EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") made and entered
into
this 23rd day of April 2009 (the "Effective Date"), by and
between CHINA WI MAX
Communications, INC., a Nevada corporation (the "Company")
and Frank R. Ventura
(the "Executive").
W I T N E S S E T H:
WHEREAS, the Company wishes to secure the
services of the
Executive subject to the contractual terms and conditions set forth
herein; and
WHEREAS, the Executive is willing to enter into this Agreement
upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual
promises and
agreements set forth herein, the parties hereto agree as
follows:
1. Employment. The Company hereby
agrees to employ the Executive, and the
Executive hereby agrees to accept such employment with the Company,
all upon the
terms and conditions set forth herein.
A. Term.
Subject to the terms and
conditions of this
Agreement, the
Executive shall be employed for a term commencing on the
Effective
Date and ending on the first
(1st) anniversary of the
Effective
Date (the "Term") unless sooner terminated as provided
for
herein. The Term
shall renew automatically for additional one (1) year
terms,
unless either party gives written notice no less
than ninety
(90) days prior to
the expiration of the Term that it does not intend
to extend the
Term.
B. Duties and Responsibilities and
Capacity. During the Term, the Executive
shall serve in the capacity of Chief Financial
Officer (CFO) subject to the
supervision of the Chairman of the Board, President or Chief
Executive Officer
of the Company. Executive will be permitted to perform his
primary duties, as
appropriate, from his principal work location in or near
Overland Park, Kansas
and will not be required to relocate to Denver, Colorado or
any other location
unless agreed to by Executive. Failure to
relocate shall not be deemed a "for
Cause" termination event.
C. Part-Time to
Full-Time Duties. During the Term, and
excluding any
periods of disability, vacation or
sick leave to which the Executive
is
entitled, the Executive shall devote
substantially all of his business time,
attention and energies to the business of the Company,
provided, however, for
the time period between the Effective Date
and September 1, 2009, Executive
shall devote approximately three-fourths of
his time and energies to the
business of the Company. During the Term, it
shall not be a violation of this
Agreement for the Executive to (i) serve on corporate,
university, civic, or
charitable boards or committees (ii)
deliver lectures or fulfill speaking
engagements and (iii) manage personal investments, so long as such
activities do
not materially interfere
with the performance
of the Executive's
responsibilities as an employee of
the Company in accordance with
this
Agreement.
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D. Standard of Performance.
The Executive will perform his duties under
this Agreement with fidelity and loyalty, to the best of his
ability, experience
and talent and in a manner consistent with his duties and
responsibilities.
2. Compensation.--Base Salary.
A. Beginning on May 1, 2009 (but deferring
and accruing receipt of payment
until the Company receives "Round-3 Financing" in a minimum amount
of $500,000),
the Executive shall receive a Base Salary of $4,000 per month
through August 31,
2009, and then the Base Salary shall increase
beginning September 1, 2009 to
$6,500 per month for the remainder of the Term. The Base Salary
shall be payable
in accordance with the general payroll practices of the
Company in effect from
time to time. During the remainder of
the Term, the Base Salary shall be
reviewed at least annually by the Board after
consultation with the Executive
and may from time to time be increased (but not decreased) as
solely determined
by the Board. Effective as of the date of any such increase,
the Base Salary as
so increased shall be considered the new Base
Salary for all purposes of this
Agreement and may not thereafter be reduced. Any
increase in Base Salary shall
not limit or reduce any other obligation of the Company to
the Executive under
this Agreement.
B. Annual Performance
Bonus. The Executive shall be eligible for annual
discretionary bonus awards payable in cash or common stock of the
Company, as so
determined solely by the Board, based
on performance objectives submitted
annually by senior management and approved by the Board.
C. Long-Term Incentives. Upon the
execution of this Agreement, the Company
agrees to issue the Executive the initial
option award set forth on the term
sheet attached hereto as Exhibit A. and incorporated by reference.
Following the
initial option award, the Executive
shall be eligible for grants of stock
options, restricted stock and/or other long-term incentives in the
discretion of
the Board on the same basis as other similarly situated senior
executives of the
Company. The Company agrees to enter into negotiations and to
provide Executive
with a long-term options plan -- similar in scope and kind to
the President's -
beginning six months from the Effective Date.
D. Benefits. If and to the
extent that the Company maintains
employee
benefit plans (including, but
not limited to, pension,
profit-sharing,
disability, accident, medical, life insurance,
and hospitalization plans) (it
being understood that the Company may but shall not be obligated to
do so);
(1) The Executive shall be entitled to
participate
therein in accordance with the Company's
regular practices
with respect to
similarly situated senior executives.
(2) The Executive shall be
entitled to prompt,
normally 15 days or less from receipt of
approved expense
report, reimbursement from the
Company for reasonable
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out-of-pocket expenses incurred by him in the
course of the
performance
of his duties hereunder, upon the submission of
appropriate documentation in accordance with the
practices,
policies and procedures applicable to other senior
executives
of the Company.
(3) The Executive shall be entitled to such vacation,
holidays and other paid or unpaid leaves of
absence as are
consistent with the Company's normal policies
available to
other senior executives of the Company or
as are otherwise
approved by the Board. Notwithstanding the foregoing, vacation
will be a minimum of three weeks per year,
accrued monthly
beginning
on the Effective Date.
3. Termination of Employment.
Notwithstanding the provisions of Section 2
hereof, the Executive's employment hereunder
shall terminate under any of the
following conditions:
A. Death. The Executive's
employment under this Agreement shall terminate
automatically upon his death.
B. Total Disability. The
Company shall have the right to terminate this
Agreement if the Executive becomes
Totally Disabled. For purposes of this
Agreement, "Totally Disabled" means that
the Executive is not working and is
currently unable to perform the substantial and material
duties of his position
hereunder as a result of sickness, accident or
bodily injury for a period of
three consecutive months. Prior to a
determination that Executive is Totally
Disabled, but after Executive has exhausted all sick leave and
vacation benefits
provided by the Company, Executive shall continue
to receive his Base Salary,
offset by any disability benefits he may
be eligible to receive that are
provided directly or indirectly by the Company.
C. Termination by Company for Cause. The
Executive's employment hereunder
may be terminated for Cause upon written notice by the
Company. For purposes of
this Agreement, "Cause" shall mean:
(1)
conviction of the Executive by a court of competent
jurisdiction
of any felony or a crime involving moral turpitude;
(2)
the Executive's willful and intentional failure
or willful and
intentional refusal to follow reasonable and lawful
instructions
of the Board;
(3)
the Executive's material breach or default in the performance
of
his obligations under this Agreement; or
(4)
the Executive's act
of misappropriation,
embezzlement,
intentional fraud or similar conduct involving the Company.
Executive may not be terminated for Cause pursuant to
subsections (2) and (3)
above unless Executive is given written notice of the circumstances
constituting
"Cause" and a reasonable period to cure such
circumstances, which period shall
be no less than thirty (30) days.
D. Termination for Good Reason. The
Executive's employment hereunder may be
terminated by the Executive for Good Reason on
written notice by Executive to
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the Company. For purposes of this Agreement, "Good Reason"
means the occurrence
of any of the following circumstances without the Executive's
consent:(1)
(1). a
material reduction in the Executive's
salary or benefits
excluding the substitution
of substantially equivalent
compensation and benefits provided that a reduction in the
level
of compensation payable to a substantial portion of the
Company's
employees or to substantially all of the
Company's officers as
part of a unilateral cost-cutting program of the Company will
not
be taken into account for acceleration or vesting;
(2) a
material diminution of the Executive's
duties, authority or
responsibilities as in effect
immediately prior to such
diminution;
(3)
the relocation of the Executive' principal
work location to a
location more than 50 miles from its current location; or
(4)
the failure of a successor to assume
and perform under this
Agreement.
4. Payments Upon Termination..
A. Upon termination of Executive's
employment hereunder for any reason as
so provided for in Section 3 hereof, the Company shall
be obligated to pay and
the Executive shall be entitled to receive, on such
terms and conditions as is
customary in the normal course of
business (based on past practice
and
experience), Base Salary which has accrued for services performed
to the date of
termination and which has not yet been paid. In addition, the
Executive shall be
entitled to any vested benefits to which he is entitled
under the terms of any
applicable Executive benefit plan or program, vested
restricted stock plan and
stock option plan of the Company, and, to the extent
applicable, short-term or
long-term disability plan or program with respect to any
disability, or any life
insurance policies and the benefits provided by such plan,
program or policies,
or applicable law as duly adopted from time to time by the
Board.
B. Upon termination of Executive's
employment by the Company without Cause
or by the Executive for Good Reason, the Company shall
be obligated to pay and
the Executive shall be entitled to receive:
(1)
all of the amounts and benefits described in Section 4.A.
hereof;
and
(2)
Base Pay for a total of three (3) months, payable in
the normal
course of business according to the Company's payment
policy at
that time; and
(3)
continued participation in all Executive welfare benefit
programs
of the Company for three (3)
months from the Executive's
termination of employment.
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Payments under Section 4.B., with the exception of amounts due
pursuant to Section 4.B(1), are conditioned on the execution by the
Executive of
a release of all employment-related claims; provided, however, that
such release
shall be contingent upon the Company's satisfaction of all
terms and conditions
of this Section.
C. Upon termination of
the Executive's employment upon the
death of
Executive pursuant to Section 3.A., the Company shall
be obligated to pay, and
the Executive shall be entitled to receive:
(1)
all of the amounts and vested benefits described in Section
4.A.;
(2)
any death benefit payable under a plan or policy provided by
the
Company; and
(3)
continued participation by the Executive's
dependents in the
welfare benefit programs of the Company, including
reimbursement
for health care benefit premiums agreed to hereof, for
a period
of time no longer than (i) three months or (ii)
the amount of
time remaining in the Term.
D. Upon termination of the
Executive's employment upon the Disability of
the Executive pursuant to Section 3.B., the Company
shall be obligated to pay,
and the Executive shall be entitled to receive:
