EXHIBIT 10.9
EXECUTIVE EMPLOYMENT AGREEMENT
This Amended and Restated Executive Employment Agreement (this
"Agreement") is made as of October 14, 2004 by and between Mobilepro Corp., a
Delaware corporation (the "Company"), and Xxxxx Xxxxxxxxxx ("Executive").
WHEREAS, the Company and the Executive are parties to that certain
Executive Employment Agreement dated as of June 10, 2004 ("Original Agreement")
which states the terms and conditions of the Executive's employment as Group
President of Telco Operations; and
WHEREAS, the Company and Executive wish to amend the Original Agreement to
clarify that the options granted to the Executive were intended to be warrants
to purchase common stock.
NOW, THEREFORE, in consideration of the foregoing recitals and the
representations, covenants and terms, the parties hereto hereby agree to amend
and restate the Original Agreement in its entirety as follows:
1. EMPLOYMENT PERIOD
The Company will employ Xx. Xxxxxxxxxx, and Xx. Xxxxxxxxxx will
serve the Company, under the terms of this Agreement commencing June 10, 2004
(the "Commencement Date") for a term of twenty-four (24) months unless earlier
terminated under Section 4 hereof. The period of time between the commencement
and the termination of Xx. Xxxxxxxxxx'x employment hereunder shall be referred
to herein as the "Employment Period."
2. DUTIES AND STATUS
The Company hereby engages Xx. Xxxxxxxxxx as its Group President of
Telco Operations on the terms and conditions set forth in this Agreement. During
the term of the Employment Period, Xx. Xxxxxxxxxx shall report directly to the
Chief Executive Officer of the Company and shall exercise such authority,
perform such executive functions and discharge such responsibilities as are
reasonably associated with Xx. Xxxxxxxxxx'x position, commensurate with the
authority vested in Xx. Xxxxxxxxxx pursuant to this Agreement and consistent
with the governing documents of the Company. These duties include, but are not
limited to: (i) execution of the telco strategy, business plan and financial
projections as developed and agreed to by the Company; (ii) assume
responsibility for all the financial, accounting and related aspects of the
telco division; (ii) managing the day to day operations and integration of the
telco companies which the Company or its affiliates acquires; (iii) assisting
the CEO in seeking and closing acquisitions for the Company to grow the
Company's revenues and earnings per share; (iv) identifying and recruiting
additional personnel to build the Company, especially in the telco area; and (v)
handling such other leadership, administrative and
managerial roles as is customary and appropriate for a company's Group President
of Telco Operations. For purposes of this Agreement, "Telco Operations" shall
refer specifically to voice services including long distance and local. Xx.
Xxxxxxxxxx understands that Xxxx Xxxxx is in charge of ISP Operations and that
there is currently a vacancy for Web Hosting Operations. To the extent that
technology such as VOIP creates convergence between ISP Operations and Telco
Operations, Xx. Xxxxxxxxxx will work with the Company's CEO and Xx. Xxxxx to
best implement a VOIP strategy.
3. COMPENSATION AND BENEFITS
(a) Salary. During the Employment Period, the Company shall pay to
Xx. Xxxxxxxxxx, as compensation for the performance of his
duties and obligations under this Agreement, a base salary of
Fifteen Thousand Dollars ($15,000) per month, payable
semi-monthly. In addition, beginning October 1, 2003, the
Company shall reimburse Xx. Xxxxxxxxxx for all health, dental,
vision, life, AD&D, and disability insurance policies (not to
exceed $2,000 per month) until such time as Company
establishes such insurance coverages.
(b) Vacation: The Company will provide Xx. Xxxxxxxxxx with four
(4) weeks paid vacation per annum.
(c) Bonus. During the Employment Period, Xx. Xxxxxxxxxx shall be
entitled to a bonus of up to three times (3x) his annual
salary.
The bonus will be based upon two metrics:
(i) 1.0% of acquired Telco companies' LTM revenues
plus
(ii) Five percent (5%) of the EBITDA achieved by the
Telco Operations of the Company; plus
(iii) One-half percent (.5%) of LTM revenues for any
other acquisitions which Xx. Xxxxxxxxxx originates
and which the Company closes.
For the Astra, US1, and AFN proposed transactions, in lieu of
one percent (1%) (or one-half percent (.5%) for Astra) of LTM
revenues, Xx. Xxxxxxxxxx shall receive a bonus based on a
standard Xxxxxx Formula (i.e., 5% of the first $1 million, 4%
of the second $1 million, 3% of the third $1 million, 2% of
the fourth $1 million and 1% thereafter of purchase price) for
each of the three acquisition opportunities which the Company
accepts and finalizes. An acquisition shall be deemed "made"
if a definitive agreement is executed during the Employment
Period and the transaction closes during the Employment Period
or within twelve (12) months thereafter.
The acquisition bonus will be paid with the next regular
paycheck after an acquisition closes while the EBITDA bonus
will be paid seventy-five percent (75%) no later than
forty-five (45) days after
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the close of the quarter (based on unaudited numbers) and the
remaining twenty-five percent (25%) within ninety (90) days
after the fiscal year end (based on audited numbers).
The bonus will be capped at three hundred percent (300%) of
base salary (thus, initially $540,000 per annum). The 3x cap
shall be lifted if the Company achieves $5 million in Telco
EBITDA on a "run-rate" basis by March 31, 2005. The Company
and Xx. Xxxxxxxxxx herein agree to negotiate in good faith on
additional compensation if warranted by extraordinary
performance by Xx. Xxxxxxxxxx. Terms and conditions of the
additional compensation, if any, will be negotiated on a
case-by-case basis.
(d) Equity. As partial consideration for entering into this
Agreement, the Company hereby grants Xx. Xxxxxxxxxx a warrant
to acquire three million (3,000,000) shares of the Company's
common stock at an exercise price or $0.20 per share (the
"Warrant"). The Warrant shall vest ratably over the remaining
twenty-four (24) months of the Agreement, or immediately if
Xx. Xxxxxxxxxx'x employment is terminated without cause or for
good reason (as described in Section 4 hereof) or due to a
change in control, sale of a majority of the common stock or
substantially all of the assets of the Company or merger of
the Company into or with another company (unless such company
is less than ninety percent (90%) of the size (measured by
market value) of the Company) or reverse merger with another
company. A warrant to purchase an additional three million
(3,000,000) shares of common stock will be granted and shall
vest on the following schedule: Seventy-five (75) warrants
shall vest per $1,000 in acquired LTM Telco Operation revenue
or Astra LTM revenue and thirty-seven and one-half (37.5)
warrants shall vest per $1,000 in LTM revenue for Xx.
Xxxxxxxxxx sourced acquisitions which are not Telco Operation
revenue or Astra LTM revenue.
All six million (6,000,000) warrants to purchase shares of
common stock issued pursuant to this section 3(d) will have an
exercise price of $0.20 and the shares underlying such
warrants shall have "piggy-back" registration rights with the
Company's next SB-2 or equivalent registration statement, but
shall not otherwise be registered.
Additional warrants or options may be granted at the
discretion of the Chief Executive Officer.
(e) Business Expenses. During the Employment Period, the Company
shall promptly reimburse Xx. Xxxxxxxxxx for all appropriately
documented, reasonable business and travel expenses incurred
by
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Xx. Xxxxxxxxxx in the performance of his duties under this
Agreement.
(f) Office. During the Employment Period, the Company shall
provide an office at a place mutually agreeable to Xx.
Xxxxxxxxxx and the Company and, to the extent that the
Company's budget allows, secretarial assistance to Xx.
Xxxxxxxxxx suitable to Xx. Xxxxxxxxxx'x position as the
Company's Group President. Xx. Xxxxxxxxxx agrees that the
Company's existing offices at 0000 Xxxxxxxxx Xxxxxxxxx,
Xxxxxxxx, Xxxxxxxx 00000 are sufficient to satisfy this
covenant.
The Company agrees to reimburse Xx. Xxxxxxxxxx for expenses
incurred to establish and maintain a home office including
phone, fax, Internet, cellular, and other related expenses not
to exceed $500 per month.
If the Company requires Xx. Xxxxxxxxxx to relocate from
Maryland to any other state for the purpose of serving as
Group President or any other like position, the Company agrees
to provide a full relocation package commensurate with
industry standards for this level of position.
(4) TERMINATION OF EMPLOYMENT
(a) Termination for Cause. The Company may terminate Xx.
Xxxxxxxxxx'x employment hereunder for Cause (defined below).
For purposes of this Agreement and subject to Xx. Xxxxxxxxxx'x
opportunity to cure as provided in Section 4(c) hereof, the
Company shall have Cause to terminate Xx. Xxxxxxxxxx'x
employment hereunder if such termination shall be the result
of:
(i) a material breach of fiduciary duty or material breach of
the terms of this Agreement or any other agreement between Xx.
Xxxxxxxxxx and the Company (including without limitation any
agreements regarding confidentiality, inventions assignment
and non-competition), which, in the case of a material breach
of the terms of this Agreement or any other agreement, remains
uncured for a period of thirty (30) days following receipt of
written notice from the Board specifying the nature of such
breach;
(ii) the commission by Xx. Xxxxxxxxxx of any act of
embezzlement, fraud, larceny or theft on or from the Company;
(iii) Substantial and continuing neglect or inattention by Xx.
Xxxxxxxxxx of the duties of his employment or the willful
misconduct or gross negligence of Xx. Xxxxxxxxxx in connection
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with the performance of such duties which remains uncured for
a period of thirty (30) days following receipt of written
notice from the Board specifying the nature of such breach;
(iv) The commission by Xx. Xxxxxxxxxx of any crime involving
moral turpitude or a felony;
(v) Xx. Xxxxxxxxxx'x performance or omission of any act which,
in the judgment of the Board, if known to the customers,
clients, stockholders or any regulators of the Company, would
have a material and adverse impact on the business of the
Company; and
(vi) In the event that Telco Operations deals, plus Astra or
other deals sourced by Xx. Xxxxxxxxxx, with at least $1
million in Run-Rate EBITDA (in the reasonable judgment of the
Company's CEO) have not closed by December 31, 2004.
(b) Termination for Good Reason. Xx. Xxxxxxxxxx shall have the
right at any time to terminate his employment with the Company
upon not less than thirty (30) days prior written notice of
termination for Good Reason (defined below). For purposes of
this Agreement and subject to the Company's opportunity to
cure as provided in Section 4(c) hereof, Xx. Xxxxxxxxxx shall
have Good Reason to terminate his employment hereunder if such
termination shall be the result of:
(i) The breach by the Company of any material provision of
this Agreement; or
(ii) A requirement by the Company that Xx. Xxxxxxxxxx perform
any act or refrain from performing any act that would be
in violation of any applicable law.
(c) Notice and Opportunity to Cure. Notwithstanding the foregoing,
it shall be a condition precedent to the Company's right to
terminate Xx. Xxxxxxxxxx'x employment for Cause and Xx.
Xxxxxxxxxx'x right to terminate for Good Reason that (i) the
party seeking termination shall first have given the other
party written notice stating with specificity the reason for
the termination ("breach") and (ii) if such breach is
susceptible of cure or remedy, a period of fifteen (15) days
from and after the giving of such notice shall have elapsed
without the breaching party having effectively cured or
remedied such breach during such 15-day period, unless such
breach cannot be cured or remedied within fifteen (15) days,
in which case the period for remedy or cure shall be extended
for a reasonable time (not to exceed an additional thirty (30)
days)
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provided the breaching party has made and continues to make a
diligent effort to effect such remedy or cure.
(d) Voluntary Termination. At the election of Xx. Xxxxxxxxxx, upon
not less than sixty (60) days prior written notice of
termination other than for Good Reason.
(e) Termination Upon Death or Permanent and Total Disability. The
Employment Period shall be terminated by the death of Xx.
Xxxxxxxxxx. The Employment Period may be terminated by the
Board of Directors of the Company if Xx. Xxxxxxxxxx shall be
rendered incapable of performing his duties to the Company by
reason of any medically determined physical or mental
impairment that can be reasonably expected to result in death
or that can be reasonably be expected to last for a period of
either (i) six (6) or more consecutive months from the first
date of Xx. Xxxxxxxxxx'x absence due to the disability or (ii)
nine (9) months during any twelve-month period (a "Permanent
and Total Disability"). If the Employment Period is terminated
by reason of a Permanent and Total Disability of Xx.
Xxxxxxxxxx, the Company shall give thirty (30) days' advance
written notice to that effect to Xx. Xxxxxxxxxx.
(f) Termination Without Cause. At the election of the Company,
otherwise than for Cause, upon not less than sixty (60) days
written notice of termination.
(g) Termination for Business Failure. Anything contained herein to
the contrary notwithstanding, in the event the Company's
business is discontinued because continuation is rendered
impracticable by substantial financial losses, lack of
funding, legal decisions, administrative rulings, declaration
of war, dissolution, national or local economic depression or
crisis or any reasons beyond the control of the Company, then
this Agreement shall terminate as of the day the Company
determines to cease operation with the same force and effect
as if such day of the month were originally set as the
termination date hereof. In the event this Agreement is
terminated pursuant to this Section 4(g), the Executive will
be entitled to severance pay.
(5) CONSEQUENCES OF TERMINATION
(a) Without Cause or for Good Reason. In the event of a
termination of Xx. Xxxxxxxxxx'x employment during the
Employment Period by the Company other than for Cause pursuant
to Section 4(f) or by Xx. Xxxxxxxxxx for Good Reason pursuant
to Section 4(b) (e.g., due to a Change of Control of the
Company, where Change of
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Control means: (i) the acquisition (other than from the
Company) in one or more transactions by any Person, as defined
in this Section 5(a), of the beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Securities
Exchange Act of 1934, as amended) of 50% or more of (A) the
then outstanding shares of the securities of the Company, or
(B) the combined voting power of the then outstanding
securities of the Company entitled to vote generally in the
election of directors (the "Company Voting Stock"); (ii) the
closing of a sale or other conveyance of all or substantially
all of the assets of the Company; or (iii) the effective time
of any merger, share exchange, consolidation, or other
business combination of the Company if immediately after such
transaction persons who hold a majority of the outstanding
voting securities entitled to vote generally in the election
of directors of the surviving entity (or the entity owning
100% of such surviving entity) are not persons who,
immediately prior to such transaction, held the Company Voting
Stock; provided, however, that a Change of Control shall not
include a public offering of capital stock of the Company. For
purposes of this Section 5(a), a "Person" means any
individual, entity or group within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended, other than employee benefit plans sponsored or
maintained by the Company and corporations controlled by the
Company), the Company shall pay Xx. Xxxxxxxxxx (or his estate)
and provide him with the following:
a. Lump-Sum Payment. A lump-sum cash payment, payable
ten (10) days after Xx. Xxxxxxxxxx'x termination of
employment, equal to the sum of the following:
i. Salary. The equivalent of the remaining months on
the Employment Agreement or twelve (12) months
(the "Severance Period") of Xx. Xxxxxxxxxx'x
then-current base salary, whichever is greater;
plus
ii. Earned but Unpaid Amounts. Any previously earned
but unpaid salary through Xx. Xxxxxxxxxx'x final
date of employment with the Company, and any
previously earned but unpaid bonus amounts prior
to the date of Xx. Xxxxxxxxxx'x termination of
employment.
iii. Equity. Xx. Xxxxxxxxxx shall retain all Warrant
Shares vested at time of termination. All unvested
Warrant Shares shall immediately vest
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and be retained by Xx. Xxxxxxxxxx. Xx. Xxxxxxxxxx
shall have the benefit of the full ten (10)-year
warrant period to exercise such Warrant Shares.
b. Other Benefits. The Company shall provide continued
coverage for the Severance Period under all health, life,
disability and similar employee benefit plans and programs of
the Company on the same basis as Xx. Xxxxxxxxxx was entitled
to participate immediately prior to such termination, provided
that Xx. Xxxxxxxxxx'x continued participation is possible
under the general terms and provisions of such plans and
programs. In the event that Xx. Xxxxxxxxxx'x participation in
any such plan or program is barred, the Company shall use its
commercially reasonable efforts to provide Xx. Xxxxxxxxxx with
benefits substantially similar (including all tax effects) to
those which Xx. Xxxxxxxxxx would otherwise have been entitled
to receive under such plans and programs from which his
continued participation is barred. In the event that Xx.
Xxxxxxxxxx is covered under substitute benefit plans of
another employer prior to the expiration of the Severance
Period, the Company will no longer be obligated to continue
the coverage's provided for in this Section 5(a)(ii).
(b) Other Termination of Employment. In the event that Xx.
Xxxxxxxxxx'x employment with the Company is terminated during
the Employment Period by the Company for Cause (as provided
for in Section 4(a) hereof) or by Xx. Xxxxxxxxxx other than
for Good Reason (as provided for in Section 4(b) hereof), the
Company shall pay or grant Xx. Xxxxxxxxxx any earned but
unpaid salary, bonus, and Warrant Shares through Xx.
Xxxxxxxxxx'x final date of employment with the Company, and
the Company shall have no further obligations to Xx.
Xxxxxxxxxx.
(c) Withholding of Taxes. All payments required to be made by the
Company to Xx. Xxxxxxxxxx under this Agreement shall be
subject only to the withholding of such amounts, if any,
relating to tax, excise tax and other payroll deductions as
may be required by law or regulation.
(d) No Other Obligations. The benefits payable to Xx. Xxxxxxxxxx
under this Agreement are not in lieu of any benefits payable
under any employee benefit plan, program or arrangement of the
Company, except as specifically provided herein, and Xx.
Xxxxxxxxxx will receive such benefits or payments, if any, as
he
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may be entitled to receive pursuant to the terms of such
plans, programs and arrangements. Except for the obligations
of the Company provided by the foregoing and this Section 5,
the Company shall have no further obligations to Xx.
Xxxxxxxxxx upon his termination of employment.
(e) No Mitigation or Offset. Xx. Xxxxxxxxxx shall have no
obligation to mitigate the damages provided by this Section 5
by seeking substitute employment or otherwise and there shall
be no offset of the payments or benefits set forth in this
Section 5 except as provided in Section 5(a)(ii).
(6) GOVERNING LAW
This Agreement and the rights and obligations of the parties hereto
shall be construed in accordance with the laws of the State of Maryland, without
giving effect to the principles of conflict of laws.
(7) INDEMNITY AND INSURANCE
The Company shall indemnify and save harmless Xx. Xxxxxxxxxx for any
liability incurred by reason of any act or omission performed by Xx. Xxxxxxxxxx
while acting in good faith on behalf of the Company and within the scope of the
authority of Xx. Xxxxxxxxxx pursuant to this Agreement and to the fullest extent
provided under the Bylaws, the Certificate of Incorporation and the General
Corporation Law of the State of Delaware, except that Xx. Xxxxxxxxxx must have
in good faith believed that such action was in, or not opposed to, the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that such conduct was unlawful
The Company shall provide that Xx. Xxxxxxxxxx is covered by any
Directors and Officers insurance that the Company provides to other senior
executives and/or board members.
(8) NON-DISPARAGEMENT
At all times during the Employment Period and for a period of five
(5) years thereafter (regardless of how Xx. Xxxxxxxxxx'x employment was
terminated), Xx. Xxxxxxxxxx shall not, directly or indirectly, make (or cause to
be made) to any person any disparaging, derogatory or other negative or false
statement about the Company (including its products, services, policies,
practices, operations, employees, sales representatives, agents, officers,
members, managers, partners or directors).
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(9) COOPERATION WITH THE COMPANY AFTER TERMINATION OF EMPLOYMENT
Following termination of Xx. Xxxxxxxxxx'x employment for any reason,
Xx. Xxxxxxxxxx shall fully cooperate with the Company in all matters relating to
the winding up of Xx. Xxxxxxxxxx'x pending work on behalf of the Company
including, but not limited to, any litigation in which the Company is involved,
and the orderly transfer of any such pending work to other employees of the
Company as may be designated by the Company. Following any notice of termination
of employment by either the Company or Xx. Xxxxxxxxxx, the Company shall be
entitled to such full time or part time services of Xx. Xxxxxxxxxx as the
Company may reasonably require during all or any part of the sixty (60)-day
period following any notice of termination, provided that Xx. Xxxxxxxxxx shall
be compensated for such services at the same rate as in effect immediately
before the notice of termination.
(10) LOCK-UP PERIOD AND VOLUME LIMITATION.
Xx. Xxxxxxxxxx agrees that he will not sell or otherwise transfer or
dispose of any shares of the Company's common stock that he owns or is entitled
to receive following the exercise of any Warrant Shares or convertible
securities that he may receive following the Commencement Date until December 1,
2004. Xx. Xxxxxxxxxx also agrees that he will not sell or otherwise transfer or
dispose of more than one million (1,000,000) shares of the Company's common
stock during any calendar quarter thereafter during the Employment Period.
(11) NOTICE
All notices, requests and other communications pursuant to this
Agreement shall be sent by overnight mail to the following addresses:
If to Xx. Xxxxxxxxxx:
Xxxxx Xxxxxxxxxx
00000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Phone: 000-000-0000
Email: xxxxxx@xxxxxxxxxxxx.xxx
If to the Company:
Mobilepro Corp.
Attn: CEO
0000 Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Phone: 000.000.0000
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(12) WAIVER OF BREACH
Any waiver of any breach of this Agreement shall not be construed to
be a continuing waiver or consent to any subsequent breach on the part of either
Xx. Xxxxxxxxxx or of the Company.
(13) NON-ASSIGNMENT / SUCCESSORS
Neither party hereto may assign his or its rights or delegate his or
its duties under this Agreement without the prior written consent of the other
party; provided, however, that (i) this Agreement shall inure to the benefit of
and be binding upon the successors and assigns of the Company upon any sale or
all or substantially all of the Company's assets, or upon any merger,
consolidation or reorganization of the Company with or into any other
corporation, all as though such successors and assigns of the Company and their
respective successors and assigns were the Company; and (ii) this Agreement
shall inure to the benefit of and be binding upon the heirs, assigns or
designees of Xx. Xxxxxxxxxx to the extent of any payments due to them hereunder.
As used in this Agreement, the term "Company" shall be deemed to refer to any
such successor or assign of the Company referred to in the preceding sentence.
(14) SEVERABILITY
To the extent any provision of this Agreement or portion thereof
shall be invalid or unenforceable, it shall be considered deleted there from and
the remainder of such provision and of this Agreement shall be unaffected and
shall continue in full force and effect.
(15) COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
(16) ARBITRATION
Xx. Xxxxxxxxxx and the Company shall submit to mandatory and
exclusive binding arbitration, any controversy or claim arising out of, or
relating to, this Agreement or any breach hereof where the amount in dispute is
greater than or equal to $50,000, provided, however, that the parties retain
their right to, and shall not be prohibited, limited or in any other way
restricted from, seeking or obtaining equitable relief from a court having
jurisdiction over the parties. In the event the amount of any controversy or
claim arising out of, or relating to, this Agreement, or any breach hereof, is
less than $50,000, the parties hereby agree to submit such claim to mediation.
Such arbitration shall be governed by the Federal Arbitration Act and conducted
through the
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American Arbitration Association ("AAA") in the state of Maryland, before a
single neutral arbitrator, in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association in
effect at that time. The parties may conduct only essential discovery prior to
the hearing, as defined by the AAA arbitrator. The arbitrator shall issue a
written decision, which contains the essential findings and conclusions on which
the decision is based. Mediation shall be governed by, and conducted through,
the AAA. Judgment upon the determination or award rendered by the arbitrator may
be entered in any court having jurisdiction thereof.
(17) ENTIRE AGREEMENT
This Agreement and all schedules and other attachments hereto
constitute the entire agreement by the Company and Xx. Xxxxxxxxxx with respect
to the subject matter hereof and, except as specifically provided herein,
supersedes any and all prior agreements or understandings between Xx. Xxxxxxxxxx
and the Company with respect to the subject matter hereof, whether written or
oral (including that certain consulting arrangement between Xx. Xxxxxxxxxx and
the Company). This Agreement may be amended or modified only by a written
instrument executed by Xx. Xxxxxxxxxx and the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of October 14,
2004.
XXXXX X. XXXXXXXXXX MOBILEPRO CORP.
------------------------- By:
-------------------------
Its:
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