CALYPSO WIRELESS, INC. EXECUTIVE EMPLOYMENT AGREEMENT
CALYPSO
WIRELESS, INC.
THIS EXECUTIVE EMPLOYMENT AGREEMENT
("Agreement"), effective as of March 1, 2007, by and between CALYPSO
WIRELESS, INC., a Delaware corporation (“CALYPSO”),
and XXXXXXXX X. XXXXXXX (the “Executive”).
WHEREAS,
CALYPSO has
experienced considerable success in the business of designing, engineering,
researching and developing wireless technology, cellular telephones and other
equipment; and
WHEREAS,
CALYPSO
wishes to employ Executive in the capacity of Chief Executive Officer and
President for a minimum period of two (2) years; and
WHEREAS,
the Executive
wishes to become an employee of CALYPSO as its Chief Executive Officer and
President; and
WHEREAS,
the parties
believe it to be in their mutual interest to set forth in writing the terms
and
conditions of Executive’s employment by CALYPSO; and
WHEREAS,
the Agreement
shall govern the employment relationship between the parties from and after
the
effective date hereof and it supersedes all previous employment agreements
between them, except as defined below, either written or oral, heretofore
made.
NOW,
THEREFORE, in
consideration of the foregoing, the parties agree as follows:
1.
Recitals. The above recitals are true and
correct and fully incorporated herein and form an integral part of this
Agreement.
2. Intent
And Scope Of Agreement: The purpose of this agreement is for
Calypso to execute an employment agreement that allows it to procure
the
services of the Executive as its Chief Executive Officer and
President.
3.
Employment. CALYPSO hereby
employs the Executive to serve as its Chief Executive Officer and President,
and
the Executive hereby accepts such employment with CALYPSO upon the terms and
conditions hereinafter set forth. The duties, responsibilities and
requisites of Executive shall be at a minimum as set forth in the attached
job
description, but shall remain commensurate with such title and shall not
diminish in quality from that currently experienced by Executive.
4. Term. The
term (which, for purposes of the Agreement, shall include any extensions) of
the
Agreement shall commence as of the date of the signing of this Agreement, and,
except as otherwise provided in Section 12 hereof, shall terminate two years
from such commencement date (the “Initial Term”), and shall include all
additional periods, as extended. At the expiration date, and each
year thereafter, this Agreement shall be renewed upon mutual consent and agreed
upon terms, of CALYPSO and Executive for an additional period to be negotiated
by the parties.
5. Compensation.
A. Base
Compensation. For all
services rendered
during the term of this Agreement by the Executive to CALYPSO, the Executive
shall receive a compensation of $ 150,000.00 per annum (One Hundred Fifty
Thousand US Dollars) (the “Compensation”). In addition to the Compensation,
CALYPSO shall be responsible for the payments of taxes, social security and
any
other payments required by state and federal law. Commencing on March
1st, 2007 CALYPSO
shall pay Executive the Compensation in twenty-four (24) equal Semi-Monthly
payments commencing on the commencement date as provided in section 4 hereof,
and paid every 15th and every
30th of the
month
(except the month of February which shall be paid on the 28th). CALYPSO
shall also make
the federal contributions on behalf of the Executive.
B. Bonus
Payment. Executive shall receive an additional compensation of
10,000 (Ten Thousand) restricted shares of CALYPSO every month commencing on
March 1st, 2007
for the duration of this Employment Agreement. The stock certificates will
be
delivered to the Executive every (90) ninety days. A true and correct copy
of
the Stock Grant is attached hereto as Exhibit “A”. The Performance Bonus
Agreement entered by CALYPSO and the Executive on February 16, 2007 shall remain
in effect and shall continue to be legal and binding as per the terms of the
Performance Bonus Agreement.
C. Additional
Compensation to Executive. In addition to the
compensation stated above, Executive shall receive 250,000 (Two Hundred
Thousand) stock options at a price of .03 (Three cents) per share of CALYPSO
per
year for the duration of this Employment Agreement that shall vest pursuant
to a
pro-rated vesting schedule attached a exhibit “A” and providing that he is not
terminated pursuant to the provisions of paragraph 14 (B).
D. Board
of Directors Compensation. If
during the term of this
Agreement the Executive participates as a member of the Board of Directors,
in
addition to the compensation stated above, Executive shall receive a
compensation for serving as a member of the Board of Directors of Calypso
Wireless, Inc. in the amount determined by the Board of Directors of CALYPSO
in
its absolute and sole discretion for all members of the Board. Said Board of
Directors Compensation shall be in addition to the base compensation and all
other forms of compensation described herein in 5(A)-(C).
6. Duties
and Restrictions.
6.1 Position. During
the term of this Agreement, the Executive shall serve as Chief Executive Officer
and President of CALYPSO and shall devote time, attention, energy and skills
to
the faithful and diligent performance of his duties, including, without
limitation, participating in the prosecution or defense of any litigation on
behalf of CALYPSO, which may include traveling as reasonably requested by
CALYPSO. Except as otherwise agreed between CALYPSO and
EXECUTIVE from time to time Employee agrees to devote 100% (One Hundred percent)
of his business time, attention, skill, and efforts to the performance of his
duties and responsibilities on behalf of CALYPSO which shall be assigned to
him
from time to time by the CALYPSO. “his business time” shall mean
Monday through Friday, excluding holidays as defined in 8(a) of this
Agreement. Executive shall also devote reasonable additional time
(such as travel) from time to time as requested by CALYPSO. Nothing
in this Agreement shall preclude Executive from devoting reasonable periods
required for:
(a) serving
as a director or member of a committee of any organization or corporation
involving no conflict of interest with the interests of Calypso;
(b) serving
as a consultant or an academic faculty in his area of expertise (in areas other
than in connection with the business of Calypso), to government, industrial,
and
academic panels where it does not conflict with the interests of Calypso;
and
(c) managing
his personal investments or engaging in any other noncompeting business;
provided that such activities do not materially interfere with the regular
performance of his duties and responsibilities under this Agreement. “The Business of Calypso”
for purposes of this
paragraph and this Agreement shall mean work in the area of
telecommunications.
6.2 Non-Disclosure. Executive
agrees that he will not disclose, now or at anytime in the future, any
information which is treated by Calypso as confidential, including, but not
limited to, information relating to the business of Calypso, any of Calypso's
products, customers, affairs, trade secrets, developments, methods of
distribution and any other information relating to Calypso which Calypso shall
deem proprietary, to any person, firm, company, corporation, association, or
any
other entity provided that disclosure of confidential information may be made
(i) to the extent that such information is generally available and known in
the
industry, through no action of Executive, or (ii) as required by
law.
6.3 Return
of Documents. Upon the expiration or termination of this Agreement,
Executive shall not remove from Calypso, without written consent of Calypso,
any
manuals, records, drawings, blueprints, data, tables, calculations, letters,
documents, or any copy or other reproduction thereof, or any other property
or
confidential information, of or pertaining to Calypso or any of its
subsidiaries. All of the foregoing shall be returned to Calypso on or
before the date of expiration or termination of employment.
6.4 No
Actions In Conflict of Calypso’s Interest. Executive recognizes
that the services to be performed by him pursuant to this Agreement are special,
unique and extraordinary. The parties confirm that it is reasonably
necessary for the protection of Calypso’s goodwill that Executive agree not to
act in any way that would be detrimental to Calypso and constitute a conflict
of
interest. Therefore, during the term of this Agreement, Executive
will not, directly or indirectly, except for the benefit of
Calypso:
(i)
solicit, cause or authorize, directly or indirectly, to be solicited for or
on
behalf of himself or third parties from parties who are or were customers of
Calypso (including its present and future subsidiaries and affiliates) at any
time during the term of this Agreement, any business similar to the business
transacted by Calypso with such customer. This shall not preclude
Executive from soliciting the services of a supplier or customer of Calypso
in
furtherance of a non-competing business as allowed under Paragraph 6(a) hereof;
or
(ii)
accept or cause or authorize, directly or indirectly, to be accepted for or
on
behalf of himself or third parties, business from any such customers of Calypso
(including its present and future subsidiaries and affiliates), except as
allowed in the last sentence of Paragraph 6.4 (i) above; or
(iii)
solicit, or cause or authorize, directly or indirectly, to be solicited for
employment for or on behalf of himself or third parties, any persons who was
at
any time during the term of this Agreement, employees of Calypso (including
its
present and future subsidiaries and affiliates); or
(iv)
employ or cause or authorize, directly or indirectly, to be employed for or
on
behalf of himself or third parties, any such employees of Calypso (including
its
present and future subsidiaries and affiliates); or
(v)
use
the trade names, trademarks, or trade dress of any of the products of Calypso
(including its present and future subsidiaries and affiliates); or any
substantially similar trade name, trademark or trade dress likely to cause,
or
having the effect of causing, confusion in the minds of manufacturers,
customers, suppliers and retail outlets and the public generally.
6.5
Special Board of Directors
Approval. The parties confirm and Agrees that it is
reasonably necessary for the protection of Calypso’s goodwill that Executive
agree not to enter without the Board Of Director’s approval into any: Licensing
Agreements, Executive Employment Agreements, Subscription Agreements, Stocks
Grants and Assignments for any Intellectuals Property of Calypso such as(all
of
which shall collectively be called the "Intellectual Property
Collateral"):
(a)
Any
and all copyright rights, copyright applications, copyright registrations,
copyright recordings and like protections in each work of authorship and
derivative work thereof, whether registered or unregistered or published
or
unpublished and whether or not the same also constitutes a trade secret,
held
pursuant to the laws of the United States, any State thereof or of any other
country or political subdivision thereof (collectively, the
"Copyrights").
(b)
Any
and all trade secrets, and any and all intellectual property rights in computer
software and computer software products;
(c)
Any
and all design rights which may be available to Calypso;
(d)
Any
and all letters patent, xxxxx patents, divisionals, patents of addition of
the
United States or any other country or political subdivision thereof, all
registrations and recordings thereof, and all patents to issues in such
applications of the United States or any other country or political subdivision
thereof, including, without limitation, registrations, recordings and
applications in the United States Patent and Trademark Office or in any similar
office or agency of the United States, any State thereof or any other country
or
political subdivision thereof, including, without limitation, improvements,
divisions, renewals, reissues, extensions, continuations, and
continuations-in-part or extensions thereof, including, without limitation,
U.S.
Patent 6,680,923 titled "Communication system and method''" (
xxxx://xxx.xxxxx.xxx search U.S. patent number 6,680,923), which covers the
seamless roaming of voice, video and data between Wide Area Network access
points, such as cellular towers (GSM/GPRS/EDGE, CDMA, WCDMA etc.) and
short-range Internet access points (such as Wi-Fi, Bluetooth, etc.) (all
such
patents and other rights collectively the “Patents”).
(e)
Any
and all trademarks, trade names, corporate names, company names, business
names,
trade styles, service marks, logos, other source or business identifiers,
prints
and labels on which any of the foregoing have appeared or appear, designs
and
general intangibles of like nature, all registrations and recordings thereof,
and any applications in connection therewith, including, without limitation,
registrations, recordings and applications in the United States Patent and
Trademark Office or in any similar office or agency of the United States,
any
State thereof or any other country or any political subdivision thereof,
and the
entire goodwill of the business of Debtor connected with and symbolized by
all
such trademarks (collectively, the "Trademarks");
(h)
All
amendments, continuations, renewals and extensions of any of the Intellectual
Property; and
6.6 Assignment
of Inventions. If at any time during the term of this
Agreement (either alone or with others) Executive makes, conceives, creates,
discovers, invents or reduces to practice any invention, modification,
discovery, design, development, improvement, process, software program, work
of
authorship, documentation, formula, data, technique, know-how, trade secret, or
intellectual property right whatsoever or any interest therein (whether or
not
patentable or registrable under copyright, trademark or similar statutes or
subject to analogous protection (each, an “Invention”) that (i) relates to the
Business of Company or any of its Affiliates or any customer of or supplier
to
Company or any of its Affiliates or any of the products or services being
developed, manufactured or sold by Calypso or any of its Affiliates or which
may
be used in relation therewith; or (ii) results from tasks assigned to Executive
by Calypso or any of its Affiliates; or (iii) results from the use of premises
or personal property (whether tangible or intangible) owned, leased or
contracted for by Calypso or any of its Affiliates, then all such Inventions
and
the benefits thereof are and shall immediately become the sole and absolute
property of Calypso and its assigns, as works made for hire or
otherwise. Executive hereby agrees that he shall promptly disclose to
Calypso (or any persons designated by it) each such
Invention. Executive hereby assigns all rights (including, but not
limited to, rights to any inventions, patentable subject matter, copyrights
and
trademarks) he may have or may acquire in the Inventions and all benefits and/or
rights resulting therefore to Calypso and its assigns without further
compensation and shall communicate, without cost or delay, and without
disclosing to others the same, all available information relating thereto (with
all necessary plans and models) to Calypso. Notwithstanding anything
contained in this Agreement or in this Paragraph, any Invention that does not
relate to the area of telecommunications shall remain the exclusive property
of
Executive and Calypso shall have no claim to such Invention, and under no
circumstances shall Executive have the duty or obligation to assign all rights
(including, but not limited to, rights to any inventions, patentable subject
matter, copyrights and trademarks) he may have or may acquire to such Inventions
and all benefits and/or rights resulting therefore.
7. Facilities. The
Executive shall be
furnished with such facilities and services as are adequate and sufficient
in
the reasonable opinion of the Executive for the performance of his duties,
this
shall include without limitation a private office, computer equipment,
administrative assistant, office furniture and similar
facilities.
8. Employee
Benefits. CALYPSO
agrees to provide
the Executive with the following benefits:
Vacation. The
Executive shall be
entitled each year to vacation time that totals four (4) weeks, during which
time his compensation shall be paid in full. All vacation time shall be taken
at
times and in duration convenient to CALYPSO.
Holidays. Executive
shall be
entitled to the following Holidays: New Year’s Day, Good
Friday, Memorial Day, 4th of July, Labor Day, Thanksgiving, the Friday after
Thanksgiving, Christmas Eve, Christmas Day, and one Floating
Holiday.
Employee
Benefits. During the Term
of this Agreement, CALYPSO shall provide the Executive with any other fringe
benefits generally available to employees of CALYPSO, such as medical, dental
–
health plan, retirement plan.
9. Development
and Other Activity Expenses. CALYPSO recognizes that the
Executive will have to incur certain out-of-pocket expenses, including, but
not
limited to, travel expenses, relating to his services and CALYPSO’s business,
and CALYPSO agrees to promptly reimburse the Executive for all reasonable
expenses necessarily incurred by him in the performance of his duties to CALYPSO
upon presentation of a receipt, voucher, copy of credit card statement or
documentation indicating the amount and business purposes of any such
expenses. These expenses include, but are not limited to, travel,
meals, entertainment, etc.
10. Sick
Leave. The
Executive shall be entitled to five
(5) days sick leave during each calendar year, which amounts shall not be
cumulative.
11. Office
and Support
Staff. During
the term of this Agreement,
Executive shall be entitled to an office of a size and with furnishings and
other appointments, and to secretarial and other assistants, at least equal
to
those provided to other management level employees of CALYPSO and as further
addressed in section 7 herein.
12. Termination.
Grounds. This
agreement shall terminate in the
event of the Executive’s death. In
the case of the Executive’s
Disability, CALYPSO may elect to terminate the Executive as a result of such
Disability provided such Disability prevents the Executive from performing
his
duties as defined in Section 13.A.
Notice
of Termination. Any
termination by CALYPSO shall be
communicated by Notice of Termination to the Executive and vice
versa. For
purposes of this Agreement, a
“Notice of Termination” means a written notice which (i) indicates the specific
termination provision in this Agreement relied upon and (ii) the date of
termination in accordance with (c) below.
Date
of Termination. “Date
of Termination” means (i) if
CALYPSO intends to treat the termination as a termination based upon the
Executive’s Disability, the Executive’s employment with CALYPSO shall terminate
effective on the fifth day after receipt of Notice of Termination by CALYPSO
or
on the date mentioned on the Notice of Termination; (ii) if the Executive’s
employment is terminated by reason of Death, the Date of Termination shall
be
the date of death of the Executive; (iii) if the Executive’s employment is
terminated for any other reason, the Date of Termination shall be thirty (30)
days from the date of the Notice of Termination. In
addition, the Executive shall be
deemed to have terminated his employment by Voluntary Termination if the
Executive voluntary refuses to provide substantially all of the services
described in Section 6 hereof for a period greater than one (1) consecutive
weeks. In such event, the Date of Termination shall be the last day
substantially all of the services described in Section 6 hereof were
performed;
13. Definitions. For
the purposes of this Agreement, the
following terms shall have the following definitions:
A. “Disability”
means
a complete physical
or mental inability, confirmed by an independent licensed physician, to perform
substantially all of the services described in Section 3 hereof that continues
for a period of 30 consecutive days during any six month
period.
B. “Voluntary
Termination” means the
Executive’s voluntary termination of his employment. Voluntary refusal to
perform services shall not include taking a vacation in accordance with Section
8.(A.) hereof, or the Executive’s failure to perform services on account of his
illness or the illness of a member of his immediate family, provided such
illness is adequately substantiated at the reasonable request of CALYPSO, or
any
other absence from service with written consent of the Board of
Directors.
14. Compensation
Upon
Termination – Obligations of CALYPSO Upon Termination.
A. If
the Executive shall suffer a death
or a termination hereunder based upon Executive’s Disability, as defined under
Section 13, CALYPSO shall pay the Executive the following:
(i). he
or Executive estate shall receive
ninety (90) days pay, plus pro-rated stock options as enumerated
herein;
B. If
the Executive shall suffer a Termination based upon any of the following
circumstances, he shall receive no compensation, separation pay, stock options
or any employment benefits referenced in this or any other
agreement:
(i)
He
commits a felony, or any misdemeanor criminal offense involving a crime of
dishonesty, moral turpitude or violence;
(ii)
He
abuses alcohol or uses illegal narcotics;
(iii)
He
commits gross negligence in the performance of his duties;
(iv)
He
breaches his fiduciary obligations as Executive Officer;
C. If
the
Executive is terminated for any other reason, (other than death, disability
or
reasons enumerated in B (i - iv), he shall receive ninety (90) days pay, plus
pro-rated stock options as enumerated herein.
15. Change
in
Control. In
the event of a Change in Control, as
defined below, the Executive or CALYPSO, shall have the option at any time
within 30 days after the Change in Control occurs to terminate Executive’s
employment.
A. Notice. Written
notice that a “Change in
Control” has occurred must be delivered by CALYPSO within five (5) days after
such “Change in Control” occurs. Proper
notice to effectuate a
termination upon Change in Control shall be the date the Executive or CALYPSO
receive written notice which (i) indicates that this Employment Agreement is
being terminated on the basis of Change in Control, and, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
such termination.
B.
Definitions – Change in
Control.
“Acquiring
Person” means that a Person, considered alone or together with all Control
Affiliates and Associates of that Person, is or becomes directly or indirectly
the beneficial owner of securities representing at least fifty-one (51) percent
of CALYPSO’s then outstanding securities entitled to vote generally in the
election of the Board.
“Affiliate”
means any “subsidiary” or “parent” corporation (within the meaning of Section
424 of the Code) of CALYPSO.
“Board”
means
the Board of Directors of
CALYPSO.
“Control
Affiliate” with respect to any Person, means an Affiliate as defined in Rule
12B-2 of the General Rules and Regulations under the Exchange Act, as amended
as
of January 1, 1990.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended and as in effect from
time to time.
“Person”
means
any human being, firm,
corporation, partnership, or other entity. Person
also includes any human being,
firm, corporation, partnership, or other entity as defined in Section 13(d)(3)
and 14 (d)(2) of the Exchange Act, as amended as of January 1, 1990. The
term Person does not include
CALYPSO or any related entity within the meaning of Code Section 1563(a), 414(b)
or 414(c), and the term Person does not include any employee-benefit plan
maintained by CALYPSO or by any Related Entity, and any Person or entity
organized, appointed, or established by CALYPSO or by any subsidiary for or
pursuant to the terms of any such employee-benefit plan, unless the Board
determines that such an employee-benefit plan, or such Person or entity is
a
Person
“Change
in Control”. For
purposes of this Agreement, a
“Change in Control” shall mean any of the following events:
(i)
In
the event a Person is or becomes an Acquiring Person;
(ii)
In
the event a Person enters into a agreement that would result in that Person
becoming an Acquiring Person;
(iii)
In
the event that CALYPSO enters into any agreement with Person that involves
the
transfer of at least fifty-one (51) percent of CALYPSO’s total assets on a
consolidated basis, as reported in CALYPSO’s consolidated financial statements
filed with the Securities and Exchange Commission, or, if CALYPSO is not
required to file consolidated financial statements with the Securities and
Exchange Commission, similar financial statements;
(iv)
In
the event that CALYPSO enters into an agreement to merge or consolidate CALYPSO
or to effect a statutory share exchange with another Person, where the Person
and its subsidiaries and affiliates own at least fifty-one (51) percent of
the
company, if CALYPSO is not intended to be the surviving or resulting entity
after the merger, consolidation, or statutory share exchange;
(v)
In
the event the individuals who, as of the date of this Agreement, are members
of
the Board, cease for any reason to constitute a majority of the members of
the
Board;
(vi)
A
complete liquidation or dissolution of CALYPSO;
Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur solely because
any Person acquired Beneficial Ownership as defined in the Exchange Act of
more
than the permitted amount of the then outstanding securities as a result of
the
acquisition of securities by CALYPSO which by reducing the number of securities
then outstanding, increased the proportional number of shares Beneficially
Owned
by the subject Person(s) provided that if a Change in Control would occur as
a
result of the acquisition of securities by CALYPSO, and after such share
acquisition by CALYPSO, the Person becomes the Beneficial Owner of any
additional securities which increases the percentage of the then outstanding
securities Beneficially Owned by the subject Person, then a Change in Control
shall occur.
C. Compensation
Upon
Termination Based Upon Change in Control – Payment of Excise
Taxes. If
a termination occurs upon a Change
in Control as defined above, and the change control takes place during the
first
twelve months of this agreement then the Company shall pay the Executive those
same amounts at the same time as indicated in Section (14).
16. Notices. All
notices required to be given under
the Agreement shall be in writing, sent certified mail, return receipt
requested, postage prepaid, to the following addresses or at other addresses
as
communicated to the other party from time to time:
|
|
(A)
|
If
to the Executive, then
to:
|
Xxxxxxxx
X. Xxxxxxx
0000
Xxxxxxx Xxx #000
Xxxxxxxx,
XX 00000
|
|
(B)
|
If
to CALYPSO, then
to:
|
Calypso
Wireless, Inc.
0000
XX
000 Xxxxxx, Xxxxx 000
Xxxxx,
Xxxxxxx 00000
Attention: Board
Of Directors
17. Governing
Law and
Venue. The
Agreement shall be governed by and
construed in accordance with the laws of the State of Florida. Venue
for any action or suit brought
hereunder or in connection herewith, or relating hereto, shall lie with the
Courts in and for Miami-Dade County,
Florida.
18. Waiver. The
waiver by either party hereto of
any breach of any provision of the Agreement shall not operate or be construed
as a waiver of any subsequent breach by either party hereto.
19. Binding
Effect and
Assignment. The
Executive acknowledges that his
services are unique and personal. Accordingly,
the Executive may not
assign his rights or delegate his duties or obligations under this
Agreement. The
Executive’s rights and obligations
under this Agreement shall inure to the benefit of and shall be binding upon
the
Executive’s heirs, personal representatives and successors and
assigns. The
Agreement shall be binding upon
CALYPSO’s successors and/or assigns.
20. Attorneys
Fees. In
the event either party
files any action or suit regarding any of the terms of this Agreement or in
relation to, or involving, Executive’s employment by CALYPSO, then the
prevailing party shall be entitled to recover upon final judgment on the merits
its or his reasonable attorney's fees and court costs (including, without
limitation, appellate attorney’s fees and court costs) incurred in bringing such
action and all costs or expenses, including, without limitation, attorney’s fees
and court costs, incurred in collecting any judgment .
21. Indemnification
and Hold Harmless Provision. CALYPSO hereby agrees to indemnify
Executive, his heirs, successors, and assigns and hold Executive harmless from
any and all liabilities, obligations, expenses, fees, and costs (including
attorney’s and professional fees) of every kind, nature, and description, which
now exist or may exist now or hereafter with respect to Executive’s activities,
duties, or responsibilities as Executive Officer of CALYPSO, or any subsequent
position, or in relation to any of CALYPSO’s subsidiaries, affiliates, or
related entities. Such indemnification and hold harmless benefits
shall be payable by CALYPSO whenever incurred by Executive so long as such
costs
or expenses relate to or arise from such activities, duties, and
responsibilities of Executive and shall not be in any way be dependent upon
Executive’s employment with CALYPSO. Calypso shall be
required to purchase adequate directors/officers insurance, or other adequate
insurance in an amount not less than $5 million insuring Calypso’s obligation as
set forth in this Section 21.
In
the event Executive is made a party
to a lawsuit or is involved in a legal proceeding in any manner (including
by
subpoena or as a witness), which relates directly or indirectly to Calypso
or
the Executive’s performance of his duties under this Agreement, in which
Executive in his sole discretion believes that it is in his best interest to
retain independent legal and other professional counsel, CALYPSO shall provide
any and all necessary means to the independent legal counsel; including but
not
limited to the payment of retainer’s fees, professional fees, court fees,
etc..
22.
NON-COMPETE
CLAUSE: For a
period of twelve (12) months after the conclusion of his employment with
Calypso, the Executive shall not engage in any employment or work for any
company or third party, including consulting engagements, that is directly
or
indirectly involved in competition with Calypso Wireless or any of its
subsidiaries or successors in interest. This shall include but not be limited
to
any business entity involved in the development, servicing or manufacture of
wireless communications of any type, including but not limited to cellular
telephones. In addition, the Executive shall not directly or indirectly solicit
any Calypso employees, contractors, or vendors to gain employment or business
affiliation with any business that competes directly or indirectly with
Calypso.
23. Entire
Understanding;
Amendment. The
Agreement contains the entire
understanding of the parties relating to the employment of the Executive by
CALYPSO and supersedes any and all previous agreements among the
parties. It
may not be changed orally but only
by an agreement in writing signed by the party or parties against whom
enforcement of any waiver, change, modification, extension or discharge is
sought.
IN
WITNESS WHEREOF, the parties hereto
have hereunto set their hands and seals the day and year first above
written.
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EXECUTIVE:
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Xxxxxxxx
X. Xxxxxxx
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CALYPSO
WIRELESS, INC.,
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A
DELAWARE CORPORATION
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| /s/ Xxxxxxxx X. Xxxxxxx |
/s/
Xxxxxxx Xxxxxx
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Xxxxxxxx
X. Xxxxxxx
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Xxxxxxx Xxxxxx
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Chairman
of the Board
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CALYPSO
WIRELESS, INC.
THIS EXECUTIVE EMPLOYMENT AGREEMENT
("Agreement"), effective as of May 14, 2007, by and between CALYPSO
WIRELESS, INC., a Delaware corporation (“CALYPSO”),
and XXXXXX X. XXXXX (the “Executive”).
WHEREAS,
CALYPSO has
experienced considerable success in the business of designing, engineering,
researching and developing wireless technology, cellular telephones and
other
equipment; and
WHEREAS,
CALYPSO
wishes to employ Executive in the capacity of CHIEF FINANCIAL OFFICER for
a
minimum period of One (1) year; and
WHEREAS,
the Executive
wishes to become an employee of CALYPSO as CHIEF FINANCIAL OFFICER;
and
WHEREAS,
the parties
believe it to be in their mutual interest to set forth in writing the terms
and
conditions of Executive’s employment by CALYPSO; and
WHEREAS,
the Agreement
shall govern the employment relationship between the parties from and after
the
effective date hereof and it supersedes all previous employment agreements
between them, except as defined below, either written or oral, heretofore
made.
NOW,
THEREFORE, in
consideration of the foregoing, the parties agree as follows:
1. Recitals. The
above recitals are
true and correct and fully incorporated herein and form an integral part
of this
Agreement.
2. Intent
and Scope of Agreement. The purpose of this agreement is for
Calypso to execute an employment agreement that allows it to procure the
services of the Executive as its CHIEF FINANCIAL OFFICER.
3. Employment. CALYPSO
hereby employs the
Executive to serve as its CHIEF FINANCIAL OFFICER, and the Executive hereby
accepts such employment with CALYPSO upon the terms and conditions hereinafter
set forth. The
duties, responsibilities and requisites of Executive shall be at a minimum
as
set forth in the attached job description, but shall remain commensurate
with
such title and shall not diminish in quality from that currently experienced
by
Executive.
4. Term. The
term (which, for
purposes of the Agreement, shall include any extensions) of the Agreement
shall
commence as of the date of the signing of this Agreement, and, except as
otherwise provided in Section 12 hereof, shall terminate one year from
such
commencement date (the “Initial Term”), and shall include all additional
periods, as extended. At the expiration
date,
and each year thereafter, this Agreement shall be renewed upon mutual consent
and agreed upon terms, of CALYPSO and Executive for an additional period
to be
negotiated by the parties.
5. Compensation.
A. Base
Compensation. For
all services rendered
during the term of this Agreement by the Executive to CALYPSO, the Executive
shall receive base compensation of $ 120,000.00 per annum (One Hundred
Twenty
Thousand US Dollars) (the “Base Compensation”). CALYPSO shall pay Executive the
Base Compensation in twenty-four (24) equal Semi-Monthly payments commencing
on
the commencement date as provided in section 4 hereof, and paid every 15th and
every 30th of
the month
(except the month of February which shall be paid on the 28th). In
addition to
the Compensation, CALYPSO shall be responsible for the payments of taxes,
social
security and any other payments required by state and federal law.
B. Bonus
Payment. Executive shall receive an additional compensation of
250,000 (Two Hundred Fifty Thousand) S-8 Free Trading shares of CALYPSO
as a
signing bonus. The stock certificate will be delivered to the Executive
after
six months of employments and after Calypso is current with the SEC filing
and
can file the S-8.
C. Additional
Compensation to Executive. In
addition to the
compensation stated above, Executive shall receive 100,000 (One Hundred
Thousand) rule-144 shares of CALYPSO per year of employment and providing
that
he is not terminated pursuant to the provisions of paragraph 14
(B).
D. Board
of Directors Compensation. If
during the term of this
Agreement the Executive participates as a member of the Board of Directors,
in
addition to the compensation stated above, Executive shall receive a
compensation for serving as a member of the Board of Directors of Calypso
Wireless, Inc. in the amount determined by the Board of Directors of CALYPSO
in
its absolute and sole discretion for all members of the Board. Said Board
of
Directors Compensation shall be in addition to the base compensation and
all
other forms of compensation described herein in 5(A)-(C).
6.
Duties and Restrictions.
6.1 Position. During
the term of this
Agreement, the Executive shall serve as CHIEF FINANCIAL OFFICER and shall
devote
time, attention, energy and skills to the faithful and diligent performance
of
his duties, including, without limitation, participating in the prosecution
or
defense of any litigation on behalf of CALYPSO, which may include traveling
as
reasonably requested by CALYPSO. Except as otherwise
agreed
between CALYPSO and EXECUTIVE from time to time Employee agrees to devote
100%
of his business time, attention, skill, and efforts to the performance
of his
duties and responsibilities on behalf of CALYPSO which shall be assigned
to him
from time to time by the CALYPSO. The CHIEF FINANCIAL
OFFICER shall work at least twenty days per month and devote at least forty
hours per week to Calypso and shall be responsible for performing all of
the
functions expected of a CHIEF FINANCIAL OFFICER of a publicly traded
company. Nothing in
this Agreement shall preclude Executive from devoting reasonable periods
required for:
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(a)
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serving
as a director or member of a committee of any organization or
corporation
involving no conflict of interest with the interests of
Calypso;
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(b)
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serving
as a consultant or an academic faculty in his area of expertise
(in areas
other than in connection with the business of Calypso), to government,
industrial, and academic panels where it does not conflict with
the
interests of Calypso; and
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(c)
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managing
his personal investments or engaging in any other noncompeting
business;
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provided
that such activities do
not materially interfere with the regular performance of his
duties and
responsibilities under this Agreement. “The
Business of Calypso” for
purposes of this paragraph and this Agreement shall mean work
in the area
of telecommunications.
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6.2 Non-Disclosure. Executive
agrees that he
will not disclose, now or at anytime in the future, any information
which is
treated by Calypso as confidential, including, but not limited to, information
relating to the business of Calypso, any of Calypso's products, customers,
affairs, trade secrets, developments, methods of distribution and any other
information relating to Calypso which Calypso shall deem proprietary, to
any
person, firm, company, corporation, association, or any other entity provided
that disclosure of confidential information may be made (i) to the extent
that
such information is generally available and known in the industry, through
no
action of Executive, or (ii) as required by law.
6.3 Return
of Documents. Upon the expiration or termination of this Agreement,
Executive shall not remove from Calypso, without written consent of Calypso,
any
manuals, records, drawings, blueprints, data, tables, calculations, letters,
documents, or any copy or other reproduction thereof, or any other property
or
confidential information, of or pertaining to Calypso or any of its
subsidiaries. All of
the foregoing shall be returned to Calypso on or before the date of expiration
or termination of employment.
6.4 No
Actions In Conflict of Calypso’s Interest. Executive
recognizes that
the services to be performed by him pursuant to this Agreement are special,
unique and extraordinary. The parties confirm
that
it is reasonably necessary for the protection of Calypso’s goodwill that
Executive agree not to act in any way that would be detrimental to Calypso
and
constitute a conflict of interest. Therefore, during
the term
of this Agreement, Executive will not, directly or indirectly, except for
the
benefit of Calypso:
(i) solicit,
cause or authorize, directly or indirectly, to be solicited for or on behalf
of
himself or third parties from parties who are or were customers of Calypso
(including its present and future subsidiaries and affiliates) at any time
during the term of this Agreement, any business similar to the business
transacted by Calypso with such customer. This shall not preclude
Executive from soliciting the services of a supplier or customer of Calypso
in
furtherance of a noncompeting business as allowed under Paragraph 6(a)
hereof;
or
(ii) accept
or cause or authorize, directly
or indirectly, to be accepted for or on behalf of himself or third parties,
business from any such customers of Calypso (including its present and
future
subsidiaries and affiliates), except as allowed in the last sentence of
Paragraph 6.4 (i) above; or
(iii) solicit,
or cause or authorize, directly or indirectly, to be solicited for employment
for or on behalf of himself or third parties, any persons who was at any
time
during the term of this Agreement, employees of Calypso (including its
present
and future subsidiaries and affiliates); or
(iv) employ
or cause or authorize, directly or indirectly, to be employed for or on
behalf
of himself or third parties, any such employees of Calypso (including its
present and future subsidiaries and affiliates); or
(v) use
the trade names, trademarks, or trade dress of any of the products of Calypso
(including its present and future subsidiaries and affiliates); or any
substantially similar trade name, trademark or trade dress likely to cause,
or
having the effect of causing, confusion in the minds of manufacturers,
customers, suppliers and retail outlets and the public generally.
6.5 Special
Board of Directors Approval. The
parties confirm and
Agrees that it is reasonably necessary for the protection of Calypso’s goodwill
that Executive agree not to enter without the Board Of Director’s approval into
any: Licensing Agreements, Executive Employment Agreements, Subscription
Agreements, Stocks Grants and Assignments for any Intellectuals Property
of
Calypso such as(all
of which shall collectively be called the "Intellectual Property
Collateral"):
(a)
Any
and all copyright rights, copyright applications, copyright registrations,
copyright recordings and like protections in each work of authorship
and
derivative work thereof, whether registered or unregistered or published
or
unpublished and whether or not the same also constitutes a trade secret,
held
pursuant to the laws of the United States, any State thereof or of any
other
country or political subdivision thereof (collectively, the
"Copyrights").
(b)
Any
and all trade secrets, and any and all intellectual property rights in
computer
software and computer software products;
(c)
Any
and all design rights which may be available to Calypso;
(d)
Any
and all letters patent, xxxxx patents, divisionals, patents of addition
of the
United States or any other country or political subdivision thereof,
all
registrations and recordings thereof, and all patents to issues in such
applications of the United States or any other country or political subdivision
thereof, including, without limitation, registrations, recordings and
applications in the United States Patent and Trademark Office or in any
similar
office or agency of the United States, any State thereof or any other
country or
political subdivision thereof, including, without limitation, improvements,
divisions, renewals, reissues, extensions, continuations, and
continuations-in-part or extensions thereof, including, without limitation,
U.S.
Patent 6,680,923 titled "Communication system and method''" (
xxxx://xxx.xxxxx.xxx search U.S. patent number 6,680,923), which covers
the
seamless roaming of voice, video and data between Wide Area Network access
points, such as cellular towers (GSM/GPRS/EDGE, CDMA, WCDMA etc.) and
short-range Internet access points (such as Wi-Fi, Bluetooth, etc.) (all
such
patents and other rights collectively the “Patents”).
(e)
Any
and all trademarks, trade names, corporate names, company names, business
names,
trade styles, service marks, logos, other source or business identifiers,
prints
and labels on which any of the foregoing have appeared or appear, designs
and
general intangibles of like nature, all registrations and recordings
thereof,
and any applications in connection therewith, including, without limitation,
registrations, recordings and applications in the United States Patent
and
Trademark Office or in any similar office or agency of the United States,
any
State thereof or any other country or any political subdivision thereof,
and the
entire goodwill of the business of Debtor connected with and symbolized
by all
such trademarks (collectively, the "Trademarks");
(h)
All
amendments, continuations, renewals and extensions of any of the Intellectual
Property; and
6.6 Assignment
of
Inventions. If
at any time during the term of this
Agreement (either alone or with others) Executive makes, conceives, creates,
discovers, invents or reduces to practice any invention, modification,
discovery, design, development, improvement, process, software program,
work of
authorship, documentation, formula, data, technique, know-how, trade secret,
or
intellectual property right whatsoever or any interest therein (whether
or not
patentable or registrable under copyright, trademark or similar statutes
or
subject to analogous protection (each, an “Invention”) that (i) relates to the
Business of Company or any of its Affiliates or any customer of or supplier
to
Company or any of its Affiliates or any of the products or services being
developed, manufactured or sold by Calypso or any of its Affiliates or
which may
be used in relation therewith; or (ii) results from tasks assigned to Executive
by Calypso or any of its Affiliates; or (iii) results from the use of premises
or personal property (whether tangible or intangible) owned, leased or
contracted for by Calypso or any of its Affiliates, then all such Inventions
and
the benefits thereof are and shall immediately become the sole and absolute
property of Calypso and its assigns, as works made for hire or
otherwise. Executive
hereby agrees that he shall promptly disclose to Calypso (or any persons
designated by it) each such Invention. Executive hereby
assigns all rights
(including, but not limited to, rights to any inventions, patentable subject
matter, copyrights and trademarks) he may have or may acquire in the Inventions
and all benefits and/or rights resulting therefore to Calypso and its assigns
without further compensation and shall communicate, without cost or delay,
and
without disclosing to others the same, all available information relating
thereto (with all necessary plans and models) to Calypso. Notwithstanding
anything contained in
this Agreement or in this Paragraph, any Invention that does not relate
to
the area of
telecommunications shall remain the exclusive property of Executive and
Calypso
shall have no claim to such Invention, and under no circumstances shall
Executive have the duty or obligation to assign all rights (including,
but not limited to, rights to any inventions, patentable subject matter,
copyrights and trademarks) he may
have or may acquire to such Inventions and all benefits and/or rights resulting
therefore.
7. Facilities. The
Executive shall be
furnished with such facilities and services as are adequate and sufficient
in
the reasonable opinion of the Executive for the performance of his duties,
this shall include without limitation a private office, computer equipment,
administrative assistant, office furniture and similar facilities..
8. Employee
Benefits. CALYPSO
agrees to provide
the Executive with the following benefits:
A. Vacation. The
Executive shall be
entitled each year to vacation time that totals two (2) weeks, during which
time
his compensation shall be paid in full. All vacation time shall be taken at
times and in duration convenient to CALYPSO. The vacation time
provided
herein shall not be cumulative and not carried forward to any subsequent
year(s)
by the Executive.
B. Holidays. Executive
shall be
entitled to the following Holidays: New Year’s Day, Good
Friday, Memorial Day, 4th of July, Labor Day, Thanksgiving, the Friday
after
Thanksgiving, Christmas Eve, Christmas Day, and one Floating
Holiday.
C. Employee
Benefits. During the
Term of this Agreement, CALYPSO shall provide the Executive with any other
fringe benefits generally available to employees of CALYPSO, such as medical
–
health plan.
9. Development
and Other Activity Expenses. CALYPSO
recognizes that
the Executive will have to incur certain out-of-pocket expenses, including,
but
not limited to, travel expenses, relating to his services and CALYPSO’s
business, and CALYPSO agrees to promptly reimburse the Executive for all
reasonable expenses necessarily incurred by him in the performance of his
duties
to CALYPSO upon presentation of a receipt, voucher, copy of credit card
statement or documentation indicating the amount and business purposes
of any
such expenses. These
expenses include, but are not limited to, travel, meals, entertainment,
etc.
10. Sick
Leave. The
Executive shall be
entitled to five (5) days sick leave during each calendar year, which amounts
shall not be cumulative.
11. Office
and Support Staff. During
the term of this
Agreement, Executive shall be entitled to an office of a size and with
furnishings and other appointments, and to secretarial and other assistants,
at
least equal to those provided to other management level employees of CALYPSO
and
as further addressed in section 7 herein.
12. Termination.
A. Grounds. This
agreement is at will
and may be terminated by either party at any time.
B.
Notice
of
Termination. Any termination by CALYPSO shall be communicated by Notice
of
Termination to the Executive and vice versa. For purposes of
this
Agreement, a “Notice of Termination” means a written notice which indicates the
date of termination.
13. Definitions. For
the purposes of this
Agreement, the following terms shall have the following
definitions:
A. “Disability”
means a complete physical or mental inability, confirmed by an independent
licensed physician, to perform substantially all of the services described
in
Section 3 hereof that continues for a period of 30 consecutive days during
any
six month period.
B. “Voluntary
Termination” means the Executive’s voluntary termination of his employment.
Voluntary refusal to perform services shall not include taking a vacation
in
accordance with Section 8.(A.) hereof, or the Executive’s failure to perform
services on account of his illness or the illness of a member of his immediate
family, provided such illness is adequately substantiated at the reasonable
request of CALYPSO, or any other absence from service with written consent
of
the Board of Directors.
14. Compensation
Upon Termination – Obligations of CALYPSO Upon
Termination.
A. If
the Executive shall suffer a death or a termination hereunder based upon
Executive’s Disability, as defined under Section 13, CALYPSO shall pay the
Executive the following:
(i). the
Executive’s full Base Compensation up to the Date of Termination at the rate in
effect on the Date of Termination;
B. If
the Executive shall suffer a Termination based upon any of the following
circumstances, he shall receive no compensation, separation pay, stock
options
or any employment benefits referenced in this or any other
agreement:
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1.
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He
commits a felony, or any misdemeanor criminal offense involving
a crime of
dishonesty, moral turpitude or
violence;
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2.
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He
abuses alcohol or uses illegal
narcotics;
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3.
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Engages
in insubordination;
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4.
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He
commits gross negligence in the performance of his
duties;
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5.
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He
breaches his fiduciary obligations as CHIEF FINANCIAL
OFFICER;
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C If
the Executive is terminated for any
other reason, he shall receive sixty (60) days pay, plus pro-rated stock
options
as enumerated herein.
15. Change
in Control. In
the event of a Change
in Control, as defined below, the Executive or CALYPSO, shall have the
option at
any time within 30 days after the Change in Control occurs to terminate
Executive’s employment.
A. Notice. Written
notice that a
“Change in Control” has occurred must be delivered by CALYPSO within five (5)
days after such “Change in Control” occurs. Proper notice to
effectuate a termination upon Change in Control shall be the date the Executive
or CALYPSO receive written notice which (i) indicates that this Employment
Agreement is being terminated on the basis of Change in Control, and, (ii)
sets
forth in reasonable detail the facts and circumstances claimed to provide
a
basis for such termination.
B. Definitions
– Change in Control.
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(i)
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“Acquiring
Person” means that a
Person, considered alone or together with all Control Affiliates
and
Associates of that Person, is or becomes directly or indirectly
the
beneficial owner of securities representing at least fifty-one
(51)
percent of CALYPSO’s then outstanding securities entitled to vote
generally in the election of the
Board.
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(ii)
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“Affiliate”
means
any
“subsidiary” or “parent” corporation (within the meaning of Section 424 of
the Code) of CALYPSO.
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(iii)
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“Board”
means
the Board of
Directors of CALYPSO.
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(iv)
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“Control
Affiliate” with respect
to any Person, means an Affiliate as defined in Rule 12B-2 of
the General
Rules and Regulations under the Exchange Act, as amended as of
January 1,
1990.
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(v)
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“Exchange
Act” means the
Securities Exchange Act of 1934, as amended and as in effect
from time to
time.
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(vi)
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“Person”
means
any human being,
firm, corporation, partnership, or other entity. Person
also includes any human
being, firm, corporation, partnership, or other entity as defined
in
Section 13(d)(3) and 14 (d)(2) of the Exchange Act, as amended
as of
January 1, 1990. The
term Person does not include
CALYPSO or any related entity within the meaning of Code Section
1563(a),
414(b) or 414(c), and the term Person does not include any
employee-benefit plan maintained by CALYPSO or by any Related
Entity, and
any Person or entity organized, appointed, or established by
CALYPSO or by
any subsidiary for or pursuant to the terms of any such employee-benefit
plan, unless the Board determines that such an employee-benefit
plan, or
such Person or entity is a
Person
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(vii)
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“Change
in Control”. For
purposes of this Agreement, a
“Change in Control” shall mean any of the following
events:
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(a) In
the event a Person is or becomes an Acquiring Person;
(b) In
the event a Person enters into a agreement that would result in that Person
becoming an Acquiring Person;
(c) In
the event that CALYPSO enters into any agreement with Person that involves
the
transfer of at least fifty-one (51) percent of CALYPSO’s total assets on a
consolidated basis, as reported in CALYPSO’s consolidated financial statements
filed with the Securities and Exchange Commission, or, if CALYPSO is not
required to file consolidated financial statements with the Securities
and
Exchange Commission, similar financial statements;
(d) In
the event that CALYPSO enters into an agreement to merge or consolidate
CALYPSO
or to effect a statutory share exchange with another Person, where the
Person
and its subsidiaries and affiliates own at least fifty-one (51) percent
of the
company, if CALYPSO is not intended to be the surviving or resulting entity
after the merger, consolidation, or statutory share exchange;
(e) A
complete liquidation or dissolution of CALYPSO;
(f) Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur solely
because
any Person acquired Beneficial Ownership as defined in the Exchange Act
of more
than the permitted amount of the then outstanding securities as a result
of the
acquisition of securities by CALYPSO which by reducing the number of securities
then outstanding, increased the proportional number of shares Beneficially
Owned
by the subject Person(s) provided that if a Change in Control would occur
as a
result of the acquisition of securities by CALYPSO, and after such share
acquisition by CALYPSO, the Person becomes the Beneficial Owner of any
additional securities which increases the percentage of the then outstanding
securities Beneficially Owned by the subject Person, then a Change in Control
shall occur.
C. Compensation
Upon Termination Based Upon Change in Control – Payment of Excise
Taxes. If
a termination occurs
upon a Change in Control as defined above, and the change control takes
place
during the first twelve months of this agreement then the Company shall
pay the
Executive those same amounts at the same time as indicated in Section
(14).
16. Notices. All
notices required to be
given under the Agreement shall be in writing, sent certified mail, return
receipt requested, postage prepaid, to the following addresses:
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(A)
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If
to the Executive, then
to:
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XXXXXX
X.
XXXXX
8130
Glades Road, PMB 409
Xxxx
Xxxxx, XX. 00000
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(B)
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If
to CALYPSO, then to:
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Calypso
Wireless, Inc.
0000
XX
00 Xxxxxx, Xxxxx 000
Xxxxx,
XX 00000
Attention: President
&
CEO
17. Governing
Law and Venue. The
Agreement shall be
governed by and construed in accordance with the laws of the State of
Florida. Venue for
any action or suit brought hereunder or in connection herewith, or relating
hereto, shall lie with the Courts in and for Miami-Dade County,
Florida.
18. Waiver. The
waiver by either party
hereto of any breach of any provision of the Agreement shall not operate
or be
construed as a waiver of any subsequent breach by either party
hereto.
19. Binding
Effect and Assignment. The
Executive acknowledges
that his services are unique and personal. Accordingly, the
Executive
may not assign his rights or delegate his duties or obligations under this
Agreement. The
Executive’s rights and obligations under this Agreement shall inure to the
benefit of and shall be binding upon the Executive’s heirs, personal
representatives and successors and assigns. The Agreement shall
be
binding upon CALYPSO’s successors and/or assigns.
20. Attorneys
Fees. In
the event either party
files any action or suit regarding any of the terms of this Agreement or
in
relation to, or involving, Executive’s employment by CALYPSO, then the
prevailing party shall be entitled to recover upon final judgment on the
merits
its or his reasonable attorney's fees and court costs (including, without
limitation, appellate attorney’s fees and court costs) incurred in bringing such
action and all costs or expenses, including, without limitation, attorney’s fees
and court costs, incurred in collecting any judgment .
21. Indemnification
and Hold Harmless Provision. CALYPSO hereby agrees to indemnify
Executive, his heirs, successors, and assigns and hold Executive harmless
from
any and all liabilities, obligations, expenses, fees, and costs (including
attorney’s and professional fees) of every kind, nature, and description, which
now exist or may exist now or hereafter with respect to Executive’s activities,
duties, or responsibilities as CHIEF FINANCIAL OFFICER of CALYPSO, or any
subsequent position, or in relation to any of CALYPSO’s subsidiaries,
affiliates, or related entities. Such indemnification and hold harmless
benefits shall be payable by CALYPSO whenever incurred by Executive so
long as
such costs or expenses relate to or arise from such activities, duties,
and
responsibilities of Executive and shall not be in any way be dependent
upon
Executive’s employment with CALYPSO. Calypso shall be required to purchase
adequate directors/officers insurance, or other adequate insurance insuring
Calypso’s obligation as set forth in this Section 21.
In
the event Executive is made a party
to a lawsuit or is involved in a legal proceeding in any manner (including
by
subpoena or as a witness), which relates directly or indirectly to Calypso
or
the Executive’s performance of his duties under this Agreement, in which
Executive in his sole discretion believes that it is in his best interest
to
retain independent legal and other professional counsel.
22. Non-Compete
Clause. For a period of one (1) years after the conclusion of his
employment with Calypso, the Executive shall not engage in any employment
or
work for any company or third party, including consulting engagements,
that is
directly or indirectly involved in competition with Calypso Wireless or
any of
its subsidiaries or successors in interest. This shall include but not
be
limited to any business entity involved in the development, servicing or
manufacture of wireless communications of any type, including but not limited
to
cellular telephones. In addition, the Executive shall not directly or indirectly
solicit any Calypso employees, contractors, or vendors to gain employment
or
business affiliation with any business that competes directly or indirectly
with
Calypso.
23. Entire
Understanding; Amendment. The
Agreement contains the
entire understanding of the parties relating to the employment of the Executive
by CALYPSO and supersedes any and all previous agreements among the
parties. It may not
be changed orally but only by an agreement in writing signed by the party
or
parties against whom enforcement of any waiver, change, modification,
extension or discharge is sought.
****
IN
WITNESS WHEREOF, the parties hereto
have hereunto set their hands and seals the day and year first above
written.
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EXECUTIVE:
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CALYPSO
WIRELESS, INC.
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|
|
XXXXXX
X. XXXXX
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A
DELAWARE CORPORATION
|
|
|
|
|
|
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/s/
Xxxxxx X Xxxxx
|
/s/Xxxxxxxx
X. Xxxxxxx
|
|
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Title:
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President
& CEO
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|
|
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||
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/s/
Xxxxxxx Xxxxxx
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||
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Title:
Chairman, of the Board
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