Exhibit 10.7
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of June 22, 2001
("Effective Date") between Xxxxx X. Xxxxxxxx ("Employee") and ARC Wireless
Solutions, Inc., a Utah Corporation ("Company"). For purposes of this Agreement,
each the Employee and Company is individually referred to as a "Party", and
Employee and Company are referred to collectively as the "Parties".
RECITAL
Company desires to retain the services of Employee and Employee has offered to
provide services to Company pursuant to the terms of this Agreement.
AGREEMENT
In consideration of the premises and of the mutual covenants included in this
Agreement, the Parties agree as follows:
1. Services: Company retains Employee and Employee shall perform services
for Company as set forth in this Agreement on behalf of Company for the period
and under the terms and conditions set forth in this Agreement.
2. Term: This Agreement shall be for an initial period of three years
("Term") commencing on the Effective Date and terminating on June 30, 2004
subject, however, to review and termination during the Term as provided herein.
The Parties agree to negotiate in good faith the continuation of the employment
relationship of Employee with Company following the Term upon such terms as the
Parties may agree; provided however, that in the event that either Party does
not desire to continue the employment relationship beyond the Term, that Party
shall deliver notice to the other Party of that intention on or before 90 days
prior to the expiration of the Term and the Parties shall not be obligated to
negotiate the continuation of the employment relationship. If the employment
relationship does not continue beyond the Term, Employee agrees to reasonably
cooperate with Company and with respect to the transition of the new management
in the operations previously performed by Employee.
3. Duties: Employee shall perform the following services for Company:
3.1. Employee shall serve as Chief Financial Officer and Treasurer of
Company and in that capacity shall work with Company to pursue Company's plans
as directed by Company's Chief Executive Officer, President or Board of
Directors (the "Board"). In the event the Board directs Employee to act in a
different capacity other than as Chief Financial Officer, Employee shall have
the option to terminate this Agreement per the terms of Section 7.1. of this
Agreement.
3.2. During the Term, Employee shall devote all of Employee's business
time to the performance of Employee's duties under this Agreement.
4. Compensation: Company shall pay Employee for the performance of services
pursuant to this Agreement as follows:
4.1. Company shall pay Employee for the performance of services
pursuant to this Agreement a salary at the annual rate of $111,000, payable in
at least bi-weekly installments. Salary and other compensation will be reviewed
on the anniversary of the Effective Date.
4.2. Employee shall also receive an annual incentive bonus equal to
$10,000 if EBITDA is at least $1 in fiscal 2001; $15,000 if EBITDA is at least
$1 in fiscal year 2002 and 2003, or a bonus of 3% of EBITDA in 2002 and 2003,
whichever is higher. The incentive bonus shall be determined according to the
audited year-end financial statements of the Company and shall be payable on or
before the 10 business days after the filing by the Company with the SEC of the
Company's Annual Report on Form 10-KSB or Form 10-K, or the successor form, with
respect to that fiscal year.
4.3. Employee shall also receive Stock Options to purchase 175,000
shares of Company common stock, the exercise price of which will be equal to the
closing bid trading price on the Effective Date, which will also be Employee's
first day of employment, and the term of the options will be three years from
the Effective Date. However, if the Company is acquired or has a change in
control, as defined in Section 7.4. below, or if Employee's employment with
Company is terminated without cause, or due to death or disability, all options
will become exercisable immediately on the date any of these events occurs.
4.3.1 If Employee terminates his employment with the Company
voluntarily prior to the third anniversary of the Effective Date or if
Employee's employment is terminated for cause by the Board of Directors, any
unexercised options will expire 30 calendar days from the Employee's termination
date per this Section 4.3.1.
4.4. Any payments that Company is required to make to Employee
pursuant to this Agreement shall be reduced by (i) such amounts as are required
to be withheld with respect to those amounts under and for the purposes of any
of the applicable taxes and other laws or regulations, and (ii) such amounts as
Employee may owe to Company at any time and from time to time.
4.5. Employee shall be eligible for participation in any present or
future pension or retirement plan of Company of which other employees of Company
are generally eligible. It is understood, however, that entitlements that may
accrue to Employee pursuant to such arrangements may differ from those that
accrue to other employees, such differences being based on the discretion of the
Board.
5. Reimbursement of Expenses: Employee shall be reimbursed for reasonable
expenses incurred on behalf of Company in the performance of Employee's duties
and services pursuant to this Agreement. Employee shall provide Company with an
expense report containing a detailed description of expenses incurred by the
60th day following the calendar month in which the expenses were incurred on
behalf of Company. The description of expenses shall contain such information as
may be required in order to permit such reimbursements as proper deductions to
Company under the Internal Revenue Code, as amended, and the rules and
regulations adopted pursuant thereto and in effect at that time. Company shall
pay this invoice within 30 days of its receipt.
6. Additional Benefits:
6.1. Employee shall be entitled to take reasonable amounts of paid
time off for vacation and other personal reasons.
6.2. Employee and his family, if any, shall be entitled to receive
such benefits under medical insurance plans, life and disability insurance and
otherwise, as are offered to all other officers of Company.
7. Termination:
7.1. Employee may terminate this Agreement at any time without further
liability or obligation hereunder if Company has breached a material provision
of this Agreement or Company has otherwise materially breached any other
obligation to Employee, such termination to be effected at least 90 days prior
to the date for termination and Company's failing to cure the breach prior to
the date set for termination in that notice.
7.2. Company may terminate this Agreement at any time for cause, with
such termination to be effected by the Company's giving Employee written notice
of termination. The term "For Cause" shall include termination of employment as
a result of any of the following: (i) a material breach of this Agreement by
Employee; or (ii) as a result of a determination by the Board, acting
reasonably, that the Employee has (A) committed a criminal act or an act
constituting moral turpitude, or (B) committed any fraudulent act, or (C)
breached the Employee's fiduciary duty to Company.
7.3. Company may terminate this Agreement immediately by Company's
giving written notice of termination to Employee and by the Company's paying
Employee's compensation in accordance with the terms of this Agreement for a
period beginning on the date of termination and ending on the earlier to occur
of 90 days after the date of termination and the end of the Term of this
Agreement in accordance with Section 2. of this Agreement. It is further
understood that in the event the Agreement is terminated per this Paragraph 7.3.
that any other outstanding amounts owing to Employee by Company as of the date
of termination shall be paid in full to Employee no later than 60 days from the
date of termination.
7.4. At the option of either Party, this Agreement may be terminated
within six months after the date of a "Change in Control" of Company, as defined
below, by giving 90 days' prior written notice of termination to Employee. A
Change in Control shall mean the sale, liquidation, dissolution, consolidation,
merger or other business combination of or involving Company, which
consolidation, merger or other business combination results in persons and/or
entities, other than shareholders of Company immediately prior to the
transaction, owning a majority of Company's outstanding common stock, or the
change in ownership of more than 50 percent of Company, or the transfer of all
or substantially all of Company's assets.
7.5. This Agreement shall terminate upon the death of Employee or if
Employee becomes permanently disabled. Employee shall be considered permanently
disabled if, and on the date on which, Employee has been unable to perform a
substantial and material portion of Employee's duties hereunder, for a period of
90 continuous days, because of sickness, injury, or disability, as determined by
a majority vote of the Board.
7.6. In the event Employee's employment is terminated, then all
unaccrued salary obligations of Company to Employee shall cease as of the date
of termination except as otherwise expressed herein.
8. Corporate Data and Information: Employee understands that Employee has
access to certain information concerning Company and its business that is
provided solely in connection with employee's employment with Company. Any other
use of this information at any time during or after the term of this Agreement
is prohibited. Further, Employee understands that Company is a publicly traded
company and it is important for Company to protect the rights of its
shareholders. Employee understands that applicable federal securities laws
impose significant restrictions concerning the use or disclosure of certain
non-public information in general and in buying or selling, or disclosing with
others the possibility of buying or selling, Company's stock by persons who have
access to material information concerning Company which is not generally
available to members of the general public. Employee understands that Employee
is subject to these restrictions. During and after Employee's employment,
Employee agrees that Employee will not at any time disclose, to any person or
entity for any reason or purpose whatsoever, nor use for Employee's own personal
benefit or the benefit of any person or entity, any information concerning the
financial or business or other operations of the Company that is not publicly
known, provided that this restriction shall not apply to information required to
be disclosed under applicable laws, regulation, court order or subpoena to which
Employee is subject. Upon the termination of the Employee's employment under
this Agreement for any reason, the Employee hereby agrees to return to Company
all data and information relating to the business of Company or any of its
subsidiaries or affiliates that Employee obtained during or prior to the time of
Employee's employment. It is expressly agreed that the terms and conditions of
this Section 8 shall apply after any termination, whether voluntary or
involuntary, of Employee's employment under this Agreement.
9. Alternative Dispute Resolution: Employee agrees that any and all
disputes that Employee has with Company, or any of Company's employees, which
arise out of Employee's employment or under the terms of this Agreement shall be
resolved through final and binding arbitration, as specified herein. This shall
include, without limitation, disputes relating to this Agreement, Employee's
employment with Company or the termination thereof, claims for breach of
contract or breach of the covenant of good faith and fair dealing, and any
claims of discrimination or other claims under any federal, state or local law
or regulation now in existence or hereinafter enacted and as amended from time
to time concerning in any way the subject of Employee's employment with Company
or its termination. The only claims not covered by this Section 9. are wage
claims, claims for benefits under the workers' compensation laws or claims for
unemployment insurance benefits, which will be resolved pursuant to those laws.
Binding arbitration will be conducted in either Arapahoe, Denver or Jefferson
County, Colorado in accordance with the rules and regulations of the American
Arbitration Association Employment Dispute Resolution Rules. Each Party will
split the cost of the arbitration filing and hearing fees, and the cost of the
arbitrator. The arbitrator also will determine whether each Party will pay its
own attorneys' fees or whether one Party will pay all or part of the other
Party's attorneys' fees. Employee understands and agrees that the arbitration
shall be instead of any civil litigation and that the arbitrator's decision
shall be final and binding to the fullest extent permitted by law and
enforceable by any court having jurisdiction thereof. Employee further
represents that he is making a voluntary and knowing waiver of his right to
pursue any and all employment-related claims in court.
10. Non-Compete: Employee acknowledges and recognizes the highly
competitive nature of Company's business and that Employee's duties hereunder
justify reasonably restricting Employee's future employment activities following
any termination of employment with Company. Employee agrees that while Employee
is employed with Company, and for a period of two years following termination of
employment with Company, Employee will not reveal any proprietary or trade
secret information regarding Company that is not already available to the
public.
11. Representations and Warranties:
11.1. Company represents and warrants to Employee as follows: (i)
Company has been duly formed as a corporation under the laws of the State of
Utah; and (ii) the execution of this Agreement has been duly authorized by
Company and does not require the consent of or notice to any party not
previously obtained or given.
11.2. Employee represents and warrants to Company that the execution
of this Agreement and the performance of Employee's obligations hereunder does
not require the consent of or notice to any party not previously obtained or
given, and there is nothing that prohibits or restricts the execution by
Employee of this Agreement or his performance of the obligations hereunder.
12. Covenants: Each of Employee and Company covenants to diligently and
skillfully do and perform the acts and duties required herein.
13. Miscellaneous:
13.1. Entire Agreement: This Agreement constitutes the entire
agreement between the Parties with respect to the subject matter of this
Agreement and supersedes all prior and contemporaneous agreements between the
Parties with respect to the subject matter of this Agreement.
13.2. Notice: All notices, requests, demands, directions and other
communications ("Notices") concerning this Agreement shall be in writing and
shall be mailed or delivered personally or sent by telecopier or facsimile to
the applicable Party at the address of such Party set forth below in this
Section 13.2. When mailed, each such Notice shall be sent by first class,
certified mail, return receipt requested, enclosed in a postage prepaid wrapper,
and shall be effective on the fifth business day after it has been deposited in
the mail. When delivered personally, each such Notice shall be effective when
delivered to the address for the respective Party set forth in this Section
13.2. When sent by telecopier or facsimile, each such Notice shall be effective
on the day on which it was sent provided that it is sent on a business day and
further provided that it is sent prior to 5:00 p.m.,local time of the Party to
whom the Notice is being sent, on that business day; otherwise, each such Notice
shall be effective on the first business day occurring after the Notice is sent.
Each such Notice shall be addressed to the Party to be notified as shown below:
To Company: ARC Wireless Solutions, Inc.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxx 00000
To Employee: Xxxxx X. Xxxxxxxx
00000 Xxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Either Party may change its address for purposes of this Section 13.2. by giving
the other Party written Notice of the new address in the manner set forth above.
13.3. Severability: Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, and if any provision of this Agreement shall be or become
prohibited or invalid in whole or in part for any reason whatsoever, that
provision shall be ineffective only to the extent of such prohibition or
invalidity without invalidating the remaining portion of that provision or the
remaining provisions of this Agreement.
13.4. Non-waiver: The waiver of either Party of a breach or violation
of any provision of this Agreement shall not operate or be construed as a waiver
of any subsequent breach or violation of any provision of this Agreement.
13.5 Amendment: No amendment or modification of this Agreement shall
be deemed effective unless and until it has been executed in writing by the
Parties to this Agreement. No term or condition of this Agreement shall be
deemed to have been waived, nor shall there be any estoppel to enforce any
provision of this Agreement, except by a written instrument that has been
executed by the Party charged with such waiver or estoppel.
13.6. Inurement: This Agreement shall be binding upon, and inure to
the benefit of, Employee and Company, and their respective heirs, successors and
assigns. Notwithstanding the foregoing, this Agreement shall not be assignable
by either Party. There are no third party beneficiaries to this Agreement.
13.7. Headings: The headings in this Agreement are for convenience
only; they form no part of this Agreement and shall not affect its
interpretation.
IN WITNESS WHEREOF, this Agreement is executed on the date(s) set forth below to
be effective as of the Effective Date
EMPLOYEE:
Date: July 3, 2001
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/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
ARC Wireless Solutions, Inc.
Date: July 3, 2001 /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Chief Executive Officer
