EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") is made and entered into as
of November 1, 1999 (the "Effective Date"), by and between NextPath
Technologies, Inc., a Nevada corporation, whose principal executive offices are
located at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxx Xxxxxxxx
00000 (the "Company"), and Xxxxxxxx X. Xxxxxx, Xx., whose address is 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000 (the "Employee"). The Company and the
Employee are collectively referred to as the "Parties."
WITNESSETH:
WHEREAS, the Company desires to employ the Employee as Vice President of
the Company to devote his full time, professional and technical services to the
business of the Company, and the Employee desires to be so employed; and
WHEREAS, the Company and the Employee desire to enter into this
Agreement for the period and on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements set
forth in this Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
Section 1. Employment. Subject to the terms and conditions of this
Agreement, the Company agrees to employ the Employee as Vice President of the
Company and the Employee agrees to be employed in such capacity.
Section 2. Duties. The Employee agrees to devote substantially all of
his business hours to, and during such time, make the best use of his energy,
knowledge, and training, advancing the Company's interests. The Employee agrees
to diligently and conscientiously perform his duties for the term of this
Agreement, within the general guidelines as determined by the President of the
Company. The Employee will report to the President of the Company, who will be
responsible on behalf of the Company for evaluating the Employee's job
performance and determining the extent to which the Employee is fulfilling his
duties.
Section 3. Term. Subject to earlier termination in accordance with
Section 14 of this Agreement, this Agreement shall continue in effect for a
period of five (5) years beginning on the Effective Date.
Section 4. Compensation.
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Section 4.1. Salary. In consideration for the Employee's services
under this Agreement, the Company agrees to pay the Employee an annual
salary of One Hundred Fifty Thousand Dollars ($150,000). The Employee's
compensation shall be paid in accordance with standard Company payroll
practices, subject to applicable withholding requirements. Subsequent
adjustments to salary shall be determined by the Board of Directors of
the Company.
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Section 4.2. Bonus. In addition to other compensation to be paid
under this Agreement, the Employee may receive, in the sole discretion
of the Company, periodic performance bonuses from time to time.
Section 4.3. Signing Bonus. In addition to other compensation to
be paid under this Agreement, the Company shall deliver to the Employee
One Hundred Thousand (100,000) shares of the Company's restricted common
stock, par value $.001 (the "Shares"), within thirty (30) days of the
Effective Date.
The Shares will be "Restricted Securities," as defined by Rule
144 under the Securities Act of 1933, will be restricted as to
transferability, and will bear substantially the following legend:
The securities represented by this Certificate have not been
registered under the United States Securities Act of 1933 (the
"Act") and are "restricted securities" as that term is defined in
Rule 144 under the Act. The securities may not be offered for
sale, sold or otherwise transferred except pursuant to an
effective registration statement under the Act, or pursuant to an
exemption from registration under the Act, the availability of
which is to be established to the satisfaction of the Company.
The Company agrees to file a registration statement covering the
Shares with the Securities and Exchange Commission within six months of
the Effective Date.
Section 5. Participation in Employee Benefit Programs. The Employee
shall be entitled to participate in all the employee benefit programs of the
Company in effect from time to time including, but not limited to, the Company's
group health and dental insurance plans, group life insurance plans, disability
insurance plans, retirement plans, deferred compensation plans, stock option
plans, employee stock purchase plans developed for key personnel (including
performance based plans and plans providing lower than market value exercise
prices), and any other employee benefit programs as may from time to time be in
effect.
Section 6. Mandatory Employee Benefits.
Section 6.1. Health Insurance. In the event that the Company does
not maintain a group health insurance plan, the Company shall pay the
premiums on a health, dental and vision insurance policy for the
Employee and his dependents. In the event that the annual premiums for
the policy exceed Two Thousand Five Hundred Dollars ($2,500), the
Employee shall be responsible for and shall pay any excess.
Section 6.2. Life Insurance. In the event that the Company does
not maintain a group life insurance plan or such plan does not provide
the Employee with life insurance coverage in the amount of $250,000, the
Company shall pay the premiums on a term policy on the Employee's life
that provides a death benefit in the amount of $250,000. The
beneficiaries of such life insurance policy shall be designated by the
Employee in his sole and absolute discretion.
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Section 7. Business Expenses. In addition to other compensation to be
paid under this Agreement, the Company shall be responsible for and shall bear
all ordinary and necessary business expenses which the Employee incurs while
performing his duties under this Agreement, provided that the Employee accounts
properly for these expenses to the Company in the manner that the Company
prescribes and such expenses are incurred in accordance with the policies of the
Company.
Section 8. Vacation and Sick Leave. The Employee shall be entitled to
thirty-five (35) working days of paid time off per calendar year to be used for
vacation and/or sick leave as required (the "Time Off"). If the Employee does
not use his Time off in its entirety in any given year, it shall be deemed
forfeited, it shall not be carried over, and the Employee shall not be entitled
to compensation for any unused Time Off.
Section 9. Automobile Allowance. In the event that the other executive
officers are provided with automobiles, the Company shall lease and provide the
Employee with the use of an automobile of the Employee's choice; provided,
however, that the monthly lease payment for such automobile does not exceed Four
Hundred Dollars ($400) per month. In addition, the Company shall be responsible
for, and shall pay, all gas, insurance, maintenance and repair expenses relating
to such automobile. Unless prohibited by the lease or otherwise, the Employee
shall have a thirty (30) day option, in his sole discretion, to purchase the
automobile upon the expiration of the lease term and at the purchase price set
forth in the lease.
Section 10. Other Benefits. The Company shall provide the Employee with
a suitable office and related secretarial assistance during the term of this
Agreement.
Section 11. Place of Employment. Unless otherwise mutually agreed upon
between the Parties, the Employee shall be employed at the Company's offices in
Tulsa, Oklahoma.
Section 12. Rights in Work Product. All materials, inventions,
discoveries, improvements and designs developed by the Employee in the
performance of his duties during the term of this Agreement, all goodwill
associated therewith, and all related documents, data, models, plans,
specifications and similar materials, shall become the sole and exclusive
property of the Company when prepared or created, and shall be immediately
disclosed to the Company by the Employee. The Employee hereby assigns all
rights, title and interest in all such items, all goodwill associated therewith,
and all related intellectual property to the Company. In addition, the Employee
agrees that any copyrightable materials created under this Agreement constitute
"work made for hire" under 17 U.S.C. ss. 101. If for any reason such material
does not constitute works made for hire, the Employee hereby irrevocably and
exclusively grants, assigns and conveys all right, title and interest thereto,
including any copyrights relating thereto, to the Company. The Employee agrees
to execute such further documents as the Company deems necessary to confirm the
Company's ownership of the items and intellectual property described in this
Section 12.
Section 13. Competitive Activities. Without the prior written permission
of the Company, which permission may be withheld in the sole discretion of the
Company, the Employee agrees that during the term of this Agreement and for a
period of two (2) years thereafter, the Employee will not, alone or with others,
directly or indirectly, as principal, agent, trustee or through the agency of
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any corporation, partnership, association or agent or agency, (i) participate or
engage in the business of the Company, (ii) service or solicit any of the
Company's business from any customer of the Company, (iii) request or advise any
customer of the Company to withdraw, curtail or cancel such customer's business
with the Company, or (iv) solicit for employment any person employed by the
Company; provided however, that (i) no owner of less than five percent (5%) of
the outstanding stock of any publicly traded corporation shall, for purposes of
this Section 13, be deemed to engage solely by reason of his stock position in
any of its businesses, and (ii) the future acquisition by the Employee or his
affiliates of any company engaged in the Business shall not be deemed to violate
this Section 13 if less than ten percent (10%) of the total revenues of the
acquired company are derived from the Business. In the event this provision is
breached, the Company may terminate this Agreement and pursue all rights and
remedies available to the Company at law, in equity or by statute. To the extent
not in contravention of this Section 13, the Employee may use his general
knowledge and skills to gain and use in other employment. As used in this
Section 13, the term "Company" shall mean the Company and its subsidiaries,
parents and affiliates.
Section 14. Termination. This Agreement may be terminated prior to the
end of its term as follows:
Section 14.1. Termination for Cause. The Company may terminate
this Agreement for "Cause" on ten (10) days written notice to the
Employee in which case termination shall be effective on the eleventh
(11th) day following the date of the notice as used in this Agreement.
"Cause" shall mean the Employee's conviction of (a) a felony, or (b) a
misdemeanor involving embezzlement, fraud, conversion or misuse of the
Company's funds or resources or that negatively affects the Company's
business, operations or reputation or substantially impairs the
Employee's qualifications, character or ability to perform his duties
under this Agreement. In such case, the Company will be obligated to pay
the Employee only compensation that is then due and owing to him under
Section 4 up to the effective date of the termination.
Section 14.2. Termination Without Cause. Either party may
terminate this Agreement without Cause for any reason whatsoever upon
ninety (90) days written notice to the other Party. The termination
shall be effective on the ninety-first (91st) day following the date of
the notice. If termination is by the Company without Cause, the Employee
shall be entitled to compensation through the date of termination
pursuant to Section 4 regardless of whether the Employee continues to
render personal services during this time period. If termination is by
the Employee without Cause, the Employee shall be entitled to
compensation through the date of termination pursuant to Section 4, but
only if the Employee continues to render personal services during this
time period. In addition, in the event that the Employee is terminated
by the Company without Cause, the Employee shall be entitled to a lump
sum payment in cash in an amount equal to two (2) years of the
Employee's annual salary in effect at the time of such termination.
Section 14.3. Death or Disability of Employee. This Agreement
will terminate immediately upon the Employee's death or upon the
Employee's permanent disability that prevents him from performing his
duties under this Agreement for a continuous period of three (3) months,
in which case the Employee (or, in the case of his death, the Employee's
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legal representative) will be entitled to receive all compensation due
and owing to the Employee under Section 4 up to the date of termination.
Section 14.4. Termination Not to Affect Accrued Rights. The
termination of this Agreement shall not affect any right or claim of
either party incurred or accruing prior to the date of termination,
including any right or claim of the Employee for compensation payable
for services rendered or reimbursable expenses incurred prior to the
date of termination.
Section 15. Confidentiality. The Employee acknowledges that, in
performing his duties, he may have access to information regarding the business
and operations of the Company and its affiliates and subsidiaries ("Confidential
Information"). Without the prior written consent of the Company, the Employee
(a) shall use the Confidential Information only for performing his duties, (b)
shall not release, reveal or disclose to any third party any Confidential
Information, and (c) shall not duplicate any Confidential Information. Upon
execution of this Agreement, the Employee shall sign and deliver the
Confidentiality Agreement attached to this Agreement to the Company.
Section 16. Notice.
Section 16.1 Notice to the Company. Any notice to be given to the
Company under this Agreement shall be sent via facsimile and via
certified mail, return receipt requested to:
Xxxxx X. Xxxx
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Section 16.2 Notice to the Employee. Any notice to be given to
the Employee under this Agreement shall be sent via certified mail,
return receipt requested to:
Xxxxxxxx X. Xxxxxx, Xx.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx, XX 00000
Section 16.3 Notices Effective upon Mailing. Except as may
otherwise be specifically provided in this Agreement, any notice sent to
either party shall be effective on, and the time for any action to be
taken in response to such notice shall be calculated from, the date such
notice was deposited in the United States mail as certified mail, return
receipt requested.
Section 17. General Provisions.
Section 17.1. Assignability. The rights of the Employee under
this Agreement are personal to the Employee and may not be assigned or
transferred to any other person, corporation or entity. The Company may
not assign or transfer any right, duty or obligation hereunder to any
other person, corporation or entity other than an affiliate without the
prior written consent of the Employee.
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Section 17.2. Binding Effect. This Agreement shall inure to the
benefit of and be binding upon the Parties and their respective heirs,
representatives, successors and permitted assigns.
Section 17.3. Amendment. This Agreement may only be amended or
modified by a writing signed by the Parties and no oral statement shall
in any manner amend, modify or otherwise affect the terms and conditions
of this Agreement.
Section 17.4. Waiver. No failure or delay by a party in
exercising any right or remedy under this Agreement will waive any
provision of this Agreement. Nor will any single or partial exercise by
a party of any right or remedy under this Agreement preclude it from
otherwise or further exercising any rights or remedies which it may
have, or any other rights or remedies granted by any law or any related
document.
Section 17.5. Construction. This Agreement shall be interpreted
and enforced under the laws of the State of Oklahoma. The prevailing
party in any dispute to enforce this Agreement shall be entitled to
recover from the losing party its costs and a reasonable attorneys' fee
to be determined by the court.
Section 17.6. Severability. The provisions of Section 13
(Competitive Activities) and Section 15 (Confidentiality) shall be
deemed to consist of a series of separate covenants. The Employee agrees
that the character, duration and geographical scope of those provisions
are reasonable. However, should a determination be made by a court of
competent jurisdiction or other tribunal at a later date that the
character, duration or geographical scope of those provisions is
unreasonable, then it is the intention and the agreement of the Parties
that those provisions shall be construed by the court in such a manner
as to impose only those restrictions on the conduct of the Employee
which are reasonable in light of the circumstances as they then exist
and as are necessary to assure the Company of the intended benefit of
this Agreement. If in any judicial or other legal proceeding, a court or
other tribunal shall refuse to enforce all of the separate covenants
included in this Agreement because they are more extensive than
necessary to assure the Company of the intended benefit of this
Agreement, then those covenants which, if eliminated, would permit the
remaining separate covenants to be enforced in such proceeding shall,
for the purpose of such proceeding, be deemed eliminated from this
Agreement.
Section 17.7. Survival of Terms. The terms and provisions of
Sections 13 (Competitive Activities), 14.4 (Termination Not to Affect
Accrued Rights) and 15 (Confidentiality) shall survive the termination
or expiration of this Agreement.
Section 17.8. Counterparts/Facsimile. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an
original but all of which together will constitute one and the same
instrument. A facsimile or other reproduction of this Agreement may be
executed by one or more of the Parties, and an executed copy of this
Agreement may be delivered by one or more of the Parties by facsimile or
similar instantaneous electronic transmission device pursuant to which
the signature of or on behalf of such party can be seen, and such
execution and delivery shall be considered valid, binding and effective
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for all purposes. At the request of either Party, the Parties agree to
execute an original of this Agreement as well as any facsimile or other
reproduction of this Agreement.
Section 17.9. Release. Upon his execution of this Agreement, the
Employee, for himself and his successors and heirs, does hereby forever
release and discharge the Company, and its affiliates, parents,
subsidiaries, officers, directors, agents, servants, attorneys and
employees of and from any and all claims, complaints, petitions,
damages, attorney fees, costs, expenses, losses, demands, actions and
causes of action, known or unknown, which he may have, own or hold by
reason of any conduct, matter or thing whatsoever which has been done,
omitted or suffered to have been done prior to the Effective Date of
this Agreement.
Section 17.10.Entire Agreement. This Employment Agreement
constitutes the entire agreement between the Parties and supersedes any
prior understandings, agreements or representations by or between the
Parties, whether oral or written, that may have related in any way to
the subject matter of this Employment Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.
COMPANY: NextPath Technologies, Inc.
By:
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Xxxxx X. Xxxx, President
EMPLOYEE:
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Xxxxxxxx X. Xxxxxx, Xx.
EXHIBIT 23.1
XXXXXX, BIERWOLF & XXXXXXXX
CERTIFIED PUBLIC ACCOUNTANTS
00 XXXX XXXXXXXX, XXXXX 0000
XXXX XXXX XXXX, XXXX 00000
OFFICE (000) 000-0000
FAX (000) 000-0000
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the use of our report, dated May 12, 2000, in their
annual report on Form 10-K-A for the period ended December 31, 1999 for NextPath
Technologies, Inc.
/s/ Xxxxxx, Bierwolf & Xxxxxxxx
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Xxxxxx, Bierwolf & Xxxxxxxx
Salt Lake City, UTAH
May 16, 2000
