Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
the 31st day of August, 2006, (the "Effective Date") by and between China Voice
Holding Corporation, a Nevada corporation (the "Company"), and Xxxx Xxxxxxx,
whose residence address is 0000 Xxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxx 00000 (the
"Executive").
The Company wishes to employ the Executive and the Executive wishes to
enter into the employee of the Company as President, Chief Executive Officer,
and Board Member of the Company.
This Agreement shall become effective immediately upon the execution
hereof.
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties hereby agree as follows:
1. Employment.
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1.1 Employment and Term. The Company shall employ the
Executive and the Executive shall continue to serve the Company, on the
terms and conditions set forth herein, for the period (the "Term") from
the Effective Date and expiring on the third anniversary of the
Effective Date, unless sooner terminated as hereinafter set forth. The
Agreement will automatically renew for subsequent six month period(s),
unless terminated at least 90 days prior to the expiration of the
applicable six month period.
1.2 Duties of Executive. The Executive shall serve as
President and Chief Executive Officer of the Company and shall perform
the duties of an executive commensurate with such position, shall
diligently perform all services as may be assigned to him by the
Company's Board of Directors. The Executive shall devote his working
time and attention to the business and affairs of the Company,
directing the operations and business development functions of the
company by performing the following duties personally or through
subordinate supervisors: establishing, recommending or making decisions
on all aspects of the business. The Executive shall report to the
Company's Board of Directors. The Company agrees that Executive is not
required to relocate from South Florida and will provide an Executive
Office and staff as soon as the Company completes its current round of
funding. The Company further agrees that Executive may have other
non-competitive business interests and is aware of his current
ownership in XWiZE Technologies, DTNet Technologies, Foresight Global
Services and limited involvement in a real estate business.
1.3 The Company. As used herein the term the "Company" shall
be deemed to include any and all present and future subsidiaries,
divisions and affiliates of the Company.
2. Compensation.
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2.1 Base Salary. During the term, the Executive shall receive
a base salary paid bi-weekly. The Executive will receive an initial
Base Salary equal to $12,500.00 per month. At the end of six months,
Executive's base salary will increase to $15,500.00 per month. The
Board of Directors may also pay cash or stock option bonuses based on
performance if the Company has achieved the goals set by the Board.
2.2 Compensation Prior to Closing of the Merger. Prior to
closing of the Agreement and Plan of Merger by and among China Voice
Holding Corp., DTN Acquisition Corp., DTNet Technologies, LLC and VCG
Technologies, Inc. (d.b.a. DTNet Technologies) dated August 25, 2006
("The Merger"), Executive shall receive salary and benefits from DTNet
Technologies at existing levels. Any additional compensation due
Executive pursuant to Section 2.1 shall be paid by the Company.
3. Expense Reimbursement and Other Benefits.
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3.1 Expense Reimbursement. During the Term, upon the
submission of supporting documentation by the Executive, and in
accordance with Company policies for its executives, the Company shall
reimburse the Executive for all expenses actually paid or incurred by
the Executive in the course of and pursuant to the business of the
Company, including expenses for travel, auto and entertainment.
3.2 Other Benefits. During the term, Executive shall be
eligible to join any plan providing for medical and dental insurance
maintained by the Company or any of its subsidiaries. The Company shall
pay for 100% of the costs to provide the Executive with "family"
coverage for medical and dental insurance.
3.3 Vacation. Executive shall be entitled to four weeks of
paid vacation during each calendar year, taking into consideration the
business needs of the Company.
3.4 D&O Insurance. Since the Company currently does not have
D&O insurance coverage in place, upon the execution of this agreement,
the Company agrees that it will indemnify and hold Executive harmless
to the fullest extent permitted by applicable law from and against any
loss, cost, expense or liability resulting from or by reason of the
fact of Executive employment hereunder, except to the extent of any
expenses, costs, judgments, fines or settlement amounts which result
from conduct which is determined by a court of competent jurisdiction
to be knowingly fraudulent or deliberately dishonest or to constitute
some other type of willful misconduct. If any litigation or controversy
ensues against Executive personally related to Executive's business
decisions as Chief Executive Officer of the Company, the Company will
provide Executive with all reasonable legal expenses as they become
due.
The Company agrees to provide Executive with D&O insurance in a suitable amount
agreeable to Executive, upon the completion of the Company's current funding
raise of $500,000.00. Company will be responsible for maintaining and continuing
this coverage throughout the term of Executive's employment.
4. Termination for Cause. Notwithstanding anything contained
in this Agreement to the contrary, the Company may terminate this
Agreement for Cause. As used in this Agreement "Cause" shall mean (i)
an act of fraud, embezzlement or theft of funds or property of the
Company or any of its clients/customers; (ii) any intentional wrongful
disclosure of proprietary information or trade secrets of the Company
or its affiliates or any intentional form of self-dealing detrimental
to the Interests of the Company; (iii) the habitual and debilitating
use of alcohol or drugs; (iv) continued failure to comply with the
reasonable written directives of the Board of Directors;
insubordination or abandonment of position (after written notice and a
reasonable opportunity to cure); or (v) failure to comply in any
material respect with the terms of this Agreement (after written notice
and a reasonable opportunity to cure). Upon any termination pursuant to
this Section (4) the Company shall pay to the Executive any unpaid Base
Salary at the rate then in effect accrued through the effective date of
termination specified in such notice. Except as provided above, the
Company shall have no further liability hereunder other than for
reimbursement for reasonable business expenses incurred prior to the
date of termination outlined in Sections 3.1.
4.1 Termination Without Cause. The Company may
terminate this Agreement without cause at any time by giving
Executive sixty (60) day prior written notice of its desire to
terminate. In the event the Company elects to terminate the
Agreement pursuant to this Section 4.1, the Company shall have
no further liability hereunder other than for the payment to
Executive on the termination date of any unpaid Base Salary
through the termination date, reimbursement of reasonable
business expenses incurred prior to the termination date, a
lump sum of one hundred eighty thousand dollars ($200,000) in
cash.
5. Resignation by Executive. The Executive upon delivery of
notice may terminate this Agreement therefore upon not less than 30
days prior notice of such termination. Upon receipt of such notice, the
Company may, in its sole discretion, release the Executive of his
duties and his employment hereunder prior to the expiration of the 30
day notice period. Notwithstanding anything contained in this Agreement
to the contrary, in the event of a termination by the Executive
pursuant to this Section 5, the Company shall have no further liability
hereunder other than for reimbursement for reasonable business expenses
incurred prior to the date of termination outlined in Sections 3.1.
5.1 Disability. Notwithstanding anything contained in
this Agreement to the contrary, the Company, by 30 days
written notice to the Executive shall at all times have the
right to terminate this Agreement, and the Executive's
employment hereunder, if the Executive shall, as the result of
mental or physical incapacity, illness or disability, fail to
perform his duties and responsibilities provided for herein
for a period of more than 60 days in any 12 month period. Upon
the termination pursuant to this Section, the Company shall
continue (i) to pay to the Executive Base Salary at the rates
then in effect for a period of 6 months after the effective
date of termination (the "Severance Period"), (ii) employee
benefit programs as to the Executive for the Severance Period
and (iii) the Company shall be responsible for making payments
on behalf of the Executive and his family to maintain coverage
of health and other benefits under COBRA, for the maximum
period allowed. Except as provided above, the Company shall
have no further liability hereunder other than for
reimbursement for reasonable business expenses, incurred prior
to the date of termination, subject, however to the provisions
of Section 3.1.
5.2 Changes in Control. For the purposes of this
Agreement, a "Change of Control" shall be deemed to have taken
place if : (i) any person, including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended, becomes the owner of beneficial owner of Company
securities, after the date of this Agreement, having 50% or
more of the combined voting power of the then outstanding
securities of the Company that may be cast for the election of
directors of the Company or (ii) the persons who were
directors of the Company before such transactions shall cease
to constitute a majority of the Board of Directors of the
Company.
(a) The Company and Executive hereby agree that, if
Executive is affiliated with the Company on the date on which
a Change of Control occurs, (the "Change of Control Date"),
and this Agreement is in full force and effect, the Company
(or, if Executive is affiliated with a subsidiary, the
subsidiary) will continue to retain Executive and Executive
will remain affiliated with the Company (or subsidiary),
subject to the terms and conditions of this Agreement, for the
period commencing on the Change of Control Date and ending on
the expiration date of this Agreement (which date shall then
become the "Change of Control Termination Date") to exercise
such authority and perform such executive duties as are
commensurate with the authority being exercised and duties
being performed by the Executive immediately prior to the
Change of Control Date. If after the Change of Control,
Executive is requested, and, in his sole and absolute
discretion, consents to change his principal business
location, the Company will reimburse the Executive for his
reasonable relocation expenses, including, without limitation,
moving expenses, temporary living and travel expenses for a
reasonable time while arranging to move his residence to the
changed location, closing costs, if any, associated with the
sale of his existing residence and the purchase of a
replacement residence at the changed location, plus an
additional amount representing a gross-up of any state or
federal taxes payable by Executive as a result of any such
reimbursement. If the Executive shall not consent to change
his business location, the Executive may continue to provide
the services required of him hereunder from his then residence
and/or business address until the Change of Control
Termination Date, at which time this Agreement shall
terminate, unless sooner terminated or extended as set forth
herein.
(b) During the remaining term hereof after the Change
of Control Date, the Company (or subsidiary) will (i) continue
to pay Executive a salary and benefits at not less than the
level applicable to Executive on the Change of Control Date,
(ii) pay Executive bonuses as set forth herein, and (iii)
continue employee benefit programs as to Executive at levels
in effect on the Change of Control Date.
(c) The Company hereby agrees that, if Change of
Control occurs prior to the termination of this Agreement, any
Shares owned by the Executive shall become registered.
5.3 Termination for Failure to Complete the Merger.
At the option of the Executive, if China Voice Holding
Corporation is unable to complete the Merger, the Executive
may choose to continue employment as Chief Executive Officer
for additional period until the acquisition is closed or
resign his position at any time. Except as provided above, the
Company shall have no further liability hereunder other than
for reimbursement for reasonable business expenses, incurred
prior to the date of termination, subject, however to the
provisions of Section 3.1.
6. Death. In the event of the death of the Executive during
the Term of his employment hereunder, the Company shall pay to the
personal representative of the estate of the deceased Executive any
unpaid Base Salary accrued through the date of his death. Except as
provided above, the Company shall have no further liability hereunder
other than for reimbursement for reasonable business expenses incurred
prior to the date of the Executive's death, subject, however to the
provisions of Section 3.1.
7. Restrictive Covenants.
7.1 Nondisclosure. During the Term and following
termination of the Executive's employment with the Company,
Executive shall not divulge, communicate, use to the detriment
of the Company or for the benefit of any other person or
persons, or misuse in any way, any Confidential Information
(as hereinafter defined) pertaining to the business of the
Company. Any Confidential Information or data now or hereafter
acquired by the Executive with respect to the business of the
Company (which shall include, but not be limited to,
information concerning the Company's financial condition,
prospects, technology, customers, suppliers, methods of doing
business and promotion of the Company's products and services)
deemed a valuable, special and unique asset of the Company
that is received by the Executive in confidence and as a
fiduciary. For purposes of this Agreement "Confidential
Information" means information disclosed to the Executive or
known by the Executive as a consequence of or through his
employment by the Company (including information conceived,
originated, discovered or developed by the Executive) prior to
or after the date hereof and not generally known or in the
public domain, about the Company or its business.
Notwithstanding the foregoing, nothing herein shall be deemed
to restrict the Executive from disclosing Confidential
Information to the extent required by law.
7.2 Books and Records. All books, records, accounts
and similar repositories of Confidential Information of the
Company, whether prepared by the Executive or otherwise coming
into the Executive's possession, shall be the exclusive
property of the Company and shall be returned immediately to
the Company on termination of this Agreement.
7.3 Certain Activities. The Executive shall not,
while employed by the Company and for a period of 3 months
following the date of termination, directly or indirectly,
hire, offer to hire, entice away or in any other manner
persuade or attempt to persuade any officer, employee, agent,
lessor, lessee, licensor, licensee or supplier of Employer or
any of its subsidiaries to discontinue or alter his or its
relationship with Employer or any of its subsidiaries.
7.4 Non-Competition. The Executive shall not, while
employed by the Company engage or participate as an employee
in any business that manufactures, markets or sells products
that directly competes with any product of the Employer that
is significant to the Employer's business based on sales
and/or profitability of any such product. Nothing herein shall
prohibit Executive from being a passive owner of less than 1%
of any publicly-traded class of capital stock of any entity
directly engaged in a competing business.
7.5 Property Rights; Assignment of Inventions. With
respect to information, inventions and discoveries or any
interest in any copyright and/or other property right
developed, made or conceived of by Executive, either alone or
with others, at any time during his employment by Employer and
whether or not within working hours, arising out of such
employment or pertinent to any field of business or research
in which, during such employment, Employer is engaged or (if
such is known to or ascertainable by Executive) is considering
engaging, Executive hereby agrees:
(a) that all such information, inventions and
discoveries or any interest in any copyright and/or other
property right, whether or not patented or patentable, shall
be and remain the exclusive property of the Employer;
(b) to disclose promptly to an authorized
representative of Employer all such information, inventions
and discoveries or any copyright and/or other property right
and all information in Executive's possession as to possible
applications and uses thereof;
(c) not to file any patent application relating to
any such invention or discovery except with the prior written
consent of an authorized officer of Employer (other than
Executive);
(d) that Executive hereby waives and releases any and
all rights Executive may have in and to such information,
inventions and discoveries, and hereby assigns to Executive
and/or its nominees all of Executive's right, title and
interest in them, and all Executive's right, title and
interest in any patent, patent application, copyright or other
property right based thereon. Executive hereby irrevocably
designates and appoints Employer and each of its duly
authorized officers and agents as his agent and
attorney-in-fact to act for him and on his behalf and in his
stead to execute and file any document and to do all other
lawfully permitted acts to further the prosecution, issuance
and enforcement of any such patent, patent application,
copyright or other property right with the same force and
effect as if executed and delivered by Executive; and
(e) at the request of Employer, and without expense
to Executive, to execute such documents and perform such other
acts as Employer deems necessary or appropriate, for Employer
to obtain patents on such inventions in a jurisdiction or
jurisdictions designated by Employer, and to assign to
Employer or its designee such inventions and any and all
patent applications and patents relating thereto.
7.6 Injunctive Relief. The parties hereby acknowledge
and agree that (a) Employer will be irreparably injured in the
event of a breach by Executive under this Section 7; (b)
monetary damages will not be an adequate remedy for any such
breach; (c) Employer will be entitled to injunctive relief, in
addition to any other remedy which it may have, in the event
of any such breach; and (d) the existence of any claims that
Executive may have against Employer, whether under this
Agreement or otherwise, will not be a defense to the
enforcement by Employer of any of its rights under this
Section 7.
7.7 Non-Exclusivity and Survival. The covenants of
the Executive contained in this Section 7 are in addition to,
and not in lieu of, any obligations that Executive may have
with respect to the subject matter hereof, whether by
contractor by law, and such covenants and their enforceability
shall survive any termination of the Employment Term by either
party and any investigation made with respect to the breach
thereof by Employer at any time.
8. Withholding. Anything to the contrary notwithstanding, all
payments required to be made by the Company hereunder to the Executive
or the Executive's estate or beneficiaries shall be subject to the
withholding of such amounts, if any, relating to tax and other payroll
deductions as the Company may reasonably determine it should withhold
pursuant to any applicable law or regulation
9. Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by
arbitration in accordance herewith, and judgment upon the award
rendered by the arbitrators may be entered in any Court having
jurisdiction thereof. Venue of the arbitration shall be in Palm Beach
County, Florida. Any controversy or claim shall be submitted to three
arbitrators selected from the panels of the arbitrators of the American
Arbitration Association. The arbitrators, in addition to any award
made, shall have the discretion to award the prevailing party the costs
of the proceedings, together with reasonable attorneys' fees, provided
that absent such award, each party shall bear the costs of its own
counsel and presentation of evidence, and each party shall share
equally the cost of such arbitration proceeding. Any award made
hereunder may be docketed in a court of competent jurisdiction in Palm
Beach County, Florida, and all parties hereby consent to the personal
jurisdiction of such court for purposes of the enforcement of the
arbitration award.
10. Binding Effect. Except as herein otherwise provided, this
Agreement shall inure to the benefit of and shall be binding upon the
parties hereto, their personal representatives, successors, heirs and
assigns. The Executive may not assign his rights or benefits, or
delegate any of his duties, hereunder without the prior written consent
of the Company.
11. Further Assurances. At any time, and from time to time,
each party will take such action as may be reasonably requested by the
other party to carry out the intent and purposes of this Agreement.
12. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter
hereof. It supersedes all prior negotiations, letters and
understandings relating to the subject matter hereof.
13. Amendment. This Agreement may not be amended, supplemented
or modified in whole or in part except by an instrument in writing
signed by the party or parties against whom enforcement of any such
amendment, supplement or modification is sought.
14. Choice of Law. This Agreement will be interpreted,
construed and enforced in accordance with the laws of the State of
Florida, without giving effect to the application of the principles
pertaining to conflicts of laws.
15. Effect of Waiver. The failure of any party at any time or
times to require performance of any provision of this Agreement will in
no manner affect the right to enforce the same. The waiver by any party
of any breach of any provision of this Agreement will not be construed
to be a waiver by any such party of any succeeding breach of that
provision or a waiver by such party of any breach of any other
provision.
16. Construction. The parties hereto and their respective
legal counsel participated in the preparation of this Agreement;
therefore, this Agreement shall be construed neither against nor in
favor of any of the parties hereto, but rather in accordance with the
fair meaning thereof.
17. Severability. The invalidity, illegality or
unenforceability of any provision or provisions of this Agreement will
not affect any other provision of this Agreement, which will remain in
full force and effect, nor will the invalidity, illegality or
unenforceability of a portion of any provision of this Agreement affect
the balance of such provision. In the event that any one or more of the
provisions contained in this Agreement or any portion thereof shall for
any reason be held to be invalid, illegal or unenforceable in any
respect, this Agreement shall be reformed, construed and enforced as if
such invalid, illegal or unenforceable provision had never been
contained herein.
18. No Third-Party Beneficiaries. No person shall be deemed to
possess any third-party beneficiary right pursuant to this Agreement.
It is the intent of the parties hereto that no direct benefit to any
third party is intended or implied by the execution of this Agreement.
19. Counterparts. This Agreement may be executed in one or
more counterparts, each of which will be deemed an original.
20. Notice. Any notice required or permitted to be delivered
hereunder shall be in writing and shall be deemed to have been
delivered when hand delivered, sent by facsimile with receipt confirmed
or when deposited in the United States mail, postage prepaid,
registered or certified mail, return receipt requested, or by overnight
courier, addressed to the parties at the addresses first stated herein,
or to such other address as either party hereto shall from time to time
designate to the other party by notice in writing as provided herein.
IN WITNESS WHEREOF, this Agreement has been duly signed by the parties
hereto on the day and year first above written.
China Voice Holding Corporation
By: /s/ D. Xxxxxx Xxxxx
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D. Xxxxxx Xxxxx, President
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
