Employment Agreement - InPhonic Inc. and David Charlton
CONFIDENTIAL INFORMATION
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") effective June 3, 2002 (the
"Effective Date") is by and between InPhonic, Inc., a corporation with an
address at 1010 Wisconsin Avenue, NW, Washington, DC 20007 (the "Company") and
Donald Charlton, an individual with an address at 1366 St. Stevens Church Road,
Crownsville, MD 21032 (the "Executive"). For purposes of this Agreement, the
Company and the Executive shall be separately referred to as a "Party" and
collectively as the "Parties".
WHEREAS, the Parties desire to set forth the terms and conditions upon
which the Company shall continue to employ the Executive;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be
legally bound, agree as follows:
1. Position. The Company hereby employs Executive as Executive Vice
President for Corporate Development of the Company and Executive hereby accepts
such employment with the Company. The Executive shall report directly to the
Chief Executive Officer and/or the President of the Company or such other person
as reasonably designated by the Chief Executive Officer.
2. Duties.
2.1. Executive agrees to undertake the duties and responsibilities inherent
in the position of Executive Vice President for Corporate Development which may
encompass different or additional duties as may, from time to time, be assigned,
altered or modified by the Chief Executive Officer or his designee. The
Executive agrees to abide by the rules, personnel practices and policies of the
Company as detailed in the InPhonic Employee Handbook and any changes thereof
that may be adopted at any time by the Company.
2.2. Executive shall devote Executive's full business time and attention to
performing his duties hereunder and shall use his best efforts to further the
business and affairs of the Company and to work with other employees of the
Company in a competent and professional manner and generally to promote the
interests of the Company. The Executive shall not engage
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in consulting work- or any trade or business for his own account or for or on
behalf of any other person, firm or corporation that competes, conflicts or-
interferes with the performance of his duties hereunder in any way.
3. Compensation. As remuneration for all services to be rendered by the
Executive hereunder, and as consideration for complying with the covenants
contained herein, the Company shall pay and provide to the Executive the
following compensation:
3.1 Base Salary. The Company shall pay to the Executive a base salary of
One Hundred Seventy Thousand Dollars ($170,000.00) per annum (the "Salary"). The
Salary shall be payable in accordance with the Company's normal payroll schedule
and practices. Such Salary shall be reviewed annually to ascertain whether, in
the judgment of the Chief Executive Officer or his designee, such Salary should
be increased based on the performance of and contributions made by the Executive
during the preceding year, inflation, and other factors deemed appropriate by
the Chief Executive Officer or his designee.
3.2. Bonus. Executive shall have the opportunity to earn an annual bonus
for on-target performance in the amount of thirty-five thousand dollars
($35,000) (the "Bonus"). Payment of the Bonus shall be determined in the full
discretion of the Chief Executive Officer or his designee. In exercising such
discretion in respect to the Bonus, but without limiting his discretion, the
Chief Executive Officer or his designee may consider operational and financial
indicators and management goals, including, without limitation, achievement of
sales revenue and profitability, working capital performance, implementation of
new projects, addition of new customers, and management of cash flow.
3.3. Incentive Plans. The Executive shall be eligible to participate in
such profit-sharing, stock option, bonus, incentive and performance based award
programs as are made available generally to executive employees of the Company;
provided, however, full and immediate vesting of ten percent (10%) of the total
granted but unvested incentive common stock options provided to the Executive
shall occur as of the Effective Date of this Agreement.
3.4. All amounts of salary, bonus or other compensation hereunder shall be
subject to such withholding as is required by law.
4. Benefits; Expenses.
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4.1. The Executive shall be entitled to the benefits available generally to
the executive employees of the Company pursuant to Company programs, including,
by way of illustration, but not limitation, parking, paid holidays, sick leave,
dental, accident or health insurance programs of the Company, as and to the
extent that any such programs are or may from time to time be in effect.
Notwithstanding anything to the contrary contained herein, Executive shall be
entitled to the following benefits: three (3) weeks of paid vacation per year
which shall be taken at times as the Chief Executive Officer reasonably
approves; and (ii) a monthly car allowance in the amount of five hundred dollars
($500.00).
4.2. The Company shall pay or reimburse Executive for all reasonable,
ordinary, client-related business or entertainment expenses incurred in the
performance of his services hereunder in accordance with Company policy as
detailed in the InPhonic Employee Handbook in effect from time to time,
provided, however, that the amount available to the Executive for such travel,
entertainment and other expenses may require advance approval by the Chief
Executive Officer. The Executive shall submit vouchers and receipts for all
expenses for which reimbursement is sought.
4.3. The Company shall not be obligated to institute, maintain, or refrain
from changing, amending or discontinuing any benefit plan, program or
perquisite, so long as such changes are similarly applicable to executive
employees of the Company.
5. Termination; Disability; Termination.
5.1. Termination For Cause. Nothing in this Agreement shall be construed to
prevent the Chief Executive Officer from terminating the Executive's employment
under this Agreement for Cause, as hereinafter defined. The Company and the
Executive shall have no further obligations under this Agreement after the
effective date of such termination, except as set forth in Sections 6, 7, 8, and
15 of this Agreement. Such provisions shall remain in full force and effect for
the twelve (12) month period subsequent to the effective date of the termination
of the Executive.
In the event that the Executive's employment is terminated for Cause, the
Executive shall be entitled to (i) the Salary at the rate in effect at such time
through the effective date of such termination; and (ii) any rights or benefits
available under applicable employee benefit programs
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then in effect and in which the Executive was a participant at the time of such
termination, to the extent that such rights or benefits have vested in
accordance with the terms of such programs.
For purposes of this Agreement, the term "Cause" shall mean (i) the
indictment or conviction of, or the plea of non contendere by, the Executive for
any felony or other crime involving fraud or moral turpitude; (ii) any act or
omission constituting a material dereliction of the obligations of the Executive
including, but not limited to, willful and continued failure to perform the
duties of Executive under this Agreement, (iii) negligent or intentional
misconduct by Executive materially injurious to the Company, (iv) use of alcohol
or illegal drugs interfering with performance of Executive's duties, or (v) a
material violation of Company policy or any action which constitutes a violation
of any law, rule or regulation protecting the rights of employees.
5.2. Termination Without Cause. The Company shall retain the right to
terminate the Executive without Cause at any time. The Executive acknowledges
and agrees that the non-compete and non-disclosure restrictions set forth in
Sections 6, 7 and 8 of this Agreement will remain in full force and effect for
the twelve (12) month period subsequent to the termination of the Executive
without Cause.
In the event that the Executive's employment is terminated without Cause
pursuant to this Section 5, the Executive shall be entitled to: (i) an amount
equal to six (6) months of the Salary, at the rate then in effect; (ii) an
amount equal to the monthly car allowance, at the rate then in effect, for the
six (6) month period following termination; and (iii) payment of any medical
insurance premiums, pursuant to the Consolidated Omnibus Budget Reconciliation
Act ("COBRA") for the six (6) month period following termination (collectively,
the "Severance Benefits"). The Severance Benefits shall be payable, at the
discretion of the Company, in one (1) lump sum on the effective date of such
termination or in six (6) equal monthly installments.
5.3. This Agreement shall terminate immediately upon the Executive's
resignation, death or the effective date of the Executive's Retirement (as
defined under the then established rules of the Company's retirement plans);
provided, however, that in the event that the Executive's employment terminates
upon his resignation or Retirement, the provisions of Sections 6, 7, 8, and 15
will remain in full force and effect for the twelve (12) month period subsequent
to such termination.
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6. Confidential Information. The Executive shall not (for his own benefit
or the benefit of any person or entity other than the Company) use or disclose
any of the Company's trade secrets or other confidential information for a
period of two years. For purposes of this Agreement, the term "trade secrets or
other confidential information" includes, by way of example, matters of a
technical nature, computer programs (including documentation of such programs),
research projects, and matters of a business nature, such as proprietary
information about costs, profits, markets, sales, lists of customers, and other
information of a similar nature discovered during performance of this Agreement
except (1) to the extent such information is generally known to the public; or
(2) such knowledge is known by the Executive prior to the disclosures under this
Agreement; or (3) such knowledge has been acquired by the Executive from a third
party having no confidentiality agreement with the Company. In order for
material disclosed to be subject to the protections provided, such disclosure
does not have to be in writing or other tangible form and/or clearly marked as
proprietary.
6.1. The Executive agrees that for twelve (12) months following termination
of his employment, for any reason, with or without cause, Executive will not
contact any Customer or Employee of the Company to request, induce or attempt to
induce such Customer or Employee to terminate any business relationship,
agreement or employment with the Company. The term "Customer" is defined as any
entity that the Company is conducting business with or has entered into a
contractual relation with as of the date of termination of this Agreement and
the term "Employee" is defined as any individual employed by the Company as a
partner, contractor, sub-contractor, employee, consultant or other business
associate of the Company during the Term and during the six (6) month period
immediately preceding termination of this Agreement.
6.2. The Executive acknowledges that the markets served by the Company are
global in scope and are not dependent on the geographic location of the
executive personnel or the businesses by which they are employed.
6.3. All files, memoranda, notes, and other work product in tangible form
in connection with the employment of Executive, including any marketing plans,
deliverables and reports prepared by Executive for the Company under this
Agreement, and which may or may not be either confidential or proprietary, and
all other materials prepared for and delivered to the Company, shall be the
property of the Company. Upon termination of the Executive's
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employment, either with or without cause, or at any other time upon request of
the Company, the Executive agrees to deliver to the Company the following
original documents and any copies thereto without retaining any copies of (i)
all documents, files, notes, manuals, memoranda, databases, and/or computer
programs, reflecting any confidential an/or proprietary information of the
Company whatsoever or otherwise relating to the business of the Company and its
affiliates or parent company, (ii) lists of customers, vendors, suppliers, and
leads or referrals thereto, and (iii) any computer equipment, home office
equipment, automobile or any other business equipment, if any, that the
Executive may then possess or have under his control.
6.4. The Company shall retain its entire right, title and interest in
and to (including the right to reproduce, modify, display, produce derivative
works of, translate, publish, sell, use, dispose of, and to authorize others to
do so, and the right to patent as the sole inventor, copyright and to register
such copyright in the Company's or its nominee's name) all deliverables, and
copyrightable materials conceived or first produced under this Agreement by the
Executive, and Executive agrees that such copyrightable materials are works made
for hire under the copyright laws of the United States. The Executive further
agrees during the term of this Agreement and at all times thereafter to execute
all documents and perform all lawful acts which the Company reasonable considers
necessary or advisable to secure its rights hereunder and to carry out the
intent of this Agreement.
7. Restrictions; Employees, Remedies. The Parties hereto recognize
that Executive's services are special and unique and that his compensation is
partly in consideration of and conditioned upon Executive agreeing to the
provisions of paragraphs 6, 8 and 15 hereto and the provisions of this paragraph
7, and that such covenants are essential to protect the business and goodwill of
the Company. Accordingly, Executive agrees that, during the Employment Term and
until one (1) year after the last date on which Executive is employed by the
Company, Executive will not (i) render any service (as an employee, officer,
director, consultant or otherwise) to any entity involved directly or indirectly
in the Business, or (ii) make or hold any investment in any entity in the
Business other than that the ownership of not more than one percent (1%) of the
listed stock of any publicly traded entity. The uppercased term "Business" shall
mean, for purposes of this Agreement, the products offered or the services
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actually performed by Company during the course of Executive's employment with
the Company.
7.1. The Parties acknowledge and agree that the restrictions set forth
in this Agreement referred to in paragraphs 6, 8 15 and in this paragraph 7 are
reasonable and necessary to protect the Company's legitimate business interests.
Executive acknowledges that a breach or threatened breach by Executive of such
provisions will cause the Company irreparable harm.
7.2. The Parties agree that the restrictions set forth and incorporated
herein are reasonable in order to protect the Company. If any of such
restrictions shall be deemed to be unenforceable by reason of the extent,
duration, geographical scope, or other provisions, then the parties contemplate
that the court shall reduce such extent, duration, geographical scope, or other
provisions and enforce this Agreement in its reduced form for all purposes.
8. Intellectual Property. The Executive shall disclose to the Company
all ideas, concepts, inventions, product ideas, new products, discoveries,
methods, software, business plans and business opportunities, which may or may
not be patentable or copyrightable, or otherwise protected by then-applicable
laws governing intellectual property and intellectual property rights, that are
developed by the Executive through the use of Company resources or that relate
directly to the Company's business. The Executive agrees that such will be the
property of the Company and that, at the Company's request and cost, he will do
whatever is necessary to secure for the Company the rights thereto by patent,
copyright or otherwise. Executive acknowledges and agrees that his obligations
with respect to Company property discussed in this paragraph shall survive the
termination of this Agreement.
9. Representation and Warranty. Executive represents and warrants to
the Company that Executive is not subject to any non-compete, non-solicitation,
or other restriction which may prevent Executive from performing the services
contemplated by this Agreement.
10. Waivers. No delay or waiver by either Party of any breach or non-
performance of any provisions or obligations of this Agreement shall be deemed
to be a waiver of any preceding or succeeding breach of the same or any other
provision of this Agreement.
11. Notices. All notices or other communications required or permitted
under this Agreement shall be in writing addressed to the Parties at the
addresses set forth in the first paragraph of this Agreement and shall be deemed
to be given upon the earlier of (i) actual
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delivery by hand, or (ii) three days after being mailed by registered or
certified mail, return receipt requested.
12. Headings. The headings appearing in this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
13. Governing Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of Washington, DC, without giving effect to
the principles of conflicts of law thereof.
14. Heirs, Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon both parties and their respective heirs, personal
representatives, successors and assigns. The Parties understand that the
obligations of the Executive are personal and may not be assigned by him.
15. Publicity. Neither Party may issue, without the prior written
consent of the other Party, any press release or make any public announcement
with respect to this Agreement or the employment relationship between the
Company and the Executive. Following the Effective Date of this Agreement and
regardless of any dispute that may arise in the future, the Executive and the
Company jointly and mutually agree that neither shall disparage, criticize or
make statements which are negative, detrimental or injurious to the other Party.
16. If the Parties have a dispute and such dispute can not be resolved
within a thirty (30)day period, then the Parties shall select an arbitrator who
shall decide the dispute within thirty days after being selected. If the Parties
cannot agree on an arbitrator, then the Executive and Company shall each select
an arbitrator and the two arbitrators so selected shall select a third
arbitrator. The Parties hereto each agree to be bound by the decision of the
arbitrator(s). In the event that three arbitrators are chosen, a majority
decision will be required. All costs of the arbitration shall be split equally
between Executive and Company.
17. Entire Agreement. This Agreement contains the entire understanding
of the Executive and the Company with respect to the employment of the Executive
by the Company and supercedes any and all prior understandings of the Parties
hereto, whether written or oral. This Agreement may not be amended or modified
without the prior written consent of both Parties.
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IN WITNESS WHEREOF, the Parties having read, understood and agreed to
the foregoing terms and conditions, have signed below:
INPHONIC, INC. DONALD CHARLTON
/s/ David A. Steinberg /s/ Donald Charlton
_____________________________________ ______________________________
Name
Title
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