EMPLOYMENT AGREEMENT
THIS AGREEMENT made effective as of the 1st day of July 2001 (the
"Effective Date") by and between GoAmerica, Inc., a Delaware corporation (the
"Company"), and Xxxxxx X. Xxxx (the "Employee").
WITNESSETH:
WHEREAS, the Company desires to secure the employment of the Employee
in accordance with the provisions of this Agreement; and
WHEREAS, the Employee desires and is willing to accept employment with
the Company in accordance herewith.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Term. The Company hereby agrees to employ the Employee and the
Employee hereby agrees to serve the Company pursuant to the terms and conditions
of this Agreement. The Employee will occupy the position of President and Chief
Executive Officer of Wynd Communications Corporation, a wholly owned subsidiary
("Subsidiary") of the Company and Senior Vice President for Corporate
Development for the Company, or any other executive position as may be required
by the Company from time to time. Employee shall serve Company for an initial
term commencing on the Effective Date hereof and expiring on the second
anniversary thereof (the "initial term"). On the expiration of the initial term
and on each yearly anniversary thereof, the Agreement shall automatically renew
for an additional one-year period (the "Renewal Term"), unless sooner terminated
in accordance with the provisions of Section 5
or unless either party notifies the other party in writing of its intentions not
to renew this Agreement not less than sixty (60) days prior to such expiration
date or anniversary, as the case may be.
2. Positions and Duties.
(a) Duties. The Employee's duties hereunder shall be those which shall
be prescribed from time to time by the President, Chief Executive Officer or
Board of Directors of the Company. The Employee shall devote his full working
time, energy and skill (reasonable absences for vacations and illness excepted),
to the business of the Company as is necessary in order to perform such duties
faithfully, competently and diligently; provided, however, that notwithstanding
any provision in this Agreement to the contrary, the Employee shall not be
precluded from devoting reasonable periods of time required for serving as a
member of boards of companies which have been approved by the President, Chief
Executive Officer or Board of Directors of the Company or participating in
non-business organizations so long as such memberships or activities do not
interfere with the performance of the Employee's duties hereunder. It is
understood and agreed that if the Company hereafter sells or otherwise alters
the corporate structure of the Subsidiary and thereafter retains the Employee's
employment, the Employee will retain a position with the Company with a title no
lower than that of a Vice President level employee. Such change in position
shall in no way trigger any rights pursuant to section 5(c) hereof.
(b) Board Nomination. So long as the Employee is the President and
Chief Executive Officer of the Subsidiary, the Company will use diligent efforts
to obtain the nomination and election of the Employee as a director of the
Subsidiary. In the event that the Employee is
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elected as a director of the Subsidiary, the Employee shall perform all duties
incident to such directorship faithfully, diligently and competently and in the
best interests of the Company.
3. Compensation. During the term of this Agreement, the Employee shall
receive, for all services rendered to the Company hereunder, the following
(hereinafter referred to as "Compensation"):
(a) Base Salary. For the term hereof, the Employee shall be paid an
annual base salary equal to $175,000. The Employee's annual base salary shall be
payable in equal installments in accordance with the Company's general salary
payment policies but no less frequently than monthly. Such base salary shall be
reviewed, and any increases in the amount thereof shall be determined, by the
Board of Directors of the Company or a compensation committee formed by the
Board of Directors (the "Compensation Committee") of the Company at the end of
each 12-month period of employment during the term hereof.
(b) Bonuses. The Employee shall be eligible for and may receive
bonuses. The amount of such bonuses, if any, shall be solely within the
discretion of the Board of Directors of the Company or the Compensation
Committee thereof.
(c) Incentive Compensation. The Employee shall be eligible for awards
from the Company's incentive compensation plans, including without limitation
any stock option plans applicable to high level executive officers of the
Company or to key employees of the Company or its subsidiaries, in accordance
with the terms thereof and on a basis commensurate with his position and
responsibilities.
(d) Benefits. The Employee and his "dependents," as that term may be
defined under the applicable benefit plan(s) of the Company, shall be included,
to the extent eligible thereunder,
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in any and all plans, programs and policies which provide benefits for employees
and their dependents. Such plans, programs and policies may include health care
insurance, long-term disability plans, life insurance, supplemental disability
insurance, supplemental life insurance, holidays and other similar or comparable
benefits made available to the Company's employees.
(e) Expenses. Subject to and in accordance with the Company's policies
and procedures, the Employee hereby is authorized to incur, and, upon
presentation of itemized accounts, shall be reimbursed by the Company for, any
and all reasonable and necessary business-related expenses, which expenses are
incurred by the Employee on behalf of the Company or any of its subsidiaries.
4. Absences. The Employee shall be entitled to vacations of no less
than four (4) weeks, absences because of illness or other incapacity, and such
other absences, whether for holiday, personal time, or for any other purpose, as
set forth in the Company's employment manual or current procedures and policies,
as the case may be, as same may be amended from time-to-time.
5. Termination. In addition to the events of termination and expiration
of this Agreement provided for in Section 1 hereof, the Employee's employment
hereunder may be terminated only as follows:
(a) Without Cause. The Company may terminate the Employee's employment
hereunder without cause only upon action by the President, Chief Executive
Officer or Board of Directors of the Company, and upon no less than sixty (60)
days prior written notice to the Employee. The Employee may terminate employment
hereunder without cause upon no less than sixty (60) days prior written notice
to the Company.
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(b) For Cause, by the Company. The Company may terminate the Employee's
employment hereunder for cause immediately and with prompt notice to the
Employee, which cause shall be determined in good faith solely by the President,
Chief Executive Officer or Board of Directors of the Company. "Cause" for
termination shall include, but is not limited to, the following conduct of the
Employee:
(i) Material breach of any provision of this Agreement by the
Employee, which breach shall not have been cured by the Employee within sixty
(60) days of receipt of written notice of said breach;
(ii) Misconduct as an employee of the Company, including but not
limited to: misappropriating any funds or property of the Company; attempting to
willfully obtain any personal profit from any transaction in which the Employee
has an interest which is adverse to the interests of the Company; or any other
act or omission which substantially impairs the Company's ability to conduct its
ordinary business in its usual manner;
(iii) Unreasonable neglect or refusal to perform the duties
assigned to the Employee under or pursuant to this Agreement;
(iv) Conviction of a felony (including pleading guilty or no
contest to a felony or lesser charge which results from plea bargaining); or
(v) Any other act or omission which subjects the Company or any
of its subsidiaries to substantial public disrespect, scandal or ridicule.
(c) For Good Reason by Employee. The Employee may terminate employment
hereunder for good reason immediately and with prompt notice to the Company.
"Good reason"
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for termination by the Employee shall include, but is not limited to, the
following conduct of the Company:
(i) Material breach of any provision of this Agreement by the
Company, which breach shall not have been cured by the Company within sixty (60)
days of receipt of written notice of said breach;
(ii) The assignment to the Employee of any duties inconsistent
with the Employee's experience or abilities, excluding for this purpose any
isolated action not taken in bad faith and which is promptly remedied by the
Company after receipt of notice thereof given by the Employee.
(d) Death. The period of active employment of the Employee hereunder
shall terminate automatically in the event of his death.
(e) Disability. In the event that the Employee shall be unable to
perform duties hereunder for a period of one hundred eighty (180) consecutive
calendar days or one hundred eighty (180) work days within any 360 consecutive
calendar days, by reason of disability as a result of illness, accident or other
physical or mental incapacity or disability, the Company may, in its discretion,
by giving written notice to the Employee, terminate the Employee's employment
hereunder as long as the Employee is still disabled on the effective date of
such termination.
(f) Mutual Agreement. This Agreement may be terminated at any time by
mutual agreement of the Employee and the Company.
6. Compensation in the Event of Termination. In the event that the
Employee's employment pursuant to this Agreement terminates prior to the end of
the term of this Agreement
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for a reason provided in Section 5 hereof, the Company shall pay the Employee
compensation as set forth below:
(a) By Employee for Good Reason; by Company Without Cause. In the event
this Agreement is terminated by the Employee for good reason pursuant to Section
5(c) hereof; or by the Company without cause pursuant to Section 5(a) hereof,
then:
(i) the Company shall pay the Employee his then current annual
base salary for a period of one (1) year. The Employee shall not be required
to mitigate the amount of any payment provided for in this Section 6 by seeking
employment or otherwise, nor shall any amounts be received from employment or
otherwise by the Employee offset in any manner the obligations of the Company
hereunder; and
(ii) the payments, rights and entitlements described in Section
6(a)(i) hereof, if any, shall only be made if the Employee shall first have
executed and delivered to the Company a release with respect to his employment
hereunder and the termination of such employment.
(b) By Company Upon Termination of Agreement Due to Employee's Death or
Disability. In the event of the Employee's death or if the Company shall
terminate the Employee's employment hereunder for disability pursuant to Section
5(e) hereof, then:
(i) the Company shall continue to pay the base salary payable
hereunder at the then current rate for (1) year after the termination of
employment to the Employee or his personal representative, as applicable;
(ii) in the event of a termination pursuant to Section 5(e)
hereof, if eligible, Employee shall be entitled to benefits under any long-term
disability plan of the Company covering the Employee then in effect; and
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(iii) all other compensation and benefits provided for in Section 3
of this Agreement shall cease upon such termination.
(c) By Company for Cause or By Employee Without Good Reason. In the
event that: (i) the Company shall terminate the Employee's employment hereunder
for cause pursuant to Section 5(b) hereof; or (ii) the Employee shall terminate
employment hereunder without "good reason" as defined in Section 5(c) hereof,
then the Employee's rights hereunder shall cease as of the effective date of the
termination, including, without limitation, the right to receive the Base Salary
and all other compensation or benefits provided for in this Agreement, except
that the Company shall pay the Employee salary and other Compensation which may
have been earned and is due and payable but which has not been paid as of the
date of termination.
7. Effect of Termination. In the event of expiration or early
termination of this Agreement as provided herein, neither the Company nor the
Employee shall have any remaining duties or obligations hereunder except that:
(a) The Company Shall:
(i) pay the Employee's accrued salary and any other accrued
benefits under Section 3 hereof;
(ii) Reimburse the Employee for expenses already incurred in
accordance with Section 3(e) hereof;
(iii) To the extent required by law, pay or otherwise provide for
any benefits, payments or continuation or conversion rights in accordance with
the provisions of any benefit plan of which the Employee or any of his
dependents is or was a participant; and
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(iv) Pay the Employee or his beneficiaries any compensation due
pursuant to Section 6 hereof; and
(b) The Employee shall remain bound by the terms of Section 8 hereof
and Exhibit A attached hereto.
8. Restrictive Covenant. (a) The Employee acknowledges and agrees that
he has access to secret and confidential information of the Company and its
subsidiaries and that the following restrictive covenant is necessary to protect
the interests and continued success of the Company. Except as otherwise
expressly consented to in writing by the Company, until the termination of the
Employee's employment (for any reason and whether such employment was under this
Agreement or otherwise) (the "Restricted Period"), the Employee shall not,
directly or indirectly, acting as an employee, owner, shareholder, partner,
joint venturer, officer, director, agent, salesperson, consultant, advisor,
investor or principal of any corporation or other business entity engage, in any
state or territory of the United States of America or other country where the
Company is actively doing business, in direct or indirect competition with the
business conducted by the Company or activities in which the Company plans to
conduct business.
(b) Nothing in this Section 8, whether express or implied, shall
prevent the Employee from being a holder of securities of a company whose
securities are registered under Section 12 of the Securities Exchange Act of
1934, as amended, or any privately held company; provided, however, that during
the term of this agreement, and with respect to any company which may be deemed
to directly or indirectly compete with the business conducted by the Company or
with the activities which the Company plans to conduct, the Employee holds of
record and
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beneficially less than one percent (1%) of the votes eligible to be cast
generally by holders of securities of such company for the election of
directors.
(c) The Employee, as a condition of his continued employment,
acknowledges and agrees that he has reviewed and will continue to be bound by
all of the provisions set forth in the Company's Employee-At-Will, Invention
Assignment, Confidentiality and Non-Solicitation Agreement attached hereto as
Exhibit A, which is incorporated herein by reference and made a part hereof as
though fully set forth herein, during the term of this Agreement, and any time
hereafter.
(d) Employee acknowledges and agrees that in the event of a breach or
threatened breach of the provisions of this Section 8 or Exhibit A by Employee
the Company may suffer irreparable harm and therefore, the Company shall be
entitled, to the extent permissible by law, immediately to cease to pay or
provide the Employee any compensation being, or to be, paid or provided to him
pursuant to Sections 3 or 6 of this Agreement, and also to obtain immediate
injunctive relief restraining the Employee from conduct in breach or threatened
breach of the covenants. Nothing herein shall be construed as prohibiting the
Company from pursuing any other remedies available to it for such breach or
threatened breach, including the recovery of damages from the Employee.
9. Resolution of Differences Over Breaches of Agreement. Except as
otherwise provided herein, any controversy or claim arising out of, or relating
to, this Agreement, or the breach hereof, or otherwise arising out of or
relating to the Employee's employment, compensation and benefits with the
Company or the termination thereof, shall be reviewed in the first instance in
accordance with the Company's internal review procedures, if any, with recourse
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thereafter--for temporary or preliminary injunctive relief only as to the
provisions of Section 8 and Exhibit A -- to the courts having jurisdiction
thereof. If any relief other than injunctive relief is sought, then to
arbitration in the State of New Jersey administered by the American Arbitration
Association, under its National Rules for the Resolution of Employment Disputes
and judgment upon the award rendered by the Arbitrator(s) may be entered in any
court having jurisdiction thereof. Any claim or controversy not submitted to
arbitration in accordance with this Section 8 shall be waived and, thereafter,
no arbitration panel or tribunal or court shall have the power to rule or make
any award on any such claim or controversy.
10. No Conflicts. The Employee has represented and hereby represents to
the Company that the execution, delivery and performance by the Employee of this
Agreement do not conflict with or result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default under any
contract, agreement or understanding, whether oral or written, to which the
Employee is a party or of which the Employee is or should be aware and that
there are no restrictions, covenants, agreements or limitations on his right
or ability to enter into and perform the terms of this Agreement, and agrees to
save the Company harmless from any liability, cost or expense, including
attorney's fees, based upon or arising out of any such restrictions, covenants,
agreements, or limitations that may be found to exist.
11. Waiver. The waiver by a party hereto of any breach by the other
party hereto of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach by a party hereto.
12. Assignment. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the Company, and the Company shall be
obligated to require any
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successor to expressly assume its obligations hereunder and shall have the right
to assign its rights to enforce the provisions of Section 8 and Exhibit A to
any successor. This Agreement shall inure to the benefit of and be enforceable
by the Employee or his legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. The Employee may not
assign any of his duties, responsibilities, obligations or positions hereunder
to any person and any such purported assignment by him shall be void and of no
force and effect.
13. Notices. Any notices required or permitted to be given under this
Agreement shall be sufficient if in writing, and if personally delivered or when
sent by first class certified or registered mail, postage prepaid, return
receipt requested--in the case of the Employee, to his residence address as set
forth below, and in the case of the Company, to the address of its principal
place of business as set forth below, in care of the President, Chief Executive
Officer and Chairman of the Board of Directors of the Company--or to such other
person or at such other address with respect to each party as such party shall
notify the other in writing.
14. Construction of Agreement.
(a) Governing Law. This Agreement shall be governed by and its
provisions construed and enforced in accordance with the internal laws of the
State of California without reference to its principles regarding conflicts of
law.
(b) Severability. In the event that any one or more of the provisions
of this Agreement shall be held to be invalid, illegal or unenforceable, the
validity, legality or enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
(c) Headings. The descriptive headings of the several paragraphs of
this Agreement are inserted for convenience of reference only and shall not
constitute a part of this Agreement.
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15. Entire Agreement. This Agreement and Exhibit A hereto contains the
entire agreement of the parties concerning the Employee's employment and all
promises, representations, understandings, arrangements and prior agreements on
such subject are merged herein and superseded hereby. The provisions of this
Agreement may not be amended, modified, repealed, waived, extended or discharged
except by an agreement in writing signed by the party against whom enforcement
of any amendment, modification, repeal, waiver, extension or discharge is
sought. No person acting other than pursuant to a resolution of the Board of
Directors shall have authority on behalf of the Company to agree to amend,
modify, repeal, waive, extend or discharge any provision of this Agreement or
anything in reference thereto or to exercise any of the Company's rights to
terminate or to fail to extend this Agreement.
* * * * *
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and attested by its duly authorized officers, and the Employee has set
his hand, all as of the day and year first above written.
ATTEST: GoAmerica, Inc.
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
Chairman & Chief Executive Officer
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
WITNESS: EMPLOYEE
/s/ Xxxxxx Xxxxxxx /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Address:
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