EX-10 EMPLOYMENT AGREEMENT
5G WIRELESS COMMUNICATIONS, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement") is dated
as of July 4, 2003 ("Effective Date") and is between 5G WIRELESS
COMMUNICATIONS, INC., a California corporation (the "Company") and
PETER TREPP, an individual residing at 116 Lighthouse Mall, Marina del
Rey, California 90292 ("Executive").
RECITALS
A. Executive has advised the Company of his willingness to act in a
fulltime capacity as its President and Chief Operating Officer as
provided herein.
B. Company desires to retain Executive and employ Executive in
accordance with the provisions of this Agreement.
C. The parties hereto desire to enter into this Agreement to, among
other things, memorialize the terms of the employment of Executive by
Company, to protect to the fullest extent permissible the Confidential
Information (as defined below) of Company, and to insure the strictest
compliance by Executive with Executive's fiduciary obligations to
Company and to Company's clients.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the mutual covenants and
conditions set forth herein, the parties hereto hereby agree as
follows:
1. At-will Employment. Executive's employment with Company
will be "at-will" and may be terminated at any time with or without
cause or notice. Executive understands and agrees that neither his
job performance nor promotions, commendations, bonuses or the like
from Company give rise to or in any way serve as the basis for
modification, amendment, or extension, by implication or otherwise, of
his employment with Company.
2. Commencement Date/Representations and Warranties/Term.
a. Commencement Date. The "Commencement Date" of this
Agreement will be the first day of employment (approximately 2 weeks
from the Effective Date) and will continue, subject to the terms of
this Agreement, for an initial term ending 36 months from the
Commencement Date, unless earlier terminated as provided herein.
Subject to the terms of this Agreement, the term will automatically be
renewed for successive one-year periods unless either Company or the
Executive delivers to the other party, at least thirty (30) days
before the end of the current employment period, written notice of
such parties desire not to renew or extend this Agreement.
b. Representations and Warranties. Executive represents
and warrants to Company, with knowledge that Company is relying
thereon in entering into this Agreement, that the performance of his
duties (i) up to and as of the date hereof and (ii) the execution and
delivery of this Agreement by Executive, and the performance of his
duties hereunder commencing as of the Commencement Date, has not
breached, does not and will not breach any obligation of Executive
under any prior employment contract, decree, order, judgment, non-
compete, non-solicitation, or any other agreement with any previous
employer or other third party to whom Executive has provided services
to in a capacity other than as an employee, nor any duty or obligation
owed by Executive to any such previous employer or third party.
c. Indemnification. Executive agrees to indemnify and
hold Company harmless against any and all costs, attorneys' fees,
losses, liabilities and expenses resulting from claims, demands,
suits, actions or judgment arising out of or in any way related to
Executive's representations and warranties set forth herein.
d. Termination Date and Term. For purposes of this
Agreement: (i) "Termination Date" means the date on which Executive's
full-time employment with the Company is terminated or expires in
accordance with the terms hereof; and (ii) "Term" shall mean the
period beginning on the Commencement Date and ending on the
Termination Date.
3. Position and Responsibilities.
a. Position. Executive shall serve as the President and
Chief Operating Officer of Company and a member of the Board of
Directors of Company ("Board"), subject to the terms, conditions and
provisions of this Agreement. In this capacity, Executive will devote
his full business efforts and time to Company and be responsible for
the day-to-day operations of the Company and the long term overall
management, strategic planning and internal operations and controls of
the Company and its business, including without limitation, using his
best efforts to (i) maintain and develop the business of Company, (ii)
meet the objectives of Company's operating plans and budgets, and
(iii) assist in the raising of any capital. Furthermore, Executive
shall do and perform all services, acts, or things necessary or
advisable to discharge his duties under this Agreement, including, but
not limited to, undertaking such travel as is reasonably necessary to
perform such duties, and shall perform such other duties and acts as
may from time to time be lawfully prescribed by the Board. Executive,
in carrying out the duties and responsibilities of Executive's
position, shall report to the Board. Executive shall abide by the
Company's rules, regulations, and practices as they may from time-to-
time be adopted or modified.
b. Other Activities. Except upon the prior written
consent of the disinterested members of the Board or as otherwise
expressly set forth in Section 8, Executive will not, during the term
of this Agreement, (i) accept any other employment, or (ii) engage,
directly or indirectly, in any other business activity (whether or not
pursued for pecuniary advantage) that interferes with Executive's
duties and responsibilities hereunder or create a conflict of interest
with the Company. The Company is aware that the Executive is a
volunteer and serves as President of The Anderson School Alumni
Association. In this capacity, Executive will be required to attend
certain functions, meetings, and activities away from work during
working hours. Time away from work will not exceed 12 hours per
month. Executive agrees to provide reasonable notice to the Company
for time away from the Company's offices.
4. Compensation and Benefits.
a. Annual Base Salary. In consideration of the services
to be rendered under this Agreement, the Company shall pay Executive
an annual base salary at the rate of One Hundred and Fifty Thousand
Dollars ($150,000) per year for the period of one year following the
Commencement Date. The annual base salary shall be paid in accordance
with the Company's regularly established payroll practice.
Executive's annual base salary may be modified upward and will be
reviewed from time to time by the Compensation Committee on the Board
(yet to be formed) in accordance with the Company's established
procedures for adjusting salaries for similarly situated key
employees. The amount of Executive's annual base salary in effect
from time to time shall be referred to herein as the "Annual Base Salary".
b. Signing Bonus. In consideration of the services to be
rendered under this Agreement, the Company shall pay Executive a
signing bonus in the form of common stock ownership in the Company.
The amount of stock will be equivalent to 7% of Executive's Annual
Base Salary ($10,500) payable within 30 days of the Commencement Date
of this Agreement. The amount of common stock shares to be issued to
the Executive will be determined by taking the dollar amount of the
signing bonus divided by the share price of the common stock on the
Commencement Date. If the Commencement Date is a non-trading day,
then the share price on the trading day most closely preceding the
Commencement Date will be used instead.
c. Annual Cash Bonus Compensation. In addition to
Executive's Annual Base Salary, with respect to each fiscal year of
the Company included within the Term, and subject to the performance
of the Company during such fiscal year, Executive shall be eligible to
receive discretionary cash bonus compensation ("Annual Bonus
Compensation") as set forth in this agreement. For each full fiscal
year of employment, Executive shall be eligible for an incentive bonus
of up to eighty (80%) of his annual base salary and his performance
objectives shall be set such that 100% completion of his objectives
shall entitle him to at least seventy-five percent (75%) of the bonus
("the Target Annual Bonus Compensation"). During the first year of
employment, Executive shall be eligible for a pro rata portion of the
incentive bonus. The bonus amount will be based on the following
factors: (i) the financial performance of the Company as determined
and measured by the Board, and (ii) Executive's achievement of
management targets and goals as set by the Board. The bonus amount is
intended to reward contribution to the Company's performance over an
entire fiscal year, and on the basis of continuing, cumulative
contribution, and consequently will be paid only if Executive is
employed and in good standing at the time of bonus payments, which
generally occurs within 45 days after the close of the Company's
fiscal year. Bonus determinations will be made in the Company's sole
discretion.
d. Stock Options and Restricted Stock. Under and pursuant
to the Company's Stock Option Plan as amended and restated, Executive
will be granted the right to purchase shares of the Company's common
stock, which amount is approximately four percent (4%) of the Company's
capital stock on a fully-diluted basis (the "Initial Shares") upon
either of the following events (i) Executive's successful raising of
financing in excess of $400,000. Following completion of the next
round of financing in which the Company raises not less than $3
million from new and existing investors, and under and pursuant to the
Company's Stock Option Plan as amended and restated, Executive will be
granted an additional option giving Executive the right to purchase
that number of additional shares of the Company's common stock (the
"Subsequent Shares") necessary to bring Executive's total option amount
to ten percent (10%) of the Company's capital stock on a fully-diluted
basis following such financing (such Subsequent Shares with Initial
Shares the "Shares"). The price per share of the option agreement(s)
will be the fair market value of common stock of the Company as of the
date of grant(s) as determined by the Board of Directors. Executive
shall be eligible for additional stock option grants at the discretion
of the Board in accordance with the terms and conditions of Company's
Stock Option Plan and standard Stock Option Agreement, as amended and
restated; provided that Executive's Stock Option Agreement(s) shall
provide for the exercise of options prior to full vesting of such
options, with the shares issuable upon such "early exercised" options
being subject to a repurchase right in favor of Company through the
remaining vesting period for such options.
e. Change of Control Option Grant. "Change of Control"
shall mean the sale, conveyance or other disposition of all or
substantially all of the Company's property, voting stock or business
or the Company's merger with or into or consolidation with any other
corporation, limited liability company or other entity (other than a
wholly owned subsidiary of the Company), provided that the term
"Change of Control" shall not include (a) a merger of the Company
effected exclusively for the purpose of changing the domicile of the
Company, (b) an equity financing in which the Company is the surviving
corporation, (c) a transaction in which the stockholders of the
Company immediately prior to the transaction own fifty percent (50%)
or more of the voting power of the surviving corporation following the
transaction. In the event there is a Change of Control of the Company
prior to the financing described above and prior to the issuance of
the Subsequent Shares, immediately prior to the closing of such Change
of Control transaction, the Company shall grant to Trepp a fully
vested option to purchase ten percent (10%) of the outstanding shares
of the Company's Common Stock, calculated on a fully diluted basis
(including conversion of any Notes or other convertible securities)
immediately prior to such closing.
f. Benefits. Executive shall be eligible to participate
in the Company's benefits made generally available to similarly-
situated employees, in accordance with the benefit plans established
by the Company, and as may be amended from time to time in the
Company's sole discretion, except that, Executive shall receive four
(4) weeks paid vacation per year during the Term. Executive can
accrue up to a maximum of four (4) weeks (20 days) per calendar year
of vacation. Once this cap is reached, no further vacation will
accrue until vacation time is used and shall instead be paid to
Executive as part of his Annual Base Salary.
g. Expenses. The Company shall reimburse Executive for
reasonable and necessary business expenses incurred in the performance
of his duties hereunder in accordance with the Company's expense
reimbursement guidelines, as in effect from time to time. Executive
shall not be required to obtain prior written approval from the Board
before incurring business expenses of greater than Five Thousand
Dollars ($5,000) per month.
5. Termination By Company.
a. For Cause. For purposes of this Agreement, the term
"For Cause" shall mean the occurrence of one or more of the following
events: (i) Executive is convicted of, or pleads nolo contendre to, a
felony or a crime involving moral turpitude; (ii) Executive willfully
engages in conduct in connection with his responsibilities as an
employee that constitutes intentional fraud and materially harms the
Company, including but not limited to, misappropriation of trade
secrets or embezzlement; or (iii) Executive commits a material breach
of this Agreement or the Confidentiality Agreement, which breach, if
curable, is not cured within twenty (20) days after receipt of written
notice of such breach, describing in reasonable detail the nature of
such breach, by Executive from the Company. The Company may terminate
Executive's employment For Cause at any time, without any advance notice.
b. By Death. Executive's employment shall terminate
automatically upon his death.
c. By Disability. If Executive becomes eligible for
Company's long term disability benefits or if, in the sole opinion of
the Board, Executive shall be unable to carry out the responsibilities
and functions of the position held by Executive by reason of any
physical or mental impairment for more than sixty (60) consecutive
days or more than one hundred and twenty (120) days in any twelve-
month period, then, to the extent permitted by law, the Company may
terminate Executive's employment. Nothing in this subsection (c)
shall affect Executive's rights under any disability plan in which he
is a participant.
6. Entitlements Upon Termination of Employment By Company.
a. In General. Except as otherwise expressly provided in
this Agreement, all compensation otherwise payable to Executive under
this Agreement shall cease to accrue upon termination of Executive's
employment and Executive's entitlements under applicable plans and
programs of the Company following termination of Executive's
employment will be determined under the terms of those plans and
programs. Company shall pay to Executive on the date required under
applicable law or within thirty (30) days after such termination,
whichever occurs first, any accrued and unpaid salary and other
compensation which has been earned by Executive under this Agreement
as of and through Termination Date (which shall include a per diem
amount based upon such salary for any accrued vacation days not
previously taken by Executive in the calendar year in which such
termination occurs).
b. Entitlements Upon Termination by Company Without Cause.
In the event Executive's employment is terminated other than For
Cause, By Death, By Disability, voluntarily by Executive or by
expiration of the current existing period of employment of Executive,
then in addition to the amounts provided for in Section 6.a. above,
Executive shall be entitled to receive from Company, within thirty
(30) days after the date of such termination, a lump sum severance
payment in an amount equal to (A) a pro-rata amount equal to one week
for every two months worked for the Company times Executive's then
current Annual Base Salary with a maximum of 18 total weeks; plus (B)
one times the higher of (x) the Target Annual Bonus Compensation for
Executive established for the incentive year in which such termination
occurs or (y) the actual Annual Bonus Compensation earned by Executive
during the fiscal year preceding the year in which such termination
occurs (such amount being referred to herein as the "Severance
Payment"); provided, however, that Executive shall not be entitled or
eligible to receive the Severance Payment unless prior to the date on
which the first portion of such Severance Payment is due, Executive
executes and delivers to the Company a separation and release
agreement ("Separation and General Release Agreement") in form and
substance satisfactory to the Company pursuant to which Executive
agrees, among other matters, to generally and unconditionally release
the Company and its officers, directors, shareholders, employees,
agents, attorneys and representatives from any and all claims,
demands, actions or causes of action which Executive may then have or
thereafter become entitled to under this Agreement, any other
agreement or plan of the Company or under applicable law, whether
known or unknown, suspected or unsuspected, excepting only for claims
relating to the failure of the Company to pay the Severance Payment or
other compensation due to Executive. In addition, Executive and
Executive's spouse and covered dependents will be entitled to
participate in COBRA benefits at the same benefit level (to the extent
practicable) at which the Executive and the Executive's spouse and
covered dependent(s) participated in group health plans of the Company
immediately prior to the termination of Executive's employment, for
the period such benefits are available under COBRA, and the Company
shall reimburse Executive for the cost of COBRA coverage for a period
of one year following the Termination Date, to the extent such COBRA
coverage cost exceeds the cost of group health insurance benefits paid
by Executive immediately prior to such Termination Date.
c. Vesting Upon Termination Without Cause. In the event
Executive's employment is terminated other than For Cause, By Death,
By Disability, voluntarily by Executive or by expiration of the
current existing period of employment of Executive, all outstanding
stock options, restricted stock grants and other equity-type
incentives held by Executive at the time of Executive's termination of
employment will become fully vested as of the date of such termination
(whether or not fully vested immediately prior to Executive's
termination) and remain exercisable for the exercisability period set
forth in each such option agreement, and any repurchase rights of
Company (other than any rights of first refusal) shall automatically
terminate and be of no further force or effect as of the date of
Executive's termination of employment.
d. Severance Payment In Lieu of Other Payments. The
Severance Payment is in lieu of any other severance or similar payment
that the Executive may then be entitled to receive under any plan or
program of the Company. Executive shall not be entitled to any other
severance or similar payments if Executive's employment is terminated
For Cause, By Death, By Disability (as set forth in Section 4 above),
voluntarily by Executive or by expiration of the current existing
period of employment of Executive.
e. Executive Covenants. Upon termination of Executive's
employment and thereafter, Executive covenants and agrees to:
(i) Deliver his written resignation from all offices
and directorships then held with the Company effective as of the
Termination Date;
(ii) Cooperate reasonably with Company in the winding
up or transferring to other employees of any pending work, at no
further cost to Company or Executive; and
(iii) Cooperate reasonably with Company in the
defense of any action brought by or against any third party that
relates to a claim or action that arose during Executive's employment
by Company, so long as the Company pays for all reasonable costs and
expenses, including, without limitation, legal fees, incurred by
Executive in connection therewith.
The foregoing obligations on the part of Executive to cooperate
shall not require Executive to expend an unreasonable amount of time
or effort given the existing circumstances and conditions.
7. Inventions and Proprietary Information
If Executive has not currently executed and delivered and is
not bound by the terms of the Employee Proprietary Information and
Inventions Agreement, in the form attached hereto as Exhibit A
("Employee Proprietary Information and Inventions Agreement"),
Executive shall execute, deliver and agree to be bound by such
Inventions Agreement in connection with the execution and delivery of
this Agreement.
8. Competition.
a. At all times while Executive is employed by Company,
Executive will not engage or participate, directly or indirectly, as a
principal, partner, limited partner, member, shareholder, employee,
member, independent contractor, operator, officer, director, profit or
revenues participant, or otherwise, whether beneficially or of record,
in any business other than the business of Company; provided, however,
that this covenant shall not apply to investments made by Executive in
publicly held companies so long as: (i) such companies are not engaged
in any Competitive Business (as defined below); or (ii) if such
company is engaged in a Competitive Business (as defined below),
Executive owns of record and beneficially not more than two percent
(2%) of the voting capital stock of such company. As used herein,
"Competitive Business" means a business or enterprise that engages or
proposes to engage in the design, development, manufacture, or
distribution of equipment, devices, software, hardware, or any
materials relating to fixed wireless, Wi-Fi, wireless broadband, WISP,
either known or hereafter invented.
b. Executive agrees that during the Term he will not
solicit or negotiate offers of employment from any other employer
(whether or not such employment would commence after the expiration of
the Term), and will promptly report any such offers of employment to
Company; provided that Executive may solicit or negotiate such offers
during what is anticipated to be the final sixty (60) days of the Term
of this Agreement.
9. Property of Third Parties.
Trepp recognizes that The Company has received and in the
future will receive information from third parties which is private or
proprietary information subject to a duty on The Company's part to
maintain the confidentiality of such information and to use it only
for certain limited purposes. Trepp agrees, during the term of the
independent contractor relationship and thereafter, to hold all such
private or proprietary information received from third parties in the
strictest confidence and not to disclose or use it, except as
necessary in carrying out Trepp's work for The Company consistent with
The Company's agreement with such third parties.
10. No Violation of Trade Secrets of Others.
Trepp by signing this agreement acknowledges that his act as
the Company's President and Chief Operating Officer, does not in any
way, conflict with any other agreement and/or commitment on his part
which would prohibit him from engaging in this activity. In addition,
he will not disclose to the Company any proprietary information which
he has obtained from any other individual or organization
11. Payments from Others; Non-Solicitation of Employees.
a. So long as Executive is employed with the Company,
Executive will not accept gifts, payments, interests or other
compensation or consideration (other than customary holiday, birthday
or other special event gifts the value of which do not exceed $1,000
in the aggregate from any person or affiliate thereof in any 12 month
period) from any provider of goods, services and/or other property,
including, without limitation, interests in ventures or businesses of
any such persons and/or entities, or in which any such person and/or
entities are participating, without having first obtained the prior
written consent of Company. In the event any provider of goods,
services and/or other property offers Executive the opportunity to
invest in any business operated or being formed by any such person or
entity or any affiliated entity, whether or not such investment would
require payment of the fair market value of the interest purchased,
Executive agrees to notify Company of such opportunity and agrees
that, as between Company and Executive, any and all such opportunities
shall belong to and be the exclusive property of Company unless
Company (by an action of the disinterested members of the Board)
expressly elects in writing to forego such opportunity. Unless
Company elects to forego such opportunity, Executive shall assist
Company in all reasonable respects in obtaining such opportunity for
Company. If Company elects to forego such opportunity, Executive,
subject to Section 8, shall be free to invest in such venture on a
passive basis.
b. The Executive agrees that during the Term and during
the period from the Termination Date through the first anniversary of
the Termination Date, he will not, directly or indirectly (as owner,
principal, agent, partner, officer, employee, independent contractor,
consultant, stockholder, or otherwise), either alone or with or
through or on behalf of others, solicit for employment the services of
any employee of the Company; provided, however that this clause shall
not prevent Executive from soliciting or engaging any person pursuant
to any general advertisement or general solicitation for employment
that is not targeted or directed specifically to employees of the
Company.
12. Special Enforcement Rights of Company.
Executive recognizes, acknowledges and agrees that any
breach of the provisions of Sections 7, 8, 9, 10 or 11 of this
Agreement would result in immeasurable and irreparable harm to the
Company for which money damages would be inadequate, and accordingly,
agrees that in addition to, and not in lieu of, all other remedies
available to the Company by reason of such breach, the Company shall
be entitled to temporary and permanent injunctive relief to prevent
the occurrence or continuation thereof, and Executive hereby waives,
to the fullest extent permitted under applicable law, any requirement
that Company post a bond or other surety as a condition of obtaining
such injunctive relief.
13. Arbitration.
a. Mandatory Arbitration. Excepting only for the
"Excluded Claims" (as defined below), all disputes and claims between
Executive (and his attorneys, successors, and assigns) and the Company
(and its affiliates, shareholders, directors, officers, employees,
members, agents, successors, attorneys, and assigns) relating in any
manner whatsoever to this Agreement, the Confidentiality Agreement, or
the employment or termination of Executive, including, without
limitation, claims for breach of contract (express or implied), tort
of any kind, employment discrimination (including harassment) as well
as all claims based on any federal, state, or local law, statute, or
regulation ("Arbitrable Claims"), shall be resolved by mandatory and
binding arbitration. All persons and entities specified in the
preceding sentence (other than the Company and Executive) shall be
considered third-party beneficiaries of the rights and obligations
created by this Section on Arbitration. Arbitrable Claims shall
include, but are not limited to, claims under Title VII, Age
Discrimination in Employment Act, Americans with Disabilities Act and
the California Fair Employment Housing Act. The term "Excluded
Claims" shall mean (i) claims under applicable workers' compensation
law, unemployment insurance law and the National Labor Relations Act
and (ii) any claims or actions asserted or brought against Executive
for injunctive relief in connection with any breach or alleged breach
by Executive of any of the provisions of Section 7, 8, or 9 of this
Agreement. The Excluded Claims shall not be subject to the
arbitration provisions of this Agreement as set forth in this
Section 11.
b. Procedure. Arbitration of Arbitrable Claims shall be
in accordance with the National Rules for the Resolution of Employment
Disputes (to the extent applicable) of the American Arbitration
Association, as amended, and as augmented in this Agreement and shall
take place in Los Angeles County, California, unless otherwise agreed
by the parties. Arbitration shall be final and binding upon the
parties and shall be the exclusive remedy for all Arbitrable Claims.
There shall be one arbitrator. The parties shall mutually agree to an
independent and impartial arbitrator within ten (10) business days of
the filing of the written demand for arbitration with the American
Arbitration Association. In the event the parties are unable to agree
to a sole arbitrator within the ten (10)-business day period, the
parties shall request that the American Arbitration Association
appoint such arbitrator, and such arbitrator shall conduct the
arbitration. Except for Excluded Claims, either party may bring an
action in the Los Angeles Superior Court to compel arbitration under
this Agreement, to enforce an arbitration award or to obtain temporary
injunctive relief pending a judgment based on the arbitration award.
Otherwise, neither party shall initiate or prosecute any lawsuit or
administrative action in any way related to any Arbitrable Claim. The
Federal Arbitration Act shall govern the interpretation and
enforcement of this Section on Arbitration, except if any court finds
that the Federal Arbitration Act does not apply, the California
Arbitration Act shall govern the interpretation and enforcement of
this Section. If any court or arbitrator finds that any term makes
this Arbitration Section unenforceable for any reason, the court or
arbitrator shall have the power to modify such term (or if necessary
delete such term) to the minimum extent necessary to make this
Arbitration Section enforceable to the fullest extent permitted by law.
14. Waiver of Jury Trial.
THE PARTIES HEREBY EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING BROUGHT BY OR AGAINST EITHER OF THEM
RELATING TO THIS AGREEMENT.
15. Jurisdiction; Venue.
Subject to Section 11 hereof, any claim made in connection
with this Agreement may be brought against the other party only in a
court located in the State of California, County of Los Angeles. Each
of the parties consents to the jurisdiction of such courts (and the
appropriate appellate courts) in any such action or proceeding and
waives any objection to venue laid therein.
16. Entire Agreement.
This Agreement is intended to be the final, complete, and
exclusive statement of the terms of Executive's employment by the
Company and may not be contradicted by evidence of any prior or
contemporaneous statements or agreements, except for agreements
specifically referenced herein (including the Employee Proprietary
Information and Inventions Agreement). To the extent that the
practices, policies, or procedures of the Company, now or in the
future, apply to Executive and are inconsistent with the terms of this
Agreement, the provisions of this Agreement shall control. Any
subsequent change in Executive's duties or compensation will not
affect the validity or scope of this Agreement.
17. Amendments; Waivers.
This Agreement may not be amended except by a writing signed
by Executive and by a duly authorized representative of the Company
other than Executive. Failure to exercise any right under this
Agreement shall not constitute a waiver of such right.
18. Assignment; Termination by Executive.
Executive agrees that he will not assign any rights or
delegate obligations under this Agreement. The rights of the Company
under this Agreement may be assigned or transferred by the Company in
connection with any consolidation, merger or sale of the Company or a
sale of all or substantially all of its assets, and no such
consolidation, merger or sale shall entitle Executive to terminate his
obligations under this Agreement in the event of such occurrence. For
avoidance of doubt, Executive may, at any time prior to the expiration
of the current existing period of employment hereunder, terminate his
employment with the Company with or without cause, reason or notice,
without liability whatsoever.
19. Severability.
If any provision of this Agreement shall be held by a court
or arbitrator to be invalid, unenforceable, or void, such provision
shall be enforced to fullest extent permitted by law, and the
remainder of this Agreement shall remain in full force and effect. In
the event that the time period or scope of any provision is declared
by a court or arbitrator of competent jurisdiction to exceed the
maximum time period or scope that such court or arbitrator deems
enforceable, then such court or arbitrator shall reduce the time
period or scope to the maximum time period or scope permitted by law.
20. Taxes.
All amounts paid under this Agreement (including, without
limitation, Annual Base Salary and Severance Payment) shall be paid
less all required applicable state and federal tax withholdings.
21. Governing Law.
This Agreement shall be governed by and construed in
accordance with the law of the State of California.
22. Interpretation.
This Agreement shall be construed as a whole, according to
its fair meaning, and not in favor of or against any party. Captions
are used for reference purposes only and should be ignored in the
interpretation of the Agreement.
23. Executive Acknowledgment.
Executive acknowledges he has had the opportunity to consult
legal counsel concerning this Agreement, that he has read and
understands the Agreement, that he is fully aware of its legal effect,
and that he has entered into it freely based on his own judgment and
not on any representations or promises other than those contained in
this Agreement.
24. Counterparts and Facsimile Signatures.
This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which taken together
shall constitute one and the same instrument. Any party hereto may
execute this Agreement by signing a copy of the signature page hereof
and telecopying such signed signature page to the other party hereto,
so long as a copy of the signature page of this Agreement containing
the original signature of such party is sent via Federal Express or
other nationally-recognized overnight courier to the other party to
this Agreement for next business day delivery. The signature of such
party is effective when telecopied to the other party hereto.
25. No Third Party Beneficiaries.
The provisions of this Agreement are not intended to be for
the benefit of or enforceable by any third party.
26. Nonwaiver.
Failure of either party hereto to enforce any of the
provisions of this Agreement or any rights with respect thereto shall
in no way be considered to be a waiver of such provisions or rights or
in any way affect the validity of this Agreement.
27. Return of Company Property.
In the event of any termination of Executive's employment
with Company, Executive shall promptly return to Company after his
termination all documents, materials, equipment, machines, credit
cards, customer lists, and all tangible property of Company and shall
maintain as confidential, in accordance with the Confidential
Information Agreement signed by Executive, any information of Company
which cannot be returned.
28. Citizenship.
To comply with Federal immigration law, Executive must
provide Company with documentary evidence of his identity and
eligibility for employment in the United States. Such evidence must
be provided to Company within three business days of Executive's date
of hire or our employment relationship with you may be terminated.
29. Survival.
The obligations in this Agreement that are intended by their
terms to survive the expiration and termination of this Agreement
shall so survive.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Executive Employment Agreement as of the date and year first
written above.
5G WIRELESS COMMUNICATIONS, INC.
By: /s/ Jerry Dix
Jerry Dix
Chief Executive Officer
Address: 4134 Del Rey Avenue
Marina del Rey, CA 90292
Facsimile: (310) 754-4004
/s/ Peter W. Trepp
Peter W. Trepp
Address: 116 Lighthouse Mall
Marina del Rey, CA 90292
Facsimile: (310) 301-9523
EXHIBIT A
EMPLOYEE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
In consideration of my employment by 5G WIRELESS COMMUNICATIONS,
INC. (the "Company"), I hereby agree to the following restrictions
placed on my use and development of information, technology, ideas and
inventions:
1. Proprietary Information.
a. Restrictions on Proprietary Information. I agree that,
during my employment and after, I will hold the Proprietary
Information of the Company in strict confidence and will neither use
the information nor disclose it to anyone, except to the extent
necessary to carry out my responsibilities as an employee of the
Company or as specifically authorized in writing by a duly authorized
officer of the Company. I understand that "Proprietary Information"
means all information pertaining in any manner to the business of the
Company or its affiliates, consultants, or business associates,
unless: (i) the information is or becomes publicly known through
lawful means; (ii) the information was part of my general knowledge
prior to my employment by the Company; or (iii) the information is
disclosed to me without restriction by a third party who rightfully
possesses the information and did not learn of it from the Company.
This definition includes, but is not limited to: (A) schematics,
techniques, development tools, processes, computer printouts, computer
programs, design drawings and manuals, electronic codes, formulas and
improvements; (B) information about costs, profits, markets, sales,
customers, and bids; (C) plans for business, marketing, future
development and new product concepts; and (D) employee personnel files
and information about employee compensation and benefits.
b. Location and Reproduction. I agree to maintain at my
workstation and/or any other place under my control only such
Proprietary Information as I have a current "need to know." I agree
to return to the appropriate person or location or otherwise properly
dispose of Proprietary Information once that need to know no longer
exists. I also agree not to make copies or otherwise reproduce
Proprietary Information unless there is a legitimate business need for
reproduction.
c. Prior Actions and Knowledge. Except as disclosed on
Schedule A to this Agreement, I do not know anything about the
Company's business or Proprietary Information, other than information
I have learned from the Company in the course of being hired and employed.
d. Third Party Information. I recognize that the Company
has received and will receive confidential or proprietary information
from third parties. I will hold all such information in the strictest
confidence and will not use the information or disclose it to anyone
(except as necessary in carrying out my work for the Company
consistent with the Company's agreement with such third party).
e. Interference with Business. I agree that during my
employment with the Company and for a period of one (1) year after
termination of my employment with the Company, I shall not directly or
indirectly: (i) divert or attempt to divert from the Company (or any
affiliate) any business of any kind in which it is engaged, including,
without limitation, the solicitation of or interference with any of
its suppliers or customers or (ii) solicit, induce, recruit or
encourage any person employed by the Company to leave their employment.
2. Inventions.
a. Assignment of Inventions. I agree to assign to the
Company, without further consideration, my entire right, title, and
interest (throughout the United States and in all foreign countries),
free and clear of all liens and encumbrances, in and to all
Inventions. Notwithstanding the foregoing, the Company may, in its
discretion, agree to provide consideration for certain Inventions
through a written agreement between the Company and the undersigned
which specifically provides for such consideration; in all other
cases, no consideration shall be paid. The Inventions shall be the
sole property of the Company, whether or not copyrightable or
patentable. In addition, I agree to maintain adequate and current
written records on the development of all Inventions, which shall also
remain the sole property of the Company. I understand that
"Inventions" means all ideas, processes, inventions, technology,
designs, formulas, discoveries, patents, copyrights, and trademarks,
and all improvements, rights, and claims related to the foregoing,
that are conceived, developed, or reduced to practice by me alone or
with others except Inventions excluded in Schedule A and to the extent
that California Labor Code Section 2870 lawfully prohibits the
assignment. I understand that Section 2870(a) provides:
Any provision in an employment agreement which provides that
an employee shall assign, or offer to assign, any of his or her rights
in an invention to his or her employer shall not apply to an invention
that the employee developed entirely on his or her own time without
using the employer's equipment, supplies, facilities, or trade secret
information except for those inventions that either:
(1) Relate at the time of conception or reduction to
practice of the invention to the employer's business, or actual or
demonstrably anticipated research or development of the employer.
(2) Result from any work performed by the employee for
the employer.
b. License for Other Inventions. If, in the course of my
employment, with the Company, I incorporate into Company property an
invention owned by me or in which I have an interest, the Company is
granted a nonexclusive, royalty-free, irrevocable, perpetual,
worldwide license to make, modify, use and sell my invention as part
of and in connection with the Company property.
c. Assist With Registration. In the event any Invention
shall be deemed by the Company to be copyrightable or patentable or
otherwise registrable, I will assist the Company (at its expense) in
obtaining and maintaining letters patent or other applicable
registrations and in vesting the Company with full title. Should the
Company be unable to secure my signature on any document necessary to
apply for, prosecute, obtain, or enforce any patent, copyright, or
other right or protection relating to any Invention, due to my
incapacity or any other cause, I hereby irrevocably designate and
appoint the Company and each of its duly authorized officers and
agents as my agent and attorney-in-fact to do all lawfully permitted
acts to further the prosecution, issuance, and enforcement of patents,
copyrights, or other rights or protection with the same force and
effect as if executed and delivered by me.
d. Disclosure. I agree to disclose promptly to the
Company all Inventions and relevant records. I further agree to
promptly disclose to the Company any idea that I do not believe to be
an Invention, but is conceived, developed, or reduced to practice by
me (alone or with others) while I am employed by the Company or during
the one-year period following termination of my employment. I will
disclose the idea, along with all information and records pertaining
to the idea, and the Company will examine the disclosure in confidence
to determine if in fact it is an Invention subject to this Agreement.
e. Post-Termination Period. I agree that any idea,
invention, writing, discovery, patent, copyright, or trademark or
similar item, or improvement shall be presumed to be an Invention if
it is conceived, developed, used, sold, exploited, or reduced to
practice by me or with my aid within one (1) year after my termination
of employment with the Company. I can rebut the above presumption if
I prove that the idea, invention, writing, discovery, patent,
copyright, or trademark or similar item, or improvement is not an
Invention covered by this Agreement.
3. Former or Conflicting Agreements.
a. Former Agreements. I represent and warrant that my
performance of the terms of this Agreement will not breach any
agreement to keep in confidence proprietary information acquired by me
prior to my employment by the Company. I have listed in Schedule A
all other agreements concerning proprietary information or inventions
to which I am a party and attached copies of any agreements in my
possession. To the best of my knowledge, there is no other contract
between me and any other person or entity that is in conflict with
this Agreement or concerns proprietary information, inventions or
assignment of ideas.
b. Obligations During Employment. During my employment
with the Company, I will not disclose to the Company, or use, or
induce the Company to use, any proprietary information or trade
secrets of others.
4. Termination.
a. Return of the Company's Property. I agree to promptly
return to the Company upon termination of my employment all
Proprietary Information and all personal property furnished to or
prepared by me in the course of or incident to my employment.
Following my termination, I will not retain any written or other
tangible material containing any Proprietary Information or
information pertaining to any Invention.
b. Termination Certificate. In the event of the
termination of my employment, I agree, if requested by the Company, to
sign and deliver the Termination Certificate attached as Schedule B.
c. Subsequent Employers. I agree that after the
termination of my employment with the Company, I will not enter into
any agreement that conflicts with my obligations under this Agreement
and will inform any subsequent employers of my obligations under this
Agreement.
5. No Implied Employment Rights. I recognize that nothing in
this Agreement shall be construed to imply that my employment is
guaranteed for any period of time. I understand that my employment is
"at will," which means that either the Company or I can terminate our
employment relationship at any time, without notice and for any
reason, with or without cause. I understand that the only way that
this "at will" employment relationship can be altered is by a written
agreement signed by a duly authorized officer of the Company.
6. Remedies. I recognize that nothing in this Agreement is
intended to limit any remedy of the Company under any federal or state
law concerning trade secrets. I recognize that my violation of this
Agreement could cause the Company irreparable harm and agree that the
Company shall have the right to apply to any court of competent
jurisdiction for an order restraining any breach or threatened breach
of this Agreement.
7. Miscellaneous Provisions.
a. Assignment. I agree that the Company may assign to
another person or entity any of its rights under this Agreement.
b. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
c. Severability. If any provision of this Agreement, or
application thereof to any person, place, or circumstance, shall be
held by a court of competent jurisdiction to be unenforceable, such
provision shall be enforced to the greatest extent permitted by law
and the remainder of this Agreement shall remain in full force and effect.
d. Entire Agreement. The terms of this Agreement are the
final expression of my agreement with respect to the subject matter
hereof and may not be contradicted by evidence of any prior or
contemporaneous agreement. This Agreement shall constitute the
complete and exclusive statement of its terms. I acknowledge that the
Company has not made any other representations concerning the subject
matter of this Agreement.
e. Amendment; Waivers. This Agreement can be amended or
terminated only by a written agreement signed by both parties. No
failure to exercise or delay in exercising any right under this
Agreement shall operate as a waiver thereof.
f. Successors and Assigns. This Agreement shall be
binding upon me and my heirs, executors, administrators, and
successors, and shall inure to the benefit of the Company's successors
and assigns.
g. Interpretation. This Agreement shall be construed as
a whole, according to its fair meaning, and not in favor of or against
any party. By way of example and not in limitation, this Agreement
shall not be construed in favor of the party receiving a benefit nor
against the party responsible for any particular language in this
Agreement. Captions are used for reference purposes only and should
be ignored in the interpretation of the Agreement.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS
TERMS. I HAVE COMPLETELY NOTED ON SCHEDULE A TO THIS AGREEMENT ANY
PROPRIETARY INFORMATION, IDEAS, PROCESSES, INVENTIONS, TECHNOLOGY,
WRITINGS, PROGRAMS, DESIGNS, FORMULAS, DISCOVERIES, PATENTS,
COPYRIGHTS OR TRADEMARKS, OR IMPROVEMENTS, RIGHTS, OR CLAIMS RELATING
TO THE FOREGOING, THAT I DESIRE TO EXCLUDE FROM THIS AGREEMENT.
/s/ Peter Trepp
Peter Trepp