exv10w16



 





EXHIBIT 10.16




EXECUTIVE EMPLOYMENT AGREEMENT




     This Executive Employment Agreement (this “Agreement”) is made as of the
20th day of February, 2004 by and among Mobilepro Corp., a Delaware corporation
(the “Company”), and Kurt B. Gordon, a natural person, residing in Virginia
(“Mr. Gordon”).



     WHEREAS, the Company wishes to employ Mr. Gordon as its Chief Financial
Officer and Mr. Gordon wishes to accept such employment;



     WHEREAS, the Company and Mr. Gordon wish to set forth the terms of Mr.
Gordon’s employment and certain additional agreements between Mr. Gordon 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. Gordon, and Mr. Gordon will serve the Company,
under the terms of this Agreement commencing March 1, 2004 (the “Commencement
Date”) for a term of twenty-four (24) months unless earlier terminated under
Section 4 hereof. The period of time between the commencement and the
termination of Mr. Gordon’s employment hereunder shall be referred to herein as
the “Employment Period.”



     2. Duties and Status



          The Company hereby engages Mr. Gordon as its Chief Financial Officer on
the terms and conditions set forth in this Agreement. During the term of the
Employment Period, Mr. Gordon shall report directly to the Chief Executive
Officer of the Company and shall exercise such authority, perform such
executive functions and discharge such responsibilities as are reasonably
associated with Mr. Gordon’s position, commensurate with the authority vested
in Mr. Gordon pursuant to this Agreement and consistent with the governing
documents of the Company. These duties include, but are not limited to: (i)
being responsible for all the financial, accounting and related aspects of the
Company, including the preparation and filing of the Company’s SEC filings;
(ii) managing the Company’s outside auditors and the audit process of the
Company and companies which the Company or its affiliates acquires; (iii)
assisting the CEO in seeking and closing acquisitions for the Company to grow
the Company’s revenues and earnings per share; (iv) working with the CEO to
build the Company’s presence on “Wall Street” and otherwise identifying and
closing sources of capital to help build the Company’s business; (v)
identifying and recruiting additional personnel to build the Company; and (vi)
handling such other leadership, administrative and managerial roles as is
customary and appropriate for a company’s Chief Financial Officer.



 









 





     3. Compensation and Benefits




	 	(a)	 	Salary. During the Employment Period, the
Company shall pay to Mr. Gordon, as compensation for the
performance of his duties and obligations under this
Agreement, a base salary of Thirteen Thousand Dollars
($13,000) per month, payable semi-monthly. The base salary
will be increased to Fifteen Thousand Dollars ($15,000) per
month in the month following the Company achieving an
annualized gross revenue run rate of $6 million.
	 
	 	(b)	 	Bonus. During the Employment Period, Mr.
Gordon shall be entitled to a bonus equal to one percent (1%)
of the revenues for the most recent twelve (12) month period
of each acquisition made by the Company during the
Employment. Bonuses shall be paid in cash on all
acquisitions closed after February 20, 2004. An acquisition
shall be deemed “made” if a definitive agreement is executed
during the Employment Period and the transaction closes
within six (6) months after the definitive agreement is
executed.
	 
	 	(c)	 	Equity. As partial consideration for entering
into this Agreement, the Company hereby grants Mr. Gordon a
warrant to acquire six million five hundred thousand
(6,500,000) shares of the Company’s common stock at an
exercise price or $0.018 per share (the “Warrant Shares”) to
vest as follows. (i) five hundred thousand (500,000) Warrant
Shares on March 1, 2004; (2) two million seven hundred fifty
thousand (2,750,000) Warrant Shares ratably over the
remaining twenty-four (24) months of the Agreement, or
immediately if Mr. Gordon’s employment is terminated without
cause or for good reason (as described in Section 4 hereof)
or 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 ninety percent (90%) of the
size (measured by market value) of the Company) or reverse
merger with another company; and (iii) two million two
hundred and fifty thousand (2,250,000) Warrant Shares vest
immediately upon the Company achieving a $25 million market
cap for ten (10) consecutive trading days and a price per
share of not less than $0.07. The Warrant Shares granted
hereunder must be exercised by the tenth anniversary of the
date of vesting or shall be forfeited by Mr. Gordon. All
Warrant Shares granted hereunder shall have a “cashless”
exercise provision which enables Mr. Gordon to give up a
portion of his Warrant Shares in order to exercise others
without paying cash for them. Further, the number, kind and
strike price of the stock Warrant Shares granted hereunder
shall be appropriately and equitably adjusted to reflect any
stock dividend, stock split, spin-off, split-off,
extraordinary cash dividend,




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	 	 	 	recapitalization, reclassification or other major corporate action affecting
the stock of the Company to the end that after such event
Mr. Gordon’s proportionate interest in the Company shall be
maintained as before the occurrence of such event. Mr.
Gordon shall also receive payment of any cash dividend or
stock dividend declared and paid by the Company as if Mr.
Gordon had already exercised all of his Warrant Shares,
including unvested Warrant Shares.
	 
	 	(d)	 	Other Benefits. During the Employment Period,
Mr. Gordon shall be entitled to participate in all of the
employee benefit plans, programs and arrangements of the
Company in effect during the Employment Period 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. Gordon shall be entitled to fringe benefits and
perquisites comparable to those of other senior executives of
the Company including, but not limited to, ten (10) days of
vacation pay plus five (5) sick/personal days, to be used in
accordance with the Company’s vacation pay policy for senior
executives.
	 
	 	(e)	 	Business Expenses. During the Employment
Period, the Company shall promptly reimburse Mr. Gordon for
all appropriately documented, reasonable business expenses
incurred by Mr. Gordon in the performance of his duties under
this Agreement, including telecommunications expenses and
travel expenses.
	 
	 	(f)	 	Office. During the Employment Period, the
Company shall provide an office at a place mutually agreeable
to Mr. Gordon and the Company and, to the extent that the
Company’s budget allows, secretarial assistance to Mr. Gordon
suitable to Mr. Gordon’s position as the Company’s Chief
Financial Officer. Mr. Gordon agrees that the Company’s
existing offices at 6701 Democracy Boulevard, Bethesda,
Maryland 20817 are sufficient to satisfy this convenant.





     4. Termination of Employment




	 	(a)	 	Termination for Cause. The Company may
terminate Mr. Gordon’s employment hereunder for Cause
(defined below). For purposes of this Agreement and subject
to Mr. Gordon’s opportunity to cure as provided in Section
4(c) hereof, the Company shall have Cause to terminate Mr.
Gordon’s employment hereunder if such termination shall be
the result of:






(i) a material breach of fiduciary duty or material breach
of the terms of this Agreement or any other agreement
between Mr.



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Gordon and the Company (including without
limitation any agreements regarding confidentiality, inventions assignment
and non-competition), which, in the case of a material
breach of the terms of this Agreement or any other
agreement, remains uncured for a period of thirty (30) days
following receipt of written notice from the Board
specifying the nature of such breach;




(ii) the commission by Mr. Gordon of any act of
embezzlement, fraud, larceny or theft on or from the
Company;




(iii) substantial and continuing neglect or inattention by
Mr. Gordon of the duties of his employment or the willful
misconduct or gross negligence of Mr. Gordon in connection
with the performance of such duties which remains uncured
for a period of thirty (30) days following receipt of
written notice from the Board specifying the nature of such
breach;




(iv) the commission by Mr. Gordon of any crime involving
moral turpitude or a felony; and




(v) Mr. Gordon’s performance or omission of any act which,
in the judgment of the Board, if known to the customers,
clients, stockholders or any regulators of the Company,
would have a material and adverse impact on the business of
the Company.




	 	(b)	 	Termination for Good Reason. Mr. Gordon shall
have the right at any time to terminate his employment with
the Company upon not less than thirty (30) days prior written
notice of termination for Good Reason (defined below). For
purposes of this Agreement and subject to the Company’s
opportunity to cure as provided in Section 4(c) hereof, Mr.
Gordon shall have Good Reason to terminate his employment
hereunder if such termination shall be the result of:






	 	(i)	 	The breach by the Company of any
material provision of this Agreement; or
	 
	 	(ii)	 	A requirement by the Company that
Mr. Gordon perform any act or refrain from performing
any act that would be in violation of any applicable
law.






	 	(c)	 	Notice and Opportunity to Cure.
Notwithstanding the foregoing, it shall be a condition
precedent to the Company’s right to terminate Mr. Gordon’s
employment for Cause and Mr. Gordon’s right to terminate for
Good Reason that (i) the party seeking termination shall
first have given the other party written notice stating with
specificity the reason for the termination (“breach”) and
(ii) if such breach is susceptible of cure or remedy, a
period of fifteen (15) days from and after the giving of such
notice shall have elapsed




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	 	 	 	without the breaching party having
effectively cured or remedied
such breach during such 15-day period, unless such breach
cannot be cured or remedied within fifteen (15) days, in
which case the period for remedy or cure shall be extended
for a reasonable time (not to exceed an additional thirty
(30) days) provided the breaching party has made and
continues to make a diligent effort to effect such remedy
or cure.
	 
	 	(d)	 	Voluntary Termination. At the election of Mr.
Gordon, upon not less than sixty (60) days prior written
notice of termination other than for Good Reason.
	 
	 	(e)	 	Termination Upon Death or Permanent and Total
Disability. The Employment Period shall be terminated by the
death of Mr. Gordon. The Employment Period may be terminated
by the Board of Directors of the Company if Mr. Gordon 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 be expected to last for a period of
either (i) six (6) or more consecutive months from the first
date of Mr. Gordon’s absence due to the disability or (ii)
nine (9) months during any twelve-month period (a “Permanent
and Total Disability”). If the Employment Period is
terminated by reason of a Permanent and Total Disability of
Mr. Gordon, the Company shall give thirty (30) days’ advance
written notice to that effect to Mr. Gordon.
	 
	 	(f)	 	Termination Without Cause. At the election of
the Company, otherwise than for Cause, upon not less than
sixty (60) days written notice of termination.
	 
	 	(g)	 	Termination for Business Failure. Anything
contained herein to the contrary notwithstanding, in the
event the Company’s business is discontinued because
continuation is rendered impracticable by substantial
financial losses, lack of funding, legal decisions,
administrative rulings, declaration of war, dissolution,
national or local economic depression or crisis or any
reasons beyond the control of the Company, then this
Agreement shall terminate as of the day the Company
determines to cease operation with the same force and effect
as if such day of the month were originally set as the
termination date hereof. In the event this Agreement is
terminated pursuant to this Section 4(g), the Executive will
not be entitled to severance pay.




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     5. Consequences of Termination




	 	(a)	 	Without Cause or for Good Reason. In the event
of a termination of Mr. Gordon’s employment during the
Employment Period by the Company other than for Cause
pursuant to Section 4(f) or by Mr. Gordon for Good Reason
pursuant to Section 4(b) (e.g., due to a Change of Control of
the Company, where Change of Control means: (i) the
acquisition (other than from the Company) in one or more
transactions by any Person, as defined in this Section 5(a),
of the beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as
amended) of 50% or more of (A) the then outstanding shares of
the securities of the Company, or (B) the combined voting
power of the then outstanding securities of the Company
entitled to vote generally in the election of directors (the
“Company Voting Stock”); (ii) the closing of a sale or other
conveyance of all or substantially all of the assets of the
Company; or (iii) the effective time of any merger, share
exchange, consolidation, or other business combination of the
Company if immediately after such transaction persons who
hold a majority of the outstanding voting securities entitled
to vote generally in the election of directors of the
surviving entity (or the entity owning 100% of such surviving
entity) are not persons who, immediately prior to such
transaction, held the Company Voting Stock; provided,
however, that a Change of Control shall not include a public
offering of capital stock of the Company. For purposes of
this Section 5(a), a “Person” means any individual, entity or
group within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended, other than:
employee benefit plans sponsored or maintained by the Company
and corporations controlled by the Company, the Company shall
pay Mr. Gordon (or his estate) and provide him with the
following:






	 	(i)	 	Lump-Sum Payment. A lump-sum
cash payment, payable ten (10) days after Mr. Gordon’s
termination of employment, equal to the sum of the
following:






	 	(A)	 	Salary. The
equivalent of six months (the “Severance
Period”) of Mr. Gordon’s then-current base
salary; plus
	 
	 	(B)	 	Earned but Unpaid
Amounts. Any previously earned but unpaid
salary through Mr. Gordon’s final date of
employment with the Company, and any previously
earned but unpaid bonus amounts prior to the
date of Mr. Gordon’s termination of employment.




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	 	(C)	 	Equity. All Warrant
Shares vested at time of termination shall be
retained by Mr. Gordon. All unvested Warrant
Shares shall immediately vest and be retained by
Mr. Gordon. Mr. Gordon shall have the benefit
of the full ten year option period to exercise
such Warrant Shares.






	 	(ii)	 	Other Benefits. The Company
shall provide continued coverage for the Severance
Period under all health, life, disability and similar
employee benefit plans and programs of the Company on
the same basis as Mr. Gordon was entitled to
participate immediately prior to such termination,
provided that Mr. Gordon’s continued participation is
possible under the general terms and provisions of
such plans and programs. In the event that Mr.
Gordon’s participation in any such plan or program is
barred, the Company shall use its commercially
reasonable efforts to provide Mr. Gordon with benefits
substantially similar (including all tax effects) to
those which Mr. Gordon would otherwise have been
entitled to receive under such plans and programs from
which his continued participation is barred. In the
event that Mr. Gordon 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)(ii).






	 	(b)	 	Other Termination of Employment. In the event
that Mr. Gordon’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. Gordon other
than for Good Reason (as provided for in Section 4(b)
hereof), the Company shall pay or grant Mr. Gordon any earned
but unpaid salary, bonus, and Warrant Shares through Mr.
Gordon’s final date of employment with the Company, and the
Company shall have no further obligations to Mr. Gordon.
	 
	 	(c)	 	Withholding of Taxes. All payments required to
be made by the Company to Mr. Gordon 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. Gordon under this Agreement are not in lieu of any
benefits payable under any employee benefit plan, program or
arrangement of the Company,




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	 	 	 	except as specifically provided herein, and Mr. Gordon 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. Gordon
upon his termination of employment.
	 
	 	(e)	 	No Mitigation or Offset. Mr. Gordon 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)(ii).





     6. Governing Law



          This Agreement and the rights and obligations of the parties hereto shall
be construed in accordance with the laws of the State of Maryland, without
giving effect to the principles of conflict of laws.



     7. Indemnity and Insurance



          The Company shall indemnify and save harmless Mr. Gordon for any liability
incurred by reason of any act or omission performed by Mr. Gordon while acting
in good faith on behalf of the Company and within the scope of the authority of
Mr. Gordon pursuant to this Agreement and to the fullest extent provided under
the Bylaws, the Certificate of Incorporation and the General Corporation Law of
the State of Delaware, except that Mr. Gordon must have in good faith believed
that such action was in, or not opposed to, the best interests of the Company,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe that such conduct was unlawful



          The Company shall provide that Mr. Gordon is covered by any Directors and
Officers insurance that the Company provides to other senior executives and/or
board members.



     8. Non-Disparagement



          At all times during the Employment Period and for a period of five (5)
years thereafter (regardless of how Mr. Gordon’s employment was terminated),
Mr. Gordon shall not, directly or indirectly, make (or cause to be made) to any
person any disparaging, derogatory or other negative or false statement about
the Company (including its products, services, policies, practices, operations,
employees, sales representatives, agents, officers, members, managers, partners
or directors).



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     9. Cooperation with the Company After Termination of Employment



          Following termination of Mr. Gordon’s employment for any reason, Mr.
Gordon shall fully cooperate with the Company in all matters relating to the
winding up of Mr. Gordon’s pending work on behalf of the Company including, but
not limited to, any litigation in which the Company is involved, and the
orderly transfer of any such pending work to other employees of the Company as
may be designated by the Company. Following any notice of termination of
employment by either the Company or Mr. Gordon, the Company shall be entitled
to such full time or part time services of Mr. Gordon as the Company may
reasonably require during all or any part of the sixty (60)-day period
following any notice of termination, provided that Mr. Gordon shall be
compensated for such services at the same rate as in effect immediately before
the notice of termination.



     10. Lock-up Period and Volume Limitation.



          Mr. Gordon agrees that he will not sell or otherwise transfer or dispose
of any shares of the Company’s common stock that he owns or is entitled to
receive following the exercise of any Warrant Shares or convertible securities
that he may receive following the Commencement Date until September 1, 2004.
Mr. Gordon also agrees that he will not sell or otherwise transfer or dispose
of more than one million (1,000,000) shares of the Company’s common stock
during any calendar quarter thereafter during the Employment Period.



     11. Notice




          All notices, requests and other communications pursuant to this
Agreement shall be sent by overnight mail to the following addresses:



	 	 	 
	 	If to Mr. Gordon:
	 
	 	 
	

	 	Kurt B. Gordon
	

	 	[INTENTIONALLY OMITTED FROM EXHIBIT]
	

	 	
	

	 	
	

	 	
	 
	 	 
	 	If to the Company:
	 
	 	 
	

	 	Mobilepro Corp.
	

	 	Attn: CEO
	

	 	6701 Democracy Blvd.
	

	 	Suite 300
	

	 	Rockville, Maryland 20817
	

	 	Phone: 301.315.9040







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     12. 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.
Gordon or of the Company.



     13. 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 or
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 Agreement
shall inure to the benefit of and be binding upon the heirs, assigns or
designees of Mr. Gordon 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.



     14. Severability



          To the extent any provision of this Agreement or portion thereof shall be
invalid or unenforceable, it shall be considered deleted there from and the
remainder of such provision and of this Agreement shall be unaffected and shall
continue in full force and effect.



     15. 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.



     16. Arbitration



          Mr. Gordon and the Company shall submit to mandatory and exclusive binding
arbitration, any controversy or claim arising out of, or relating to, this
Agreement or any breach hereof where the amount in dispute is greater than or
equal to Fifty Thousand Dollars ($50,000), provided, however, that the parties
retain their right to, and shall not be prohibited, limited or in any other way
restricted from, seeking or obtaining equitable relief from a court having
jurisdiction over the parties. In the event the amount of any controversy or
claim arising out of, or relating to, this Agreement, or any breach hereof, is
less than Fifty Thousand Dollars ($50,000), the parties hereby agree to submit
such claim to mediation. Such arbitration shall be governed by the Federal
Arbitration Act and conducted through the American Arbitration Association
(“AAA”) in the District of Columbia, before a single neutral arbitrator, in
accordance with the National



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Rules for the Resolution of Employment Disputes of the American Arbitration Association
in effect at that time. The parties may conduct only essential discovery prior
to the hearing, as defined by the AAA arbitrator. The arbitrator shall issue a
written decision which contains the essential findings and conclusions on which
the decision is based. Mediation shall be governed by, and conducted through,
the AAA. Judgment upon the determination or award rendered by the arbitrator
may be entered in any court having jurisdiction thereof.



     17. Entire Agreement



          This Agreement and all schedules and other attachments hereto constitute
the entire agreement by the Company and Mr. Gordon with respect to the subject
matter hereof and, except as specifically provided herein, supersedes any and
all prior agreements or understandings between Mr. Gordon 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. Gordon
and the Company.



     IN WITNESS WHEREOF, the parties have executed this Agreement as of
February 20, 2004.



	 	 	 	 	 
	

	 	KURT B. GORDON
	 	MOBILEPRO CORP.
	 
	 	 	 	 
	 
	 	
	 	 
	

	 	   
	 	By:
	

	 	   
	 	

	 
	 	 	 	 
	

	 	 	 	Its:
	

	 	 	 	









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