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EXHIBIT 10.13
EMPLOYMENT AGREEMENT
This Agreement, dated as of September 8, 2000, is between Nextron
Communications, Inc. (the "Company"), and Xxxxxxx X. Xxxxxx ("Executive").
Company and Executive agree to the following terms and conditions of employment.
1. Position and Responsibilities. Xx. Xxxxxx is employed by Company as the Chief
Executive Officer and agrees to perform all services appropriate to that
position, as well as such other services as may be assigned by Company.
Executive shall devote his best efforts and full-time attention to the
performance of his duties and shall not accept any other employment or engage in
any other business, commercial, or professional activity that is or may be
competitive with Company, that might create a conflict of interest with Company,
or that otherwise might interfere with the business of Company or any affiliate.
Executive may serve as a director or as a member of the advisory board of any
Company provided that he complies with the restrictions set forth in Section 1
and Section 4.
2. Compensation and Benefits. Company shall pay Executive a base salary at the
rate of Two Hundred Thousand dollars ($200,000) per year. Executive will be
eligible for an annual bonus of up to 50% of his base salary, paid quarterly
based on the following criteria:
- Meeting or exceeding quarterly revenue goals: 33%a of the eligible bonus
- Achieving specific management team goals: 33% of the eligible bonus
- Achieving personal objectives that improve the organization: 33% of the
eligible bonus.
These goals will be set and reviewed quarterly by the Compensation Committee of
the Board. Executive will be eligible for an annual review of this agreement no
later than December 31 of each subsequent year of employment. Executive shall
receive benefits from all present and future benefit plans set forth in
Company's policies and generally made available to Executives (as these policies
may be amended). Company may, in its sole discretion, adjust Executive's
compensation and benefits provided under this Agreement.
3. Termination of Employment.
(a) By Employer Not For Cause. Except as modified in section 3(c),
below, at any time, Company may terminate Executive's employment for any reason,
with or without cause, by providing ninety (90) days' advance written notice,
and shall have the option, in its discretion, to terminate Executive's
employment at any time prior to the end of such notice period, provided Company
agrees to pay the Executive an amount equal to the base compensation plus
benefits that the Executive would have earned for one (1) year after the
termination of employment. Thereafter all of Company's obligations under this
Agreement shall cease. In the event that Company exercises its right to
terminate
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Executive's employment upon notice under a terms of this subsection, Executive
shall be immediately entitled to exercise one hundred percent (100%) of any
stock options granted by Company that had not previously vested. If the stock of
Company or any parent Company is publicly traded, Executive's exercise of stock
options subject to vesting under this subsection must be made within one hundred
eighty (180) days of the date upon which Executive was informed of Company's
intent to terminate his employment. In the event Company's or a parent Company's
stock is not publicly traded, Executive's exercise of stock options must be made
within one hundred eighty (180) days of the date upon which Executive was
informed of Company's intent to terminate his employment. In addition to the
foregoing, upon acceleration of the of vesting the Company will make available
to the Executive a three (3) year loan of an amount equal to the amount of money
necessary for Executive to exercise all of his stock options together with such
amounts needed to indemnify Employee from any tax liability related to such
compensation for the tax year in question.
(b) By Employer For Cause. Except as modified in section 3(c), below, at
any time, Company may terminate Executive for Cause (as defined below). Company
shall pay Executive all compensation then due; thereafter, all of Company's
obligations under this Agreement shall cease. "Cause" shall include, but not be
limited to:
1. gross misconduct, gross failure to follow policies or
procedures (as set forth by the Board of Directors), material breach of this
Agreement, and excessive absenteeism. Company shall provide at least one
appropriate written warning of specific deficiencies and provide a reasonable
period not to exceed thirty days for Executive to cure any such deficiencies.
2. to the extent permitted by law, unavailability for work due
to disability for more than ninety (90) days in any one (1) year period.
3. Committing a felony, an act of fraud against or the willful
misappropriation of property belonging to Company.
4. Conviction in a court of competent jurisdiction of a felony
or misdemeanor which adversely and materially affects the ability of the
executive to perform his duties, obligations and responsibilities herein or the
good name, goodwill or reputation of Company.
(c) By Employer Following Change in Control. Notwithstanding the
foregoing, in the event that Executive's employment is involuntarily terminated
by Company, or any successor or assign of Company, for any reason, with or
without cause (as defined above), following a Change in Control or [the
execution of a letter of intent that, by its terms] ultimately results in a
Change in Control, as those terms are defined in the Company's 1999 Equity
Incentive Plan, which is incorporated by reference herein, Executive shall be
entitled to payment of an amount equal to one (1) year's base compensation plus
benefits; thereafter, all obligations of Company, or any successor or assign of
Company, under this Agreement shall cease. In the event that Executive's
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employment is terminated under the terms of this subsection, Executive shall be
immediately entitled to exercise any and all stock options granted by Company
that had not previously vested. In the event the Company effecting the change in
control or Company is publicly traded, any exercise of Executive's stock options
subject to vesting under this subsection must be made within one hundred eighty
(180) days of the date upon which Executive was informed by Company, or any
successor or assign of Company, of its intent to terminate his employment,
whether such termination is with or without notice. If the Company effecting the
change in control or Company is not publicly traded, Executive may have up to
one hundred eighty (180) days from the date upon which Executive was informed by
Company, or any successor or assign of Company, of its intent to terminate his
employment, to exercise his options subject to vesting under this subsection.
(d) By Executive. At any time, Executive may terminate his employment
for any reason, with or without cause, by providing Company ninety (90) days'
advance written notice. Company shall have the option, in its complete
discretion, to make Executive's termination effective at any time prior to the
end of such notice period, provided Company pays Executive all compensation due
and owing through the last day actually worked, plus an amount equal to the base
salary Executive would have earned through the balance of the above notice
period, not to exceed ninety (90) days; thereafter, all of Company's obligations
under this Agreement shall cease.
(e) Termination Obligations. Executive agrees that all property,
including tangible Proprietary Information (as defined below), documents,
records, notes, contracts, and computer-generated materials furnished to or
prepared by Executive related to his employment, belongs to Company and shall be
returned promptly to Company upon termination. Executive's obligations under
this subsection shall survive the termination of his employment and the
expiration of this Agreement.
4. Proprietary Information. "Proprietary Information" is all information and any
idea pertaining in any manner to the business of Company (or any affiliate), its
employees, clients, consultants, or business associates, which was produced by
any employee of Company for the Company in the course of his or her employment,
or otherwise produced or acquired by or on behalf of Company. Proprietary
Information shall include, without limitation, trade secrets, product ideas,
inventions, processes, formulas, data, know-how, software and other computer
programs, copyrightable material, marketing plans, strategies, sales, financial
reports, forecasts, and customer lists. All Proprietary Information not
generally known outside of Company's organization, and all Proprietary
Information so known only through improper means, shall be deemed "Confidential
Information." During his employment, Executive shall use Proprietary
Information, and shall disclose Confidential Information, only for the benefit
of Company and as is necessary to perform his job responsibilities under this
Agreement. Following termination, Executive shall not use any Proprietary
Information and shall not disclose any Confidential Information, except with the
express written consent of Company. By way of illustration and not in limitation
of the foregoing, following termination, Executive shall not use any
Confidential Information to compete against
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Company or employ any of its Executives. Executive further agrees that for one
(1) year following termination, he shall not solicit any customer or employee of
the Company. Executive's obligations under this Section shall survive the
termination of his employment and the expiration of this Agreement.
5. Integration and Amendment. This Agreement is intended to be the final,
complete, and exclusive statement of the terms of Executive's employment. This
Agreement supersedes all other prior and contemporaneous agreements and
statements, whether written or oral, express or implied, pertaining in any
manner to the employment of Executive, and it may not be contradicted by
evidence of any prior or contemporaneous statements or agreements. To the extent
that the practices, policies, or procedures of Company, now or in the future,
apply to Executive and are inconsistent with the terms of this Agreement, the
provisions of this Agreement shall control. This Agreement may not be amended
except by a writing signed by each of the parties. Failure to exercise any right
under this Agreement shall not constitute a waiver of such right.
6. Interpretation. This Agreement shall be governed by and construed in
accordance with the law of the State of California. This Agreement shall be
construed as a whole, according to its fair meaning, and not in favor of or
against any party. By way of example and not in limitation, this Agreement shall
not be construed in favor of the party receiving a benefit nor against the party
responsible for any particular language in this Agreement. If a court or
arbitrator holds any provision of this Agreement to be invalid, unenforceable,
or void, the remainder of this Agreement shall remain in full force and effect.
Captions are used for reference purposes only and should be ignored in the
interpretation of the Agreement.
7. Acknowledgment. Executive acknowledges that he has had the opportunity to
consult legal counsel in regard to this Agreement, that he has read and
understands this Agreement, that he is fully aware of its legal effect, and that
he has entered into it freely and voluntarily and based on his own judgment and
not on any representations or promises other than those contained in this
Agreement.
[SIGNATURE PAGE TO FOLLOW]
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The parties have duly executed this Agreement as of the date first written
above.
NEXTRON COMMUNICATIONS, INC.
By: /s/ X. X. LONDON
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Name: X. X. LONDON
Title: VP & GM
EXECUTIVE
/s/ XXXXXXX X. XXXXXX
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[Executive Name]
Xxxxxxx X. Xxxxxx
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