FASTCOM, LTD.
MANAGEMENT INCENTIVE PLAN
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1. TERMS. This Document (the Plan) and the Partnership Agreement shall
govern all terms and conditions (the Terms) of the MIP Special Limited
Partnership Units of the Partnership, and all persons admitted to the
Partnership as MIP Special Limited Partners.
2. ADMINISTRATION. The Terms shall be administered by the Board of
Directors (the "Board") of Fastcom Management, Inc., the General Partner (the
"General Partner") of the Partnership. The Board may establish, subject to the
provisions hereof, such rules and regulations as it deems necessary for the
proper administration hereof, and has the authority to construe and interpret
these Terms whenever any question of meaning arises under it and make such
determinations and take such action in connection therewith or in relation to
the Terms as it deems necessary or advisable, consistent with the Terms. Any
such construction or interpretation shall be binding both on the Partnership and
on the MIP Special Limited Partner, his personal representatives, the
representatives of his estate, his heirs, or anyone else having or claiming to
have an interest as a MIP Special Limited Partner. Determinations by the Board
shall be by majority vote and shall be binding on all parties with respect to
all matters relating to the Terms.
3. ELIGIBILITY. Regular full-time employees of the Partnership who are key
employees of the Partnership shall be eligible to become MIP Special Limited
Partners. Such employees are herein referred to as "MIP Special Limited
Partners."
4. GRANT OF UNITS.
(a) The Board may from time to time, in its discretion and subject to
the provisions of the Terms, grant MIP Special Limited Partner units (the
"Units") to any or all MIP Special Limited Partners. Each grant shall be
embodied in a Management Incentive Plan Special Limited Partner Agreement
(the "Agreement") signed by the MIP Special Limited Partner and the
Partnership providing that the grant of Units shall be subject to these
Terms and containing such other provisions as the Board may prescribe not
inconsistent with the Terms. The "Date of Grant" for each Unit shall be the
date determined by the Board. The aggregate number of Units available for
grant hereunder is five hundred (500) Units, each of which represent 1/500
of the aggregate MIP Special Limited Partnership Units. Unless otherwise
provided herein or in the Agreement, all rights of MIP Special Limited
Partners to Units vest as follows:
______________________________________________________________________________
| Anniversary Date of Grant | Percentage of Vested Units |
|_________________________________________|____________________________________|
| First | 33 3/3% |
|_________________________________________|____________________________________|
| Second | 66 2/3% |
|_________________________________________|____________________________________|
| Third | 100% |
|_________________________________________|____________________________________|
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5. UNITS. Units granted to a MIP Special Limited Partner shall be credited
to a Unit account (the "Account") established and maintained for such MIP
Special Limited Partner. The Account of a MIP Special Limited Partner shall be
the record of Units granted to the MIP Special Limited Partner hereunder. The
Account is solely for accounting purposes and there shall not be a segregation
of any Partnership assets. Each Unit shall be valued in the manner provided in
Section 8.
6. FORFEITURE OF UNITS. The tables attached hereto as Exhibit A, Exhibit B
and Exhibit C, incorporated by reference herein, shall govern forfeiture of
Units. For purposes of Exhibit A: (i) a MIP Special Limited Partner will be
considered disabled if, in the determination of the Board, he is subject to a
physical or mental condition which is expected to render the MIP Special Limited
Partner unable to perform his usual duties or any comparable duties for the
Partnership; and (ii) a MIP Special Limited Partner will be considered retired
if the MIP Special Limited Partner's employment with the Partnership terminates
at or after the date the MIP Special Limited Partner attains the age of 65.
7. NON-TRANSFERABILITY. Units granted hereunder, MIP Special Limited
Partner Units, and any rights and privileges pertaining thereto, may not be
transferred, assigned, pledged or hypothecated in any manner, by operation of
law or otherwise, other than as provided in the Partnership Agreement. In the
event of a MIP Special Limited Partner's death, the right to any amount due
pursuant to the terms of paragraph 9 hereto shall be made to the duly appointed
and qualified executor or other personal representative of the MIP Special
Limited Partner to be distributed in accordance with the MIP Special Limited
Partner's will or applicable intestacy law; or in the event that there shall be
no such representative duly appointed and qualified within six (6) months after
the date of death of such deceased MIP Special Limited Partner, then to such
persons as, at the date of his death, would be entitled to share in the
distribution of such deceased MIP Special Limited Partner's personal estate
under the provisions of the applicable statute then in force governing the
descent of intestate property, in the proportions specified in such statute.
8. VALUATION OF UNITS. The value of the Units is determined pursuant to the
formula (the Formula) used to determine the number of shares (the Shares) of
Thrucomm, Inc., a Florida corporation (Thrucomm), to be issued or other assets
(including cash) to be distributed (Assets) upon a Mandatory Conversion Event of
the Mandatory Convertible Preferred Stock, Series M ("Series M Stock") of
Thrucomm, all as further set forth in the Statement of Rights and Preferences
for such Series M Stock filed or to be filed with the Secretary of State of
Florida. Anything to the contrary notwithstanding, no holder of the Units shall
be entitled to any distribution thereon in any form in excess of that .01%
aggregate interest as a MIP Special Limited Partner as provided in Section
9.2(c) of the Partnership Agreement, including but not limited to that from a
conversion of the Series M Stock, at any time at or after a Mandatory Conversion
Event if the Value used in the Formula is less than $30,000,000 aggregate (the
Minimum Amount), subject to adjustment upward but not downward, as follows: If
within 6 months from the date of adoption of this Plan, the Partnership,
Datalinc or Thrucomm receive one or more infusions of equity or deemed equity
(the Infusions), as reflected in the financial statements of the entity
receiving the infusion audited by Price Waterhouse and Co., L.L.P., valued at up
to $5,000,000, the $30,000,000 Minimum Amount shall be increased dollar for
dollar by the amount of the Infusions. There is no limit on the number of
adjustments so made; the limits are only on the time period and the amounts as
specified above.
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9. MANDATORY CONVERSION EVENT. Upon a Mandatory Conversion Event all Units
shall be considered 100% vested. However, any Shares or Assets received thereon
shall continue to be governed by these Terms. SEQ 4_1 \* Arabic \n10. Covenant
Not To Compete. MIP Special Limited Partner agrees to conform to the following
concerning non-competition.
(a) Partnership undertakes to train MIP Special Limited Partner and to
give MIP Special Limited Partner confidential information and knowledge
about Partnership's business policies, accounts procedures and methods. For
the purposes of this Agreement, the term "confidential information" shall
include but is not limited to any list of suppliers, customers, investors,
stockholders, including their names, addresses, phone numbers, amount of
investments and similar information, and in addition, any operational
information of Partnership , including but not limited to information on
Partnership's methods of conducting business, profits and/or losses of
Partnership, marketing material and any information that would reasonably
be considered proprietary or confidential in nature. Partnership has
established a valuable and extensive trade in its products and services,
which business has been developed at a considerable expense to Partnership.
The nature of the business is such that the relationship of its customers
with Partnership must be maintained through the close personal contact of
its employees.
(b) MIP Special Limited Partner desires to enter into or continue in
the employ of Partnership and by virtue of such employment by Partnership,
MIP Special Limited Partner will become familiar with the manner, methods,
secrets and confidential information pertaining to such business. During
the term of such employment, MIP Special Limited Partner will continue to
receive additional confidential information of the same kind. Through
representatives of Partnership, MIP Special Limited Partner will become
personally acquainted with the business of Partnership and its methods of
operation.
(c) In consideration of the employment or continued employment of MIP
Special Limited Partner and the rights as herein provided, the training of
MIP Special Limited Partner by Partnership, and the disclosure by
Partnership to MIP Special Limited Partner of the knowledge and
confidential information described above, Partnership requests and MIP
Special Limited Partner makes the covenants hereinafter set forth. MIP
Special Limited Partner understands and acknowledges that such covenants
are required for the fair and reasonable protection of the business of
Partnership carried on in the area to which the covenants are applicable
and that without the limited restrictions on MIP Special Limited Partner's
activities imposed by the covenants, the business of Partnership would
suffer irreparable and immeasurable damage. The covenants on the part of
MIP Special Limited Partner shall be construed as an agreement independent
of any other provision of this Agreement, and existence of any claim or
course of action whether predicated on this Agreement or otherwise, shall
not constitute a defense to the enforcement by Partnership of the
covenants.
(d) MIP Special Limited Partner agrees that during the term of MIP
Special Limited Partner's employment and for the period of twelve (12)
months immediately following the termination of employment (which said time
period shall be increased by any time during which MIP Special Limited
Partner is in violation of this Agreement) MIP Special Limited Partner will
not, within the territory hereinafter defined, directly or indirectly, for
MIP Special Limited Partner, or on behalf of others, as an individual on
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MIP Special Limited Partner's own account, or as an MIP Special Limited
Partner, agent, or representative for any other person, partnership, firm
or corporation:
(i) Compete with the business of Partnership by engaging or
participating in or furnishing aid or assistance in competition with
the business of Partnership.
(ii) Engage, in any capacity, directly or indirectly, in or be
employed by any business similar to the kind or nature of business
conducted by Partnership during the employment.
(iii) For the purposes of this paragraph 10, the business of
Partnership shall be limited to the wireless data transfer business,
which means any business primarily involving the wireless transfer of
data on behalf of third parties.
(e) The territory referred to in this paragraph 10 shall be the United
States.
(f) Each restrictive covenant is separate and distinct from any other
covenant set forth in this paragraph. In the event of the invalidity of any
covenant, the remaining obligation shall be deemed independent and
divisible. The parties agree that the territory set forth is reasonable and
necessary for the protection of Partnership . In the event any term or
condition is deemed to be too broad or unenforceable, said provision shall
be deemed reduced in scope to the extent necessary to make said provision
enforceable and binding.
11. INDUCING EMPLOYEES OF PARTNERSHIP TO LEAVE. Any attempt on the part of
MIP Special Limited Partner to induce others to leave Partnership's employ or
any efforts by MIP Special Limited Partner to interfere with Partnership's
relationship with other employees would be harmful and damaging to Partnership.
MIP Special Limited Partner expressly agrees that during the term of MIP Special
Limited Partner's employment and for a period of twelve (12) months thereafter
(provided said time period shall be increased by any time during which MIP
Special Limited Partner is in violation of this Agreement), MIP Special Limited
Partner will not in any way directly or indirectly:
(a) Induce or attempt to induce an employee to sever his or her
employment with Partnership;
(b) Interfere with or disrupt Partnership's relationship with other
employees; and
(c) ▇▇▇▇▇▇▇, entice, take away or employ any person employed with
Partnership.
12. CONFIDENTIAL INFORMATION. It is understood between the parties hereto
that during the term of employment, MIP Special Limited Partner will be dealing
with confidential information, as defined above, which is Partnership's
property, used in the course of its business. MIP Special Limited Partner will
not disclose to anyone, directly or indirectly, any of such confidential
information or use such information other than in the course of MIP Special
Limited Partner's employment. All documents that MIP Special Limited Partner
prepares, or confidential information that might be given to MIP Special Limited
Partner in the course of employment, are the exclusive property of Partnership
and shall remain in Partnership's possession. Under no circumstances shall any
such information or documents be removed without Partnership's written consent
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first being obtained, except for information used in the MIP Special Limited
Partners regular course of employment with the Partnership.
13. ADJUSTMENTS. MIP Special Limited Partner acknowledges that the number
of Shares issued or Assets distributed upon a Mandatory Conversion Event for the
Series M Stock is subject to change, including dilution, in accordance with the
Rights and Preferences of the Series M Stock, and MIP Special Limited Partner
has no right to object thereto.
14. AMENDMENT. The Board may amend these Terms at any time or from time to
time, but may not reduce the number of Units previously issued to MIP Special
Limited Partner.
15. PARTNERSHIP RESPONSIBILITY. All expenses related to the Units,
including the cost of maintaining records, shall be borne by the Partnership.
The Partnership shall have no responsibility or liability for any act or thing
done or left undone with respect to the grant of Units hereunder, so long as the
Partnership acts in good faith.
16. IMPLIED CONSENT OF MIP SPECIAL LIMITED PARTNERS. Every MIP Special
Limited Partner, by his acceptance of a grant of Units hereunder, shall be
deemed to have consented to be bound, on his own behalf and on behalf of his
heirs, assigns, and legal representatives, by all of the terms and conditions of
this Agreement and the Partnership Agreement.
17. WITHHOLDING. The Partnership shall have the right to deduct from all
amounts paid pursuant to the Terms any taxes required by law to be withheld with
respect to such awards.
18. VOTING. No MIP Special Limited Partner shall be entitled to any voting
rights with respect to Units credited to his Account.
19. MISCELLANEOUS PROVISIONS. No MIP Special Limited Partner or other
person shall have any claim or right to be granted an award hereunder. No action
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taken hereunder shall be construed as giving any MIP Special Limited Partner any
right to be retained in the employ of the Partnership.
20. EFFECTIVENESS AND TERMS OF TERMS. The effective date of the Terms shall
be July 15, 1997.
21. ASSUMPTION OF RIGHTS AND OBLIGATIONS BY THRUCOMM. Upon the consummation
of the contemplated reorganization of the Partnerships business into Thrucomm,
all rights, obligations and liabilities hereunder shall be transferred to and
assumed by Thrucomm, with no further action of Partnership or MIP Special
Limited Partner required, and Thrucomm shall be substituted for Partnership
throughout these Terms. If, prior to such time, the MIP Special Limited Partner
is an employee of Thrucomm, all provisions applicable to the MIP Special Limited
Partner and the Partnership shall be interpreted by substituting Thrucomm for
the Partnership hereunder.
IN WITNESS WHEREOF, Partnership has caused this instrument to be
executed as of this 1st day of August, 1997.
FASTCOM, LTD.
By: Fastcom Management, Inc.,
General Partner
By:___________________________________
Its:____________________________________
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FASTCOM, LTD.
MANAGEMENT INCENTIVE PLAN SPECIAL LIMITED PARTNER AGREEMENT
The Board of Directors of Fastcom Management, Inc., the General Partner of
Fastcom, Ltd. (the "Partnership") has granted the following units (the "Units")
to the MIP Special Limited Partner named below, in accordance with the
Partnership Agreement and the Terms.
1. Name of MIP Special Limited Partner:___________________________________
2. Date of Grant: _____________________________
3. Number of Units Granted:_______________________
4. Percent Vested as of Date of Grant: ____________________
Subject to the terms and conditions specified in the Terms, a copy of which
is attached hereto and made a part hereof and the Partnership Agreement into
which the Terms are incorporated by reference, the MIP Special Limited Partner
has been granted the number of Units shown in Line 3 above.
The Board of Directors has the authority to construe and to interpret the
terms of this grant whenever any question of meaning arises under it, and any
such construction or interpretation shall be binding both on the Partnership and
on the MIP Special Limited Partner, his personal representatives, the
representatives of his estate, his heirs, or anyone else having or claiming to
have an interest under this grant. This grant shall be construed and
administered in accordance with and governed by the laws of the State of
Florida.
The MIP Special Limited Partner, by his acceptance of this grant of Units,
shall be bound on his own behalf and on behalf of his heirs, legal
representatives, and any other person claiming through or under him, by all of
the terms and conditions of this grant and of the Terms and the Partnership
Agreement.
Agreed and Accepted:
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Signature of MIP Special Limited Partner
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