EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of
October 4, 2000 (the "Effective Date") by and between Socket
Communications, Inc., a Delaware corporation, together with its wholly
owned subsidiary, 3rd Rail Engineering (together, the "Company"), and
[Name] ("Executive").
WHEREAS, the Company desires to employ Executive and Executive
desires to be employed by the Company upon the terms and conditions
set forth below;
NOW, THEREFORE, the Company and Executive agree as follows:
1. Term of the Agreement. The Company hereby employs Executive
and Executive hereby accepts employment with the Company under this
Agreement commencing on the Effective Date and expiring three years
later (the "Initial Employment Period") subject, however, to prior
termination as provided pursuant to Paragraph 5 of this Agreement.
Executive shall remain an employee of 3rd Rail Engineering as a
wholly-owned subsidiary of Company through the end of 2000 and then
become an employee of Company.
2. Duties and Obligations.
a. Executive shall report to, and follow the instructions and
wishes of, [designated officer of Socket].
b. Executive agrees that to the best of his ability and
experience, he will at all times loyally and conscientiously perform
all of the duties and obligations required of and from him pursuant to
the express and implicit terms hereof.
3. Devotion of Entire Time to the Company's Business.
a. During the term of his employment, Executive shall, during
regular business hours, devote all of his attention, knowledge,
skills, interests, and productive time to the business of the Company,
and the Company shall be entitled to all of the benefits and profits
arising from or incident to all work, services, and advice of
Executive.
b. During the term of his employment, Executive shall not,
directly or indirectly, either as an employee, employer, consultant,
agent, principal, partner, stockholder, corporate officer, director,
or in any other individual or representative capacity, engage or
participate in any business that is competitive in any manner
whatsoever with the business of the Company.
4. Compensation and Benefits.
a. Base Compensation. During the term of this Agreement,
the Company shall pay to Executive a base annual salary of [Amount]
($__), payable in equal semi-monthly installments in accordance with
the Company's payroll schedule. During the term of this Agreement,
Executive shall be eligible for annual salary and merit increases in
his base salary as determined in the sole discretion of the Company's
Board of Directors.
b. Bonus. During the term of this Agreement, Executive is
entitled to participate in the Company's Management Incentive Bonus
Plan (the "Bonus Plan") according to its terms as set by the Company's
Board of Directors.
c. Insurance. Executive shall be entitled to the
perquisites and benefits generally available to other executive
employees or their families through group insurance programs sponsored
by the Company.
d. Paid Time Off. Executive shall be entitled to accrue
paid time off ("PTO") in accordance with the Company's
PTO policy applicable to all employees.
e. Savings Plan. Executive shall be entitled to the
perquisites and benefits generally available to other executive
employees through tax deferred savings, pension and similar programs
when and if sponsored by the Company.
5. Termination of Employment.
a. Executive understands that either he or the Company may
terminate the employment relationship between them at any time, for
any reason, with or without Cause. For purposes of this Agreement,
"Cause" for termination of employment by the Company is defined as a
determination in the sole discretion of the Company's Board of
Directors of the occurrence of any of the following:
(i) gross misconduct or fraud by Executive;
(ii) Misappropriation of the Company's proprietary
information by Executive;
(iii)willful and continuing breach by Executive of
his duties under this Agreement after the Company has given notice to
Executive thereof and Executive has had 30 days in which to cure such
breach.
b. If at any time during the Initial Employment
Period, the Company terminates Executive's employment without Cause,
as defined above, or in the event of a disability which causes the
Executive to be unable to perform the Executive's duties in a
satisfactory manner, it shall provide to Executive each of the
following:
(i) Executive's regular base salary for a period of
three (3) months, payable on normal Company paydays during that three
month period (the "Period"). Executive will be entitled to receive
this payment regardless of whether or not he secures other employment
during the Period.
(ii) Continued health insurance benefits at its own
expense pursuant to COBRA until the earlier of either: a) such time
as Executive becomes eligible for the health insurance benefits
provided by another employer; or b) the expiration of the Period.
Executive agrees that should he become eligible for health insurance
benefits provided by another employer during the Period, he will
immediately provide written notice of such event to the Company's
Board of Directors.
(iii)For quarter in which the Executive is
terminated or disabled, he will receive the full bonus amount,
pursuant to terms of the Bonus Program, to which he would otherwise
have been entitled had he remained employed with Company. For the
quarter following Executive's termination, he will receive one-half
the bonus amount, pursuant to terms of the Bonus Program, to which he
would otherwise have been entitled had he remained employed with
Company. Executive understands that he is not entitled to, nor will
he receive, any further pay-out under the Bonus Program.
(iv) Within thirty (30) days of the date of the
termination without Cause of Executive's employment, and pursuant to
mutual agreement between the Company and Executive, Executive may
purchase at book value certain items of Company property which were
purchased by the Company for the use of Executive, which may include a
personal computer, cellular phone, and other similar items.
(v) Notwithstanding the foregoing, should the Company
terminate Executive's employment prior to completion of one year of
service with the Company, or should Executive become disabled prior to
the completion of one year of service with the Company, then Executive
shall be entitled to continuation of base salary, 100% of bonus
entitlements and continuation of benefits through the one-year
anniversary date of the Date of Closing and the foregoing termination
benefits shall apply as if the termination occurred on the one year of
service anniversary date.
Executive agrees that in the event he accepts employment
directly or indirectly, either as an employee, employer, consultant,
agent, principal, partner, stockholder, corporate officer, director,
or in any other individual or representative capacity, in any business
that is competitive in any manner whatsoever with the business of the
Company, the Company may discontinue any of the benefits set forth in
this Paragraph 5(b) not payable as of the date of such employment.
Executive understands that in the event his employment is terminated
for any reason, with or without Cause, after [Closing Date plus three
years], he is not entitled to receive any of the benefits set forth in
this Paragraph 5(b).
c. In the event of the termination of this Agreement for
any reason, at any time, with or without Cause, the Company agrees
that it will pay to Executive all his accrued but unused PTO.
d. In the event that the Company alters Executive's
reporting structure at any time during the Initial Employment Period
so that Executive does not report directly to an officer of the
Company, Executive may elect to resign his employment. In such case,
Executive will be entitled to receive all of the benefits set forth
under Paragraph 5(b).
6. Governing Law. This agreement shall be interpreted,
construed, governed, and enforced according to the laws of the State
of Delaware.
7. Attorneys' Fees. In event of any arbitration or litigation
concerning any controversy, claim, or dispute between the parties
arising out of or relating to this Agreement or the breach or the
interpretation hereof, the prevailing party shall be entitled to
recover from the losing party reasonable expense, attorneys' fees, and
costs incurred therein or in the enforcement or collection of any
judgment or award rendered therein. The "prevailing party" means the
party determined by the arbitrator or court to have most nearly
prevailed, even if such party did not prevail in all matters, not
necessarily the one in whose favor a judgment is rendered.
8. Arbitration. Any controversy between the parties hereto
involving the construction or application of any terms, covenants, or
conditions of this Agreement, or any claim arising out of or relating
to this Agreement, except with respect to prejudgment remedies, will
be submitted to and be settled by final and binding arbitration in San
Jose, California, in accordance with the rules of the American
Arbitration Association then in effect, and judgment upon the award
rendered by the arbitrators may be entered in any court having
jurisdiction thereof.
9. Amendments. No amendment or modification of the terms or
conditions of this Agreement shall be valid unless in writing and
signed by the parties hereto.
10. Severability. All agreements and covenants contained herein
are severable, and in the event any of them shall be held to be
invalid or unenforceable, this Agreement shall be interpreted as if
such invalid agreements or covenants were not contained herein.
11. Successors and Assigns. The rights and obligations of the
Company under this Agreement shall inure to the benefit of and shall
be binding upon the successors and assigns of the Company. Executive
shall not be entitled to assign any of his rights or obligations under
this Agreement.
12. Entire Agreement. This Agreement and the Proprietary
Information and Inventions Agreement signed by Executive on his date
of employment, a copy of which is attached hereto as Exhibit A,
constitute the entire agreement between the parties with respect to
the employment of Executive.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date set forth above.
EXECUTIVE: SOCKET COMMUNICATIONS, INC.:
___________________________ By:______________________________
[Name and title of Executive]
