EXHIBIT 10.5
Executive Employment Agreement
This Executive Employment Agreement (this "Agreement") is made as of
the ___ day of July, 2000 by and between Speedcom Wireless International
Corporation, a Florida corporation (the "Company") and Bruce Sanguinetti, a
natural person, ("Mr. Sanguinetti").
WHEREAS, Mr. Sanguinetti has served as a director of the Company since
1999;
WHEREAS, the Company wishes to employ Mr. Sanguinetti as its President
and as its President and CEO of its to be formed licensed wireless division;
WHERAS, the Company and Mr. Sanguinetti wish to set forth the terms of
Mr. Sanguinetti's employment and certain additional agreements between Mr.
Sanguinetti and the Company,
NOW, THEREFORE, in consideration of the foregoing recitals and the
representations, covenants and terms contained herein, the parties hereto agree
as follows:
1. Employment Period
The Company will employ Mr. Sanguinetti, and Mr. Sanguinetti will serve
the Company, under the terms of this Agreement for an initial term of
three years commencing as of September 1, 2000 (the "Commencement
Date"). On the third anniversary of the Commencement Date and on each
anniversary date thereafter, the term of this Agreement shall
automatically be extended for an additional period of twelve months;
provided, however, that either party hereto may elect not to so extend
this Agreement by giving written notice to the other party at least 60
days prior to such anniversary date. Notwithstanding the foregoing, Mr.
Sanguinetti's employment hereunder may be earlier terminated, subject
to Section 5 hereof. The period of time between the commencement and
the termination of Mr. Sanguinetti's employment hereunder shall be
referred to herein as the "Employment Period."
2. Duties and Status
The Company hereby engages Mr. Sanguinetti as its President and a
member of the Company's Executive Committee on the terms and conditions
set forth in this Agreement. In addition, Mr. Sanguinetti will remain a
member of the company's board of directors during the employment
period, under the terms of the separate agreement, dated October 1st,
1999. During the Employment Period, Mr. Sanguinetti shall report to the
Board of Directors of the Company and exercise such authority, perform
such executive duties and functions, and discharge such
responsibilities as are reasonably associated with Mr. Sanguinetti's
position, commensurate with the authority vested in Mr. Sanguinetti
pursuant to this Agreement and consistent with the governing documents
of the Company (which will be provided under separate cover). These
duties include, but may not be limited to, (i) helping set and
implement the strategic vision of the Holding Company and/or the
various operating companies and/or divisions, (ii) managing the day to
day business of the licensed wireless division of the Company, (iii)
identifying acquisition targets, suppliers and potential joint venture
for the Company and (iv) such other functions as are set out on
Schedule 1 attached hereto. Mr. Sanguinetti shall work with the
Company's Directors to determine what additional responsibilities Mr.
Sanguinetti shall perform, commensurate with Mr. Sanguinetti's position
as the President of the Company.
During the Employment Period, Mr. Sanguinetti shall devote
substantially all of his business time (minimum of 5 days per week),
skill and efforts to the business of the Company. Notwithstanding the
preceding sentence, Mr. Sanguinetti may make and manage personal
business investments of his choice and serve on up to three other
corporations (not counting the Company or any affiliates of the
Company) of his choice and serve in any capacity with any civic,
educational or charitable organization, or any trade association,
without seeking or obtaining the approval of the Board of Directors,
provided such activities and service do not materially interfere or
conflict with the performance of his duties hereunder.
<PAGE>
3. Compensation and Benefits
(a) Salary. During the Employment Period, the Company shall pay to Mr.
Sanguinetti, as compensation for the performance of his duties and
obligations under this Agreement, a base salary of US $180,000 per
annum, payable in arrears not less frequently than monthly in
accordance with the normal payroll practices of the Company. Such
base salary shall be subject to review each year for possible
increase by the Board of Directors in its sole discretion, but
shall in no event be decreased from its then existing level during
the Employment Period.
(b) Annual Bonus. During the Employment Period, Mr. Sanguinetti shall
have the opportunity to earn an annual bonus in accordance with
existing and/or future Company annual bonus program(s) for senior
executives. The terms of any such bonus program shall be as set
forth and as determined in the sole discretion of the Board of
Directors, as determined by corporate policy. Mr. Sanguinetti is
not guaranteed a bonus in any particular year. In the event that
the Company has not instituted an annual bonus program, Mr.
Sanguinetti may still earn a bonus at the discretion of the
independent Board of Directors of the Company.
(c) Equity. (i) As partial consideration for entering into this
Agreement, the Company hereby grants to Mr. Sanguinetti the right
and option to purchase, on the terms and conditions hereinafter
set forth, an aggregate 210,000 shares of the Company's common
stock. The purchase price (strike price) shall be $4.00 per share.
The option granted to Mr. Sanguinetti hereunder, is in addition to
that stock option for the purchase of 90,000 shares of stock
granted to Mr. Sanguinetti at a price of $3.00 per share, pursuant
to that agreement dated October 1, 1999. On September 1, 2000,
Mr. Sanguinetti shall have the vested right to purchase from the
Company 5845 of the 210,000 aggregate number of shares. From and
after October 1, 2000, and during each of the 35 months
thereafter, Mr. Sanguinetti shall have the vested right to
purchase each month 5833 of the 210,000 aggregate number of
shares. The purchase shall be made upon delivery to the Company of
a notice of exercise accompanied by payment of the option price.
Promptly upon receipt of such notice and payment, the Company will
deliver to Mr. Sanguinetti stock certificate(s) representing the
number of shares purchased in accordance with the foregoing, duly
registered in the name of Mr. Sanguinetti and, at Mr.
Sanguinetti's election, his spouse. The failure to exercise an
option with respect to any shares of the Company's common stock
for which the right has accrued shall not result in the
termination of the option with respect to such shares of stock;
rather, the same shall cumulate and be eligible for exercise for a
period of 5 years from the date of vesting. 50% of the unvested
options shall vest immediately , due to a change in control, sale
of a majority of the common stock or substantially all of the
assets of the Company or merger of the Company into or with
another company (unless such company is less than 33 % of the size
(measured by market value) of the Company, in which case no early
vesting shall occur).
(ii) If the Company proposes to sell or permit the transfer of
stock amounting in the aggregate to 50% or more of the outstanding
capitalization of the Company, then Mr. Sanguinetti shall have the
right to require the proposed purchaser to purchase from him the
shares of stock underlying any of the vested Stock Options. Such
sale by Mr. Sanguinetti shall be at the same price and on the same
terms and conditions of the sale of stock triggering Mr.
Sanguinetti's right of sale. The Company shall cause Mr.
Sanguinetti to be actually notified of any proposed sale of stock
and the terms and conditions of such proposed sale covered by this
Section 5(c)(ii) not less than 30 days prior to the date of
consummation of the sale.
(iii) If the Company proposes to file a registration statement
with the U.S. Securities and Exchange Commission, or comparable
non-U.S. regulatory authority, relating to the offer or sale of
stock of the Company to the public, the Company shall cover under
such registration statement, for the benefit of Mr. Sanguinetti,
the sale by Mr. Sanguinetti of the stock of the Company underlying
the Stock Options, and shall take such other actions as are
necessary or
2
<PAGE>
desirable for the stock of the Company underlying the Stock
Options to be freely salable by Mr. Sanguinetti (subject to
any restrictions imposed by the underwriters of such stock
offering).
(iv) In addition to the Stock Options, Mr. Sanguinetti shall be
entitled to receive additional awards under any other stock option
or equity based incentive compensation plan or arrangement adopted
by the Company during the Employment Period for which senior
executives are eligible. The level of Mr. Sanguinetti's
participation in any such plan or arrangement shall be in the sole
discretion of the Company's Board of Directors.
(c) Other Benefits. During the Employment Period, Mr. Sanguinetti
shall be entitled to participate in all of the employee benefit
plans, programs and arrangements of the Company in effect during
the Employment Period, including but not limited to; company paid
medical insurance, dental insurance, life insurance, etc., which
are generally available to senior executives of the Company,
subject to and on a basis consistent with the terms, conditions
and overall administration of such plans, programs and
arrangements. In addition, during the Employment Period, Mr.
Sanguinetti shall be entitled to fringe benefits and perquisites
comparable to those of other senior executives of the Company,
including, but not limited to, 15 days of vacation pay per year
plus 3 sick plus 1 personal day, to be used in accordance with
the Company's vacation pay policy for senior executives. Also,
Mr. Sanguinetti will be entitled to participate in the company's
paid holiday schedule, currently seven paid holidays per year, but
may change slightly from year to year.
(d) Business Expenses. During the Employment Period, the Company shall
promptly reimburse Mr. Sanguinetti for all appropriately
documented, reasonable business expenses, including but not
limited to air travel, hotel accommodations, personal meals,
airport parking and transportation, taxi and rental car,
entertainment, business use of personal car (currently $.32 per
mile), etc., incurred by Mr. Sanguinetti in the performance of his
duties under this Agreement.
(g) Support Services. The Company shall provide to Mr. Sanguinetti an
office, appropriate for his position with the Company, and
secretarial, technical (engineering) (to the extent available on
reasonable terms), and other business services at his office in
San Diego In addition, the company shall provide for suitable
office space in the corporate headquarter facility to be used by
Mr. Sanguinetti when working at the headquarter facility.
Additionally, Mr. Sanguinetti shall have the use of a company
provided wireless telephone for business use on the ATT plan, or
other comparable plan from a major wireless carrier, with 1000
minutes usage per month including long distance costs.
4. Termination of Employment
(a) Termination for Cause. The Company may terminate Mr.
Sanguinetti's employment hereunder for cause. For purposes of
this Agreement and subject to Mr. Sanguinetti's opportunity to
cure as provided in Section 4(c) hereof, the Company shall have
"cause" to terminate Mr. Sanguinetti's employment hereunder if
such termination shall be the result of:
(i) willful fraud or material dishonesty in connection with Mr.
Sanguinetti's performance hereunder;
(ii) the deliberate or intentional failure by Mr. Sanguinetti to
substantially perform his duties hereunder that results in
material harm to the Company; or
(iii) the conviction for, or plea of nolo contendere to a charge
of, commission of a felony.
(b) Termination for Good Reason. Mr. Sanguinetti shall have the right
at any time to terminate his employment with the Company for any
reason. For purposes of this Agreement and subject to the
Company's opportunity to cure as provided in Section 4(c) hereof,
Mr. Sanguinetti shall have "good reason" to terminate his
employment hereunder if such termination shall be the result of:
3
<PAGE>
(i) a material diminution during the Employment Period in the
Executive's duties, responsibilities, reporting relationship
or title as set forth in Section 2 hereof;
(ii) a breach by the Company of the compensation and benefits
provisions set forth in Section 3 hereof; (iii) a material
breach by the Company of any of the terms of this Agreement,
other than as specifically provided herein; or (iv) notice
by the Company of non-renewal of the Agreement pursuant to
Section 1 hereof.
(c) Notice and Opportunity to Cure. Notwithstanding the foregoing, it
shall be a condition precedent to the Company's right to terminate
Mr. Sanguinetti's employment for "cause" and Mr. Sanguinetti's
right to terminate his employment for "good reason" that (1) the
party seeking termination shall first have given the other party
written notice stating with specificity the reason for the
termination ("breach") and (2) if such breach is susceptible of
cure or remedy, a period of thirty days from and after the giving
of such notice shall have elapsed without the breaching party
having effectively cured or remedied such breach during such 30-
day period, unless such breach cannot be cured or remedied
within thirty days, in which case the period for remedy or cure
shall be extended for a reasonable time (not to exceed thirty
days) provided the breaching party has made and continues to make
a diligent effort to effect such remedy or cure.
(d) Termination Upon Death or Permanent and Total Disability. The
Employment Period shall be terminated by the death of Mr.
Sanguinetti. The Employment Period may be terminated by the Board
of Directors if Mr. Sanguinetti shall be rendered incapable of
performing his duties to the Company by reason of any medically
determined physical or mental impairment that can be reasonably
expected to result in death or that can be reasonably expected to
last for a period of either (1) six or more consecutive months
from the first date of Mr. Sanguinetti's absence due to the
disability or (2) nine months during any twelve-month period (a
"Permanent and Total Disability"). If the Employment Period is
terminated by reason of Permanent and Total Disability of Mr.
Sanguinetti, the Company shall give 30 days' advance written
notice to that effect to Mr. Sanguinetti.
5. Consequences of Termination.
(a) Without Cause or for Good Reason. In the event of a termination of
Mr. Sanguinetti's employment during the Employment Period by the
Company other than for "cause" (as provided for in Section 4(a)
hereof), by Mr. Sanguinetti for "good reason" (as provided for in
Section 4(b) hereof) or due to death or disability (as provided
for in Section 4(d) hereof) the Company shall pay Mr. Sanguinetti
(or his estate) and provide him with the following:
(i) Lump-Sum Payment. A lump-sum cash payment, payable within
30 days after Mr. Sanguinetti's termination of employment,
equal to the sum of the following:
(A) Salary. The equivalent of twelve months (the
"Severance Period") of Mr. Sanguinetti's then-current
base salary; plus
(B) Earned but Unpaid Amounts. Any previously earned but
unpaid salary through Mr. Sanguinetti's final date of
employment with the Company, and any previously earned
but unpaid bonus amounts for any completed fiscal year
prior to the date of Mr. Sanguinetti's termination of
employment.
(ii) Equity. Mr. Sanguinetti shall have 12 months from the date
of a termination of his employment that is subject to this
Section 5 to exercise any stock options granted to him
during the Employment Period. All unvested stock options
shall vest upon a termination without cause, for good reason
or due to death or disability.
(iii) Other Benefits. The Company shall provide continued
coverage for the Severance Period under all health, life,
disability and similar employee benefit plans and
4
<PAGE>
programs of the Company on the same basis as Mr. Sanguinetti
was entitled to participate immediately prior to such
termination, provided that Mr. Sanguinetti's continued
participation is possible under the general terms and
provisions of such plans and programs. In the event that
Mr. Sanguinetti's participation in any such plan or program
is barred, the Company shall arrange to provide Mr.
Sanguinetti with benefits substantially similar (including
all tax effects) to those which Mr. Sanguinetti would
otherwise have been entitled to receive under such plans and
programs from which his continued participation is barred.
In the event that Mr. Sanguinetti is covered under
substitute benefit plans of another employer prior to the
expiration of the Severance Period, the Company will no
longer be obligated to continue the coverages provided for
in this Section 5(a)(iii).
(b) Other Termination of Employment. In the event that Mr.
Sanguinetti's employment with the Company is terminated during the
Employment Period by the Company for "cause" (as provided for in
Section 4(a) hereof) or by Mr. Sanguinetti other than for "good
reason" (as provided for in Section 4(b) hereof), the Company
shall pay Mr. Sanguinetti any earned but unpaid salary and annual
bonus amounts for any completed fiscal year prior to the date of
Mr. Sanguinetti's termination of employment, but only to the
extent such amounts are payable in accordance with the terms of
any such bonus plan, through Mr. Sanguinetti's final date of
employment with the Company, and the Company shall have no further
obligations to Mr. Sanguinetti.
(c) Withholding of Taxes. All payments required to be made by the
Company to Mr. Sanguinetti under this Agreement shall be subject
only to the withholding of such amounts, if any, relating to tax,
excise tax and other payroll deductions as may be required by law
or regulation.
(d) No Other Obligations. The benefits payable to Mr. Sanguinetti
under this Agreement are not in lieu of any benefits payable under
any employee benefit plan, program or arrangement of the Company,
except as provided specifically herein, and upon termination Mr.
Sanguinetti will receive such benefits or payments, if any, as he
may be entitled to receive pursuant to the terms of such plans,
programs and arrangements. Except for the obligations of the
Company provided by the foregoing and this Section 5, the Company
shall have no further obligations to Mr. Sanguinetti upon his
termination of employment.
(e) No Mitigation or Offset. Mr. Sanguinetti shall have no obligation
to mitigate the damages provided by this Section 5 by seeking
substitute employment or otherwise and there shall be no offset of
the payments or benefits set forth in this Section 5 except as
provided in Section 5(a)(iii).
6. Change in Control Agreement.
(a) Termination Protection. In the event of the termination of Mr.
Sanguinetti's employment without "cause" (as provided for in
Section 4(a) hereof) or for "good reason" (as provided for in
Section 7(c) hereof) following a change in control, Mr.
Sanguinetti shall be entitled to receive the payments and benefits
set forth in Section 5(a)(i) through (iii) above.
(b) For purposes of this Agreement, a "change in control" shall be
deemed to have occurred if and when:
(i) individuals who at the date hereof constitute the entire
Board of Directors of the Company (the "Board") and any new
directors whose election by the Board, or whose nomination
for election by the Company's stockholders, shall have been
approved by a vote of at least a majority of the directors
then in office who either were directors at the date hereof
or whose election or nomination for election shall have been
so approved shall cease for any reason to constitute a
majority of the members of the Board;
5
<PAGE>
(ii) any person (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") shall after the date hereof become the
beneficial owner (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act), directly or indirectly, of securities of
the Company representing 30% or more of the voting power of
all then outstanding securities of the Company having the
right under ordinary circumstances to vote in an election of
the Board (including, without limitation, any securities of
the Company that any such person has the right to acquire
pursuant to any agreement, or upon exercise of conversion
rights, warrants or options, or otherwise, shall be deemed
beneficially owned by such person);
(iii) there shall be consummated any corporate transaction,
including a consolidation or merger, of the Company in which
the Company is not the continuing or surviving corporation
or pursuant to which shares of the Company's capital stock
are converted into cash, securities or other property, other
than a consolidation or merger of the Company in which the
holders of the Company's voting stock immediately prior to
the consolidation or merger shall, upon consummation of the
consolidation or merger, own at least 50% of the voting
stock; or
(iv) there shall be consummated any sale, lease, exchange or
transfer (in any single transaction or series of related
transactions) of all or substantially all of the assets or
business of the Company.
7. Indemnity and Insurance.
The Company shall, to the fullest extent permitted by law and by its
Certificate of Incorporation and By-laws, indemnify Mr. Sanguinetti and
hold him harmless for any acts or decisions made by him while
performing his duties pursuant to this Agreement, unless such acts or
decisions are made in bad faith or are intentionally harmful to the
welfare of the Company. The Company shall also, to the fullest extent
permitted by law and by its Certificate of Incorporation and By-laws,
indemnify Mr. Sanguinetti and hold him harmless from any legal fees or
expenses incurred by Mr. Sanguinetti arising out of his good faith
service as an officer or agent of the Company.
The Company shall provide that Mr. Sanguinetti is covered by any
Directors' and Officers' insurance that the Company provides to other
senior executives.
8. Notice.
All notices, requests and other communications pursuant to this
Agreement shall be sent by e-mail:
If to Mr. Sanguinetti: [email protected]
If to the Company: [email protected]
9. Waiver of Breach.
Any waiver of any breach of this Agreement shall not be construed to be
a continuing waiver or consent to any subsequent breach on the part of
either Mr. Sanguinetti or of the Company.
10. Non-assignment; Successors.
Neither party hereto may assign his or its rights or delegate his or
its duties under this Agreement without the prior written consent of
the other party; provided, however, that (i) this Agreement shall inure
to the benefit of and be binding upon the successors and assigns of the
Company upon any sale of all or substantially all of the Company's
assets, or upon any merger, consolidation or reorganization of the
Company with or into any other corporation, all as though such
successors and assigns of the Company and their respective successors
and assigns were the Company; and (ii) this
6
<PAGE>
Agreement shall inure to the benefit of and be binding upon the heirs,
assigns or designees of Mr. Sanguinetti to the extent of any payments
due to them hereunder. As used in this Agreement, the term "Company"
shall be deemed to refer to any such successor or assign of the Company
referred to in the preceding sentence.
11. Severability.
To the extent any provision of this Agreement or portion thereof shall
be invalid or unenforceable, it shall be considered deleted therefrom
and the remainder of such provision and of this Agreement shall be
unaffected and shall continue in full force and effect.
12. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
13. Noncompetition; Nonsolicitation
Mr. Sanguinetti agrees that for a period of six months after the
termination of his employment with the Company (the "Noncompetition
Period"), unless Mr. Sanguinetti is terminated without "cause" or he
terminates for "good reason" (in which case Mr. Sanguinetti shall not
be subject to this section 13), Mr. Sanguinetti will not act as a
consultant, officer or employee of a company engaged in manufacturing,
servicing or selling wireless telecommunications products to commercial
entities (a "Competing Activity"). Mr. Sanguinetti also agrees during
the Noncompetition Period and for one year thereafter, if any, not to
solicit or recruit any employees of the Company to join any other
company or engage in a Competing Activity or to solicit or recruit a
substantial number of employees to work with any company with whom Mr.
Sanguinetti is associated if the departure of the solicited or
recruited employees from the Company would materially harm the Company.
MR. SANGUINETTI EXPRESSLY AGREES THAT THIS SECTION SHALL BE GOVERNED BY
FLORIDA LAW AND THAT HIS OPTION VESTING SHALL BE RENDERED NULL AND VOID
TO THE EXTENT THAT HE COMPETES WITH THE COMPANY DURING THE
NONCOMPETITION PERIOD. MR. SANGUINETTI AGREES TO INDEMNIFY THE COMPANY
FOR ANY DAMAGE IT INCURS DUE TO MR. SANGUINETTI'S COMPETITION WITH THE
COMPANY DURING THE NONCOMPETITION PERIOD.
14. Entire Agreement.
This Agreement constitutes the entire agreement by the Company and Mr.
Sanguinetti with respect to the subject matter hereof and except as
specifically provided herein, supersedes any and all prior agreements
or understandings between Mr. Sanguinetti and the Company with respect
to the subject matter hereof, whether written or oral. This Agreement
may be amended or modified only by a written instrument executed by Mr.
Sanguinetti and the Company.
15. Should any legal or equitable action be taken by either party arising
out of or relating to the rights and duties under this agreement, or to
enforce or interpret the terms of this agreement, the prevailing party
in such action shall be entitled to an award of reasonable attorneys
fees and costs of suit, in addition to any other relief to which such
party may be entitled.
IN WITNESS WHEREOF, the parties have executed this Agreement as of July
____, 2000.
Bruce Sanguinetti Speedcom Wireless International Corporation
______________________ By_________________________________________
Its:_______________________________________
7
<PAGE>
Schedule 1
a. Assist in targeting and closing on Strategic Accounts including ISPs,
VARs/Systems Integrators, CLECs, mass distributors
b. Public relations: editor contact, assist in placing articles, case
studies and the like.
c. Investor relations: Work with and assist IR firm, contact industry
analysts and other financial community professionals to promote the
company
d. Hiring: Strategic personnel including, technical, VP Sales,
strategic/major account sales in US and International markets
e. Business development: Work with Jay , Mike and Patrick to identify
acquisition candidates for complementary technologies, business and
strategic relationships that can rapidly grow the business
f. Strategic planning: Assist in setting direction on vision, and
identify market opportunities to grow the company
g. Develop Installguys.com management, help build strategic relationships
to provide services with industry manufacturers
h. Technology and development: Assist with building strategic
relationships to license, acquire or build the next generation of
leading products for wireless IP interconnect
h. Primarily oversee and/or manage west coast technology and/or company
acquisitions.
8
