AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") is
made and entered into as of July 1, 2000, by and between CHADMOORE WIRELESS
GROUP, INC., a Colorado corporation (the "Corporation"), and Xxxxxx X. Xxxxx
(the "Employee").
W I T N E S S E T H
WHEREAS, the Corporation and the Employee previously entered into an
Employment Agreement, dated as of January 1, 1995, which was amended and
restated as of January 1, 1997 (as amended, the "Prior Agreement"), pursuant to
which Employee has been serving the Corporation as a Member of the Corporation's
Board of Directors and has been employed by the Corporation as its President and
Chief Executive Officer;
WHEREAS, Employee and the Corporation desire to amend and restate the
Prior Agreement in its entirety pursuant to the terms of this Agreement; and
WHEREAS, Employee desires to be employed by the Corporation and the
Corporation desires to employ the Employee under the terms and conditions set
forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements hereinafter set forth, the parties hereto, intending to be legally
bound, hereby agree to amend and restate the Prior Agreement in its entirety on
the following terms and conditions, which shall be effective from and after the
date hereof.
1. RETENTION, TERM AND DUTIES
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1.1 Retention. The Corporation hereby employs the Employee as a
Member of the Board of Directors, President and Chief Executive Officer, and the
Employee hereby accepts such employment upon the terms and subject to the
conditions of this Agreement.
1.2 Term. The term of employment of the Employee by the Corporation
shall be for the period commencing on July 1, 2000 (the "Commencement Date") and
ending on June 30, 2002 (the "Term"), unless this Agreement is sooner terminated
pursuant to Section 5, 6 or 8 herein. Notwithstanding anything contained herein
to the contrary, the term of employment will be automatically extended for
successive two (2) year periods commencing July 1, 2002 (referred to below as an
"Extended Term"), unless either party to this Agreement elects to terminate this
Agreement by providing notice pursuant to Section 12 hereof of such election to
the other party during the thirty (30) day period commencing ninety (90) days
prior to the expiration of the then applicable Term or Extended Term.
1.3 Positions. The Employee shall serve as a Member of the Board of
Directors, President and Chief Executive Officer of the Corporation, and as a
director and senior executive officer of such subsidiaries of the Corporation as
the Employee and the Corporation may determine from time to time.
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1.4 Duties. The Employee shall be the most senior executive of the
Corporation (and its subsidiaries), with duties and responsibilities
commensurate with such positions. The Employee shall report only to the
Corporation's Board of Directors.
2. SCOPE OF SERVICES
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2.1 Services. Subject to Section 2.2 herein, the Employee agrees
that he shall perform his services to the best of his ability. During the term
of this Agreement, the Employee shall not render any services for others in any
line of business in which the Corporation or its subsidiaries are significantly
engaged without first obtaining the Corporation's written consent, and he shall
devote his full business time, care, attention and best efforts to the
Corporation's business.
2.2 Other Interests. The Employee may make and maintain investments
in any business (whether publicly or privately held); provided that without the
consent of the Board of Directors, the Employee shall not make material
investments in any business which is in direct material competition with the
Corporation or its subsidiaries at the time the investment is made. The
Employee's investments in other businesses may not interfere with his
obligations in the Corporation's business. From time to time, the Corporation
may make investments in other corporations (the "Investee Corporations").
Notwithstanding his duties under this Agreement, the Employee may devote such
time and energy as may reasonably be required to tend to the business matters of
such Investee Corporations and may receive compensation for services he renders
to any Investee Corporation. The Employee agrees that he will not invest in any
Investee Corporation except in conformity with policies established from time to
time by the Corporation's Board of Directors and applicable securities laws.
3. COMPENSATION
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3.1 Base. The Corporation shall pay to the Employee an annul base
salary of $175,000.00 (the "Base Compensation"), payable in equal installments
(in accordance with the Corporation's standard practices, but no less often than
semi-monthly), subject to all withholding for income, FICA and other similar
taxes, to the extent required by applicable law. The Corporation agrees to
provide an annual written performance review of the Employee by the Employee's
direct supervisor, and to subsequently review the then current Base Salary of
the Employee. Said Base Salary may be increased by the supervisor, subject to
the concurrence of the Board of the Corporation or the Compensation Committee,
at the sole discretion of the Corporation.
3.2 Bonus. In addition to the Base Salary payable to the Employee
pursuant to Section 3.1 hereof, the Corporation (i) shall make available to the
Employee a bonus in the amount of Fifty Thousand Dollars ($50,000) based on
meeting performance standards or targets set reasonably and in good faith by the
Board of Directors or the Compensation Committee thereof, and (ii) may pay any
additional amounts as, in the discretion of the Corporation's Board of Directors
or the Compensation Committee, it may desire as a result of the Employee's
services. These amounts shall be referred to as "Bonus."
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3.3 No Reduction; Minimum Annual Increase of Base Compensation. The
compensation paid to the Employee by the Corporation pursuant to this Section 3
shall not be reduced by any amounts received or earned by the Employee with
respect to any outside activities or services permitted under Section 2.2
hereof. In addition, it is agreed that Base Compensation shall in all events be
increased annually by at least the greater of five percent (5%) and the
inflation rate for the previous year (as measured by the Consumer Price Index
prepared and published by the United States Department of Labor) over the Term
or Extended Term of this Agreement.
3.4 Employee Stock Option Plans. In addition to the Base Salary
payable to the Employee pursuant to Section 3.1 hereof, and the Bonus payable to
the Employee pursuant to Section 3.2 hereof, the Corporation may issue such
number of stock options to the Employee, in the sole discretion of the
Corporation's Board of Directors or the Compensation Committee, it may desire as
a result of the Employee's services. The vesting, exercise, expiration and other
terms and conditions pertaining to these options shall be governed by the
Corporation's Option Plan(s).
4. OTHER BENEFITS
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4.1 Life Insurance. So long as it does not adversely affect the
Employee's ability to obtain life insurance in the general market at prevailing
premiums, the Corporation, at its discretion, shall have the right to take out
life insurance or other insurance with respect to the Employee, at the
Corporation's cost and for the Corporation's benefit, and the Employee shall
have no rights in such insurance policies or their proceeds. The Employee shall
cooperate with the Corporation in obtaining such insurance, and shall timely
submit to any required medical or other examinations in Las Vegas, Nevada,
provided that if such medical examination cannot be conducted by the Employee's
personal physician (a) the Employee shall have the right to have such physician
attend such examinations and (b) the examining physician shall be based in Las
Vegas, Nevada and be subject to the Employee's approval, not to be unreasonably
withheld. Upon termination of this Agreement, the Employee shall have the right
to acquire ownership of such insurance policies upon reimbursement to the
Corporation of the cash surrender value thereof, if any, and the pro rata
portion of any premium paid applicable to future periods.
4.2 Insurance Benefits. The Corporation shall continue to make
available to the Employee any benefits of a type, nature and amount comparable
to those benefits which have been heretofore provided to the Employee up to this
time by the Corporation, and in any event no less favorable than the best
benefits of its type made available to any other employee of the Corporation
from time to time during the Term or the Extended Term (including, without
limitation, any disability, medical and life insurance).
4.3 Expenses. To the extent not otherwise reimbursed under this
Agreement, the Corporation shall reimburse the Employee for all reasonable and
customary expenses which the Employee shall incur in connection with the
Employee's services to the Corporation or any subsidiary pursuant to this
Agreement. All additional benefits are to be authorized by and subject to
approval by the Corporation's Board of Directors.
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4.4 Vacation; Sick Leave. The Corporation shall provide to the
Employee such paid vacation and paid sick leave as outlined in the Corporation's
Associate Managed Time Off (AMTO) Policy which do not materially interfere with
the Employee's performance of his obligations hereunder.
5. DEATH OF EMPLOYEE
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5.1 Effect. This Agreement shall automatically terminate upon the
Employee's death (the "Section 5 Termination"). Upon such termination, the
Corporation shall:
(i) pay to the Employee's estate the accrued amount of the
compensation, benefits, reimbursements or other sums payable pursuant to this
Agreement, such amounts to be prorated through the date of the Section 5
Termination (other than expense reimbursements which will be paid in full), if,
as and when such amounts would be paid but for such termination of this
Agreement;
(ii) pay to Employee's estate a lump sum payment equal to
one-half the then effective Base Compensation;
(iii) beginning six months after such Section 5 Termination
date, pay to Employee's estate periodic amounts equal to the amounts of Base
Compensation which employee would have received hereunder if, as and when such
amounts would be paid but for such Section 5 Termination, such payments to
continue for the period beginning six months after such Section 5 Termination
date and ending on the latter to occur of (A) 12 months from the date of such
termination and (B) the date which would have been the end of the Term or
Extended Term, as the case may be, but for such termination; and
(iv) provide to the immediate family of the Employee the
continuation of their health insurance benefits at the Corporation's expense for
a period of two years from the Section 5 Termination date. Except for the
amounts payable by the Corporation pursuant to the preceding sentence, all
obligations of the Corporation with respect to compensation and benefits under
this Agreement shall cease upon a Section 5 Termination.
5.2 Option Extension. The Corporation shall use its best efforts to
obtain stockholder approvals, to the extent required, of amendments to any stock
option plan it may have which would provide that the termination date for all
options held under each such plan by the Employee and exercisable as of the date
of his death shall remain exercisable until (i) the termination date as set
forth in the respective option certificates or (ii) 18 months after the Section
5 Termination, whichever is later.
6. DISABILITY OF EMPLOYEE
----------------------
6.1 Determination. The Employee shall be considered disabled if,
due to illness or injury, either physical or mental, he is unable to perform his
customary duties and responsibilities as required by this Agreement for more
than six (6) months in the aggregate out of any period of twelve (12)
consecutive months. The determination that the Employee is disabled shall be
made by the Board of Directors of the Corporation (with the Employee abstaining
from the decision if he is then a member of such Board), based upon an
examination
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and certification by a physician based in Las Vegas, Nevada selected by the
Corporation subject to the Employee's approval, which approval shall not be
unreasonably withheld. The Employee agrees to submit timely to any required
medical or other examination, provided that such examination shall be conducted
in Las Vegas and that if the examining physician is other than the Employee's
personal physician, the Employee shall have the right to have such personal
physician present at such examination.
6.2 Effect of Disability. If the Employee is determined to be
disabled pursuant to this Section 6, the Corporation shall have the option to
terminate this Agreement by written notice to the Employee stating the date of
termination, which date may be any time subsequent to the date of such
determination, except that the Corporation shall pay to the Employee: (i) the
accrued amount of the compensation, benefits, reimbursements and other sums
payable pursuant to this Agreement, prorated through the date of termination
(other than expense reimbursements which shall be paid in full), if, as and when
such amounts would be paid but for the termination of this Agreement, and (ii) a
lump sum payment equal to the greater of: (A) twice the then Base Compensation,
or (B) what would have been the aggregate Base Compensation payable after the
date of termination through the end of the Term or Extended Term, as the case
may be. Except for the amounts payable by the Corporation pursuant to the
preceding sentence, all obligations of the Corporation with respect to
compensation and benefits under this Agreement shall cease upon any such
termination.
6.3 Option Extension. The Corporation shall use its best efforts to
obtain stockholder approvals, to the extent required, of amendments to any stock
option plan it may have which would provide that the termination date for all
options held under such plans by the Employee and exercisable as of the date of
the termination of Employee (as a result of Employee's disability) shall remain
exercisable until (i) the termination date as set forth in the respective option
certificates or (ii) 18 months after the date of termination (as a result of
Employee's disability), whichever is later.
7. INDEMNIFICATION AND INSURANCE
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7.1 Obligation. The Corporation shall indemnify and hold harmless,
and in any action, suit or proceeding, defend the Employee (with the Employee
having the right to use counsel of his choice) against all expenses, costs,
liabilities and losses (including attorney's fees, judgments and fines and
amounts paid or to be paid in any settlement) (collectively "Indemnified
Amounts") reasonably incurred or suffered by the Employee in connection with the
Employee's service as a director or officer of the Corporation or any affiliate
to the full extent permitted by the By-laws of the Corporation as in effect on
the date of this Agreement, or, if greater, as permitted by the general
corporation law of the jurisdiction of the Corporation's incorporation (the
"GCL"), provided that the indemnity afforded by the Corporation's By-laws shall
never be greater than permitted by the GCL. The Corporation shall advance on
behalf of Employee all Indemnified Amounts as they are incurred. To the extent a
change in the GCL (whether by statute or judicial decision) permits greater
indemnification than is now afforded by the By-laws and a corresponding
amendment shall not be made in said By-laws, it is the intent of the parties
hereto that the Employee shall enjoy the greater benefits so afforded by such
change.
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7.2 Determination. A determination that indemnification with
respect to any claims by the Employee pursuant to this Section 7 is proper shall
be made by independent legal counsel selected by the Board of Directors of the
Corporation and set forth in a written opinion furnished by such counsel to the
Board of Directors, the Corporation and the Employee. In the event it is
determined by such counsel that Employee is not entitled to indemnification
pursuant to this Section 7 (and if contested by Employee, such determination is
confirmed by the final non-appendable order of a court of competent
jurisdiction), or if a court of competent jurisdiction determines in a final
non-appendable order that Employee is not entitled to indemnification pursuant
to this Section 7, Employee hereby undertakes that he shall promptly reimburse
the Corporation for all such advances of Indemnified Amounts made by the
Corporation on Employee's behalf.
7.3 Effect. This Agreement establishes contract rights which shall
be binding upon and shall inure to the benefit of the heirs, executors, personal
and legal representatives, successors and assigns of the Employee and the
Corporation.
7.4 Other Rights. The contract rights conferred by this Section 7
shall not be exclusive of any other right which the Employee may have or
hereafter acquire under any statute, provision of the Certificate of
Incorporation or By-laws, agreement, vote of stockholders or disinterested
directors or otherwise. This Section 7 shall not be deemed to affect any rights
to subrogation which may exist in any policy of directors and officers liability
insurance.
7.5 Notice of Claims. The Employee shall advise promptly the
Corporation in writing of the institution of any action, suit or proceeding
which is or may be subject to this Section 7, provided that Employee's failure
to so advise the Corporation shall not affect the indemnification provided for
herein, except to the extent such failure has a material and adverse effect on
the Corporation's ability to defend such action, suit or proceeding.
7.6 Indemnification Insurance. The Employee shall be covered by
insurance, to the same extent as other senior executives and directors of the
Corporation are covered by insurance, with respect to (a) directors and officers
liability, (b) errors and omissions, and (c) general liability insurance. The
Corporation shall maintain reasonable and customary insurance of the type
specified in parts (b) and (c) in the preceding sentence. The Employee shall be
a named insured or additional insured, without right of subrogation against him,
under any policies of insurance carried by the Corporation. The Corporation
will, in good faith, make efforts to maintain insurance coverage of the type
specified in part (a) above at commercially reasonable rates, but the failure to
obtain such coverage shall not constitute a breach of the Corporation's
obligations hereunder.
8. TERMINATION
8.1 By the Corporation for Cause. The Corporation may terminate
this Agreement for cause at any time. For purposes of this Agreement, the term
"cause," when used in connection with termination of the Agreement by the
Corporation under this Section 8.1, shall be limited to (i) the willful engaging
by the Employee in gross misconduct which is materially injurious to the
Corporation, (ii) conviction of the Employee of a felony involving any financial
impropriety or which would materially interfere with the Employee's ability to
perform his
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services required under this Agreement or otherwise be materially injurious to
the Corporation, or (iii) the willful refusal of the Employee to perform in a
material respect any of his material obligations under this Agreement without
proper justification after being notified with specificity by the Board of
Directors in writing of the particular respects in which the Board of Directors
asserts that Employee has not performed such material obligations. For purposes
of this Section 8.1, no act or failure to act, on the Employee's part shall be
considered willful unless done or admitted to be done, by the Employee in bad
faith and without reasonable belief that such action or omission was in the best
interest of the Corporation.
8.2 By the Employee for Cause. The Employee may terminate this
Agreement for cause at any time. For purposes of this Agreement, the term
"cause" when used in connection with the termination of the Agreement by the
Employee under this Section 8.2 shall be limited to the failure of the
Corporation to perform in a material respect any of its material obligations
under this Agreement without proper justification.
8.3 Procedure for "Cause" Termination. Any termination of this
Agreement pursuant to Section 8.1 or 8.2 hereof shall be effective only if (i)
the terminating party exercises such right of termination in writing delivered
to the non-terminating party within sixty (60) days of the terminating party
having actual knowledge of the event giving rise to the right of termination,
and (ii) the non-terminating party shall have failed to correct or reverse the
event giving rise to such right of termination within thirty (30) days of the
receipt of such notice. Such termination shall be effective upon the expiration
of the period referred to in clause (ii) above; provided, however, that should
the Corporation seek such termination, the Employee may contest such termination
and demand arbitration as to the validity of the termination pursuant to the
procedure in Section 11.1 of this Agreement.
8.4 By the Corporation Without "Cause." The Corporation may not
terminate the Agreement without "cause," as defined in Section 8.1 of this
Agreement.
8.5 By the Employee Without "Cause." The Employee shall have the
right to terminate this Agreement without "cause" and in his discretion, upon
written notice to be given to the Corporation not less than sixty (60) days
prior to the effective date of such termination.
8.6 Effect of Termination.
(a) If this Agreement is terminated for any reason prior to the
end of the stated Term, or an Extended Term, as the case may be, neither party
shall have any further obligation under this Agreement except with respect to
those provisions of this Agreement which, by their terms, require performance by
the parties subsequent to termination of this Agreement.
(b) If this Agreement is terminated by the Corporation for
"cause" pursuant to Section 8.1 hereof or by the Employee without "cause"
pursuant to Section 8.5 hereof, the Corporation shall pay to the Employee the
accrued amount of the compensation benefits, reimbursement and other sums
payable pursuant to this Agreement up to the effective date of termination,
prorated through the effective date of termination (other than expense
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reimbursements which will be paid in full) if, as and when such amounts could be
paid but for the termination of this Agreement.
(c) If this Agreement is terminated by the Employee for "cause"
pursuant to Section 8.2 hereof or by the Corporation without "cause," the
Employee shall be entitled to receive (i) health insurance benefits provided for
in this Agreement (A) through the end of the stated Term or (B) 24 months from
the date of termination, whichever is the longer, and (ii) a lump sum payment
equal to twice the then Base Compensation. Any amounts payable to the Employee
under this paragraph (c) shall not be reduced by any amounts earned or received
by the Employee from any third party at any time after such termination; there
being no requirement on the part of the Employee to mitigate damages and no
amounts received by him from others may be used to mitigate damages.
8.7 Termination Following Change in Ownership. If, within one year
following a "change in the ownership" (as defined below) of the Corporation,
this Agreement is terminated by the Corporation or its successor(s) or
assign(s), or Employee is required to relocate more than fifty (50) miles from
Las Vegas, Nevada, or there is a reduction in the Employee's compensation
(including base salary, bonus and benefits), or there is an adverse change in
Employee's duties, responsibilities and/or authorities, or Employee is required
by the Corporation or its successors or assigns to travel outside of a fifty
(50) mile radius of Las Vegas, Nevada, for in excess of ten (10) business days
during any thirty (30) day period or during any calendar month, and in lieu of
the benefits provided for in Section 8.6(b) and 8.6(c)(ii), the Corporation
shall pay to Employee a lump sum payment equal to 2.99 times the average annual
compensation paid by the Corporation and includable by Employee in his gross
income during the five tax years ended prior to the tax year in which such
change in ownership or control occurs. In addition, in the event of a "change of
ownership," the vesting of all Employee Stock Options shall be fully accelerated
as of the date of the change of ownership. For purposes of this Section 8.7, a
"change in ownership" of the Corporation will be deemed to have occurred upon:
(i) completion of a transaction resulting in a consolidation, merger,
combination or other transaction in which the common stock of the Corporation is
exchanged for or changed into other stock or securities, cash and/or any other
property and the holders of the Corporation's common stock immediately prior to
completion of such transaction are not, immediately following completion of such
transaction, the owners of at least a majority of the voting power of the
surviving entity, (ii) a tender or exchange offer by any person or entity other
than Employee and/or his affiliates for fifty percent (50%) of the outstanding
shares of common stock of the Corporation is successfully completed, (iii) the
Corporation has sold all or substantially all of the Corporation's assets, (iv)
during any period of twenty-four (24) consecutive months, individuals who at the
beginning of such period constituted the Board of Directors of the Corporation
(together with any new or replacement directors whose election by the Board of
Directors, or whose nomination for election, was approved by a vote of at least
a majority of the directors then still in office who were either directors at
the beginning of such period or whose election or nomination for re-election was
previously so approved) cease for any reason to constitute a majority of the
directors then in office. In the event that Employee shall become entitled to
payments and/or benefits provided by this Agreement or any other amounts in the
"nature of compensation" (whether pursuant to the terms of this Agreement or any
other plan, arrangement or agreement with the Corporation, any person whose
actions result in a change of ownership or effective control covered by Section
280G(b)(2) of the Internal Revenue Code of 1986, as
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amended (the "Code"), or any person affiliated with the Corporation or such
person) as a result of such change in ownership or effective control
(collectively the "Corporation Payments"), and such Corporation Payments will be
subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code, the
Corporation shall pay to Employee, subject to required withholding, at the time
specified in the last sentence of this paragraph, an additional amount (the
"Gross-up Payment") such that the net amount retained by Employee, after
deduction of any Excise Tax on the Corporation Payments and on the Gross-Up
Payment provided for under this paragraph and any U.S. federal, state, and local
income or payroll tax upon the Gross-up Payment provided for by this paragraph
shall be equal to the Corporation Payments. In the event that the Excise Tax is
subsequently determined by the Corporation to be less than the amount taken into
account hereunder at the time the Gross-up Payment is made, Employee shall repay
to the Corporation or, in the event that the Corporation shall have then already
been liquidated or dissolved, any then-existing liquidating trust of which some
or all of the shareholders of the Corporation are beneficiaries, at the time
that the amount of such reduction in Excise Tax is finally determined, the
portion of the prior Gross-up Payment attributable to such reduction (plus the
portion of the Gross-up Payment attributable to the Excise Tax and U.S. federal,
state and local income tax imposed on the portion of the Gross-up Payment being
repaid by Employee). In the event that the Excise Tax is later determined by the
Corporation or the Internal Revenue Service to exceed the amount taken into
account hereunder at the time the Gross-up Payment is made (including by reason
of any payment the existence or amount of which cannot be determined at the time
of the Gross-up Payment), the Corporation or, in the event that the Corporation
shall have then already been liquidated or dissolved, any then-existing
liquidating trust established for the purpose of repaying or otherwise
discharging the debts of the Corporation, shall make an additional Gross-up
Payment in respect of such excess (plus any interest or penalties payable with
respect to such excess) at the time that the amount of such excess is finally
determined. The Gross-up Payment or portion thereof provided for in this
paragraph shall be paid not later than the thirtieth (30th) day following
delivery by Employee to the Corporation of notice that an event that subjects
Employee to the Excise Tax has occurred; provided, however, that if the amount
of such Gross-up Payment or portion thereof cannot be finally determined on or
before such day, the Corporation shall pay to Employee on such day an estimate,
as determined in good faith by the Corporation, of the minimum amount of such
payments and shall pay the remainder of such payments (together with interest at
the rate provided in Section 1274(b)(2)(B) of the Code) promptly following such
time as the amount thereof has been determined.
8.8 Expiration of Term. Subject to Section 8.7, upon the
termination of this Agreement upon the expiration of the Term or Extended Term,
as the case may be, or by Employee pursuant to Section 8.5, the Corporation
shall pay Employee a lump sum termination payment equal to the then effective
Base Compensation.
9. CONFIDENTIAL INFORMATION NONDISCLOSURE, ETC.
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9.1 Confidentiality. Except as may be in furtherance of the
Employee's performance of his functions as the Corporation's most senior
executive officer (including, without limitation, in connection with
acquisitions, dispositions, financings and other significant corporate
transactions, developments or planning which involve the participation of third
parties) or otherwise with the consent of the Board of Directors, the Employee
shall not, throughout the Term of this Agreement and thereafter, disclose to any
third party, or use or authorize any third
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party to use, any material
information relating to the material business or interests of the Corporation
(or any of its subsidiaries) which Employee knows to be confidential and
valuable to the Corporation or any of its subsidiaries (the "Confidential
Information"). The Confidential Information is and will remain the sole and
exclusive property of the Corporation, and, during the Term of this Agreement,
the Confidential Information, when entrusted to the Employee's custody, shall be
deemed to remain at all times in the Corporation's sole possession and control.
Notwithstanding the foregoing, the Employee may, after prior written notice to
the Corporation (to the extent such notice is possible under the circumstances)
disclose such Confidential Information pursuant to subpoena or other legal
process, and promptly, thereafter shall advise the Corporation in writing as to
the Confidential Information which was disclosed and the circumstances of such
disclosure.
9.2 Return of Documents. Upon termination of this Agreement for any
reason whatsoever, or whenever requested by the Board of Directors of the
Corporation, the Employee shall return or cause to be returned to the
Corporation all of the Confidential Information or any other property of the
Corporation in the Employee's possession or custody or at his disposal, which he
has obtained or been furnished, without retaining any copies thereof.
10. NON-COMPETITION
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10.1 Restriction. Subject to Section 2.2 hereof, the Employee shall
not (i) throughout the Term or Extended Term of this Agreement, as the case may
be, and (ii) for a period of 12 months thereafter, in each case without the
Corporation's prior written consent, render services to a business, or plan for
or organize a business, which is materially competitive with or similar to the
business of the Corporation or of any of its subsidiaries by becoming an owner,
officer, director, shareholder (owning more than 4.9% of such business' equity
interests), partner, associate, employee, agent or representative or consultant
or serve in any other capacity in any such business.
10.2 Trade Secrets. Subject to Section 2.2 hereof, all ideas and
improvements which are protectable by patent or copyright or as trade secrets,
conceived or reduced to practice (actually or constructively) during the Term of
this Agreement by the Employee, shall be the property of the Corporation;
provided, however, that the provisions of this Section 10.2 shall not apply to
an invention for which no equipment, supplies, facility or trade secret
information of the Corporation was used and which was developed entirely on the
Employee's own time, and (a) which does not relate to (i) the business of the
Corporation or any of its subsidiaries or (ii) the actual or demonstrably
anticipated research or development by the Corporation of any of its
subsidiaries or (b) which does not result from any work performed by the
Employee pursuant to this Agreement.
11. REMEDIES
11.1 Arbitration. In the event of any dispute or controversy arising
under, out of or relating to this Agreement or the breach hereof other than
under Section 9 or 10 hereunder for which the Corporation may seek injunctive
relief, it shall be determined by arbitration in Las Vegas, Nevada to be heard
by a single arbitrator chosen by the Corporation and the Employee, provided that
if the Corporation and the Employee cannot agree on a single arbitrator, each
shall
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select one arbitrator and the arbitrators so selected shall select a third
arbitrator, and the panel of three arbitrators shall determine the dispute. The
arbitration is to commence within four (4) weeks after service of a demand for
arbitration by either party, and each party shall have the right to make one
document request on the other party prior to commencement of the arbitration
proceeding, but no other discovery shall be conducted other than that which is
agreed upon in writing by both parties. Such arbitration and any award made
therein shall be binding upon the Corporation and the Employee.
11.2 Injunctive Relief. The Employee acknowledges and agrees that
any material breach which occurs or which is threatened of Section 9 or 10
hereof shall cause substantial and irreparable damage to the Corporation in an
amount and of a character difficult to ascertain. Accordingly, in addition to
any other relief to which the Corporation may otherwise be entitled at law, in
equity or by statute, or under this Agreement, the Corporation shall also be
entitled to seek such immediate temporary, preliminary and permanent injunctive
relief on such breach or threatened breach of Section 9 or 10 hereof as may be
granted through appropriate proceedings.
11.3 Fees. If any action at law or in equity or arbitration is
necessary to enforce or interpret the terms and conditions of this Agreement,
the prevailing party shall be entitled to reasonable attorney's, accountant's
and expert's fees, costs and necessary disbursements in addition to any other
relief to which it or he may be entitled. As used in this Section 11.3, the term
prevailing party shall include, but not limited to, any party against whom a
cause of action, demand for arbitration, complaint, cross-complaint,
counterclaim, cross-claim or third party complaint is voluntarily dismissed,
with or without prejudice.
12. NOTICES
-------
All notices required or permitted hereunder shall be in writing and
shall be delivered in person, by facsimile, telex or equivalent form of written
communication, or sent by certified or registered mail, return receipt
requested, postage prepaid, as follows:
To Corporation:
--------------
Chadmoore Wireless Group, Inc.
0000 Xxxxxxx Xxx.
Xxx Xxxxx, Xxxxxx 00000
Attention: Corporate Secretary
Fax: 000-000-0000
To the Employee:
---------------
Xxxxxx X. Xxxxx
Chadmoore Wireless Group, Inc.
0000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Fax: 000-000-0000
11 EXE______,CWG______
or such other party and/or address as either party may designate in a written
notice delivered to the other party in the manner provided herein. All notices
required or permitted hereunder shall be deemed duly given and received on the
date of delivery, if delivered in person or by facsimile, telex or other
equivalent written telecommunications, or on the seventh day next succeeding the
date of mailing if sent by certified or registered mail.
13. FURTHER ACTION
--------------
The Corporation and the Employee each agrees to execute and deliver
such further documents as may be reasonably necessary by the other in order to
give effect to the intentions expressed in this Agreement.
14. HEADING; INTERPRETATIONS
------------------------
The headings and captions used in this Agreement are for convenience
only and shall not be construed in interpreting this Agreement.
15. ASSIGNABILITY
-------------
This Agreement and the rights and duties under it may not be assigned
by any party hereto without the prior written consent of the other party hereto.
The parties expressly agree that any attempt to assign rights and duties without
such written consent shall be null and void and of no force and effect. The
terms and provisions of this Agreement shall bind successors and assigns of the
Corporation.
16. ENTIRE AGREEMENT
----------------
This Agreement contains the entire agreement and understanding of the
parties with respect to the matters herein, and supersedes all existing
negotiations, representations or agreements, including, without limitation, the
Prior Agreement, and all other oral, written and other communications between
them concerning the subject matter of this Agreement.
17. AMENDMENTS
----------
This Agreement may be amended or modified in whole or in part
only by an agreement in writing signed by the Corporation and the Employee.
18. WAIVER AND SEVERABILITY
-----------------------
The waiver by either party of a breach of any terms or
conditions of this Agreement shall not operate or be construed as a waiver of
any subsequent breach by such party. In the event that one or more provisions of
this Agreement shall be declared to be invalid, illegal or unenforceable under
any law, rule or regulation, such invalidity, illegality or unenforceability
shall not affect the validity, legality or enforceability of the other
provisions of this Agreement.
12 EXE______,CWG______
19. GOVERNING LAW
-------------
This Agreement and the rights of the parties under it shall be governed
by and construed in accordance with laws of the State of Nevada, including all
matters of construction, validity, performance and enforcement and without
giving effect to the principles of conflict of laws, except that matters of
corporate law and governance shall be governed by and construed in accordance
with the laws of the State of Nevada.
20. COUNTERPARTS
------------
This Agreement may be executed in any number of counterparts, each of
which shall be an original, and all of which together shall constitute one and
the same instrument.
13 EXE______,CWG______
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
EMPLOYEE
/s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
CHADMOORE WIRELESS GROUP, INC.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Sr. Vice President and Chief
Regulatory Officer
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