EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into this 1st day of
February, 2000, by and between World Wide Wireless Communications Inc., a Nevada
corporation (the "Company"), and Xxxxxxx X. Xxxxxx, an individual ("Executive").
RECITALS
A. The Company desires to be assured of the association and services of
Executive for the Company.
B. Executive is willing and desires to be employed by the Company, and the
Company is willing to employ Executive, upon the terms, covenants and conditions
hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions hereinafter set forth, the parties hereto do hereby agree as follows:
1. Employment. The Company hereby employs Executive as president and chief
executive officer, subject to the supervision and direction of the Company's
Board of Directors.
2. Term/Renewal. The term of this Agreement shall be for a period of three
(3) years commencing on the date hereof, unless terminated earlier pursuant to
Section 8 below; provided, however, that Executive's obligations in Section 7
below shall continue in effect after such termination. The Term of this
Agreement shall be automatically extended for one year after completion of
one-year service, and on each annual anniversary date thereof.
3. Compensation; Reimbursement.
3.1 Base Salary. For all services rendered by Executive under this
Agreement, the Company shall pay Executive a base salary of Two Hundred Thirty
Thousand Dollars ($230,000) per annum, payable twice monthly in equal
installments (the "Base Salary"). The amount of the Base Salary shall be
increased fifteen percent (15%) annually, and at any time and from time to time
by the Board of Directors of the Company
3.2 Incentive Bonus. In addition to the Base Salary, Executive shall
be eligible for an incentive bonus ("Incentive Bonus") each year in an amount
not less than 10% of the Base Salary (the "Minimum Bonus") nor more than 100% of
the Base Salary. The Incentive Bonus shall be based upon the operating results
for that year of Executive's division or subsidiary, as the case may be, and
shall be paid, if earned, within 30 days after such operating results have been
determined by the Company's accountants. The criteria upon which the Incentive
Bonus is awarded shall be
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comparable to those applicable to the other chief operating officer of the
Company's operating divisions or subsidiaries.
3.3 Additional Benefits. In addition to the Base Salary and the
Incentive Bonus, Executive shall be entitled to all other benefits of employment
provided to the Company's upper management.
3.4 Reimbursement. Executive shall be reimbursed for all reasonable
"out of pocket" business expenses for business travel and business entertainment
incurred in connection with the performance of his or her duties under this
Agreement (1) so long as such expenses constitute business deductions from
taxable income for the Company and are excludable from taxable income to the
Executive under the governing laws and regulations of the Internal Revenue Code
(provided, however, that Executive shall be entitled to full reimbursement in
any case where the Internal Revenue Service may, under Section 274(n) of the
Internal Revenue Code, disallow to the Company 20% of meals and entertainment
expenses); and (2) to the extent such expenses do not exceed the amounts
allocable for such expenses in budgets that are approved from time to time by
the Company. The reimbursement of Executive's business expenses shall be upon
monthly presentation to and approval by the Company of valid receipts and other
appropriate documentation for such expenses.
4. Scope of Duties.
4.1 Assignment of Duties. Executive shall have such duties as may be
assigned to him or her from time to time by the Company's Board of Directors
commensurate with his experience and responsibilities in the position for which
he is employed pursuant to Section 1 above. Such duties shall be exercised
subject to the control and supervision of the Board of Directors of the Company.
4.2 General Specification of Duties. Executive's duties shall include,
but not be limited to, the duties and performance goals as follows:
(1) act as president and chief executive officer the Company and
perform all duties, functions and responsibilities generally associated with the
head of an operating division or subsidiary;
(2) execute on behalf of the Company, in his capacity as president and
chief executive all documents as requested by the Company;
(3) employ, pay, supervise and discharge all employees of the Company,
and determine all matters with regard to such personnel, including, without
limitation, compensation, bonuses and fringe benefits, all in accordance with
the Annual Plan (as defined in Section 4.3);
(4) establish procedures for implementing the policies established by
the Company;
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(5) cause to be prepared, as directed by the Company, financial
statements, tax returns and other similar items respecting the operation of the
Company.
The foregoing specifications are not intended as a complete
itemization of the duties which Executive shall perform and undertake on behalf
of the Company in satisfaction of his or her employment obligations under this
Agreement.
4.3 Executive's Devotion of Time. Executive hereby agrees to devote
his full time, abilities and energy to the faithful performance of the duties
assigned to him or her and to the promotion and forwarding of the business
affairs of the Company, and not to divert any business opportunities from the
Company to himself or herself or to any other person or business entity.
4.4 Conflicting Activities.
(1) Executive shall not, during the term of this Agreement, be engaged
in any other business activity without the prior consent of the Board of
Directors of the Company; provided, however, that this restriction shall
not be construed as preventing Executive from investing his personal assets
in passive investments in business entities which are not in competition
with the Company or its affiliates, or from pursuing business opportunities
as permitted by paragraph 4.5(b).
(2) Executive hereby agrees to promote and develop all business
opportunities that come to his attention relating to current or anticipated
future business of the Company, in a manner consistent with the best
interests of the Company and with his duties under this Agreement. Should
Executive discover a business opportunity that does not relate to the
current or anticipated future business of the Company, he shall first offer
such opportunity to the Company. Should the Board of Directors of the
Company not exercise its right to pursue this business opportunity within a
reasonable period of time, not to exceed sixty (60) days, then Executive
may develop the business opportunity for himself; provided, however, that
such development may in no way conflict or interfere with the duties owed
by Executive to the Company under this Agreement. Further, Executive may
develop such business opportunities only on his own time, and may not use
any service, personnel, equipment, supplies, facility, or trade secrets of
the Company in their development. As used herein, the term "business
opportunity" shall not include business opportunities involving investment
in publicly traded stocks, bonds or other securities, or other investments
of a personal nature.
5. Stock of Company. So long as this Agreement is in effect, Executive
shall be entitled to purchase stock of the Company in the same amounts and for
the same consideration, terms and conditions as provided to upper management of
the Company. The manner of acquisition of stock shall be structured so as to
minimize
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adverse tax consequences to Executive. Company confirms that during August,
1998, Executive was granted options under the Company's Incentive Stock Option
plan (ISOP) to purchase 800,000 shares with a strike price of 9.5 cents per
share. Executive is further granted options under the ("The ISOP") to purchase
800,000 shares per year of the Company's stock at the lowest price permitted
under the ISOP such that the grant or exercise of the Options will not create a
current taxable event.
6. Severance. So long as this Agreement is in effect, Executive shall at
all times be entitled to severance benefits equal to those provided to other
chief operating officers of the Company's operating divisions or subsidiaries.
These benefits shall include, without limitation, the Company's maintenance at
its cost of a life insurance policy and disability policy on Executive payable
to Executive and/or his or her legal representative or heirs as applicable, in
amounts reasonably agreed to by Executive and the Company.
7. Confidentiality of Trade Secrets and Other Materials.
7.1 Trade Secrets. Other than in the performance of his or her duties
hereunder, Executive agrees not to disclose, either during the term of his or
her employment by the Company or at any time thereafter, to any person, firm or
corporation any information concerning the business affairs, the trade secrets
or the customer lists or similar information of the Company. Any technique,
method, process or technology used by the Company shall be considered a "trade
secret" for the purposes of this Agreement.
7.2 Ownership of Trade Secrets; Assignment of Rights. Executive hereby
agrees that all know how, documents, reports, plans, proposals, marketing and
sales plans, client lists, client files and materials made by him or her or by
the Company are the property of the Company and shall not be used by him in any
way adverse to the Company's interests. Executive shall not deliver, reproduce
or in any way allow such documents or things to be delivered or used by any
third party without specific direction or consent of the Board of Directors of
the Company. Executive hereby assigns to the Company any rights which he or she
may have in any such trade secret or proprietary information; provided, however,
that such assignment does not apply to any right which qualifies fully under Cal
Labor Code Sec. 2870].
8. Termination.
8.1 Bases for Termination.
(1) Executive's employment hereunder may be terminated at any time by
mutual agreement of the parties.
(2) This Agreement shall automatically terminate (a) on the last day
of the month in which Executive dies or (b) Executive shall be relieved of
his duties hereunder if he becomes permanently incapacitated. "Permanent
incapacity" as used herein shall mean mental or physical incapacity, or
both,
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reasonably determined by the Company's Board of Directors based upon a
certification of such incapacity by, in the discretion of the Company's
Board of Directors, either Executive's regularly attending physician or a
duly licensed physician selected by the Company's Board of Directors,
rendering Executive unable to perform substantially all of his or her
duties hereunder and which appears reasonably certain to continue for at
least six consecutive months without substantial improvement. Executive
shall be deemed to have "become permanently incapacitated" on the date the
Company's Board of Directors has determined that Executive is permanently
incapacitated and so notifies Executive (the "Notification Date"). Should
Executive be relieved of his duties because of permanent incapacity, the
Company shall continue to pay Executive's salary and benefits otherwise
owing to Executive for the remainder of the Term of the Agreement then
existing as of the date the Notification Date.
(3) Executive's employment may be terminated by the Company "with
cause," effective upon delivery of written notice to Executive given at any
time (without any necessity for prior notice) upon Executive's felony
criminal conviction or other criminal conviction involving Executive's lack
of honesty or moral turpitude;
(4) Executive's employment may be terminated by the Company "with out
cause" (for any reason or no reason at all) at any time by giving Executive
60 days prior written notice of termination, which termination shall be
effective on the 60th day following such notice. If Executive's employment
under this Agreement is so terminated, the Company shall (a) make a lump
sum cash payment to Executive within 10 days after termination of an amount
equal to (i) Executive's Base Salary and minimum bonus for the balance of
the term of the Employment Agreement (ii) any unreimbursed expenses
accruing to the date of termination; and (b) make a lump sum cash payment
equal to Executive's annual Base Salary, as increased pursuant to Section
3.1, on each anniversary date of this Agreement for the balance of the term
specified in Section 2. For purposes of this provision, Executive's annual
Base Salary and the remaining portion of the term of the Agreement shall be
calculated as of the termination date.
(5) Executive may terminate his employment hereunder by giving the
Company 60 days prior written notice, which termination shall be effective
on the 60th day following such notice.
8.2 Payment Upon Termination. Upon termination under paragraphs
8.1(1), (2a) , (3), or (5), the Company shall pay to Executive within 10 days
after termination an amount equal to the sum of (1) Executive's Base Salary
accrued to the date of termination; and (2) unreimbursed expenses accrued to the
date of termination. After any such termination, the Company shall not be
obligated to compensate Executive, his or her estate or representatives except
for the foregoing
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compensation then due and owing, nor provide the benefits to Executive described
in Section 3.4 (except as provided by law).
8.3 Severance Provisions. The provisions of Sections 8.1 and 8.2 shall
be subject to and deemed modified by the terms of any severance benefits granted
to Executive as provided under Section 6.
8.4 Dismissal from Premises. At the Company's option, Executive shall
immediately leave the Company's premises on the date notice of termination is
given by either Executive or the Company.
9. Injunctive Relief. The Company and Executive hereby acknowledge and
agree that any default under Section 7 above will cause damage to the Company in
an amount difficult to ascertain. Accordingly, in addition to any other relief
to which the Company may be entitled, the Company shall be entitled to such
injunctive relief as may be ordered by any court of competent jurisdiction
including, but not limited to, an injunction restraining any violation of
Section 7 above and without the proof of actual damages.
10. Miscellaneous.
10.1 Transfer and Assignment. This Agreement is personal as to
Executive and shall not be assigned or transferred by Executive without the
prior written consent of the Company. This Agreement shall be binding upon and
inure to the benefit of all of the parties hereto and their respective permitted
heirs, personal representatives, successors and assigns.
10.2 Severability. Nothing contained herein shall be construed to
require the commission of any act contrary to law. Should there be any conflict
between any provisions hereof and any present or future statute, law, ordinance,
regulation, or other pronouncement having the force of law, the latter shall
prevail, but the provision of this Agreement affected thereby shall be curtailed
and limited only to the extent necessary to bring it within the requirements of
the law, and the remaining provisions of this Agreement shall remain in full
force and effect.
10.3 Governing Law/ Venue. This Agreement is made under and shall be
construed pursuant to the laws of the State of California. Any action to enforce
any provision of this Agreement shall be maintained solely by the State or
Federal courts at Oakland, California.
10.4 Counterparts. This Agreement may be executed in several counter
parts and all documents so executed shall constitute one agreement, binding on
all of the parties hereto, notwithstanding that all of the parties did not sign
the original or the same counterparts.
10.5 Entire Agreement. This Agreement constitutes the entire agreement
and understanding of the parties with respect to the subject matter hereof
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and supersedes all prior oral or written agreements, arrangements, and
understandings with respect thereto. No representation, promise, inducement,
statement or intention has been made by any party hereto that is not embodied
herein, and no party shall be bound by or liable for any alleged representation,
promise, inducement, or statement not so set forth herein.
10.6 Modification. This Agreement may be modified, amended,
superseded, or cancelled, and any of the terms, covenants, representations,
warranties or conditions hereof may be waived, only by a written instrument
executed by the party or parties to be bound by any such modification,
amendment, supersesion, cancellation, or waiver.
10.7 Attorneys' Fees and Costs. In the event of any dispute arising
out of the subject matter of this Agreement, the prevailing party shall recover,
in addition to any other damages assessed, its attorneys' fees and court costs
incurred in litigating or otherwise settling or resolving such dispute whether
or not an action is brought or prosecuted to judgment. In construing this
Agreement, none of the parties hereto shall have any term or provision construed
against such party solely by reason of such party having drafted the same.
10.8 Waiver. The waiver by either of the parties, express or implied,
of any right under this Agreement or any failure to perform under this Agreement
by the other party, shall not constitute or be deemed as a waiver of any other
right under this Agreement or of any other failure to perform under this
Agreement by the other party, whether of a similar or dissimilar nature.
10.9 Cumulative Remedies. Each and all of the several rights and
remedies provided in this Agreement, or by law or in equity, shall be
cumulative, and no one of them shall be exclusive of any other right or remedy,
and the exercise of any one of such rights or remedies shall not be deemed a
waiver of, or an election to exercise, any other such right or remedy.
10.10 Headings. The section and other headings contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning and interpretation of this Agreement.
10.11 Notices. Any notice under this Agreement must be in writing, may
be telecopied, sent by express 24 hour guaranteed courier, or hand delivered, or
may be served by depositing the same in the United States mail, addressed to the
party to be notified, postage prepaid and registered or certified with a return
receipt requested. The addresses of the parties for the receipt of notice shall
be as follows:
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If to the Company: 000 - 0xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
If to Executive: 0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Each notice given by registered or certified mail shall be deemed
delivered and effective on the date of delivery as shown on the receipt, and
each notice delivered in any other manner shall be deemed to be effective as of
the time of actual delivery thereof. Each party may change its address for
notice by giving notice in the manner provided above.
10.12 Survival. Any provision of this Agreement which imposes an
obligation after termination or expiration of this Agreement shall survive to
the termination or expiration of this Agreement and be binding on Executive and
the Company.
10.13 Right of Set-Off. Upon termination of this Agreement the Company
shall have the right to set-off against the amounts due Executive hereunder the
amount of any outstanding loan or advance from the Company to the Executive.
10.14 Effective Date. This Agreement shall become effective as of the
date set forth on page 1 when signed by the Executive and the Company.
IT WITNESS WHEREOF, the parties hereto have caused this Employment
agreement to be executed as of the date first set forth above.
Executive Company
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Xxxxxxx X. Xxxxxx World Wide Wireless Communications, Inc.,
a Nevada corporation
By:
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Its:
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