EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made effective as of the 30th day of December, 2002
(the "Effective Date").
AMONG:
XXXXXX COMM, INC., a body corporate formed pursuant to the laws of the
State of California and having an office for business located at 000
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000 ("Xxxxxx") and wholly
owned subsidiary of Parent (as defined below);
WPCS INTERNATIONAL INCORPORATED, a body corporate formed pursuant to
the laws of the State of Delaware and having an office for business
located at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 00, Xxxxx, Xxxxxxxxxxxx
00000 ("Parent") (collectively, Parent and Xxxxxx, the "Employer");
AND:
XXXXXX X. XXXXXX, an individual having an address at 000 Xxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000 ("Employee")
WHEREAS:
A. Employee has acted as President of Xxxxxx since December 24, 1996; and
B. Employee and Employer are parties to that certain Agreement and Plan of
Merger, made as of December 30, 2002 (the "Merger Agreement"), pursuant to which
Employee has agreed to continue to serve as President of Xxxxxx and Executive
Vice President of Parent, and Employer has agreed to hire Employee as such,
pursuant to the terms and conditions of this Employment Agreement (the
"Agreement").
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the premises
and the mutual covenants, agreements, representations and warranties contained
herein, the Merger Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Employee and Employer
hereby agree as follows:
ARTICLE 1
EMPLOYMENT
Xxxxxx hereby affirms, renews and extends the employment of Employee as Xxxxxx'x
President, and Employee hereby affirms, renews and accepts such employment by
Xxxxxx and Parent hereby affirms and extends the employment of Employee as
Parent's
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Executive Vice President for the "Term" (as defined in Article 3 below), upon
the terms and conditions set forth herein.
ARTICLE 2
DUTIES
During the Term, Employee shall serve Employer faithfully, diligently and to the
best of his ability, under the direction of the Boards of Directors of Employer
and shall use his best efforts to promote the interests and goodwill of Employer
and any affiliates, successors, assigns, parent corporations, subsidiaries,
and/or future purchasers of Employer. Employee shall render such services during
the Term at Xxxxxx'x principal place of business or at such other place of
business as may be determined by the Board of Directors of Employer, as Employer
may from time to time reasonably require of him, and shall devote all of his
business time to the performance thereof. Employee shall have those duties and
powers as generally pertain to each of the offices of which he holds, as the
case may be, subject to the control of the Board of Directors. The precise
services and duties which Employee is obligated to perform hereunder may from
time to time be changed, amended, extended or curtailed by the Board of
Directors of Employer.
ARTICLE 3
TERM
The "Term" of this Agreement shall commence on the Effective Date and continue
thereafter for a term of four (4) years, as may be extended or earlier
terminated pursuant to the terms and conditions of this Agreement. The Term of
this Agreement shall automatically renew for successive one (1) year periods
unless, prior to the 30th calendar day preceding the expiration of the then
existing Term, either Employer or Employee provides written notice to the other
that it elects not to renew the Term. Upon delivery of such notice, this
Agreement shall continue until expiration of the Term, whereupon this Agreement
shall terminate and neither party shall have any further obligation thereafter
arising under this Agreement, except as explicitly set forth herein to the
contrary.
ARTICLE 4
COMPENSATION
Salary
4.1 Employer shall pay to Employee an annual salary (the "Salary") of One
Hundred Forty Thousand Dollars ($140,000.00), payable in equal installments at
the end of such regular payroll accounting periods as are established by Xxxxxx,
or in such other installments upon which the parties hereto shall mutually
agree, and in accordance with Xxxxxx'x usual payroll procedures, but no less
frequently than monthly.
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Benefits
4.2 During the Term, Employee shall be entitled to participate in all
medical and other employee benefit plans, including vacation, sick leave,
retirement accounts and other employee benefits provided by Xxxxxx to similarly
situated employees on terms and conditions no less favorable than those offered
to such employees. Such participation shall be subject to the terms of the
applicable plan documents, Xxxxxx'x generally applicable policies, and the
discretion of the Board of Directors or any administrative or other committee
provided for in, or contemplated by, such plan.
Expense Reimbursement
4.3 Xxxxxx shall reimburse Employee for reasonable and necessary expenses
incurred by him on behalf of Xxxxxx in the performance of his duties hereunder
during the Term, including, without limitation, reimbursement for cellular
telephone expenses in accordance with Xxxxxx'x then customary policies, provided
that such expenses are adequately documented.
Automobile
4.4 Employee shall be entitled to the full-time use of an automobile owned
or leased by Xxxxxx. In addition, Xxxxxx shall reimburse Employee for all
maintenance and gasoline expenses associated with the automobile, provided that
such expenses are adequately documented.
Bonus
4.5 In addition to the Salary, Employee shall be entitled to receive a
quarterly bonus equal to 3% (the "Bonus") of Xxxxxx operating income (i) after
the elimination of all expenses related to (y) services provided to Xxxxxx by
WPCS or any affiliate thereof and (z) transactions between Xxxxxx and WPCS or
any affiliate thereof, and (ii) prior to the deduction of interest, taxes,
depreciation and amortization. The amount of the Bonus shall be determined based
upon the operating income reported in the financial statements of Xxxxxx, as
calculated based on U.S. generally accepted accounting principles.. Xxxxxx shall
instruct its auditor to calculate the Bonus for each fiscal quarter or portion
thereof ending after the date of this Agreement (an "Auditor's Bonus Report"),
within 50 days following the end of each fiscal quarter or 105 days after each
fiscal year end. Xxxxxx shall provide a copy of each Auditor's Bonus Report to
Employee promptly upon receipt thereof. Employee shall have the right to review
and independently verify the conclusions of any Auditor's Bonus Report by
delivering notice in writing to Xxxxxx within 30 days after receipt of any such
Auditor's Bonus Report indicating that Employee wishes to exercise his right of
review and verification. Within 10 business days after receipt of any such
notice, Xxxxxx shall make available to Employee and his representatives, at
reasonable times during normal business hours, the books and records of Xxxxxx
which are reasonably necessary to conduct such review and verification. Employee
shall cause
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such review to be conducted and concluded as quickly as reasonably practicable
and in such a manner so as not to unreasonably interfere with the business and
operations of Xxxxxx. Any representatives conducting such review shall, prior to
being given access to such books and records, be required to enter into
confidentiality and non-disclosure agreements with Xxxxxx on terms and
conditions satisfactory to Xxxxxx, acting reasonably. The costs of any such
review shall be borne by Employee unless the review indicates a discrepancy
between the Bonus figure contained in the Auditor's Bonus Report and the figure,
if any, agreed to by Xxxxxx and Employee following such review of greater than
10%. If Employee and Xxxxxx shall be unable to resolve any dispute respecting
any determination contained in any Auditor's Bonus Report, then any disputed
matters ("Disputed Items") shall, within 20 days after notice is delivered by
Employee to Xxxxxx that there exist Disputed Items, be submitted to arbitration
as set forth below. Within five (5) business days of Employee's delivery of
written acceptance of the Auditor's Bonus Report (as may have been amended or
adjusted pursuant to the foregoing procedures) to Employer, Employer shall pay
Employee the Bonus in a lump sum, subject to Xxxxxx'x statutory and customary
withholdings.
Arbitration
4.6 An independent chartered accountant chosen by Employer (hereinafter
referred to as "Employer's Accountant") and an independent chartered accountant
chosen by Employee (herein after referred to as "Employee's Accountant") shall
together within 20 days, appoint a representative from an accounting firm (other
than Employer's Accountant or Employee's Accountant) to arbitrate the dispute
(hereinafter referred to as the "Arbitrator"). The parties shall, within 20 days
after the appointment of the Arbitrator, present their position with respect to
the Disputed Items to the Arbitrator together with such other materials as the
Arbitrator deems appropriate. The Arbitrator shall within 20 days after the
submission of such evidence, submit its written decision on each Disputed Item
to the parties. Any determination by the Arbitrator with respect to any Disputed
Item shall be final and binding on such parties. The Arbitrator shall comply,
and the arbitration shall be conducted in accordance with, the Commercial
Arbitration Rules of American Arbitration Association then in force. If the
Arbitrator determines that the Auditor's Bonus Report was correct so that the
Bonus presented therein was equal to or greater than the actual Bonus, or less
than the actual Bonus by a less than 10% variance, the costs of any such
arbitration shall be borne by Employee. If the Arbitrator determines that the
Auditor's Bonus Report was incorrect so that the Bonus presented therein was
less than the actual Bonus by more than 10%, the costs of any such arbitration
shall be borne by Employer.
ARTICLE 5
OTHER EMPLOYMENT
During the Term of this Agreement, Employee shall devote substantially all of
his business and professional time and effort, attention, knowledge, and skill
to the management, supervision and direction of Employer's business and affairs
as Employee's
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highest professional priority. Except as provided below, Employer shall be
entitled to all benefits, profits or other issues arising from or incidental to
all work, services and advice performed or provided by Employee. Nothing in this
Agreement shall preclude Employee 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 Employer, provided that Employee must
obtain the written consent of Employer;
(b) serving as a consultant in his area of expertise (in areas other
than in connection with the business of Employer), to government,
industrial, and academic panels where it does not conflict with
the interests of Employer; and
(c) managing his personal investments or engaging in any other
non-competing business;
provided that such activities do not materially interfere with the regular
performance of his duties and responsibilities under this Agreement.
ARTICLE 6
CONFIDENTIAL INFORMATION/ INVENTIONS
Confidential Information
6.1 Employee shall not, in any manner, for any reasons, either directly or
indirectly, divulge or communicate to any person, firm or corporation, any
confidential information concerning any matters not generally known in the
wireless communications industry or otherwise made public by Employer which
affects or relates to Employer's business, finances, marketing and/ or
operations, research, development, inventions, products, designs, plans,
procedures, or other data (collectively, "Confidential Information") except in
the ordinary course of business or as required by applicable law. Without regard
to whether any item of Confidential Information is deemed or considered
confidential, material, or important, the parties hereto stipulate that as
between them, to the extent such item is not generally known in the wireless
communications industry, such item is important, material, and confidential and
affects the successful conduct of Employer's business and goodwill, and that any
breach of the terms of this Section 6.1 shall be a material and incurable breach
of this Agreement. Confidential Information shall not include: (i) information
obtained or which became known to Employee other than through his employment by
Employer; (ii) information in the public domain at the time of the disclosure of
such information by Employee; (iii) information that Employee can document was
independently developed by Employee; and (iv) information that is disclosed by
Employee with the prior written consent of Parent.
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Documents
6.2 Employee further agrees that all documents and materials furnished to
Employee by Employer and relating to the Employer's business or prospective
business are and shall remain the exclusive property of Employer. Employee shall
deliver all such documents and materials, uncopied, to Employer upon demand
therefore and in any event upon expiration or earlier termination of this
Agreement. Any payment of sums due and owing to Employee by Employer upon such
expiration or earlier termination shall be conditioned upon returning all such
documents and materials, and Employee expressly authorizes Employer to withhold
any payments due and owing pending return of such documents and materials.
Inventions
6.3 All ideas, inventions, and other developments or improvements conceived
or reduced to practice by Employee, alone or with others, during the Term of
this Agreement, whether or not during working hours, that are within the scope
of the business of Employer or that relate to or result from any of Employer's
work or projects or the services provided by Employee to Employer pursuant to
this Agreement, shall be the exclusive property of Employer. Employee agrees to
assist Employer, at Employer's expense, to obtain patents and copyrights on any
such ideas, inventions, writings, and other developments, and agrees to execute
all documents necessary to obtain such patents and copyrights in the name of
Employer.
Disclosure
6.4 During the Term, Employee will promptly disclose to the Board of
Directors of Xxxxxx full information concerning any interest, direct or
indirect, of Employee (as owner, shareholder, partner, lender or other investor,
director, officer, employee, consultant or otherwise) or any member of his
immediate family in any business that is reasonably known to Employee to
purchase or otherwise obtain services or products from, or to sell or otherwise
provide services or products to, Xxxxxx or to any of its suppliers or customers.
ARTICLE 7
COVENANT NOT TO COMPETE
Except as expressly permitted in Article 5 above, during the Term of
this Agreement, Employee shall not engage in any of the following competitive
activities: (a) engaging directly or indirectly in any business or activity
substantially similar to any business or activity engaged in (or proposed to be
engaged in) by Xxxxxx; (b) engaging directly or indirectly in any business or
activity competitive with the any business or activity engaged in (or proposed
to be engaged in) by Xxxxxx; (c) soliciting or taking away any employee, agent,
representative, contractor, supplier, vendor, customer, franchisee, lender or
investor of Xxxxxx, or attempting to so solicit or take away; (d) interfering
with any contractual or other relationship between Xxxxxx and any employee,
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agent, representative, contractor, supplier, vendor, customer, franchisee,
lender or investor; or (e) using, for the benefit of any person or entity other
than Xxxxxx, any Confidential Information of Xxxxxx. The foregoing covenant
prohibiting competitive activities shall survive the termination of this
Agreement and shall extend, and shall remain enforceable against Employee, for
the period of two (2) years following the date this Agreement is terminated. In
addition, during the two-year period following such expiration or earlier
termination, neither Employee nor Xxxxxx shall not make or permit the making of
any negative statement of any kind concerning Xxxxxx or its affiliates, or their
directors, officers or agents or Employee.
ARTICLE 8
SURVIVAL
Employee agrees that the provisions of Articles 6, 7 and 9 shall survive
expiration or earlier termination of this Agreement for any reasons, whether
voluntary or involuntary, with or without cause, and shall remain in full force
and effect thereafter. Notwithstanding the foregoing, if this Agreement is
terminated upon the dissolution of Parent or Xxxxxx, the filing of a petition in
bankruptcy by Parent or Xxxxxx or upon an assignment for the benefit of
creditors of the assets of Parent or Xxxxxx, Articles 6, 7 and 9 shall be of no
further force or effect.
ARTICLE 9
INJUNCTIVE RELIEF
Employee acknowledges and agrees that the covenants and obligations of
Employee set forth in Articles 6 and 7 with respect to non-competition,
non-solicitation, confidentiality and Employer's property relate to special,
unique and extraordinary matters and that a violation of any of the terms of
such covenants and obligations will cause Employer irreparable injury for which
adequate remedies are not available at law. Therefore, Employee agrees that
Employer shall be entitled to an injunction, restraining order or such other
equitable relief (without the requirement to post bond) as a court of competent
jurisdiction may deem necessary or appropriate to restrain Employee from
committing any violation of the covenants and obligations referred to in this
Article 9. These injunctive remedies are cumulative and in addition to any other
rights and remedies Employer may have at law or in equity.
ARTICLE 10
TERMINATION
Termination by Employee
10.1 Employee may terminate this Agreement for Good Reason at any time upon
30 days' written notice to Employer, provided the Good Reason has not been cured
within such period of time. Employee may terminate this Agreement at any time
for any reason upon 30 days' prior notice to Employer.
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Good Reason
10.2 In this Agreement, "Good Reason" means, without Employee's prior
written consent, the occurrence of any of the following events, unless Employer
shall have fully cured all grounds for such termination within thirty (30) days
after Employee gives notice thereof:
(i) any reduction in his then-current Salary;
(ii) any material failure to timely grant, or timely honor, any equity
or long-term incentive award;
(iii) failure to pay or provide required compensation and benefits;
(iv) any failure to appoint, elect or reelect him to the position of
President of Xxxxxx; the removal of him from such position; or
any changes in the reporting structure so that Employee reports
to someone other than the board of directors of Xxxxxx in
connection with such position;
(v) any material diminution in his title or duties or the assignment
to him of duties not customarily associated with Employee's
position as President (Xxxxxx) and Executive Vice President
(Parent);
(vi) any relocation of Employee's office as assigned to him by
Employer, to a location more than 25 miles from Xxxxxx'x current
office;
(viii) the failure of Employer to obtain the assumption in writing of
its obligation to perform the Employment Agreement by any
successor to all or substantially all of the assets of Xxxxxx or
Parent or upon a merger, consolidation, sale or similar
transaction of Xxxxxx or Parent; or
(ix) the voluntary or involuntary dissolution of Xxxxxx or Parent, the
filing of a petition in bankruptcy by Parent or Xxxxxx or upon an
assignment for the benefit of creditors of the assets of Parent
or Xxxxxx.
The written notice given hereunder by Employee to Employer shall
specify in reasonable detail the cause for termination, and such
termination notice shall not be effective until thirty (30) days
after Employer's receipt of such notice, during which time
Employer shall have the right to respond to Employee's notice and
cure the breach or other event giving rise to the termination.
Termination by Employer
10.3 Employer may terminate its employment of Employee under this Agreement
for cause at any time by written notice to Employee. For purposes of this
Agreement, the
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term "cause" for termination by Employer shall be (a) a conviction of or plea of
guilty or nolo contendere by Employee to a felony, or any crime involving fraud
or embezzlement; (b) the refusal by Employee to perform his material duties and
obligations hereunder; (c) Employee's willful and intentional misconduct in the
performance of his material duties and obligations; or (d) if Employee or any
member of his family makes any personal profit arising out of or in connection
with a transaction to which Employer is a party or with which it is associated
without making disclosure to and obtaining the prior written consent of Parent.
The written notice given hereunder by Employer to Employee shall specify in
reasonable detail the cause for termination. For purposes of this Agreement,
"family" shall mean Employee's spouse and/or children. In the case of a
termination for the causes described in (a) and (d) above, such termination
shall be effective upon receipt of the written notice. In the case of the causes
described in (b) and (c) above, such termination notice shall not be effective
until thirty (30) days after Employee's receipt of such notice, during which
time Employee shall have the right to respond to Employer's notice and cure the
breach or other event giving rise to the termination.
Severance
10.4 Upon a termination of this Agreement without Good Reason by Employee
or with cause by Employer, Employer shall pay to Employee all accrued and unpaid
compensation as of the date of such termination, subject to the provision of
Section 6.2. Upon a termination of this Agreement with Good Reason by Employee
or without cause by Employer, Employer shall pay to Employee all accrued and
unpaid compensation and expense reimbursement as of the date of such termination
and the "Severance Payment." The Severance Payment shall be payable in a lump
sum, subject to Xxxxxx'x statutory and customary withholdings. If the
termination of Employee hereunder is by Employee with Good Reason, the Severance
Payment shall be paid by Employer within five (5) business days of the
expiration of any applicable cure period. If the termination of Employee
hereunder is by Employer without cause, the Severance Payment shall be paid by
Employer within five (5) business days of termination. The "Severance Payment"
shall equal the greater of: (a) the total amount of the Salary payable to
Employee under Section 4.1 of this Agreement from the date of such termination
until the end of the Term of this Agreement (prorated for any partial month), or
(b) the amount of twelve (12) months' Salary; notwithstanding the foregoing,
during any renewal term of this Agreement, the amount of the "Severance Payment"
payable to Employee hereunder shall equal six (6) months' Salary.
Termination Upon Death
10.5 If Employee dies during the Term of this Agreement, this Agreement
shall terminate, except that Employee's legal representatives shall be entitled
to receive any earned but unpaid compensation or expense reimbursement due
hereunder through the date of death.
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Termination Upon Disability
10.6 If, during the Term of this Agreement, Employee suffers and continues
to suffer from a "Disability" (as defined below), then Employer may terminate
this Agreement by delivering to Employee thirty (30) calendar days' prior
written notice of termination based on such Disability, setting forth with
specificity the nature of such Disability and the determination of Disability by
Employer. For the purposes of this Agreement, "Disability" means Employee's
inability, with reasonable accommodation, to substantially perform Employee's
duties, services and obligations under this Agreement due to physical or mental
illness or other disability for a continuous, uninterrupted period of sixty (60)
calendar days or ninety (90) days during any twelve month period. Upon any such
termination for Disability, Employee shall be entitled to receive any earned but
unpaid compensation or expense reimbursement due hereunder through the date of
termination.
ARTICLE 11
PERSONNEL POLICIES, CONDITIONS, AND BENEFITS
Except as otherwise provided herein, Employee's employment shall be subject
to the personnel policies and benefit plans which apply generally to Employer's
employees as the same may be interpreted, adopted, revised or deleted from time
to time, during the Term of this Agreement, by Parent in its sole discretion.
During the Term hereof, Employee shall be entitled to vacation during each year
of the Term at the rate of four (4) weeks per year. Within 30 days after the end
of each year of the Term, Xxxxxx shall elect to (a) carry over and allow
Employee the right to use any accrued and unused vacation of Employee, or (ii)
pay Employee for such vacation in a lump sum in accordance with its standard
payroll practices. Employee shall take such vacation at a time approved in
advance by the Board of Directors of Xxxxxx, which approval will not be
unreasonably withheld but will take into account the staffing requirements of
Xxxxxx and the need for the timely performance of Employee's responsibilities.
ARTICLE 12
BENEFICIARIES OF AGREEMENT
This Agreement shall inure to the benefit of Employer and any affiliates,
successors, assigns, parent corporations, subsidiaries, and/or purchasers of
Xxxxxx or Parent as they now or shall exist while this Agreement is in effect.
ARTICLE 13
GENERAL PROVISIONS
No Waiver
13.1 No failure by either party to declare a default based on any breach by
the other party of any obligation under this Agreement, nor failure of such
party to act quickly with
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regard thereto, shall be considered to be a waiver of any such obligation, or of
any future breach.
Modification
13.2 No waiver or modification of this Agreement or of any covenant,
condition, or limitation herein contained shall be valid unless in writing and
duly executed by the parties to be charged therewith.
Choice of Law/Jurisdiction
13.3 This Agreement shall be governed by and construed in accordance with
the laws of the State of California, without regard to any conflict-of-laws
principles. Employer and Employee hereby consent to personal jurisdiction before
all courts in the State of California, and hereby acknowledge and agree that
California is and shall be the most proper forum to bring a complaint before a
court of law.
Entire Agreement
13.4 This Agreement embodies the whole agreement between the parties hereto
regarding the subject matter hereof and there are no inducements, promises,
terms, conditions, or obligations made or entered into by Employer or Employee
other than contained herein.
Severability
13.5 All agreements and covenants contained herein are severable, and in
the event any of them, with the exception of those contained in Articles 1 and 4
hereof, shall be held to be invalid by any competent court, this Agreement shall
be interpreted as if such invalid agreements or covenants were not contained
herein.
Headings
13.6 The headings contained herein are for the convenience of reference and
are not to be used in interpreting this Agreement.
Independent Legal Advice
13.7 Employer has obtained legal advice concerning this Agreement and has
requested that Employee obtain independent legal advice with respect to same
before executing this Agreement. Employee, in executing this Agreement,
represents and warranties to Employer that he has been so advised to obtain
independent legal advice, and that prior to the execution of this Agreement he
has so obtained independent legal advice, or has, in his discretion, knowingly
and willingly elected not to do so.
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No Assignment
13.8 Employee may not assign, pledge or encumber his interest in this
Agreement nor assign any of his rights or duties under this Agreement without
the prior written consent of Parent.
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IN WITNESS WHEREOF the parties have executed this Agreement effective as of the
day and year first above written.
XXXXXX COMM, INC.
By:/s/ XXXXXX XXXXXXX
------------------------
Xxxxxx Xxxxxxx, Director
WPCS INTERNATIONAL
INCORPORATED
By:/s/ XXXXXX XXXXXXX
-------------------------
Xxxxxx Xxxxxxx, President
/s/ XXXXXX X. XXXXXX
----------------------------
XXXXXX X. XXXXXX
This is page 13 to the Employment Agreement dated December 30, 2002 between
Xxxxxx Comm, Inc., WPCS International Incorporated and Xxxxxx X. Xxxxxx.
