EX-10.2a
EXHIBIT 10.2a
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of
September 1, 1998 (the "Effective Date") between Randall P. Marx ("Employee")
and Antennas America, Inc., a Utah corporation (the "Company"). For purposes of
this Agreement, each of Employee and the Company is individually referred to as
a "Party", and Employee and the Company are referred to collectively as the
"Parties".
Recital
The Company desires to retain the services of Employee and Employee has
offered to provide services to the Company pursuant to the terms of this
Agreement.
Agreement
In consideration of the premises and of the mutual covenants included
in this Agreement, the Parties agree as follows:
1. Services: The Company retains Employee and Employee shall perform
services for the Company as set forth in this Agreement on behalf of the Company
for the period and under the terms and conditions set forth in this Agreement.
2. Term: This Agreement shall be for an initial period of two years
("Term") commencing on the Effective Date and terminating on August 31, 2000
subject, however, to review and termination during the Term as provided herein.
The Parties agree to negotiate in good faith the continuation of the employment
relationship of Employee with Company following the Term upon such terms as the
Parties may agree; provided however, that in the event that either Party does
not desire to continue the employment relationship beyond the Term, that Party
shall deliver notice to the other Party of that intention on or before 90 days
prior to the expiration of the Term and the Parties shall not be obligated to
negotiate the continuation of the employment relationship. If the employment
relationship does not continue beyond the Term, Employee agrees to cooperate
with Company and Company's new management with respect to the transition of the
new management in the operations previously performed by Employee.
3. Duties: Employee shall perform the following services for the
Company:
3.1. Employee shall serve as Chief Executive Officer and
Treasurer of the Company and in that capacity shall work with the Company to
pursue the Company's plans as directed by the Board of Directors (the "Board").
In the event the Board directs the Employee to act in a different capacity other
than as Chief Executive Officer, Employee shall have the option to terminate
this Agreement per the terms of Section 7.1. of this Agreement.
3.2. During the Term, Employee shall devote all of Employee's
business time to the performance of Employee's duties under this Agreement.
Without limiting the foregoing, Employee shall be on Company's premises
performing services on behalf of Company or traveling on behalf of Company on a
full time basis and Employee shall be available at the request of Company at
other time, including weekends and holiday, to meet the needs of Company
business.
3.3. During the Term, Employee will not engage in any other
activities or undertake any other commitments that conflict with or take
priority over Employee's responsibilities and obligations to Company and
Company's business, including without limitation those responsibilities and
obligations incurred pursuant to this Agreement.
4. Compensation. The Company shall pay Employee for the performance of
services pursuant to this Agreement as follows:
4.1. The Company shall pay Employee for the performance of
services pursuant to this Agreement a salary at the rate of $115,500 per year,
payable in at least bi-weekly installments.
4.2. Employee shall be paid a bonus equal to five percent of
the income from operations, including debt cancellation, of the Company per
fiscal year, for each fiscal year ending during the Term.
4.2.1. The bonus shall be based on the audited
year-end financial statement of Company and shall be payable on or before 10
business days after filing by company with the SEC of Company's Annual Report on
Form 10-KSB or Form 10-K, or the successor such Form, with respect to that
fiscal year.
4.2.2. Within 45 days after the end of each of the
first three fiscal quarters of each fiscal year within the Term, Company shall
use its best efforts to set aside cash equal to 5 percent of the income from
operations if the b onus were calculated based on Company's income from
operations for the fiscal year to date.
4.3. Any payments that the Company is required to make to the
Employee pursuant to this Agreement shall be reduced by (i) such amounts as are
required to be withheld with respect to those amounts under and for the purposes
of any of the applicable tax and other laws or regulations, and (ii) such
amounts as Employee may owe to the Company at any time and from time to time.
4.4. Employee shall be eligible for participation in any
present or future pension, retirement, stock option, or stock purchase plan of
the Company of which other employees of the Company are generally eligible. It
is understood, however, that entitlements that may accrue to the Employee
pursuant to such arrangements may differ from those that accrue to other
employees, such differences being based on the discretion of the Board.
5. Reimbursement Of Expenses. Employee shall be reimbursed for
reasonable expenses incurred on behalf of the Company in the performance of
Employee's duties and services pursuant to this Agreement. Employee shall
provide the Company with an expense report containing a detailed description of
expenses incurred by the 60th day following the calendar month in which the
expenses were incurred on behalf of the Company. The description of expenses
shall contain such information as may be required in order to permit such
reimbursements as proper deductions to the Company under the Internal Revenue
Code, as amended, and the rules and regulations adopted pursuant thereto and in
effect at that time. The Company shall pay this invoice within 30 business days
of its receipt.
6. Additional Benefits.
6.1. Employee shall be entitled to take reasonable amounts of
paid time off for vacation and other personal reaons.
6.2. Employee and his family, if any, shall be entitled to
receive such benefits under medical insurance plans, life and disability
insurance and otherwise, as are provided to all other salaried employees of the
Company.
7. Termination:
7.1. Employee may terminate this Agreement at any time without
further liability or obligation hereunder if Company has breached a material
provision of this Agreement or Company has otherwise materially breached any
other obligation to Employee, such termination to be effected at least 90 days
prior to the date for termination and the Company's failing to cure the breach
prior to the date set for termination in that notice.
7.2. Company may terminate this Agreement at any time for
cause, with such termination to be effected by the Company's giving Employee
written notice of termination. The term "For Cause" shall include termination of
employment as a result of any of the following: (i) a material breach of this
Agreement by Employee; or (ii) as a result of a determination by the Board,
acting reasonably, that the Employee has (A) committed a criminal act or an act
constituting moral turpitude, or (B) committed any fraudulent act, or (C)
breached the Employee's fiduciary duty to the Company.
7.3. Company may terminate this Agreement immediately by
Company's giving written notice of termination to Employee and by the Company's
paying Employee's compensation in accordance with the terms of this Agreement
for a period beginning on the date of termination and ending on the earlier to
occur of 90 days after the date of termination and the end of the Term of this
Agreement in accordance with Section 2 of this Agreement. It is further
understood that in the event the Agreement is terminated per this Paragraph 7.3.
that any other outstanding amounts owing to Employee by Company as of the date
of termination shall be paid in full to Employee no later than 60 days from the
date of termination.
7.4. At the option of either Party, this Agreement may be
terminated within six months after the date of a "Change In Control" of the
Company, as defined below, by giving 90 days' prior written notice of
termination to Employee. A Change In Control shall mean the sale, liquidation,
dissolution, consolidation, merger or other business combination of or involving
the Company, which consolidation, merger or other business combination results
in persons and/or entities, other than shareholders of Company immediately prior
to the transaction, owning a majority of Company's outstanding common stock, or
the change in ownership of more than 50 percent of the Company, or the transfer
of all or substantially all of the Company's assets.
7.5. This Agreement shall terminate upon the death of Employee
or if Employee becomes permanently disabled. Employee shall be considered
permanently disabled if, and on the date on which, Employee has been unable to
perform a substantial and material portion of Employee's duties hereunder, for a
period of 90 continuous days, because of sickness, injury, or disability, as
determined by a majority vote of the Board.
7.6. In the event Employee's employment is terminated, then
all unaccrued salary obligations of the Company to Employee shall cease as of
the date of termination except as otherwise expressed herein.
8. Proprietary Information and Inventions Agreement: Employee agrees
that his employment with Company is contingent upon his signing the separate
Proprietary Information and Inventions agreement on the same date that he signs
this Agreement, a copy of said agreement being attached hereto as Exhibit A.
9. Alternative Dispute Resolution: Employee agrees that any and all
disputes that Employee has with Company, or any of Company" employees, which
arise out of Employee's employment or under the terms of this Agreement shall be
resolved through final and binding arbitration, as specified herein. This shall
include, without limitation, disputes relating to this Agreement, Employee's
employment with Company or the termination thereof, claims for breach of
contract or breach of the covenant of good faith and fair dealing, and any
claims of discrimination or other claims under any federal, state or local law
or regulation now in existence or hereinafter enacted and as amended from time
to time concerning in any way the subject of Employee's employment with Company
or its termination. The only claims not covered by this Section 9. Are wage
claims, claims for benefits under workers' compensation laws or claims for
unemployment insurance benefits, which will be resolved pursuant to those laws.
Binding arbitration will be conducted in either Arapahoe, Denver or Jefferson
County, Colorado in accordance with the rules and regulations of the American
Arbitration Association Employment Dispute Resolution Rules. Each Party will
split the cost of the arbitration filing and hearing fees, and the cost of the
arbitrator. The arbitrator also will determine whether each Party will pay its
own attorney's fees of whether one Party will pay all or part of the other
Party's attorney's fees. Employee understands and agrees that the arbitration
shall be instead of any civil litigation and that the arbitrator's decision
shall be final and binding to the fullest extent permitted by law and
enforceable by any court having jurisdiction thereof. Employee further
represents that he is making a voluntary and knowing waiver of his right to
pursue any and all employment-related claims in court.
10. Non-Compete: Employee acknowledges and recognizes the highly
competitive nature of Company's business and that Employee's duties hereunder
justify restricting Employee's future employment following any termination of
employment with Company. Employee agrees that so long as Employee is employed
with Company, and for a period of two years following the termination of
employment with Company, Employee, except when acting on behalf of or for the
benefit of Company, will distribution of Company's business with or from Company
or (ii) compete, within the United States, with Company, or participate as an
officer or a principal in any business that includes part of all of the
Company's Area of Business, as defined below. As used herein, the term "compete
within the United States," shall include any competitive activity, including any
sale, distribution, marketing or manufacturing that occurs, or is intended to
occur, directly or indirectly, in the United States or with a person or entity
located in, operating in with respect to that activity or headquartered in, the
United States. Ownership by Employee, for investment purposes only, of less that
five percent of any class of securities of a corporation is said securities are
listed on a national securities exchange or registered under the Securities
Exchange Act of 1934, as amended, shall not constitute a breach of the foregoing
covenant. Company's Area of Business includes the design, marketing, production
and sale of antennas and antenna systems.
11. Representations And Warranties.
11.1. The Company represents and warrants to Employee as
follows: (i) the Company has been duly formed as a corporation under the laws of
the State of Utah; and (ii) the execution of this Agreement has been duly
authorized by the Company and does not require the consent of or notice to any
party not previously obtained or given.
11.2. Employee represents and warrants to the Company that the
execution of this Agreement and the performance of Employee's obligations
hereunder does not require the consent of or notice to any party not previously
obtained or given, and there is nothing that prohibits or restricts the
execution by Employee of this Agreement or his performance of the obligations
hereunder.
12. Covenants: Each of Employee and the Company covenants to
diligently and skillfully do and perform the acts and duties required herein.
13. Miscellaneous:
13.1. Entire Agreement: This Agreement constitutes the entire
Agreement between the Parties with respect to the subject matter of this
Agreement and supersedes all prior and contemporaneous agreements between the
Parties with respect to the subject matter of this Agreement.
13.2. Notice: All notices, requests, demands, directions and
other communications ("Notices") concerning this Agreement shall be in writing
and shall be mailed or delivered personally or sent by telecopier or facsimile
to the applicable Party at the address of such Party set forth below in this
Section 13.2. When mailed, each such Notice shall be sent by first class,
certified mail, return receipt requested, enclosed in a postage prepaid wrapper,
and shall be effective on the fifth business day after it has been deposited in
the mail. When delivered personally, each such Notice shall be effective when
delivered to the address for the respective Party set forth in this Section
13.2. When sent by telecopier or facsimile, each such Notice shall be effective
on the day on which it is sent provided that it is sent on a business day and
further provided that it is sent prior to 5:00 p.m., local time of the Party to
whom the Notice is being sent, on that business day; otherwise, each such Notice
shall be effective on the first business day occurring after the Notice is sent.
Each such Notice shall be addressed to the Party to be notified as shown below:
The Company: Antennas America, Inc.
4860 Robb Street, Suite 101
Wheat Ridge, CO 80033
Employee: Randall P. Marx
3440 Youngfield Street, #133
Wheat Ridge, CO 80033
Either Party may change its address for purposes of this Section 13.2. by giving
the other Party written notice of the new address in the manner set forth above.
13.3. Severability: Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, and if any provision of this Agreement shall be or become
prohibited or invalid in whole or in part for any reason whatsoever, that
provision shall be ineffective only to the extent of such prohibition or
invalidity without invalidating the remaining portion of that provision or the
remaining provisions of this Agreement.
13.4. Non-Waiver: The waiver of either Party of a breach or
violation of any provision of this Agreement shall not operate or be construed
as a waiver of any subsequent breach or violation of any provision of this
Agreement.
13.5. Amendment: No amendment or modification of this
Agreement shall be deemed effective unless and until it has been executed in
writing by the parties to this Agreement. No term or condition of this Agreement
shall be deemed to have been waived, nor shall there be any estoppel to enforce
any provision of this Agreement, except by a written instrument that has been
executed by the Party charged with such waiver or estoppel.
13.6. Inurement. This Agreement shall be binding upon, and
inure to the benefit of, Employee and the Company, and their respective heirs,
successors and assigns. Notwithstanding the foregoing, this Agreement shall not
be assignable by either Party. There are no third party beneficiaries to this
Agreement.
13.7. Headings. The headings in this Agreement are for
convenience only; they form no part of this Agreement and shall not affect its
interpretation.
IN WITNESS WHEREOF, this Agreement is executed on the dates set forth
below to be effective as of the Effective Date.
EMPLOYEE:
Date: October 1, 1998 /s/ Randall P. Marx
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Randall P. Marx, individually
ANTENNAS AMERICA, INC.:
Date: October 1, 1998 /s/ Richard L. Anderson
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Richard L. Anderson, Vice
President/Secretary