EXHIBIT 10.5
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), dated effective as of January 1,
2007, by and between MOBICLEAR INC., a corporation organized and existing under
the laws of the State of Pennsylvania (the "Company"), and Lim Wong, an
individual residing at ________________________________________ (the
"Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company wishes to employ the Employee upon the terms and
subject to the conditions set forth herein, and the Employee desires to enter
into this Agreement and accept such employment, upon such terms and conditions;
WHEREAS, MobiClear Ltd. ("MobiClear"), a wholly owned, operating subsidiary
of the Company, is a party to a consulting agreement with Goulard Ltd., wholly
owned by the Employee, pursuant to which the Employee provides executive
management services to MobiClear.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound hereby,
agree as follows:
1. Employment. Subject to the terms and conditions set forth herein, the
Company shall employ the Employee as President of the Company (Chief Executive
Officer and Chief Financial Officer), and the Employee accepts such employment
for the Employment Term (as defined in Section 3). During the Employment Term,
the Employee shall perform the duties consistent with such office and such other
duties as may from time to time be assigned to him by the Board of Directors of
the Company (the "Board").
2. Performance.
(a) During the Employment Term, the Employee shall perform and discharge
the duties that may be assigned to him by the Board from time to time in
accordance with this Agreement, and the Employee shall devote his best talents,
efforts and abilities to the performance of his duties hereunder.
(b) During the Employment Term, the Employee shall perform such duties
on a full-time basis, and the Employee shall have no other employment and no
other outside business activities whatsoever (other than in connection with
MobiClear or any other affiliate of the Company); provided, however, that the
Employee shall not be precluded from making passive investments which do not
require the devotion of any significant time or effort.
3. Employment Term. Unless earlier terminated pursuant to Section 6, the
employment term shall begin on January 1, 2007 (the "Effective Date"), and shall
continue for a period of three (3) years from such date (the "Initial Term");
provided that such term shall be automatically extended for additional periods
of one (1) year commencing on January 1, 2010 and each January 1st thereafter
(such period the "Additional Term") unless either party shall have given notice
to the other party that such party does not desire to extend the term of this
Agreement. Any such notice must comply with Section 10 and be given at least
forty five (45) days prior to the end of the Initial Term or the Additional
Terms, as applicable (the Initial Term and the Additional Term or Terms, if
applicable, shall be known collectively as the "Employment Term").
Notwithstanding anything in this Agreement to the contrary, the Employment Term
shall end on the Termination Date as defined in Section 6(g).
4. Compensation.
(a) Base Salary. As compensation for services hereunder and in
consideration of the Employee's other agreements hereunder, during the
Employment Term, the Company shall pay the Employee a base salary, payable in
accordance with the customary payroll practices of Company procedures, subject
to withholding and other applicable taxes, at a monthly rate of Three Thousand
Dollars ($3,000.00), subject to review by the Board no less frequently than
annually for increases (such base salary, as increased from time to time being
hereinafter referred to as "Base Salary").
(b) Stock Options. Concurrently herewith, the Company is granting the
Employee an option to purchase ________________(___________0,000) shares of the
common stock of the Company (the "Restricted Stock") at an exercise price of
$____ per share (the "Option"). The Option shall be granted under, and shall be
subject to the terms and conditions of the Company's 2007 Stock Option Plan (the
"Option Plan") and Stock Option Agreement attached hereto as Exhibit A. The
Option is intended to qualify as an "incentive stock option" within the meaning
of Section 422 of the Internal Revenue Code of 1986, as amended, to the maximum
extent permissible.
(c) Cash Bonuses and Incentive Compensation. During the Employment Term,
the Employee shall have opportunities for cash bonuses and incentive
compensation comparable to those provided to other similarly situated senior
employees of the Company and shall be eligible to participate in all bonus and
incentive compensation plans made available by the Company, from time to time,
for its similarly situated senior employees.
5. Benefits. During the Employment Term, the Company shall provide the
Employee with the following benefits:
(a) Vacation, Sick Leave. The Employee shall be entitled to no less than
four weeks of paid vacation during each full calendar year of the Employment
Term (and a pro rata portion thereof for any portion of the Employment Term that
is less than a full calendar year); provided that no single vacation may exceed
two consecutive weeks in duration. Unused vacation may not be carried over to
successive years.
(b) Expenses. The Employee shall be reimbursed by the Company for all
reasonable expenses actually incurred or paid by him in connection with the
performance of his duties hereunder in accordance with policies established by
the Company from time to time and upon presentation of expense statements and/or
such other supporting information as the Company may reasonably require.
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6. Termination. The employment hereunder of the Employee may be terminated
prior to the expiration of the Employment Term in the manner described in this
Section 6.
(a) Termination by the Company for Good Cause. The Company shall have
the right to terminate the employment of the Employee for Good Cause (as such
term is defined in Section 6(h)(ii)) by written notice to the Employee
specifying the particulars of the circumstances forming the basis for such Good
Cause.
(b) Termination upon Death. The employment of the Employee hereunder
shall terminate immediately upon his death.
(c) The Company's Options upon Disability. If the Employee becomes
physically or mentally disabled during the Term so that he is unable to perform
the services required of him pursuant to this Agreement for a period of three
(3) successive months, or an aggregate of three (3) months in any twelve-month
period (the "Disability Period"), the Company shall have the option, in its
discretion, by giving written notice thereof, either to (A) terminate the
Employee's employment hereunder pursuant to Section 6(a); or (B) continue the
employment of the Employee hereunder upon all the terms and conditions set forth
herein. During the Disability Period, the Employee shall continue to receive the
compensation and other benefits provided herein net of any payments received
under any disability policy or program of which the Employee is a beneficiary or
recipient.
(d) Voluntary Resignation by the Employee. The Employee shall have the
right to voluntarily resign his employment hereunder for other than Good Reason
(as such term is defined in Section 6(h)(iii)) by written notice to the Company.
(e) Termination by the Company Without Good Cause. The Company shall
have the right to terminate the Employee's employment hereunder without Good
Cause by written notice to the Employee, but the obligations placed upon the
Company in Section 7 will apply.
(f) Resignation by the Employee for Good Reason. The Employee shall have
the right to terminate his employment for Good Reason by written notice to the
Company specifying the particulars of the circumstances forming the basis for
such Good Reason.
(g) Termination Date. The "Termination Date" is the date as of which the
Employee's employment with the Company terminates in accordance with this
Agreement. Any notice of termination given pursuant to the provisions of this
Agreement shall specify the Termination Date.
(h) Certain Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
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(i) "person" means any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization, joint
venture, court or government (or political subdivision or agency thereof).
(ii) "Good Cause" shall mean the occurrence of any of the following:
(A) any act or omission which constitutes a material breach of this Agreement or
the willful failure or the willful refusal of the Employee to substantially
perform his duties, provided, however, that the Board has delivered to the
Employee a written demand to cure the breach or for substantial performance,
which demand specifically identifies the manner in which the Employee has
breached the Agreement or failed to substantially perform his duties, and the
Employee has been given ten (10) days after such notice (or such longer period
as may reasonably be necessary) in which to cure the failure or to substantially
perform his duties, (B) the Employee's conviction of a crime which constitutes a
felony under applicable law, or a plea of guilty or nolo contendere with respect
thereto; (C) the commission by the Employee of any dishonest or wrongful act or
the gross negligence of the Employee involving fraud, misrepresentation or moral
turpitude causing material damage or potential damage to the Company or any
client of the Company, or any act or omission by the Employee that is materially
injurious to the business or reputation of the Company; (D) any violation of the
provisions of Section 8 hereof that causes material harm to the Company; or (E)
the reasonable determination by a licensed medical professional mutually agreed
upon by the Company and the Employee that the Employee is dependent upon a
controlled substance which either has: (1) not been prescribed by a licensed
medical professional; or (2) been prescribed by a licensed medical professional
but the dosages taken by the Employee exceed that prescribed by such licensed
medical professional.
(iii) "Good Reason" means the occurrence of any of the following
events:
(A) the assignment to the Employee of any duties inconsistent
in any material respect with the Employee's then position (including status,
offices, titles and reporting relationships), authority, duties or
responsibilities, or any other action or actions by the Company which when taken
as a whole results in a significant diminution in the Employee's position,
authority, duties or responsibilities, excluding for this purpose any isolated,
immaterial and inadvertent action not taken in bad faith and which is remedied
by the Company promptly after receipt of notice thereof given by the Employee;
(B) a material breach by the Company of one or more provisions
of this Agreement, provided that such Good Reason shall not exist unless the
Employee shall first have provided the Company with written notice specifying in
reasonable detail the factors constituting such material breach and such
material breach shall not have been cured by the Company within thirty (30) days
after such notice or such longer period as may reasonably be necessary to
accomplish the cure;
(C) a reduction in the Employee's Base Salary or a reduction
in any other benefit or payment described in this Agreement provided that those
changes (either individually or in the aggregate) will result in a material
adverse change with respect to the benefits to which the Employee was entitled
as of the Effective Date;
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(D) a failure by the Company to require any successor entity
to the Company specifically to assume all of the Company's obligations to the
Employee under this Agreement; and
(F) any purported termination by the Company of the Employee's
employment otherwise than as expressly permitted by this Agreement.
7. Obligations of Company on Termination. Notwithstanding anything in this
Agreement to the contrary, the Company's obligations on termination of the
Employee's employment shall be as described in this Section 7. In the event that
prior to the expiration of the Employment Term, the Company terminates the
Employee's employment, pursuant to Section 6(a), (b), (c) or (e), or the
Employee resigns, pursuant to Section 6 (d) or 6(f), within thirty (30) days
following the Termination Date, the Company shall pay the Employee a single lump
sum cash payment (the "Severance Payment") equal to the sum of the following:
(A) the equivalent of twelve (12) months Base Salary; and
(B) any Base Salary, cash bonuses, vacation and un-reimbursed
expenses accrued but unpaid as of the Termination Date.
8. Covenants of the Employee
(a) During the Employment Term and for a period of two (2) years
thereafter the Employee shall not, directly or indirectly, employ, solicit for
employment or otherwise contract for the services of any employee of the Company
or any of its affiliates at the time of this Agreement or who shall subsequently
become an employee of the Company or any such affiliate; and
(b) During the Employment Term and for a period of two (2) years
thereafter the Employee will not solicit, in competition with the Company or its
affiliates, any person who is, or was at any time within two years prior to the
Termination Date, a customer of the business conducted by the Company or any of
its affiliates. For purposes of this Agreement, the reasonable decision of the
Board as to what constitutes a competing business shall be final and binding
upon the Employee; provided that the Employee's ownership of securities of two
percent (2%) or less of any publicly traded class of securities of a public
company shall not be considered to be competition with the Company or any of its
affiliates.
(c) During the Employment Term and following the termination of this
Agreement, the Employee will not: (i) divulge, transmit or otherwise disclose
(except as legally compelled by court order, and then only to the extent
required, after prompt notice to the Company of any such order), directly or
indirectly, other than in the regular and proper course of business of the
Company, any confidential knowledge or information with respect to the
operations, finances, organization or employees of the Company or with respect
to confidential or secret processes, services, techniques, customers or plans
with respect to the Company; and (ii) use, directly or indirectly, any
confidential information for the benefit of anyone other than the Company;
provided, however, that the Employee has no obligation, express or implied, to
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refrain from using or disclosing to others any such knowledge or information
which is or hereafter shall become available to the public other than through
disclosure by the Employee. All new processes, techniques, know-how, inventions,
plans, products, patents and devices developed, made or invented by the
Employee, alone or with others, while an employee of the Company which are
related to the business of the Company shall be and become the sole property of
the Company, unless released in writing by the Company, and the Employee hereby
assigns any and all rights therein or thereto to the Company.
(d) All files, records, correspondence, memoranda, notes or other
documents (including, without limitation, those in computer-readable form), real
property or intellectual property relating or belonging to the Company or its
affiliates, whether prepared by the Employee or otherwise coming into his
possession in the course of the performance of his services under this
Agreement, shall be the exclusive property of Company and shall be delivered to
Company and not retained by the Employee (including, without limitations, any
copies thereof) upon termination of this Agreement for any reason whatsoever.
(e) The Employee acknowledges that a breach of his covenants contained
in this Section 8 may cause irreparable damage to the Company and its
affiliates, the exact amount of which will be difficult to ascertain, and that
the remedies at law for any such breach will be inadequate. Accordingly, the
Employee agrees that if he breaches any of the covenants contained in this
Section 8, in addition to any other remedy which may be available at law or in
equity, the Company shall be entitled to specific performance and injunctive
relief.
(f) The Company and the Employee further acknowledge that the time,
scope, geographic area and other provisions of this Section 8 have been
specifically negotiated by sophisticated commercial parties and agree that all
such provisions are reasonable under the circumstances of the activities
contemplated by this Agreement. In the event that the agreements in this Section
8 shall be determined by any court of competent jurisdiction to be unenforceable
by reason of their extending for too great a period of time or over too great a
geographical area or by reason of their being too extensive in any other
respect, they shall be interpreted to extend only over the maximum period of
time for which they may be enforceable and/or over the maximum geographical area
as to which they may be enforceable and/or to the maximum extent in all other
respects as to which they may be enforceable, all as determined by such court in
such action.
(g) The Employee agrees to cooperate with the Company, during the
Employment Term and thereafter (including following the Employee's termination
of employment for any reason), by making himself reasonably available to testify
on behalf of the Company or any of its affiliates in any action, suit, or
proceeding, whether civil, criminal, administrative, or investigative, and to
assist the Company, or any affiliate, in any such action, suit, or proceeding,
by providing information and meeting and consulting with the Board or its
representatives or counsel, or representatives or counsel to the Company, or any
affiliate as reasonably requested; provided, however that the same does not
materially interfere with his then current professional activities and is not
contrary to the best interests of the Employee. The Company agrees to reimburse
the Employee, on an after-tax basis, for all expenses actually incurred in
connection with his provision of testimony or assistance.
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(h) The parties agrees that, during the Employment Term and thereafter
(including following the Employee's termination of employment for any reason)
that they will not make statements or representations, or otherwise communicate,
directly or indirectly, in writing, orally, or otherwise, or take any action
which may, directly or indirectly, disparage the other party or any of its
affiliates or their respective officers, directors, employees, advisors,
businesses or reputations. Notwithstanding the foregoing, nothing in this
Agreement shall preclude the either party from making truthful statements or
disclosures that are required by applicable law, regulation or legal process.
9. Arbitration. The parties agree that any dispute, claim, or controversy
based on common law, equity, or any federal, state, or local statute, ordinance,
or regulation (other than workers' compensation claims) arising out of or
relating in any way to the Employee's employment, the terms, benefits, and
conditions of employment, or concerning this Agreement or its termination and
any resulting termination of employment, including whether such a dispute is
arbitrable, shall be settled by arbitration. This agreement to arbitrate
includes but is not limited to all claims for any form of illegal
discrimination, improper or unfair treatment or dismissal, and all tort claims.
The Employee will still have a right to file a discrimination charge with a
federal or state agency, but the final resolution of any discrimination claim
will be submitted to arbitration instead of a court or jury. The arbitration
proceeding will be conducted under the employment dispute resolution arbitration
rules of the American Arbitration Association in effect at the time a demand for
arbitration under the rules is made. The decision of the arbitrator(s),
including determination of the amount of any damages suffered, will be
exclusive, final, and binding on all parties, their heirs, executors,
administrators, successors and assigns. Each party will bear its own expenses in
the arbitration for arbitrators' fees and attorneys' fees, for its witnesses,
and for other expenses of presenting its case. Other arbitration costs,
including administrative fees and fees for records or transcripts, will be borne
equally by the parties.
10. Notices. Any notices required or permitted hereunder shall be in writing and
shall be deemed to have been given when personally delivered or when mailed,
certified or registered mail, postage prepaid, to the following addresses:
If to the Employee:
Lim Wong
[insert address]
If to the Company:
MOBICLEAR INC.
One Wakonda
Xxxx Xxxxxx, Xxxxxxxxxx 00000
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11. General.
(a) Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Pennsylvania applicable to contracts executed and to be performed entirely
within the State of Pennsylvania.
(b) Construction and Severability. If any provision of this Agreement
shall be held invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired, and the parties undertake
to implement all efforts which are necessary, desirable and sufficient to amend,
supplement or substitute all and any such invalid, illegal or unenforceable
provisions with enforceable and valid provisions which would produce as nearly
as may be possible the result previously intended by the parties without
renegotiation of any material terms and conditions stipulated herein.
(c) Performance; Assignability. The Employee represents and warrants to
the Company that the Employee has no contracts or agreements of any nature that
the Employee has entered into with any other person, firm or corporation that
contain any restraints on the Employee's ability to perform his obligations
under this Agreement. The Employee may not assign his interest in or delegate
his duties under this Agreement. This Agreement is for the employment of the
Employee, personally, and the services to be rendered by him under this
Agreement must be rendered by him and no other person. This Agreement shall be
binding upon and inure to the benefit of the Company and its successors and
assigns. Notwithstanding anything else in this Agreement to the contrary, the
Company may assign this Agreement to and all rights hereunder shall inure to the
benefit of any person, firm or corporation resulting from the reorganization of
the Company or succeeding to the business or assets of the Company by purchase,
merger or consolidation. The Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no succession had
taken place. The Company's failure to obtain such an assumption and agreement
prior to the effective date of a succession will be a breach of this Agreement
and will entitle the Employee to compensation from the Company in the same
amount and on the same terms as if the Employee were to terminate his employment
for Good Reason, except that, for purposes of implementing the foregoing, the
date on which any such succession becomes effective will be deemed the
Termination Date.
(d) Compliance with Rules and Policies. The Employee shall perform all
services in accordance with the policies, procedures and rules established by
the Company, including, but not limited to, the By-Laws of the Company. In
addition, the Employee shall comply with all laws, rules and regulations that
are generally applicable to the Company, its affiliates and their employees,
directors and officers.
(e) Withholding. The Company shall withhold from all amounts due
hereunder any withholding taxes payable to federal, state, local or foreign
taxing authorities.
(f) Entire Agreement, Modification. This Agreement constitutes the
entire agreement of the parties hereto with respect to the subject matter
hereof, supersedes all prior agreements and undertakings, both written and oral,
and may not be modified or amended in any way except in writing by the parties
hereto.
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(g) Duration. Notwithstanding the Employment Term hereunder, this
Agreement shall continue for so long as any obligations remain under this
Agreement.
(h) Survival. The covenants set forth in Section 8 of this Agreement
shall survive and shall continue to be binding upon the Employee notwithstanding
the termination of this Agreement for any reason whatsoever. It is expressly
agreed that the remedy at law for the breach or threatened breach of any such
covenant is inadequate and that the Company, in addition to any other remedies
that may be available to it, in law or in equity, shall be entitled to
injunctive relief to prevent the breach or any threatened breach thereof without
bond or other security or a showing that monetary damages will not provide an
adequate remedy.
(i) Waiver. No waiver by either party hereto of any of the requirements
imposed by this Agreement on, or any breach of any condition or provision of
this Agreement to be performed by, the other party shall be deemed a waiver of a
similar or dissimilar requirement, provision or condition of this Agreement at
the same or any prior or subsequent time. Any such waiver shall be express and
in writing, and there shall be no waiver by conduct.
(j) Counterparts. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have hereunto executed this Agreement as of the day and year first written
above.
Date:_____________________ MOBICLEAR INC.
By: /s/ _________________________________
Name: Lim Wong
Title: Chairman of the Board of Directors
Date:_____________________ LIM WONG
_____________________________________
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