CALYPSO WIRELESS, INC. EXECUTIVE EMPLOYMENT AGREEMENT
CALYPSO
WIRELESS, INC.
THIS
EXECUTIVE EMPLOYMENT AGREEMENT
("Agreement"), effective as of March 2, 2005, by and between CALYPSO
WIRELESS,
INC., a
Delaware corporation (“CALYPSO”), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (the
“Executive”).
WHEREAS, CALYPSO
has experienced considerable success in the business of designing, engineering,
researching and developing wireless technology, cellular telephones and other
equipment; and
WHEREAS, CALYPSO
wishes to employ Executive in the capacity of PRESIDENT & CHIEF EXECUTIVE
OFFICER for a minimum period of One (1) year; and
WHEREAS, the
Executive wishes to become an employee of CALYPSO as its PRESIDENT & CHIEF
EXECUTIVE OFFICER; and
WHEREAS, the
parties believe it to be in their mutual interest to set forth in writing the
terms and con-ditions of Executive’s employment by CALYPSO; and
WHEREAS, the
Agreement shall govern the employment relationship between the parties from and
after the effective date hereof and it supersedes all previous employment
agreements between them, except as defined below, either written or oral,
heretofore made.
NOW,
THEREFORE, in
consideration of the foregoing, the parties agree as follows:
1. Recitals. The
above recitals are true and correct and fully incorporated herein and form an
integral part of this Agreement.
2. Intent
and Scope of Agreement. The
purpose of this agreement is for Calypso to execute an employment agreement that
allows it to procure the services of the Executive as its Chief Executive
Officer.
3. Employment. CALYPSO
hereby employs the Executive to serve as its President & Chief Executive
Officer, and the Executive hereby accepts such employment with CALYPSO upon the
terms and conditions hereinafter set forth. The duties, responsibilities and
requisites of Executive shall be at a minimum as set forth in the attached job
description, but shall remain commensurate with such title and shall not
diminish in quality from that currently experienced by Executive.
4. Term. The
term (which, for purposes of the Agreement, shall include any extensions) of the
Agreement shall commence as of the date of the signing of this Agreement, and,
except as otherwise provided in Section 12 hereof, shall terminate one year from
such commencement date (the “Initial Term”), and shall include all additional
periods, as extended. At the expiration date, and each year thereafter, this
Agreement shall be renewed upon mutual consent and agreed upon terms, of CALYPSO
and Executive for an additional period to be negotiated by the
parties.
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Wireless, Inc.
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5. Compensation.
A. Base
Compensation. For all
services rendered during the term of this Agreement by the Executive to CALYPSO,
the Executive shall receive base compensation of $ 120,000.00 per annum (One
Hundred Twenty Thousand US Dollars) (the “Base Compensation”). Commencing on
April 15th, 2005. CALYPSO shall pay Executive the Base Compensation in
twenty-four (24) equal Semi-Monthly payments commencing on the commencement date
as provided in section 4 hereof, and paid every 15th and
every 30th of the
month (except the month of February which shall be paid on the 28th).
Commencing
April 15, 2005, the Company will provide a monthly stipend, in addition to his
salary, of $ 2,500.00 (Two Thousand Five Hundred US Dollars) per moth for the
duration of this Employment Agreement.
B. Bonus
Payment.
Executive shall receive an additional compensation of 10,000 (Ten Thousand)
restricted shares of CALYPSO every month commencing on April 15th, 2005 for the
duration of this Employment Agreement. The stock certificates will be delivered
to the Executive every (90) ninety days. A true and correct copy of the Stock
Grant is attached hereto as Exhibit “A”.
C. Additional
Compensation to Executive. In
addition to the compensation stated above, Executive shall receive 333,333
(Three Hundred Thirty Three Thousand Three Hundred Thirty Three) stock options
at a price of .98 cents (Ninety Eight cents) per share of CALYPSO per year for
the duration of this Employment Agreement that shall vest pursuant to a
pro-rated vesting schedule attached a exhibit “A” and providing that he is not
terminated pursuant to the provisions of paragraph 14 (B).
In the
Event of a Change in Control (as defined in No. 15) within the next twelve
months, the Executive shall receive an additional compensation of 666,666 (Six
Hundred Sixty Six Thousand Six Hundred Sixty Six) stock options of CALYPSO at a
price of .98 cents (Ninety Eight cents) per share that shall vest upon the
consummation of the change of control.
D. Board
of Directors Compensation. If
during the term of this Agreement the Executive participates as a member of the
Board of Directors, in addition to the compensation stated above, Executive
shall receive a compensation for serving as a member of the Board of Directors
of Calypso Wireless, Inc. in the amount determined by the Board of Directors of
CALYPSO in its absolute and sole discretion for all members of the Board. Said
Board of Directors Compensation shall be in addition to the base compensation
and all other forms of compensation described herein in 5(A)-(C).
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6. Duties
and Restrictions.
6.1 Position.
During the term of this Agreement, the Executive shall serve as President &
Chief Executive Officer of CALYPSO and shall devote time, attention, energy and
skills to the faithful and diligent performance of his duties, including,
without limitation, participating in the prosecution or defense of any
litigation on behalf of CALYPSO, which may include traveling as reasonably
requested by CALYPSO. Except as otherwise agreed between CALYPSO and EXECUTIVE
from time to time Employee agrees to devote 100% of his business time,
attention, skill, and efforts to the performance of his duties and
responsibilities on behalf of CALYPSO which shall be assigned to him from time
to time by the CALYPSO. “100% of his business time” shall mean Monday through
Friday, excluding holidays as defined in 8(a) of this Agreement. Executive shall
also devote reasonable additional time (such as travel) from time to time as
requested by CALYPSO. Nothing in this Agreement shall preclude Executive from
devoting reasonable periods required for:
|
(a) |
serving
as a director or member of a committee of any organization or corporation
involving no conflict of interest with the interests of
Calypso; |
|
(b) |
serving
as a consultant or an academic faculty in his area of expertise (in areas
other than in connection with the business of Calypso), to government,
industrial, and academic panels where it does not conflict with the
interests of Calypso; and |
|
(c) |
managing
his personal investments or engaging in any other noncompeting
business; |
provided
that such activities do not materially interfere with the regular performance of
his duties and responsibilities under this Agreement. “The Business of Calypso”
for purposes of this paragraph and this Agreement shall mean work in the area of
telecommunications.
6.2
Non-Disclosure.
Executive agrees that he will not disclose, now or at anytime in the future, any
information which is treated by Calypso as confidential, including, but not
limited to, information relating to the business of Calypso, any of Calypso's
products, customers, affairs, trade secrets, developments, methods of
distribution and any other information relating to Calypso which Calypso shall
deem proprietary, to any person, firm, company, corporation, association, or any
other entity provided that disclosure of confidential information may be made
(i) to the extent that such information is generally available and known in the
industry, through no action of Executive, or (ii) as required by
law.
6.3
Return
of Documents. Upon the
expiration or termination of this Agreement, Executive shall not remove from
Calypso, without written consent of Calypso, any manuals, records, drawings,
blueprints, data, tables, calculations, letters, documents, or any copy or other
reproduction thereof, or any other property or confidential information, of or
pertaining to Calypso or any of its subsidiaries. All of the foregoing shall be
returned to Calypso on or before the date of expiration or termination of
employment.
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6.4 No
Actions In Conflict of Calypso’s Interest.
Executive recognizes that the services to be performed by him pursuant to this
Agreement are special, unique and extraordinary. The parties confirm that it is
reasonably necessary for the protection of Calypso’s goodwill that Executive
agree not to act in any way that would be detrimental to Calypso and constitute
a conflict of interest. Therefore, during the term of this Agreement, Executive
will not, directly or indirectly, except for the benefit of
Calypso:
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(i) |
solicit,
cause or authorize, directly or indirectly, to be solicited for or on
behalf of himself or third parties from parties who are or were customers
of Calypso (including its present and future subsidiaries and affiliates)
at any time during the term of this Agreement, any business similar to the
business transacted by Calypso with such customer. This shall not preclude
Executive from soliciting the services of a supplier or customer of
Calypso in furtherance of a noncompeting business as allowed under
Paragraph 6(a) hereof; or |
| (ii) | accept or cause or authorize, directly or indirectly, to be accepted for or on behalf of himself or third parties, business from any such customers of Calypso (including its present and future subsidiaries and affiliates), except as allowed in the last sentence of Paragraph 6.4 (i) above; or |
| (iii) | solicit, or cause or authorize, directly or indirectly, to be solicited for employment for or on behalf of himself or third parties, any persons who was at any time during the term of this Agreement, employees of Calypso (including its present and future subsidiaries and affiliates); or |
| (iv) | employ or cause or authorize, directly or indirectly, to be employed for or on behalf of himself or third parties, any such employees of Calypso (including its present and future subsidiaries and affiliates); or |
|
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(v) |
use
the trade names, trademarks, or trade dress of any of the products of
Calypso (including its present and future subsidiaries and affiliates); or
any substantially similar trade name, trademark or trade dress likely to
cause, or having the effect of causing, confusion in the minds of
manufacturers, customers, suppliers and retail outlets and the public
generally. |
6.5 Assignment
of Inventions. If at any time during the term of this Agreement (either alone or
with others) Executive makes, conceives, creates, discovers, invents or reduces
to practice any invention, modification, discovery, design, development,
improvement, process, software program, work of authorship, documentation,
formula, data, technique, know-how, trade secret, or intellectual property right
whatsoever or any interest therein (whether or not patentable or registrable
under copyright, trademark or similar statutes or subject to analogous
protection (each, an “Invention”) that (i) relates to the Business of Company or
any of its Affiliates or any customer of or supplier to Company or any of its
Affiliates or any of the products or services being developed, manufactured or
sold by Calypso or any of its Affiliates or which may be used in relation
therewith; or (ii) results from tasks assigned to Executive by Calypso or any of
its Affiliates; or (iii) results from the use of premises or personal property
(whether tangible or intangible) owned, leased or contracted for by Calypso or
any of its Affiliates, then all such Inventions and the benefits thereof are and
shall immediately become the sole and absolute property of Calypso and its
assigns, as works made for hire or otherwise. Executive hereby agrees that he
shall promptly disclose to Calypso (or any persons designated by it) each such
Invention. Executive hereby assigns all rights (including, but not limited to,
rights to any inventions, patentable subject matter, copyrights and trademarks)
he may have or may acquire in the Inventions and all benefits and/or rights
resulting therefore to Calypso and its assigns without further compensation and
shall communicate, without cost or delay, and without disclosing to others the
same, all available information relating thereto (with all necessary plans and
models) to Calypso. Notwithstanding anything contained in this Agreement or in
this Paragraph, any Invention that does not relate to the area
of telecommunications shall remain the exclusive property of Executive and
Calypso shall have no claim to such Invention, and under no circumstances shall
Executive have the duty or obligation to assign all rights (including,
but not limited to, rights to any inventions, patentable subject matter,
copyrights and trademarks) he may
have or may acquire to such Inventions and all benefits and/or rights resulting
therefore.
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7. Facilities.
The Executive shall be furnished with such facilities and services as are
adequate and sufficient in the reasonable opinion of the Executive for the
per-formance of his duties, this shall include without limitation a private
office, computer equipment, administrative assistant, office furniture and
similar facilities..
8. Employee
Benefits. CALYPSO agrees to provide the Executive with the following
benefits:
A. Vacation.
The Executive shall be entitled each year to vacation time that totals two (2)
weeks, during which time his compensation shall be paid in full. All ▇▇▇▇-tion
time shall be taken at times and in duration convenient to CALYPSO. The vacation
time provided herein shall not be cumulative and not carried forward to any
subsequent year(s) by the Executive.
B. Holidays.
Executive shall be entitled to the following Holidays: New Year’s Day, Good
Friday, Memorial Day, 4th of July, Labor Day, Thanksgiving, the Friday after
Thanksgiving, Christmas Eve, Christmas Day, and one Floating
Holiday.
C. Employee
Benefits.During
the Term of this Agreement, CALYPSO shall provide the Executive with any other
fringe benefits generally available to employees of CALYPSO, such as medical -
health plan.
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9. Development
and Other Activity Expenses. CALYPSO
recognizes that the Executive will have to incur certain out-of-pocket expenses,
including, but not limited to, travel expenses, relating to his services and
CALYPSO’s business, and CALYPSO agrees to promptly reimburse the Executive for
all reasonable expenses necessarily incurred by him in the performance of his
duties to CALYPSO upon presentation of a receipt, voucher, copy of credit card
statement or documentation indicating the amount and business purposes of any
such expenses. These expenses include, but are not limited to, travel, meals,
entertainment, etc.
10. Sick
Leave. The
Executive shall be entitled to five (5) days sick leave during each calendar
year, which amounts shall not be cumulative.
11. Office
and Support Staff. During
the term of this Agreement, Executive shall be entitled to an office of a size
and with furnishings and other appointments, and to secretarial and other
assistants, at least equal to those provided to other management level employees
of CALYPSO and as further addressed in section 7 herein.
12. Termination.
A. Grounds.
This agreement is at will and may be terminated by either party at any time.
This Agreement shall also terminate in the event of the Executive’s death. In
the case of the Executive’s Disability, CALYPSO may elect to terminate the
Executive as a result of such Disability provided such Disability prevents the
Executive from performing his duties as defined in Section 13.A.
B. Notice of
Termination. Any termination by CALYPSO shall be communicated by Notice of
Termination to the Executive and vice versa. For purposes of this Agreement, a
“Notice of Termination” means a written notice which (i) indicates the specific
termination provision in this Agreement relied upon and (ii) the date of
termination in accordance with (c) below.
▇. ▇▇▇▇ of
Termination. “Date of Termination” means (i) if CALYPSO intends to treat the
termination as a termination based upon the Executive’s Disability, the
Executive’s employment with CALYPSO shall terminate effective on the fifth day
after receipt of Notice of Termination by CALYPSO or on the date mentioned on
the Notice of Termination; (ii) if the Executive’s employment is terminated by
reason of Death, the Date of Termination shall be the date of death of the
Executive; (iii) if the Executive’s employment is terminated for any other
reason, the Date of Termination shall be fifty (15) days from the date of the
Notice of Termination. In addition, the Executive shall be deemed to have
terminated his employment by Voluntary Termination if the Executive voluntary
refuses to provide substantially all of the services described in Section 6
hereof for a period greater than one (1) consecutive weeks In such event, the
Date of Termination shall be the last day substantially all of the services
described in Section 6 hereof were performed;
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13. Definitions. For the
purposes of this Agreement, the following terms shall have the following
definitions:
A. “Disability”
means a complete physical or mental inability, confirmed by an independent
licensed physician, to perform substantially all of the services described in
Section 3 hereof that continues for a period of 30 consecutive days during any
six month period.
B. “Voluntary
Termination” means the Executive’s voluntary termination of his employment.
Voluntary refusal to perform services shall not include taking a vacation in
accordance with Section 8.(A.) hereof, or the Executive’s failure to perform
services on account of his illness or the illness of a member of his immediate
family, provided such illness is adequately substantiated at the reasonable
request of CALYPSO, or any other absence from service with written consent of
the Board of Directors.
14. Compensation
Upon Termination - Obligations of CALYPSO Upon
Termination.
A. If the
Executive shall suffer a death or a termination hereunder based upon Executive’s
Disability, as defined under Section 13, CALYPSO shall pay the Executive the
following:
(i). the
Executive’s full Base Compensation up to the Date of Termination at the rate in
effect on the Date of Termination;
| B. |
If
the Executive shall suffer a Termination based upon any of the following
circumstances, he shall receive no compensation, separation pay, stock
options or any employment benefits referenced in this or any other
agreement: |
| 1. |
He
commits a felony, or any misdemeanor criminal offense involving a crime of
dishonesty, moral turpitude or violence; |
| 2. |
He
abuses alcohol or uses illegal narcotics; |
| 3. |
Engages
in insubordination; |
| 4. |
He
commits gross negligence in the performance of his
duties; |
| 5. |
He
breaches his fiduciary obligations as President and Chief Executive
Officer; |
| C. |
If
the Executive is terminated for any other reason, (other than death,
disability or reasons enumerated in B (1 - 5), he shall receive ninety
(90) days pay, plus pro-rated stock options as enumerated
herein. |
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15. Change
in Control. In the
event of a Change in Control, as defined below, the Executive or CALYPSO, shall
have the option at any time within 30 days after the Change in Control occurs to
terminate Executive’s employment.
A. Notice. Written
notice that a “Change in Control” has occurred must be delivered by CALYPSO
within five (5) days after such “Change in Control” occurs. Proper notice to
effectuate a termination upon Change in Control shall be the date the Executive
or CALYPSO receive written notice which (i) indicates that this Employment
Agreement is being terminated on the basis of Change in Control, and, (ii) sets
forth in reasonable detail the facts and circumstances claimed to provide a
basis for such termination.
B. Definitions
- Change in Control.
| (i) |
“Acquiring
Person” means that a Person, considered alone or together with all Control
Affiliates and Associates of that Person, is or becomes directly or
indirectly the beneficial owner of securities representing at least
fifty-one (51) percent of CALYPSO’s then outstanding securities entitled
to vote generally in the election of the
Board. |
| (ii) |
“Affiliate”
means any “subsidiary” or “parent” corporation (within the meaning of
Section 424 of the Code) of CALYPSO. |
| (iii) |
“Board”
means the Board of Directors of CALYPSO. |
| (iv) |
“Control
Affiliate” with respect to any Person, means an Affiliate as defined in
Rule 12B-2 of the General Rules and Regulations under the Exchange Act, as
amended as of January 1, 1990. |
| (v) |
“Exchange
Act” means the Securities Exchange Act of 1934, as amended and as in
effect from time to time. |
| (vi) |
“Person”
means any human being, firm, corporation, partnership, or other entity.
Person also includes any human being, firm, corporation, partnership, or
other entity as defined in Section 13(d)(3) and 14 (d)(2) of the Exchange
Act, as amended as of January 1, 1990. The term Person does not include
CALYPSO or any related entity within the meaning of Code Section 1563(a),
414(b) or 414(c), and the term Person does not include any
employee-benefit plan maintained by CALYPSO or by any Related Entity, and
any Person or entity organized, appointed, or established by CALYPSO or by
any subsidiary for or pursuant to the terms of any such employee-benefit
plan, unless the Board determines that such an employee-benefit plan, or
such Person or entity is a Person |
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| (vii) |
“Change
in Control”. For purposes of this Agreement, a “Change in Control” shall
mean any of the following events: |
| (a) |
In
the event a Person is or becomes an Acquiring
Person; |
| (b) |
In
the event a Person enters into a agreement that would result in that
Person becoming an Acquiring Person; |
| (c) |
In
the event that CALYPSO enters into any agreement with Person that involves
the transfer of at least fifty-one (51) percent of CALYPSO’s total assets
on a consolidated basis, as reported in CALYPSO’s consolidated financial
statements filed with the Securities and Exchange Commission, or, if
CALYPSO is not required to file consolidated financial statements with the
Securities and Exchange Commission, similar financial
statements; |
| (d) |
In
the event that CALYPSO enters into an agreement to merge or consolidate
CALYPSO or to effect a statutory share exchange with another Person, where
the Person and its subsidiaries and affiliates own at least fifty-one (51)
percent of the company, if CALYPSO is not intended to be the surviving or
resulting entity after the merger, consolidation, or statutory share
exchange; |
| (e) |
A
complete liquidation or dissolution of
CALYPSO; |
| (f) |
Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur solely
because any Person acquired Beneficial Ownership as defined in the
Exchange Act of more than the permitted amount of the then outstanding
securities as a result of the acquisition of securities by CALYPSO which
by reducing the number of securities then outstanding, increased the
proportional number of shares Beneficially Owned by the subject Person(s)
provided that if a Change in Control would occur as a result of the
acquisition of securities by CALYPSO, and after such share acquisition by
CALYPSO, the Person becomes the Beneficial Owner of any additional
securities which increases the percentage of the then outstanding
securities Beneficially Owned by the subject Person, then a Change in
Control shall occur. |
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C.
Compensation
Upon Termination Based Upon Change in Control - Payment of Excise
Taxes. If a
termination occurs upon a Change in Control as defined above, and the change
control takes place during the first twelve months of this agreement hen the
Company shall pay the Executive those same amounts at the same time as indicated
in Section (14).
16. Notices. All
notices required to be given under the Agreement shall be in writing, sent
certified mail, return receipt requested, postage prepaid, to the following
addresses:
(A) If to the
Executive, then to:
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(B) If to
CALYPSO, then to:
Calypso
Wireless, Inc.
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Attention:
Board Of
Directors
17. Governing
Law and Venue. The
Agreement shall be governed by and construed in accordance with the laws of the
State of Florida. Venue for any action or suit brought hereunder or in
connection herewith, or relating hereto, shall lie with the Courts in and for
Miami-Dade County, Florida.
18. Waiver. The
waiver by either party hereto of any breach of any provision of the Agreement
shall not operate or be construed as a waiver of any subsequent breach by either
party hereto.
19. Binding
Effect and Assignment. The
Executive acknowledges that his services are unique and personal. Accordingly,
the Executive may not assign his rights or delegate his duties or obligations
under this Agreement. The Executive’s rights and obligations under this
Agreement shall inure to the benefit of and shall be binding upon the
Executive’s heirs, personal representatives and successors and assigns. The
Agreement shall be binding upon CALYPSO’s successors and/or assigns.
20. Attorneys
Fees. In the
event either party files any action or suit regarding any of the terms of this
Agreement or in relation to, or involving, Executive’s employment by CALYPSO,
then the prevailing party shall be entitled to recover upon final judgment on
the merits its or his reasonable attorney's fees and court costs (including,
without limitation, appellate attorney’s fees and court costs) incurred in
bringing such action and all costs or expenses, including, without limitation,
attorney’s fees and court costs, incurred in collecting any judgment
..
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21. Indemnification
and Hold Harmless Provision. CALYPSO
hereby agrees to indemnify Executive, his heirs, successors, and assigns and
hold Executive harmless from any and all liabilities, obligations, expenses,
fees, and costs (including attorney’s and professional fees) of every kind,
nature, and description, which now exist or may exist now or hereafter with
respect to Executive’s activities, duties, or responsibilities as President
& Chief Executive Officer of
CALYPSO, or any subsequent position, or in relation to any of CALYPSO’s
subsidiaries, affiliates, or related entities. Such indemnification and hold
harmless benefits shall be payable by CALYPSO whenever incurred by Executive so
long as such costs or expenses relate to or arise from such activities, duties,
and responsibilities of Executive and shall not be in any way be dependent upon
Executive’s employment with CALYPSO. Calypso shall be required to purchase
adequate directors/officers insurance, or other adequate insurance insuring
Calypso’s obligation as set forth in this Section 21.
In the
event Executive is made a party to a lawsuit or is involved in a legal
proceeding in any manner (including by subpoena or as a witness), which relates
directly or indirectly to Calypso or the Executive’s performance of his duties
under this Agreement, in which Executive in his sole discretion believes that it
is in his best interest to retain independent legal and other professional
counsel.
22. Non-Compete
Clause. For a
period of two (2) years after the conclusion of his employment with Calypso, the
Executive shall not engage in any employment or work for any company or third
party, including consulting engagements, that is directly or indirectly involved
in competition with Calypso Wireless or any of its subsidiaries or successors in
interest. This shall include but not be limited to any business entity involved
in the development, servicing or manufacture of wireless communications of any
type, including but not limited to cellular telephones. In addition, the
Executive shall not directly or indirectly solicit any Calypso employees,
contractors, or vendors to gain employment or business affiliation with any
business that competes directly or indirectly with Calypso.
23. Entire
Understanding; Amendment. The
Agreement contains the entire understanding of the parties relating to the
employment of the Executive by CALYPSO and supersedes any and all previous
agreements among the parties. It may not be changed orally but only by an
agreement in writing signed by the party or par-ties against whom enforcement of
any waiver, change, modifica-tion, extension or discharge is
sought.
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IN
WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals the
day and year first above written.
| EXECUTIVE:
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_________________________
CALYPSO
WIRELESS, INC.,
A
DELAWARE CORPORATION
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Name:
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Title:
Chairman of the Board
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Name:
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Title:
Board Member - Secretary |
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