Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS AGREEMENT is by and between DIRECT WIRELESS COMMUNICATIONS, INC.,
a Texas public corporation with an address at 0000 X. Xxxxxx Xxxxx Xx., Xxxx,
Xxxxx 00000 (hereinafter referred to as "Employer"), and Xxxxxxx Xxxxxxxx, with
an address at 0 Xxxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000 hereinafter referred
to as "Employee").
WHEREAS, Employer has purchased Xxxxxxxx Group, LLC which was the
previous employer of Employee; and
WHEREAS, Employer desires to continue to employ Employee and Employee
desires to continue such employment in accordance with the terms and conditions
herein; and
WHEREAS, Employee represents and warrants to Employer that he is not
party to any contract which Employee will be breaching by entering into this
Agreement or which restricts in any way Employee's ability to accept employment
with Employer: and
WHEREAS, Employer would not enter into this Agreement with Employee but
for the foregoing representation and warranty by Employee.
NOW, THEREFORE, for and in consideration of the mutual benefits to be gained by
the performance thereof, the parties hereto agree as follows:
1. EMPLOYMENT/TERM
Employer hereby employs Employee and Employee hereby accepts employment
with Employer under the terms and conditions specified in this
Agreement.
Employment of Employee pursuant to the terms of this Agreement in the
position of President will commence on the 15th day of September 2003
and will continue for a period of five (5) years unless earlier
terminated as further set forth herein.
2. TITLE AND DUTIES
2.1 Employee shall have the title of President. The general duties to
be performed by Employee shall include:
a. Authority over and responsibility for all medical, scientific
research and development issues including without limitation, research projects,
budgets with respect to such projects, hiring and firing of all scientific and
medical employees, strategic direction and strategic alliance (in conjunction
with the board of directors of Employer), patents, presentations and
publications;
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b. Authority over all research and medical personnel.
c. Those additional duties assigned to Employee from time to time by
the board of directors of Employer;
d. To regularly, promptly and fully report to the board of directors of
Employer or to any person duly authorized by the Employer to receive such
reports as to the performance of Employee's duties and as to the business and
affairs of the Employee which may come to Employee's knowledge, and all business
opportunities and activities.
e. Employee shall devote his full time to the performance of his duties
and the business of Employer and shall work exclusively for Employer during the
term of this Agreement utilizing Employee's best efforts.
2.2 Mobility and Flexibility - The Employer reserves the right to
change Employee's job description, job title, work schedule and the location of
employment at its discretion upon reasonable notice from the Employer.
Notwithstanding the foregoing, the Employee's location of employment shall
remain in Savannah, Georgia.
2.3 Hours - Employee shall be expected to work such hours as reasonable
and necessary to comply with workload demands.
3. COMPENSATION
3.1 Salary - Employer shall pay Employee base gross salary at the rate
of $25,000 per month, payable in accordance with Employer's customary payment
policy. The first three months of gross salary includes sufficient money for
Employee to put together an initial management team for the benefit of Employer.
3.2 Reimbursement of Expenses - Employee shall be reimbursed by
Employer for reasonable and necessary business expenses incurred in connection
with Employee's performance of his duties. Reimbursement is subject to the
submission of expenses in a timely manner with appropriate supporting
documentation, and subject to compliance with the Employer's standard
reimbursement policy.
3.3 Other Benefits and Duties - Employee will be entitled to the
following additional benefits: These benefits may be adjusted from time to time
at the Employers discretion.
(a) Incentive Stock Option Plan - Employee will be eligible to
participate in an Incentive Stock Option Plan upon
establishment of same by the board of directors; and
(b) Other Benefits- Employee will be eligible to such other
benefits applicable to Employee, which are implemented from
time to time by the board of directors, provided that the
rights to such benefits are not contractual and are subject to
modification by Employer at any time, although such
modifications shall apply prospectively.
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3.4 Vacation - Employee shall be entitled to 10 paid vacation days
during the calendar year from January 1 to December 31. For employment periods
of less than one calendar year, vacation days shall accrue at the rate of 0.83
days per month of employment. All vacation must be taken by December 31 in the
calendar year in which such vacation is earned.
3.5 Public holidays - Employee shall also be entitled to all "public
holidays," as that term is generally defined.
3.6 Taxes - Employer shall withhold from Employee's compensation all
applicable income taxes, social security and Medicare costs that Employer is
required to withhold.
4. TERM AND TERMINATION OF EMPLOYMENT; SUSPENSION
4.1 Termination for Cause - This Agreement may be terminated without
prior written notice by Employer for cause, if Employee has (i) committed an
intentional act of fraud, embezzlement or theft in connection with his duties or
in the course of his employment with Employer; (ii) violated the provisions of
any one of the covenants herein or of any rules and regulations generally
applicable to Employer's employees; (iii) committed an intentional breach of
fiduciary duty resulting in personal gain or personal enrichment at the expense
of the Employer to which the Employee is not legally entitled; (iv) been
convicted of, or entered a plea of guilty to or nolo contendere to any felony;
(v) intentionally failed to perform material stated duties; (vi) during any
ninety (90) consecutive day period, failed for a material period of time to
perform material duties of his position on a substantially full time basis by
reason of a disability as defined by 00X.X.X.xx. 1630.2(g)(1), and Employee
cannot perform the essential functions of his position with reasonable
accommodation, (vii) habitually neglected his duties, (viii) made or given a
false statement or document to the Employer about his experience, education,
training, ability, or competence; (ix) refused to obey all lawful orders or
carry out tasks given, or directed by the Employer or any person duly authorized
by the Employer, (x) failed to observe safety procedures or regulations laid
down by the Employer or by any person duly authorized by the Employer, or (xi)
engaged in behavior which seriously detracts from the efficient working or
social well being of other employees.
4.2 Rights on Termination for Cause - If this Agreement is terminated
for Cause as defined in Section 4.1, then Employer shall make on the date of
termination a lump sum payment for accrued unpaid wages and accrued unpaid
vacation pay, less any amounts which Employee owes to Employer and which
Employee hereby authorizes shall be offset against amounts owed to him by
Employer. Upon such termination, Employee shall waive his/her right to further
compensation, and shall have a duty to seek other employment in mitigation of
the loss of employment.
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4.3 Rights on Termination "at will" - If Employee terminates the
Agreement, then Employee shall receive the benefits applicable under Section 4.2
above. If Employer terminates, other than for Cause, then the Company will, in
addition to the benefits applicable under Section 4.3, give 2 weeks notice of
termination, or in the Company's sole discretion, 2 weeks wages in lieu of
notice. Apart from the benefits provided hereunder, upon such termination,
Employee shall waive his/her right to further compensation, and shall have a
duty to seek other employment in mitigation of the loss of employment.
5. ASSIGNMENT
This Agreement may not be assigned in whole or in part by Employee, but
is personal to Employee and will terminate as a matter of law upon Employee's
death, if not terminated earlier pursuant to Article 4. This Agreement is
assignable by Employer, but only in connection with the sale of the Employer's
business.
6. NON-COMPETITION AND PROTECTION OF CONFIDENTIAL INFORMATION BY EMPLOYEE;
INTELLECTUAL PROPERTY
6.1 During Employment - While employed by Employer, Employee shall not
directly or indirectly as an employee, employer, consultant, agent, principal,
partner, stockholder, corporate officer, director or in any other individual or
representative capacity, engage or participate in any business in competition
with the business of Employer or take any action inconsistent with his
confidential and fiduciary relationship with Employer.
6.2 Subsequent to Employment - In consideration for Employer's
employment of Employee pursuant to the terms of this Agreement. Employee agrees
that upon termination of employment, for any reason, Employee shall not,
directly or indirectly, enter into or engage in direct or indirect competition
with Employer in Texas, Georgia or California, where Employer conducts business,
as a partner, joint venturer, director, officer, employee, agent, consultant,
owner or shareholder of a competing business for a period of 12 months
thereafter. Employee acknowledges that Employer would not have employed Employee
in the position and with the compensation and benefits provided Employee
hereunder, but for Employee's agreement to this covenant. The parties expressly
intend to enter into a binding and enforceable covenant not to compete. If the
scope of this covenant as written is subsequently found to be broader than is
permitted by the Governing Law, then the covenant shall be deemed binding and
enforceable to the maximum extent then allowed by the Governing Law.
6.3 Confidential Information - Employee acknowledges that during
employment with Employer, he will be privy to, make use of, acquire and/or add
to confidential information which is closely guarded and valued by Employer and
to which Employee would not have access but for employment with Employer. Such
confidential information includes, but is not limited to, Employer's trade
secrets, systems, procedures, manuals, computer software, customer lists (which
are deemed for all purposes confidential and proprietary), vendor list, product
list and price list. As a material inducement to Employer to employ Employee, to
grant Employee access to Employer's confidential information, and to pay
Employee the compensation stated herein, Employee covenants that he shall not,
at any time during or following the termination of employment or this Agreement,
directly or indirectly, use, divulge or disclose for any purpose whatsoever,
other than within the scope of employment by Employer, any confidential
information that has been obtained by, or disclosed to, Employee as a result of
or during employment with Employer. Employee will not make or possess without
authority copies of documents, papers or other media on which any confidential
information about the Employer or any of its affiliated companies is recorded.
On termination of employment for any reason, Employee shall deliver to the
Employer all such documents, papers or other media together with all copies
thereof. Confidential information shall not include, and the restrictions
herein, shall not apply to information, which is already in the public domain
through no fault of Employee. If Employee receives a court subpoena, which seeks
Employer's confidential information, Employee shall promptly notify Employer of
the subpoena and give the Employer the opportunity to challenge the subpoena,
but if Employer does not do so, Employee shall have no duty to disobey the
subpoena.
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6.4 Intellectual Property.
(a) Ownership - Employee hereby assigns to Employer all right,
title and interest in and to any and all improvements,
processes, systems, inventions, designs, and discoveries
heretofore made by Employee, either alone or jointly with
others, related in any way to the business of Employer. If,
during the period of Employee's employment, Employee either
alone or jointly with others, makes any improvement, process,
system, invention, design or discovery, including any
registered or unregistered copyrights, service or trade marks,
patents (together "Inventions") capable of use in connection
with any business of the Employer or of any subsidiary or
[associated] affiliated company of the Employer, such
Invention shall be and remain the property of the Employer
(whether registered or not) and accordingly Employee hereby
assigns to the Employer any rights Employee may have in such
Inventions. Upon making any Invention, Employee will
immediately communicate all information concerning the same to
the Employer. If so requested, at the Employer's expense but
without receiving additional payment, Employee will assist the
Employer in obtaining Letters Patent, Trademark or Copyright
Registrations, or any other protection desired by the Employer
in respect of any such Invention and, at the expense of the
Employer, will execute all documents and do all things
necessary to give effect to this provision.
(b) Assignment - Employee hereby assigns (so as to continue beyond
the termination of this Agreement for whatever reason) to the
Employer as beneficial owner by way of assignment, all of
Employee's rights, title and interest, including without
limitation all patent, trademark and copyright ownership of
Employee, in and to all material written or devised by
Employee pertaining to the actual or potential operation or
business of the Employer or any affiliated company of
Employer, whether resulting from or suggested by any work
which Employee shall do pursuant to Employee's employment or
otherwise, including that which Employee has already done
prior to the date of this Agreement whether or not such items
constitute a "work made for hire" as defined in the U.S.
Copyright Act of 1976, 17 U.S.C. ss.101, as amended, and all
rights of action for damages for infringement thereof.
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(c) Appointment of Attorney-in-Fact - Employee hereby irrevocably
appoints the Employer to be Employee's attorney-in-fact to
execute on Employee's behalf any documents as described in
this Article 6.4 and generally to act on Employee's behalf and
in Employee's name for the purpose of giving to the Employer
the full benefit of the provisions of this Article 6.4. A
certificate in writing signed by any director or the secretary
of the Employer that any instrument or act falls within the
authority hereby conferred shall be conclusive evidence that
such is the case.
7. OTHER POST-EMPLOYMENT RESTRICTIONS
7.1 Solicitation of Employer's Customers - Until the expiration of 12
months from the termination of employment with the Employer (for whatever reason
other than the breach of the employment agreement by or other default of the
Employer), Employee shall not directly or indirectly solicit, canvass or
approach any person or entity:
(a) Who, to Employee's knowledge, was provided with goods or
services by the Employer or any of its affiliates at any time
during 12 months before such termination;
(b) For the purpose of offering to that person or entity goods or
services similar to those which were provided by Employer.
7.2 Solicitation of Employer's Employees - After the termination of
Employee's employment with the Employer (for whatever reasons other than the
breach of the employment agreement by or other default of the Employee), for a
period of 12 months from the date of termination, Employee shall not directly or
indirectly solicit or entice away or endeavor to entice away from the Employer
or any of its affiliates any Director or employee.
7.3 Representation to Third Parties - After the termination of
Employee's employment with the Employer (for whatever reason), Employee shall
not represent himself or permit himself to be held out as being in any way
connected with or interested in the business of the Employer or any of the
affiliates of the Employer, except if and for so long as Employee remains an
employee of that affiliate.
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8. INDEMNITY
Employee hereby agrees to indemnify and hold harmless Employer from all
costs arising from (a) Employee's breach of this Agreement, (b) claims made by
third parties that Employee breached an employment or other contract with such
third party by entering into this Agreement, or (c) claims that Employee is
restricted from accepting employment with Employer, or (d) claims that Employer
is by this Agreement interfering with a business or contractual relationship
between Employee and any third party.
9. GENERAL PROVISIONS
9.1 Notice - Any written notice required under this Agreement shall be
deemed received upon personal delivery or three days after mailing by certified
mail, with return receipt requested, addressed to the party for which it is
intended at the parties' respective addresses.
9.2 Waiver and Limitations - Employee's failure to give written notice
of any claim or controversy within ninety (90) days shall constitute a waiver of
the claim or controversy. The statute of limitations for all lawsuits arising
hereunder or related hereto or to Employer's employment of Employee, or the
termination of Employee's employment, for any and all claims, shall be two years
unless a shorter limitation period is otherwise fixed by the Governing Law.
9.3 Entire Agreement - Understanding - This Agreement supersedes all
other agreements or understandings, either oral or written, between the parties
with respect to Employer's employment of Employee. Each party has read and
understood and voluntarily entered into this Agreement, which reflects the
mutual understandings of the parties and shall not be construed more strongly in
favor of or against either party. Employee acknowledges that he has had the
opportunity to consult with an attorney about this Agreement, including without
limitation, the arbitration provision, before signing.
9.4 Severability - The invalidity or unenforceability of a particular
provision of this Agreement shall not affect the enforceability of any other
provisions.
9.5 Amendments - This Agreement may only be amended in writing by an
agreement executed by both parties hereto.
9.6 Waiver - Waiver by any party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach.
9.7 Binding Effect - Subject to the prohibition against assignment by
Employee herein contained, this Agreement and the terms and conditions herein
shall inure to the benefit of and be binding upon the parties hereto their
successors, heirs and legal representatives.
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9.8 Attorney's Fees - If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
awarded reasonable attorney's fees, costs and other expenses necessarily
incurred.
9.9 Injunctive Relief - The covenants by Employee contained in Articles
6 and 7 shall be construed and interpreted as agreements independent of any
other provisions of this Agreement. The existence of any claim or cause of
action by Employee against Employer, whether predicated on this Agreement or
otherwise, shall not constitute a defense to Employer's enforcement of such
covenants. Employee acknowledges and expressly agrees that breach of these
covenants would cause immediate and irreparable injury to Employer, the remedies
at law for breach of these covenants are inadequate, and that Employer is
entitled to injunctive relief to prevent a breach, stop a continuing breach or
prevent any further or recurring breach of these covenants, with a minimum bond,
and as to a temporary restraining order without notice. The provisions of
Articles 6 and 7 shall survive any termination of Employee's employment and/or
the termination of this Agreement.
9.10 Governing Law - THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND IS
PERFORMABLE IN DALLAS COUNTY, TEXAS.
9.11 Arbitration - ALL DISPUTES ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR TO EMPLOYER'S EMPLOYMENT OF EMPLOYEE OR THE TERMINATION OF
EMPLOYEE'S EMPLOYMENT SHALL BE SUBMITTED EXCLUSIVELY TO BINDING ARBITRATION IN
DALLAS, TEXAS, PURSUANT TO THE NATIONAL RULES FOR THE RESOLUTION OF EMPLOYMENT
DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION, provided however that Employer
shall be entitled to injunctive relief from any court of jurisdiction against
Employee's breach of any covenant in Articles 6 and 7, and further provided that
this Agreement shall not require arbitration of any claim for workers'
compensation benefits (although any claims arising under Texas Labor Code ss.
450.001 shall be subject exclusively to arbitration) or any claim for
unemployment compensation. Employee understands that agreeing to arbitration
waives the right to a jury trial. Arbitral awards shall be enforceable by any
court of competent jurisdiction
9.12 Counterparts - This Agreement shall be executed in multiple
originals, each of which shall be valid as an original.
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EXECUTED this 15th day of September 2003.
EMPLOYER
DIRECT WIRELESS COMMUNICATIONS, INC.
/s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, Chairman and CEO
EMPLOYEE
BY: /s/ Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx
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