EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT executed this 14th day of December 2001, by and
between INTERNATIONAL WIRELESS, INC. a Delaware corporation ("Employer"), and
ATTORNEY XXXXX XXXXXXXXX, an individual ("Employee").
RECITALS
1.1 Employee is a licensed attorney specializing in corporate, securities,
mergers and acquisitions, international, franchise and tax laws.
1.2 Employer is a business in need of an in-house attorney specializing in
corporate, securities, mergers and acquisitions, international and tax
laws.
1.3 Employer and Employee desire to enter into this Employment Agreement upon
the terms and conditions set forth herein.
NOW THEREFORE, IN CONSIDERATION of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
adequacy of which is hereby admitted and acknowledged, the parties hereto agree
as follows:
2.0 EMPLOYMENT
The Employer hereby employs the Employee as of December 14, 2001, (the
"Effective Date"), and the Employee hereby accepts employment with Employer,
upon the terms and conditions contained in this Agreement.
4.0 CAPACITIES AND DUTIES
4.1 Employee is hereby employed in the capacity of In-house Corporate
Counsel rendering such services and having such duties and
responsibilities usual to attorneys who specialize in corporate,
securities, mergers and acquisitions, international, franchise and tax
laws as may be assigned to Employee from time to time by the Employer.
4.2 The Employee shall render these legal services as determined by the
Employer at the Employees law office in the State of Connecticut where
he resides and services other legal clients, and which includes at a
minimum, for the Employee to be at the office of the Employer once a
week on a day that is convenient to the Employee and Employer at 000
Xxxxxxxxxxxx Xxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxxx 00000 or at such
other home office for senior executives as Employer may designate from
time to time.
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4.3 Employee agrees to devote his best efforts but not the exclusive time
to rendering services to Employer.
6.0 TERM
6.1 Subject to the rights of parties to prior termination, the term of
this Agreement shall be for one (1) year, commencing on the Effective
Date.
6.2 This Agreement shall terminate upon the following events:
(a) Employee's death;
(b) Employee's Disability; or
(c) At Employer's option, upon Employee's breach of any of Employee's
covenants or obligations hereunder, other than those which would
constitute a Discharge for Cause. In order to terminate this
Agreement pursuant to this Subparagraph (c), Employer shall give
Employee thirty (30) days written notice of termination
specifying the ground therefore. Employee's termination will take
effect upon expiration of said thirty (30) day period, unless
Employee fully cures the breach specified in such notice during
the thirty (30) day period following Employer's giving of such
notice to Employee.
6.3 Employee may terminate this Agreement prior to the expiration of its
term only if Employer breaches any of its material covenants or
obligations hereunder. In such circumstances, Employee shall provide
Employer with written notice, specifying Employer's alleged breach, at
least thirty (30) days prior to Employee's termination. Said
termination will take effect only if Employer fails to cure or correct
the breach specified in the Employee's written termination notice
within thirty (30) days of Employer's receipt thereof.
6.4 Employer may unilaterally terminate this Agreement upon a Discharge
for Cause, which shall take effect immediately upon Employer's written
notification to Employee, outlining the reasons for cause. For
Discharges for Cause, Employee shall not be entitled to any further
benefits under this Agreement. In such circumstances, Employee shall
be entitled to retain and exercise all vested unexercised stock
options, but any unvested unexercised stock options granted to
Employee shall immediately and automatically terminate.
7.0 BASE COMPENSATION AND NORMAL BENEFITS
For the service of Employee, the Employer agrees to pay to Employee
compensation as follows:
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7.1 Base Salary: Annual base compensation of SIXTY THOUSAND DOLLARS
($60,000.00), paid according to the general payroll practices of
Employer as same exists from time to time.
7.2 Annual Bonus: In addition to other compensation payable hereunder,
Employer shall xxxx Employee for services rendered to other entities
serviced by the Employer and pay Employee up to an additional THIRTY
THOUSAND DOLLARS ($30,000.00) payable as billed and received by the
Employer.
7.3 Additional Benefits: The Employee shall have the right to participate
in any medical, vision, dental, life (including accidental death and
dismemberment) and long-term disability group insurance plans or
similar employee benefit plans now in effect or hereinafter
established or ratified by the Employer's Board of Directors for the
benefit of managerial or salaried employees (but not including any
stock option plan unless specifically permitted to participate in such
plan by permission of the Employer's Board of Directors) for so long
as such plan is maintained in effect for the benefit of such
employees, with the Employee's participation or share therein being
determined by the terms, provisions, and requirements of the
respective plans as in effect from time to time.
7.4 Vacation:
Employee shall be entitled a vacation on an annual basis for three (3)
weeks.
8.0 STOCK OPTIONS
Employee shall be eligible for non-qualified stock options on the terms and
conditions hereinafter stated:
8.1 Grant of Options:
(a) Subject to the limitations set forth in Section 8.3, on the
Effective Date Employer hereby grants Employee the right to
purchase an aggregate of fifty thousand (50,000) shares of
Employer's common voting stock.
(b) The options shall be granted in ten (10) increments. Each of such
options gives Employee the right to purchase five thousand
(5,000) shares.
8.2 Option Price: The purchase price under each option is as forty five
cents ($0.45) per share, for an aggregate purchase price of TWO
THOUSAND TWO HUNDRED FIFTY DOLLARS ($2,250.00) if the option is
exercised in its entirety.
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8.3 Vesting. Options shall vest and become exercisable as follows:
(a) Five thousand (5,000) shares on February 1, 2002.
(b) Five thousand (5,000) shares on March 1, 2002.
(c) Five thousand (5,000) shares on April 1, 2002.
(d) Five thousand (5,000) shares on May 1, 2002.
(e) Five thousand (5,000) shares on June 1, 2002.
(f) Five thousand (5,000) shares on July 1, 2002.
(g) Five thousand (5,000) shares on August 1, 2002.
(h) Five thousand (5,000) shares on September 1, 2002.
(i) Five thousand (5,000) shares on October 1, 2002.
(j) Five thousand (5,000) shares on November 1, 2002.
8.4 Right to Exercise. So long as Employee is employed hereunder, Employee
may exercise the vested portion of his Options at any time prior to
the fourth year anniversary following the Effective Date. Any options
that are not exercised by the earlier of i) the fourth year
anniversary following the Effective Date, or ii) one (1) year
following the Effective Date of Employee's termination, shall
automatically lapse.
8.5 Payment: The full consideration for any shares purchased by Employee
pursuant to Stock Option shall be paid in cash.
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9.0 PROTECTION AGAINST DISCLOSURE OF CONFIDENTIAL INFORMATION
9.1 Access to Confidential Information: The Employee recognizes and
acknowledges that he has had and have access to certain Confidential
Information of the Employer and that such information constitutes
valuable, special and unique property of the Employer.
9.2 Breach of Confidentiality Agreement: Employee and Employer agree that
a breach of the Confidential Information shall constitute a breach of
this Agreement and shall give rise to a Discharge for Cause.
9.3 Property of Employer: All records, forms, supplies or reproduced
copies, provided and furnished by the Employer to the Employee, or
obtained by the Employee during the performance of his services under
this Agreement, shall remain the property of the Employer and shall be
accounted for and returned by the Employee upon demand of Employer.
Such records, forms and supplies shall include, but not be limited to,
such things as: documents; interoffice memos; records, any
correspondence, regardless of the author; notebooks; client lists; or
any such other supplies provided by the Employer. It is expressly
understood that the Employee's license to the possession of said
records, forms or supplies, or any copies thereof, are to fulfill his
obligations to the Employer under this Agreement and he has no other
right or proprietary interest in those documents.
10.0 WAIVER
The failure of the Employer and Employee at any time to demand strict
performance by the other of any terms, covenants or conditions set forth herein,
shall not be construed as a continuing waiver or relinquishment thereof, and
either party may, at any time, demand strict and complete performance by the
other of said terms, covenants and conditions.
11.0 SIGNIFICANCE OF HEADINGS
Section and Subsection headings contained herein arc solely for the purpose
of convenience, and are not in any sense to be given weight in the construction
of this Agreement. Accordingly, in the case of any question with respect to the
construction of this Agreement, it is to be construed as though section and
subsection headings have been omitted.
12.0 EMPLOYER/EMPLOYEE RELATIONSHIP
This Agreement shall specifically include any employer/employee
relationship. The Employer shall be responsible for withholding the appropriate
taxes and paying the appropriate taxes and other assessments on the Employee,
pursuant to the regulations promulgated by the related governmental agencies.
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13.0 ENTIRE AGREEMENT
13.1 Sole Agreement: This Agreement contains the parties' sole and entire
agreement regarding the subject matter hereof, and supersedes any and
all other agreements between them.
13.2 No Other Representations: The parties acknowledge and agree that no
party has made any representations (a) concerning the subject matter
hereof, or (b) inducing the other party to execute and deliver this
Agreement, except those representations specifically referenced
herein. The parties have relied on their own judgment in entering into
this Agreement.
13.3 No Reliance: The parties further acknowledge that any statements or
representations that may have been made by either of them to the other
are void and of no effect. No party has relied on any such statements
or representations in dealing with the other(s).
14.0 COOPERATION AND FURTHER ACTIONS
The parties agree to perform any and all acts and to execute and deliver
any and all documents necessary or convenient to carry out the terms of this
Agreement.
15.0 NO MODIFICATION OR WAIVERS
15.1 Must Be Written: Waivers or modifications of this Agreement, or of any
covenant, condition, or limitation-contained heroin, are valid only if
in writing. Such writing must be duly executed by the parties.
15.2 No Use As Evidence: One or more waivers or modifications of any
covenant, term or condition in this Agreement by any party shall not
be construed by any other party as a waiver or modification applicable
to any subsequent breach of the same covenant, term or condition.
Evidence of any such waiver or modification may not be offered or
received in evidence in any proceeding, arbitration, or litigation
between the parties arising out of or affecting this Agreement, or a
party's rights or obligations under it. This limitation does not apply
if the waiver or modification is in writing and duly executed as
provided above.
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16.0 JOINT PREPARATION
This Agreement is deemed to have been jointly prepared by the parties, and
any uncertainty or ambiguity existing in it shall not be interpreted against any
party, but rather shall be interpreted according to the rules generally
governing the interpretation of contracts.
17.0 PROFESSIONAL FEES
If a lawsuit or other proceedings are instituted by any party to enforce
any of the terms or conditions of this Agreement against any other party hereto,
the prevailing party in such litigation or proceedings shall be entitled, as an
additional item of damages, to such reasonable attorneys' and other professional
fees (including but not limited to expert witness fees) and court costs or costs
of such other proceedings as may be fixed by any court of competent
jurisdiction, or other judicial or quasi-judicial body having jurisdiction
thereof, whether or not such litigation or proceedings proceed to a final
judgment or award.
18.0 BINDING UPON SUCCESSORS
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, legal representatives, successors and
assigns.
19.0 ARBITRATION OF DISPUTES
In the event of any dispute under or relating to the terms of this
Agreement, or breach thereof, it is agreed that the same shall be submitted to
arbitration to the American Arbitration Association (Association"), at Boston,
Massachusetts. The arbitration shall be conducted in accordance with the rules
promulgated by that Association. Any judgment upon the award rendered by the
arbitrator(s) may be entered in any court, state or federal, having jurisdiction
thereof.
20.0 SEVERABILITY
If any part, clause, or condition of this Agreement is held to be partially
or wholly invalid, unenforceable, or inoperative for any reason whatsoever, such
shall not affect any other provision or portion hereof, which shall continue to
be effective as though such invalid, inoperative, or unenforceable part, clause
or condition had not been made.
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21.0 GOVERNING LAW AND VENUE
All questions concerning this Agreement, its construction, and the rights
and liabilities of the parties hereto shall be interpreted and enforced in
accordance with the laws of the State of Massachusetts as applied to contracts
that are executed and performed entirely within the state. For purposes of this
Agreement, sole and proper venue shall be the City of Boston, State of
Massachusetts.
22.0 INTERPRETATION.
22.1 Section Headings: The section and subsection headings of this
Agreement are included for purposes of convenience only, and shall not
affect the construction or interpretation of any of its provisions.
22.2 Capitalized Terms: Except as otherwise expressly provided herein, all
capitalized terms defined in this Agreement shall have the meaning
ascribed to them herein.
22.3 Gender and Number: Whenever required by the context, the singular
shall include the plural, the plural shall include the singular, and
the masculine gender shall include the neuter and feminine genders and
vice versa.
23.0 FACSIMILE NOTICES
For purposes hereof, delivery of written notice shall be complete upon
receipt of electronic facsimile, provided that any facsimile notice shall only
be deemed received if (a) the transmission thereof is confirmed, and (b)
facsimile notice is followed by written notice, made either by (i) personal
delivery thereof, or (ii) via deposit in regular mail, postage prepaid, within
three (3) business days following the facsimile notice. Notices shall be
addressed to the parties as follows:
Employer: International Wireless, Inc.
Attn: Xxxxxxx X. Xxxxx
000 Xxxxxxxxxxxx Xxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
Phone: (781)(000-0000)
Fax: (781)(000-0000)
Employee: Attorney Xxxxx Xxxxxxxxx
00 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxx 00000
Phone: (860)(000-0000)
Fax: (860)(000-0000)
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Notice shall be deemed given on the date it is sent via facsimile. Any
party may change the address to which to send notices by notifying the other
party of such changes in writing in accordance with this Paragraph.
24.0 TIME OF ESSENCE
The parties acknowledge and agree that time is strictly of the essence with
respect to each and every term, condition, obligation and provision hereof.
Failure to timely perform any of the terms, conditions, obligations or
provisions hereof by any party shall constitute a material breach of this
Agreement by the party so failing to perform.
25.0 THIRD PARTY BENEFICIARIES
No term or provision of this Agreement is intended to be, or shall be, for
the benefit of any person, firm, organization or corporation not a party hereto,
and no such other person, firm, organization or corporation shall have any right
or cause of action hereunder.
26.0 COUNTERPARTS
This Agreement may be executed in several counterparts, each of which so
executed shall be deemed to be an original, but such counterparts shall together
constitute and be one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have set their hands the day and
year first above written.
INTERNATIONAL WIRELESS INC.
a Delaware corporation
By:/s/ Xxxxxxx X. Xxxxx
--------------------------
Xxxxxxx X. Xxxxx
Its: President
"EMPLOYER"
/s/ Xxxxx Xxxxxxxxx
----------------------------
XXXXX XXXXXXXXX, an individual
"EMPLOYEE"
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