Exhibit 99.1
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT
(“Agreement”) is effective as of the 12th day of
October 2006 (“Commencement Date”) by and between
HyperSpace Communications, Inc. , a Colorado Corporation
(the “Employer” or “Company”) and
Michael R. Whyte (the “Executive”). In
consideration of the mutual covenants contained in this Agreement,
the Employer agrees to employ the Executive and the Executive
agrees to be employed by the Employer upon the terms and conditions
hereinafter set forth.
ARTICLE 1
TERM OF EMPLOYMENT
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1.1
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Initial Term
. The initial term of employment
hereunder shall commence on October 11, 2006 and shall continue
until April 1, 2008.
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1.2
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Renewal; Non- Renewal Benefits to
the Executive . At the
end of the initial term of this Agreement, and on each anniversary
thereafter, the term of the Executive's employment shall be
automatically extended one additional year unless, at least thirty
(30) days prior to such anniversary, the Employer shall have
delivered to the Executive or the Executive shall have delivered to
the Employer written notice that the term of the Executive's
employment hereunder will not be extended.
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ARTICLE 2
DUTIES OF THE EXECUTIVE
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2.1
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Duties. The Executive shall be employed with the title
of Vice President and Chief Financial Officer with the
responsibilities and authority assigned to Executive by the
Company’s Board of Directors (the “Board”) that
are customary to the powers and duties of similar executive
positions in companies that engage in business similar to that of
Employer. The Executive’s job description is attached as
Exhibit A.
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2.2
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Extent of Duties.
Except as provided below, the
Executive shall devote his full-time, best efforts to the business
of the Employer; provided, however, that Executive agrees to
disclose to the Board in general terms any other business
activities in which he is involved, and Executive agrees that such
business activities shall not violate the provisions of Article 4
below.
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ARTICLE 3
COMPENSATION OF THE EXECUTIVE
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3.1
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Base Salary.
As compensation for services
rendered under this Agreement, the Executive shall receive an
annual base salary of $200,000, commencing October 11, 2006. The
Executive’s salary is payable in accordance with the
Employer’s normal business practices. The Executive’s
base salary may be increased from time-to-time as determined by the
Board in its sole discretion.
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3.2
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Sign-On Bonus.
Executive shall receive a gross
sign-on bonus of $15,000 which upon Executive’s enrollment in
the Employer’s 401K, Executive may direct into
Executive’s 401K account according to and pursuant to the
rules governing such accounts which vary depending upon type of
401K chosen.
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3.3
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Bonus. The Executive shall participate in a bonus
compensation plan as approved by the Board, and attached as Exhibit
B.
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3.4
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Equity Compensation
. The Executive shall receive
restricted stock, stock units or options hereinafter collectively
referred to as “Equity Grants” of the Employer’s
common stock as incentive compensation, from time-to-time, in
amounts and terms and conditions, determined by the Board in its
sole discretion. Employer shall seek Board approval for Executive
to receive a restricted stock unit grant of 50,000 shares with 50%
vesting one year from date of grant and remaining 50% vesting two
years from date of grant.
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3.5
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In the event of any “Company
Transaction,” as defined in the HyperSpace Communications,
Inc, 2004 Equity Incentive Plan, any unvested Equity Grants shall
be accelerated and shall vest immediately prior to the occurrence
of such Company Transaction. In the event the Executive is
terminated by the Employer without “Cause” (as defined
in section 5.1(d)), or by election of the Executive for
“Cause” (as set forth in section 5.1(a)), any unvested
Equity Grants shall be accelerated and shall vest immediately prior
to the occurrence of such termination.
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3.6
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Benefits. The Executive shall be entitled to paid vacation
and all paid holidays as customarily extended to executive
employees. The Executive shall be entitled to participate in all of
the Employer's employee benefit plans and employee benefits,
including any retirement, pension, profit-sharing, insurance,
hospital or other plans and benefits which now may be in effect or
which may hereafter be adopted, it being understood that the
Executive shall have the same rights and privileges to participate
in such plans and benefits as any other executive employee during
the term of this Agreement. Participation in any benefit plans
shall be in addition to the compensation otherwise provided for in
this Agreement.
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3.7
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Expenses. The Executive shall be entitled to prompt
reimbursement for all reasonable expenses incurred by the Executive
in the performance of his duties hereunder, including but not
limited to, all expenses incurred in connection with travel, meals,
and lodging.
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ARTICLE 4
NON-COMPETITION; CONFIDENTIALITY; WORK FOR
HIRE
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4.1
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The Executive will offer to the
Employer any investment or other opportunity in the business of the
type conducted by the Employer of which the Executive may become
aware during the Executive’s employment under this Agreement.
If the Board refuses the opportunity to participate in the
investment or venture, the Executive may do so only if the
Executive obtains consent to do so from a majority of the
directors.
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4.2
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The Executive shall not make
investments in companies involved in the business of the type
conducted by the Employer, as identified in writing from time to
time by the Board, at any time during the Executive’s
employment with Employer; provided this provision does not apply to
investments in broad-based mutual funds.
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4.3
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Except as provided in Sections 4.1
and 4.2 hereof, the Executive may not participate in the business
of the type conducted by the Employer at any time during the
Executive’s employment under this Agreement except through
and on behalf of the Company.
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4.4
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For a period of nine months after
the termination or expiration of the Executive’s employment
under this Agreement, the Executive shall not: (i) own, manage,
operate, control, be employed by, participate in, or be connected
in any manner with the ownership, management, operation or control
of any business which is engaged in the business of the type
conducted by the Employer at any time during the Executive’s
employment with the Employer, (ii) call upon, solicit, attempt to
sell any products or services in competition with those offered by
the Employer to any person or firm that was solicited by the
Executive on behalf of the Employer; or (iii) solicit or otherwise
attempt to persuade any other employee to leave the employment of
the Employer. In the event
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of the Executive's actual or
threatened breach of this paragraph, the Employer shall be entitled
to a preliminary restraining order and injunction restraining the
Executive from violating its provisions. Nothing in this Agreement
shall be construed to prohibit the Employer from pursuing any other
available remedies for such breach or threatened breach, including
the recovery of damages from the Executive. If the
Executive’s employment under this Agreement is terminated by
the Executive for any reason enumerated under (i) Section 5.1(a)
(by the Executive for Cause) or (ii) by the Employer for any reason
enumerated under Section 5.1(e) (by the Employer upon termination
of business), then this Section 4.4 shall terminate on the Date of
Termination and the one year period referred to in the first
sentence of this Section will not apply.
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4.5
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The Executive recognizes and
acknowledges that the information, business, list of the Employer's
customers and any other trade secret or other secret or
confidential information relating to the Employer's business as
they may exist from time to time are valuable, special and unique
assets of the Employer's business. Therefore, the Executive agrees
as follows:
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(a)
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That the Executive will hold in
strictest confidence and not disclose, reproduce, publish or use in
any manner, whether during or subsequent to this employment,
without the express authorization of the Board, any information,
business, customer lists, or any other secret or confidential
matter relating to any aspect of the Employer's business, except as
such disclosure or use may be required in connection with the
Executive's work for the Employer.
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(b)
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That upon request or at the time of
leaving the employ of the Employer the Executive will deliver to
the Employer, and not keep or deliver to anyone else, any and all
notes, memoranda, documents and, in general, any and all material
relating to the Employer's business.
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(c)
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That the Board may from
time–to-time reasonably designate other subject matters
requiring confidentiality and secrecy which shall be deemed to be
covered by the terms of this Agreement.
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In the event of a breach or
threatened breach by the Executive of the provisions of this
paragraph 4.5, the Employer shall be entitled to an injunction (i)
restraining the Executive from disclosing, in whole or in part, any
information as described above or from rendering any services to
any person, firm, corporation, association or other entity to whom
such information, in whole or in part, has been disclosed or is
threatened to be disclosed; and/or (ii) requiring that the
Executive deliver to the Employer all information, documents,
notes, memoranda and any and all other material as described above
upon the Executive's leave of the employ of the Employer. Nothing
herein shall be construed as prohibiting the Employer from pursuing
other remedies available to the Employer for such breach or
threatened breach, including the recovery of damages from the
Executive.
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4.6
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The Executive agrees that any and
all inventions, discoveries, improvements, creations and/or other
information, whether patentable or unpatentable and whether or not
confidential (“work(s)”) which the Executive may
conceive or make during the Executive’s employment under this
Agreement that is, in any way, directly and indirectly, solely
and/or jointly, related to the business of the Employer shall be
deemed a “work made for hire” as that term is used in
Title 17 of the United States Code and shall be the sole and
exclusive property of the Employer. The Employer shall be owner of
all such work and deemed the author of such work with the full
right to apply for a patent, trademark or copyright in such work in
the United States and all foreign countries. The Executive shall
execute any and all documents requested by the Employer to effect
the foregoing. The Executive hereby grants, bargains, sells and
assigns all right, title and interest in any copyrighted and/or
proprietary work relating to the business of the Employers that the
Executive conceives or makes while employed by the Employer. To
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extent that work product of any work
done by the Executive while employed by the Employer is not deemed
to be “work made for hire,” the Executive hereby
assigns all proprietary rights, including patent and copyright, in
these works to the Employer without further compensation. The
Executive further agrees to: (1) disclose promptly to the Employer
all such work which the Executive may make solely, jointly or
commonly with others; (2) assign all work to the Employer; and (3)
execute and sign any and all applications, assignments or other
instruments which the Employer may deem necessary in its sole
discretion in order to enable the Employer, at its expense, to
apply for, prosecute and obtain copyrights, patents, trademarks or
other proprietary rights in the Untied States and foreign countries
and in order to transfer to the Employer all right, title and
interest in said work.
ARTICLE 5
TERMINATION OF EMPLOYMENT
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5.1
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Termination.
The Executive's employment hereunder
may be terminated without any breach of this Agreement only under
the following circumstances:
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(a)
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By the Executive for
Cause. Upon the
occurrence of any of the following events, the Executive may
terminate the Executive’s employment under this Agreement for
Cause by written notice to the Employer:
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(i)
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upon the sale by the Employer of
substantially all of its assets; or
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(ii)
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upon a decision by the Employer to
terminate its business and liquidate its assets; or
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(iii)
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upon a material or reduction in the
nature, character, or responsibility of Executive’s position,
title, duties or responsibilities or a detrimental change in the
Executive’s compensation or benefits without the consent of
the Executive; or
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(iv)
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upon a Change in Control of the
Company. “Change in Control” means: (A) Any
“person” (as such term is used in Section 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)), other than a trustee or other
fiduciary holding securities of the Company under an employee
benefit plan of the Company, becomes the “beneficial
owner” (as defined in Rule 13d-3 promulgated under the
Exchange Act), directly or indirectly, o
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