful act on Executive’s part; or (iii)
becomes available to Executive from a person or entity other than the Corporation or its agents
not bound by this or a similar agreement with the Corporation; and provided,
further, that the provisions of this Paragraph 10 shall not apply to Executive’s know how
to the extent utilized by him in subsequent employment so long as such employment is not in breach
of this Agreement.
11. Equitable Relief. The parties hereto acknowledge that Executive’s services are
unique and that, in the event of a breach or a threatened breach by either party of any of its
obligations under this Agreement, the other party will not have an adequate remedy
-3-
at law.
Accordingly, in the event of any such breach or threatened breach by one party, the other party
shall be entitled to such equitable and injunctive relief as may be available to
restrain the first party and any business, firm, partnership, individual, corporation or
entity participating in such breach or threatened breach from the violation of the provisions
hereof. Nothing herein shall be construed as prohibiting either party from pursuing any other
remedies available at law or in equity for such breach or threatened breach, including the
recovery of damages.
12. Survival of Provisions. Neither the termination of this Agreement, nor of
Executive’s employment hereunder, shall terminate or affect in any manner any provision of this
Agreement that is intended by its terms to survive such termination.
13. Death; Disability. In the event that during the term of his employment by the
Corporation Executive shall die or become Disabled (as such term is hereinafter defined) he or his
estate, as the case may be, shall continue to receive the full amount of the base salary, as well
as bonus and stock rights earned as at that time, to which he was theretofore entitled for the
lesser of (i) one year or (ii) the remainder of the Term. Thereafter, Executive shall not be
entitled to receive any further payments on account of his base salary until he shall cease to be
Disabled and shall have resumed his duties hereunder and provided that the Corporation shall not
have theretofore terminated this Agreement as hereinafter provided. This Agreement shall
automatically terminate upon the death of Executive. The Corporation may terminate this Agreement
and Executive’s employment hereunder at any time after Executive is Disabled, upon at least 30
days’ prior written notice. For the purposes of this Agreement, Executive shall be deemed to have
become “Disabled” when (x) by reason of physical or mental incapacity, Executive is not
able to perform a substantial portion of his duties hereunder for a period of 135 consecutive days
or for 135 days in any consecutive 225-day period or (y) when Executive’s physician and a
physician designated by the Corporation shall have determined that Executive shall not be able, by
reason of physical or mental incapacity, to perform a substantial portion of his duties hereunder.
In the event that such physicians are unable to agree on whether the Executive is Disabled pursuant
to clauses (x) or (y) above, the matter shall be resolved by the determination of a third physician
qualified to practice medicine in the United States of America and selected by the designated
physicians. If Executive shall receive benefits under any disability policy maintained by the
Corporation, the Corporation shall be entitled to deduct the amount equal to the benefits so
received from base salary that it otherwise would have been required to pay to Executive as
provided above.
14. Termination for Cause. The Corporation may at any time upon written notice to
Executive terminate Executive’s employment for Cause. For purposes of this Agreement, the
following shall constitute “Cause”: (i) the willful and repeated failure of Executive to
perform any material duties hereunder or gross negligence of Executive in the performance of such
duties, and if such failure or gross negligence is susceptible of cure by Executive, the failure to
effect such cure within 20 days after written notice of such failure or gross negligence is given
to Executive; (ii) excessive use of alcohol or illegal drugs interfering
-4-
with the performance of
Executive’s duties hereunder; (iii) theft, embezzlement, fraud, misappropriation of funds, other
acts of dishonesty or the violation of any law relating to
Executive’s employment; (iv) the conviction of Executive of a felony; or (v) the breach by
Executive of any other material provision of this Agreement, and if such breach is susceptible of
cure by Executive, the failure to effect such cure within 30 days after written notice of such
breach is given to Executive. For purposes of this Agreement, an action shall be considered
“willful” if it is done intentionally, purposely or knowingly, distinguished from an act done
carelessly, thoughtlessly or inadvertently. In any such event, Executive shall be entitled to
receive his base salary to and including the date of termination. Should Executive in good faith
dispute his termination for cause, he shall give prompt written notice thereof to the Corporation,
in which event such dispute shall be submitted to and determined by arbitration in Washington, DC,
before an arbitrator appointed pursuant to the rules of the American Arbitration Association (the
“Arbitrator”). Such arbitration shall be conducted in accordance with the rules then
obtaining of the American Arbitration Association. Any award or decision of the Arbitrator shall
be conclusive in the absence of fraud and judgment thereon may be entered in any court having
jurisdiction thereof. The costs of such arbitration shall be borne by the party against whom any
award or decision is rendered. Executive shall not be entitled to receive any compensation for
periods subsequent to his dismissal pursuant to this Paragraph 14. Any stock options or other
benefits shall immediately cease and be cancelled at termination. Any vested portion of a stock
option or other benefit may be exercised for a period of 30 days after termination.
15. Termination for Employer Breach. Executive may upon written notice to the
Corporation terminate this Agreement (a termination for “Employer Breach”) in the event of
the breach, or threatened breach by the Corporation of any material provision of this Agreement,
and if such breach relates to a provision of this Agreement and is susceptible of cure, the
failure to effect such cure within 30 days after written notice of such breach is given to the
Corporation. Nothing herein shall be construed as prohibiting the Executive from pursuing any
other remedies available at law or in equity for such breach or threatened breach, including the
recovery of damages.
16. Termination for Good Reason. Executive shall have the right at any time to
terminate his employment with the Corporation upon not less than 30 days prior written notice of
termination for Good Reason (defined below). For purposes of this Agreement and subject to the
Corporation’s opportunity to cure as provided in Section 1 hereof, Executive shall have Good
Reason to terminate his employment hereunder if such termination shall be the result of:
| (i) | The breach by the Corporation of any material provision of this Agreement; | ||
| (ii) | A requirement by the Corporation that Executive perform any act or refrain from performing any act that would be in violation of any applicable law; |
-5-
| (iii) | Executive is demoted or removed from his office or there is a material diminishment of his responsibilities, duties or status which diminshment is not rescinded within 30 days after receipt by the Board of Executive’s written notice referring to this provision and describing such diminshment; or | ||
| (iv) | Executive is required to relocate, without his consent, his primary office to a location more than 50 miles from the geographical center of Potomac, Maryland. |
17. Notice and Opportunity to Cure. Notwithstanding the foregoing, it shall be a
condition precedent to the Corporation’s right to terminate Executive’s employment for Cause and
Executive’s right to terminate for Good Reason that (i) the party seeking termination shall first
have given the other party written notice stating with specificity the reason for the termination
(“breach”) and (ii) if such breach is susceptible of cure or remedy, a period of 15 days from and
after the giving of such notice shall have elapsed without the breaching party having effectively
cured or remedied such breach during such 15-day period, unless such breach cannot be cured or
remedied within 15 days, in which case the period for remedy or cure shall be extended for a
reasonable time (not to exceed an additional 30 days) provided the breaching party has made and
continues to make a diligent effort to effect such remedy or cure.
18. Voluntary Termination. Executive, at his election, may terminate his employment
upon not less than 60 days prior written notice of termination other than for Good Reason.
19. Termination Without Cause. The Corporation, at its election, may terminate
Executive’s employment otherwise than for Cause, upon not less than 60 days written notice of
termination.
20. Termination Without Cause, due to a Change of Control or for Good Reason. In the
event of a termination of Executive’s employment during the Employment Period by the Corporation
other than for Cause pursuant to Section 14 or by Executive for Good Reason pursuant to Section 16
(e.g., due to a Change of Control of the Corporation, where Change of Control means: (i) the
acquisition (other than from the Corporation) in one or more transactions by any Person, as defined
in this Section 5(a), of the beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Securities Exchange Act of 1934, as amended) of 50% or more of (A) the then outstanding
shares of the securities of the Corporation, or (B) the combined voting power of the then
outstanding securities of the Corporation entitled to vote generally in the election of directors
(the “Corporation Voting Stock”); (ii) the closing of a sale or other conveyance of all or
substantially all of the assets of the Corporation; or (iii) the effective time of any merger,
share exchange, consolidation, or other business combination of the Corporation if immediately
after such transaction persons who hold a majority of the outstanding voting securities entitled to
vote generally in the election of directors of the surviving entity (or the entity owning 100% of
such surviving entity) are not persons who, immediately prior to such
-6-
transaction, held the
Corporation Voting Stock; provided, however, that a Change of Control shall not
include a public offering of capital stock of the Corporation. For purposes of this Section 5(a),
a “Person” means any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended, other than: employee
benefit plans sponsored or maintained by the Corporation and corporations controlled by the
Corporation, the Corporation shall pay Executive (or his estate) and provide him with the
following:
| (i) | Lump-Sum Payment. A lump-sum cash payment, payable ten (10) days after Executive’s termination of employment, equal to the sum of the following: |
| (A) | Salary. The equivalent of nine (10) months (the “Severance Period”) of Executive’s then-current base salary; plus | ||
| (B) | Earned but Unpaid Amounts. Any previously earned but unpaid salary through Executive’s final date of employment with the Corporation, and any previously earned but unpaid bonus amounts prior to the date of Executive’s termination of employment. |
21. Other Benefits. The Corporation shall provide continued coverage for the Severance Period
under all health, life, disability and similar employee benefit plans and programs of the
Corporation on the same basis as Executive was entitled to participate immediately prior to such
termination, provided that Executive’s continued participation is possible under the general terms
and provisions of such plans and programs. In the event that Executive’s participation in any such
plan or program is barred, the Corporation shall use its commercially reasonable efforts to provide
Executive with benefits substantially similar (including all tax effects) to those which Executive
would otherwise have been entitled to receive under such plans and programs from which his
continued participation is barred. In the event that Executive is covered under substitute benefit
plans of another employer prior to the expiration of the Severance Period, the Corporation will no
longer be obligated to continue the coverages provided for in this Section.
22. Insurance Policies. The Corporation shall have the right from time to time to
purchase, increase, modify or terminate insurance policies on the life of Executive for the benefit
of the Corporation, in such amounts as the Corporation shall determine in their sole discretion.
In connection therewith, Executive shall, at such place or places as the Corporation may reasonably
direct, submit himself to physical examinations on an annual basis (or more frequently) should an
insurer or prospective insurer so require, and execute and deliver such documents as the
Corporation may deem necessary to obtain such insurance policies.
-7-
23. Entire Agreement; Amendment. This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof, and any other prior agreement between
the Corporation and Executive with respect to the subject matter hereof is hereby superseded and
terminated effective immediately and shall be without further force or effect. No amendment or
modification shall be valid or binding unless made in writing and
signed by the party against whom enforcement thereof is sought.
24. Notices. Any notice required, permitted or desired to be given pursuant to any of
the provisions of this Agreement shall be deemed to have been sufficiently given or served for all
purposes if and when delivered in person or by responsible overnight delivery service or sent by
certified mail, return receipt requested, postage and fees prepaid as follows:
If to the Corporation, to:
Xxxxxx Xxxxxx
0000 Xxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Secretary
0000 Xxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Secretary
If to Executive, at his address set forth above.
Any of the parties hereto may at any time and from time to time change the address to which notice
shall be sent hereunder by notice to the other parties given under this Paragraph 18. The date of
the giving of any notice hand delivered or delivered by responsible overnight carrier shall be the
date of its delivery and of any notice sent by mail shall be the date five days after the date of
the posting of the mail.
25. No Assignment; Binding Effect. Neither this Agreement, nor the right to receive
any payments hereunder, may be assigned by Executive or the Corporation without the prior written
consent of the other parties hereto. This Agreement shall be binding upon Executive, his heirs,
executors and administrators and upon the Corporation, their respective successors and permitted
assigns.
26. Waivers. No course of dealing or any delay on the part of the Corporation or
Executive in exercising any rights hereunder shall operate as a waiver of any such rights. No
waiver of any default or breach of this Agreement shall be deemed a continuing waiver or a waiver
of any other breach or default.
27. Invalidity. If any clause, paragraph, section or part of this Agreement shall be
held or declared to be void, invalid or illegal, for any reason, by any court of competent
jurisdiction, such provision shall be ineffective but shall not in any way invalidate or affect any
other clause, paragraph, section or part of this Agreement.
28. Further Assurances. Each of the parties shall execute such documents and
-8-
take such other actions as may be reasonably requested and agreed to by the other party to carry out the
provisions and purposes of this Agreement in accordance with its terms.
29. Attorneys’ Fees. If any action, suit or proceeding is filed by any party to
enforce or rescind this Agreement or otherwise with respect to the subject matter of this
Agreement, the party prevailing on an issue shall be entitled to recover with respect to such
issue, in addition to costs, reasonable attorneys’ fees incurred in preparation or in prosecution
or defense of such action, suit or proceeding as fixed by the arbitrator or trial court, and if any
appeal is taken from the decision of the trial court, reasonable attorneys’ fees as fixed on
appeal.
30. Governing Law. This Agreement shall be governed, interpreted and construed in
accordance with the terms of the State of New York, except that body of law relating to choice of
laws.
[Signature Page Follows]
-9-
IN WITNESS WHEREOF, the parties hereto have caused this Employment Agreement to be duly
executed as of the day and year first above written.
| AIRBEE WIRELESS, INC. | ||
| By Order of the Board of Directors | ||
| By: /s/ Xxxxxx Xxxxxx | ||
| Name: Xxxxxx Xxxxxx | ||
| Title: Secretary | ||
| EXECUTIVE | ||
| /s/ Xxxxxxxxxx Xxxx | ||
| Xxxxxxxxxx Xxxx | ||
-10-
Exhibit A
Bonuses:
Guaranteed bonus:
|
$50,000 per annum |
Performance bonus: up to a maximum of 150% of the then current base salary and evaluated on the
following three categories and weighted as indicated
1. EBITDA (50%):
|
Targets as in financial projections | |
2. Revenue (40%):
|
Targets as in financial projections | |
3. Tracks acquired (10%):
|
Target: 8 per year |
If achieve over 100% of target, then receive proportional amount to a limit of 150% of then current base salary;
If achieve 100% of target, then get 100% of category bonus;
If achieve 75% of target, then get 60% of category bonus;
If achieve 50% of target, then get 30% of category bonus
If achieve 100% of target, then get 100% of category bonus;
If achieve 75% of target, then get 60% of category bonus;
If achieve 50% of target, then get 30% of category bonus
Performance bonus shall be subject to the approval by the Board of the bonus plan allocation each
fiscal year
Stock options:
The corporation shall establish stock option plan(s) for employees, consultants and non employee
directors which shall govern the issuance and award of options. All options previously granted are
continued and are in full effect in accord with such Stock Option Agreement(s).
In the event that the Executive is terminated WITHOUT cause, all stock options in Item 1 above then
earned shall immediately be vested at the time of termination. Additionally, in the event of a
Change of Control of the Corporation, consisting of an entity, group, corporation, or individual
acquiring over 50% of the voting shares of the Corporation, or a Change of Control as defined by
the Securities and Exchange Commission, it is understood that all earned and as of then unvested
options shall immediately be vested.
-11-
