EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is made and entered into this 5th day of
July, 2006, by and between SIRICOMM, INC. (the "Company") and Xxxxx X. Xxxxxxx
(the "Employee").
In consideration of the mutual promises contained in this Agreement and
other good and valuable consideration, the parties hereto make the following
agreement, intending to be legally bound hereby:
1. Term. The term of this Agreement and Employee's employment under
this Agreement shall commence as of the date hereof and, unless sooner
terminated as provided herein, shall continue for an initial term of two (2)
years (hereinafter "Initial Term"). Thereafter, this Agreement shall
automatically renew for additional one year periods unless either party provides
written notice of non-renewal to the other party at least 90 days prior to the
end of the then-current term (hereinafter "Renewal Term"). For purposes of this
Agreement, the Initial Term and the Renewal Terms shall be referred to
collectively herein as "Term of Employment."
2. Duties.
(a) The Company agrees to employ Employee and Employee agrees to be
employed by the Company for the Term of Employment stated in section 1
hereof, subject to the terms and conditions herein provided. Employee
shall serve as the "Chairman" of the Company as that position may be
defined or re-named from time to time by the board of directors of the
Company ("Board").
(b) During and throughout his Term of Employment pursuant to this
Agreement, Employee shall devote such working time as may be required
and best efforts using his customary work habits and work patterns to
perform such duties as may be assigned from time to time by the Board
including, but not limited to, those duties set forth on Exhibit "A"
attached hereto and incorporated herein; provided, Employee shall not
be required to relocate from the Joplin metropolitan area. Employee may
pursue other activities so long as such activities do not (i) affect
the performance of Employee's duties for the Company, or (ii) are not
in any way, directly or indirectly, competitive with the Company.
3. Compensation.
(a) During and throughout his Term of Employment pursuant to this
Agreement, the Company shall pay, and Employee shall accept, an annual
salary of not less than One Hundred Seventy-Five Thousand Dollars
($175,000.00) subject to the required withholding for applicable state
and Federal taxes, for all services provided pursuant to the terms of
this Agreement payable on a weekly basis.
(b) During and throughout his Term of Employment pursuant to this
Agreement, Employee shall be entitled to participate in any and all
employee welfare, pension or other benefit plans and programs
maintained on or after the effective date of this Agreement for
employees of the Company, including, without limitation, health, life
and other insurance programs. In addition, the Company shall reimburse
Employee for all of his reasonable out-of-pocket expenses incurred in
connection with the performance of his duties hereunder, provided
Employee provides the Company with detailed expense reports and
receipts in accordance with then existing Company policy.
(c) During and throughout his Term of Employment pursuant to this
Agreement, Employee shall not receive any earned compensation from any
other enterprises offering services similar to those offered by the
Company.
(d) During and throughout his Term of Employment pursuant to this
Agreement, Employee shall be entitled to receive bonus payments in
accordance with then existing Company policy as set by the Board.
(e) During and throughout his Term of Employment pursuant of this
Agreement, Employee shall receive a monthly car allowance from the
Company in an amount to be fixed by and paid at the sole discretion of
the Board.
4. Termination. Employee's employment under this Agreement may be
terminated prior to the expiration of the Term of Employment as follows:
(a) By the Company at any time without prior notice for:
(i) the commission by Employee of any act of fraud upon or an
act evidencing dishonesty toward the Company;
(ii) Employee's conviction of or plea of guilty/no contest to
any felony or misdemeanor involving moral turpitude, or,
(iii) the wrongful misappropriation by Employee of any funds,
property or rights of the Company,
(iv) a voluntary resignation by Employee or willful failure or
continuing inability of Employee to carry out assigned job
duties and responsibilities, which the parries agree shall
constitute a voluntary resignation; provided, however, the
before Company terminates Employee's employment and this
Agreement under this subsection (iv) for Employee's "willful
failure or continuing inability," Company agrees to give
Employee written notice of such failure or inability and a
reasonable opportunity of not more than thirty (30) days to
cure such failure or inability.
(b) By reason of Employee's death.
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(c) Upon the termination of the employment of Employee pursuant to the
provisions of subsections (a) or (b) above, the Term of Employment
shall expire and he, or his estate in the event of his death, shall be
entitled only to receive two (2) weeks of compensation for services
rendered prior to such termination and the Company shall have no
further obligation to compensate Employee for services performed
hereunder including bonus payments, but shall continue to reimburse
Employee for insurance premiums if provided under subsection 3(b)
above.
(d) If Employee is terminated other than pursuant to subsections (a) or
(b) above, then the Company will continue to pay and provide
compensation and benefits to Employee for the greater of the remainder
of the Initial Term or for twelve (12) months after the termination
date. If the Company elects not to renew this Agreement for any Renewal
Term for reason other than those set forth in subsections (a) or (b)
above, then the Company will continue to pay and provide compensation
and benefits to Employee for twelve (12) months after expiration of the
Term in which such non-renewal occurs, whether it is the Initial Term
or a Renewal Term.
5. Non-Disclosure of Confidential Information. In addition to any
common law restrictions that may apply, Employee covenants and agrees that he
shall not during his employment hereunder, nor at anytime thereafter, disclose
any confidential, secret or proprietary Information or knowledge or any trade
secrets (collectively, the "Confidential Information") for his own purposes or
for the benefit of any person, firm, corporation or other entity (except the
Company) under any Circumstances. For purposes of this Section 5, to the fullest
extent permitted by applicable law, as amended from time to time, "Confidential
Information" shall include: (a) any information, process, procedure, formula or
improvement which has not been published or disseminated or otherwise become a
matter of general public knowledge; (b) the whole or any portion of any business
plan, financial information, purchasing data, supply data, accounting data or
other financial information which has not been published or disseminated or
otherwise become a matter of general public knowledge; (c) the whole or any part
of any marketing information, marketing strategies, sales records, customer
lists, prices, profit margins, sales projections or other sales information
which has not been published or disseminated or otherwise become a matter of
general knowledge; and (d) trade secrets as defined by the laws of the state of
Missouri. Employee acknowledges and agrees that all information falling within
the above definition or otherwise related thereto shall he presumed to be
Confidential Information and that Confidential Information shall also include
any other information which Employee has a reasonable basis to believe to be
Confidential Information.
6. Property of the Company. Employee covenants and agrees that all
memoranda, notes, lists, files, reports, materials, computer disks, programs,
records and other documents (and all copies, recordings, abstracts, synopses,
notes or other representations of any of the foregoing, whether produced
manually or electronically) made or compiled by Employee or made available to
Employee relating to the Confidential Information or to the business of the
Company, shall remain the sole and exclusive property of the Company and shall
be delivered to the Company by Employee promptly upon the termination of
Employee's employment with the Company or at any other time on request.
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7. Irreparable Harm. Employee acknowledges and agrees that a breach or
threatened breach of the obligations regarding confidentiality set forth in
Section 5 shall result in irreparable and continuing damage to the Company for
which there is no adequate remedy at law. Employee further agrees that in the
event of any breach or threatened breach of such obligations, the Company
(including successors and assigns) shall he entitled to a temporary restraining
order, and to preliminary and permanent injunctive relief restraining such
breach or threatened breach and such other and further relief as may be proper
against Employee and all persons acting through or for Employee, including
partners, agents, servants and employees.
8. Covenants of Employee. During and throughout his Term of Employment
pursuant to this Agreement (and for so long thereafter as any compensation or
benefits are being paid and/or provided by Employer to Employee), Employee
covenants and agrees as follows:
(a) Excluding private transactions, Employee shall obtain Board
approval for any sales of stock owned by him of more than 1/2% per
quarter of the then current number of Company's outstanding shares of
stock, which approval shall not be unreasonably delayed or withheld.
(b) Employee shall obtain Board approval for any "non-traditional"
(other than commercial bank) financing involving pledging of stock as
collateral, which approval shall not be unreasonably delayed or
withheld.
(c) Employee shall vote his stock in favor of the current Board or such
designees as a majority of the Board may designate, and Employee will
take no action, directly or indirectly, to change the current Board or
challenge its selection of managers for the Company; provided, however,
to the extent that Employee is also a member of the Board, he may
participate on the same basis as any other member of the Board.
9. Waiver. Failure to insist upon a strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of any such
term, covenant or condition, nor shall any such failure at any one time or more
times be deemed a waiver or relinquishment at any other time or times of any
right under the terms, covenants or conditions hereof.
10. Benefit. This Agreement shall inure to the benefit of and be
binding upon the Company, its successors and assigns, including, but not limited
to, any company which may acquire all or substantially all of the Company's
assets or business or into which the Company may be consolidated or merged or by
which the Company's business may be held or prosecuted. The rights of Employee
may not be assigned or otherwise transferred nor may the obligations of Employee
be delegated. This Agreement shall be binding upon the heirs and personal
representatives of Employee insofar as such heirs and personal representatives
shall come into possession by any means whatsoever of any Confidential
Information. It is further agreed that for purposes of this Agreement, "Company"
shall mean SIRICOMM, INC. and all of its subsidiaries and affiliates.
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11. Governing Law. This Agreement is executed and delivered in, and
shall be governed, enforced and interpreted in accordance with the laws of, the
State of Missouri without regard to the principles of conflict of laws.
12. Severability. Except as otherwise provided on the contrary herein,
each section, paragraph, part, term and/or provision of this Agreement shall he
considered severable, and if, for any reason, any section, paragraph, part, term
and/or provision herein is determined to be invalid or contrary to, or in
conflict with, any existing or future law or regulation of a court or agency
having valid jurisdiction, such shall not impair the operation of, or otherwise
affect, the other sections, paragraphs, parts, terms and/or provisions of this
Agreement as may remain otherwise intelligible, and the latter will continue to
be given full force and effect and bind the parties hereto.
13. Right to Recover Costs. The parties agree that, in any action to
enforce this Agreement, the prevailing party in such action shall be entitled to
recover its costs and expenses including, including, without limitation, any
attorney fees..
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf by its duly authorized officer and Employee has set his
hand, both as of the day and year first above written.
COMPANY:
SIRICOMM, INC.
By: /s/ J. Xxxxxxx Xxxx
Title: Chief Financial Officer
EMPLOYEE:
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
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Exhibit "A"
Certain Duties of Employee
1. Pursue ViaSat for strategic investment in SiriCOMM, Inc.
2. Pursue Fox Media for strategic investment in SiriCOMM, Inc.
3. Participate in investor relations presentations.
4. Pursue media content for portal.
5. Participate in identification and development of additional
product, revenue and strategic opportunities.
6. Attend meetings, conferences and/or shows as required
7. Other reasonable duties and/or responsibilities requested by
Board.
8. Consult with CEO and Board as reasonably requested.
9. Report to the Board as reasonably requested.
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