EXH 10.40
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") dated as of January
1, 2003, by and between PHONE1GLOBALWIDE, INC., a Delaware corporation with an
address at 000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000, Xxxxx, Xxxxxxx 00000 (the
"Company"), and XXXXXXXX XXXXXXX with an address at 0000 Xxxxx Xxxx Xxxxx,
#000 XX ____ (the "Executive"). The Company and the Executive are sometime
individually referred to as a "Party" and collectively as the "Parties".
WITNESSETH:
WHEREAS, the Company is in the business of providing pay phone
telecommunications services to domestic and international markets (the
"Business") and the Company desires to induce the Executive to enter into the
employment of the Company for the period provided in this Agreement in
accordance with the terms and conditions set forth below; and
WHEREAS, the Company and the Executive intend for the Executive to
utilize his professional experience to assist the Company to implement its
business plan; and
WHEREAS, the Executive wishes to be engaged and employed by the Company
and the Company wishes to engage and employ the Executive, on the terms provided
herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and accepted, the Parties hereto
agree as follows:
1. Recitals. The above recitals are true, correct and incorporated herein by
reference.
2. Employment.
a. Engagement of the Executive. The Company agrees to employ the
Executive and the Executive accepts employment as Chief Technical Officer of the
Company.
b. Employment Period. The Company shall employ the Executive and the
Executive shall be employed by the Company, on the terms and conditions
hereinafter set forth, for a period commencing on the date hereof (the
"Effective Date") and ending on the second anniversary of the Effective Date.
Subject to the provisions of this Agreement, the period of employment shall be
automatically extended for successive one-year terms of employment, unless
either the Company or the Executive notifies the other in writing at least
ninety (90) days prior to the end of the then current term that it or he does
not intend to renew such employment, in which case such employment will expire
at the end of the then current term. All references herein to the "Employment
Period" shall refer to both the initial term and any such successive renewal
term.
c. Duties and Powers. During the Employment Period, the Executive will
serve in the capacity described above and will have such responsibilities,
duties and authorities and will render such services of an executive and
administrative character reasonably consistent with his title as shall be
reasonably directed by the Board, all in accordance with the terms and
conditions of this Agreement and the strategic plans and operating and capital
budgets of the Company as developed and approved by the Board. The Executive
shall devote the Executive's best efforts, energies and abilities and the
Executive's full business time, skill and attention to the business and affairs
of the Company and such of its subsidiaries and affiliates as are specified by
the Company.
The Executive shall perform the duties and carry out the
responsibilities assigned to the Executive to the best of the Executive's
ability, in a diligent, trustworthy, businesslike and efficient manner for the
purpose of advancing the business of the Company and its affiliates and shall
adhere to any and all of the employment policies of the Company. The Executive
acknowledges that the Executive's duties and responsibilities will require the
Executive's full-time business efforts and agrees that during the Employment
Period the Executive will not engage in any other business activity or have any
business pursuits or interests which interfere or conflict with the performance
of the Executive's duties hereunder, provided, that nothing in this Section 2
shall be deemed to prohibit the Executive from making Permitted Investments (as
defined in Section 6.b. below) or attending to such charitable and/or civic
activities as are deemed appropriate by the Executive; provided that such
activities shall not detract from the Executive's duties and obligations under
this Agreement. The Executive shall report to the Chief Operating Officer, Chief
Executive Officer and the Board of Directors of the Company, and inconsistencies
shall be resolved in reverse order of priority.
3. Compensation and Benefits. As consideration for the services to be provided
by the Executive, the Company shall pay to the Executive, and the Executive
agrees to accept for all such services, compensation as follows:
a. Base Salary. Commencing on the date hereof and continuing through the
balance of the Employment Term, the Company shall pay to the Executive base
compensation at the rate of Two Hundred Twenty Thousand Dollars ($220,000.00)
per year (the "Salary"). The Salary, and all other compensation payable
hereunder, shall be paid in accordance with the Company's normal payroll
policies, and shall be subject to all applicable withholding taxes and any other
amounts required by law to be withheld. The Executive shall be entitled to
receive such other salary increases as may be determined by the Board of
Directors of the Company and/or its Chief Executive Officer.
b. Bonus. The Executive may receive a bonus, if so determined by the
Board in its sole discretion. The payment of a bonus in any instance shall not
constitute an entitlement to a bonus on any other occasion.
c. Equity Participation Programs. The Executive shall be eligible to
participate in such option and/or equity participation programs as may be
implemented for employees of the Company. Such eligibility shall not constitute
an entitlement to a particular award under any such program, nor shall an award
on one occasion constitute an entitlement to an award on any other occasion.
d. Benefit Programs. The Executive will be eligible to participate on
substantially the same basis as provided to all of the Company's most highly
paid executive officers, as a group, in any life, health, hospitalization, or
disability insurance policy or program maintained by the Company, and any
401(k), profit sharing, retirement, or other fringe benefit program maintained
by the Company for such officers, in each case in accordance with the terms of
such policies, plans and programs.
e. Vacation. During the Employment Period, the Company will provide the
Executive three (3) weeks vacation per year (prorated for periods of less than a
full year); provided that all vacation must be used within the calendar year in
which the vacation accrues or it is forfeited.
f. Business Expenses. During the Employment Period, the Company will
reimburse the Executive in accordance with Company policy for the Executive's
normal out-of-pocket
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expenses incurred in the course of performing the Executive's duties hereunder.
The Executive shall provide the Company with all receipts and documentation
supporting such expenses as may reasonably be requested by the Company.
4. Termination.
a. Right to Terminate. In addition to the termination rights of the
Company set forth in Section 2, the Company has the right to terminate the
Employment Period (and, consequently, the Executive's employment under this
Agreement), by notice to the Executive in writing at any time, (i) for "Cause",
or (ii) without Cause for any or no reason, subject to the provisions of Section
5. Any such termination shall be effective upon the date specified in such
notice or, if no date is specified, on the date such notice is deemed served
pursuant to Section 17 below. In addition, the Executive shall have the right to
terminate the Employment Period as hereinafter provided.
b. Cause Defined. "Cause" as used herein means the occurrence of any of
the following events:
(i) the willful failure or gross negligence of the Executive to
perform the Executive's duties or comply with reasonable
directions of the Board consistent with the Executive's title and
duties that continues unremedied for a period of twenty (20)
business days after the Company, by resolution of its Board of
Directors has given written notice to the Executive specifying in
reasonable detail the Executive's failure to perform such duties
or comply with such directions;
(ii) the Executive's conviction of (A) a felony, (B) criminal
dishonesty or (C) any crime involving moral turpitude;
(iii) the occurrence of any event applicable to the Executive and set
forth in Item 401(d)(1) through (4) [or Item 401(f) of Regulation
S-K, if then applicable to the Company] of Regulation S-B, or
other rule of similar applicability promulgated by the Securities
and Exchange Commission;
(iv) a material breach by the Executive of any of the provisions of
Section 6, 7, or 8 of this Agreement; or
(v) a material breach by the Executive of any of the terms or
conditions of this Agreement (other than with respect to any
provisions of Sections 6, 7 or 8 of this Agreement) that
continues unremedied for a period of twenty (20) business days
after the Company, by resolution of its Board of Directors, has
given written notice to the Executive specifying in reasonable
detail the Executive's breach of this Agreement.
c. Death and Disability. Except as otherwise provided herein, this
Agreement and the obligations of the Company hereunder will terminate upon the
death or, at the Company's option, the disability of the Executive. For purposes
of this Section 4.c., "disability" shall mean that for a period of ninety (90)
consecutive days or four (4) months in any twelve (12) month period the
Executive fails to substantially fulfill the duties set forth in Section 2 or
hereafter assigned to him because of physical, mental or emotional incapacity
resulting from injury, sickness or disease, as determined by an independent
physician (whose independence shall not be negated by reason of the payment of a
reasonable fee for his or her services) selected by the Company.
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5. Compensation Following Termination.
a. If the Employment Period or this Agreement is terminated (i) by the
Company for Cause, (ii) through expiration of the Employment Period, or (iii)
pursuant to the provisions of Section 2, then the Company shall have no further
obligations hereunder or otherwise with respect to the Executive's employment
from and after the effective date of termination (except payment of the Salary,
bonus if any, and benefits described in Section 3 herein, in each case which
have accrued through the effective date of termination or expiration), and the
Company shall continue to have all other rights available hereunder, including
without limitation, all rights under any provisions of Sections 6, 7 and 8 at
law or in equity.
b. If the Employment Period or this Agreement is terminated by the
Company due to the disability of the Executive, as defined in Section 4.c., the
Executive shall be entitled to receive all Salary and other compensation earned
but unpaid through the date of termination, plus such amount(s), if any, as may
be payable to the Executive pursuant to any disability insurance maintained by
the Company.
c. If the Employment Period or this Agreement is terminated by the
Company due to the death of the Executive, the Executive's estate shall be
entitled to receive all Salary and other compensation earned but unpaid through
the date of termination, plus an amount equal to six (6) months' Salary at the
then current rate, to be paid in accordance with the Company's normal payroll
policies, and to be subject to all applicable withholding taxes and any other
amounts required by law to be withheld.
d. Provided that the Executive continues to comply with each of the
provisions of Sections 6, 7 and 8 of this Agreement during all the applicable
periods, if the Employment Period is terminated by the (i) Company without Cause
as described in Section 4 hereof or (ii) the Executive for "Good Reason", as
hereinafter defined, the Executive shall be entitled to receive as severance pay
the greater of (I) the Executive's then current Salary hereunder for the period
of time which would have been remaining in the initial Employment Period or any
renewal period, as the case may be, or (II) two year's Salary at the then
current rate, in each case payable in one lump sum within thirty (30) days
following termination, subject to all applicable withholding taxes and any other
amounts required by law to be withheld.
e. For purposes hereof, "Good Reason" means (i) the material reduction
in, or the assignment of duties to the Executive which would be materially
inconsistent with, the Executive's responsibilities, duties and authorities
described in Section 2.c. (other than as a result of the Executive's failure to
perform the Executive's duties and responsibilities in accordance with this
Agreement), or (ii) a reduction in the Executive's Salary or failure to pay any
material amount owing to or provide a material benefit owing to the Executive
within ten (10) business days of the day such amount or benefit is due, or (iii)
the relocation of the Company's offices to a location not in Miami-Dade, Broward
or Palm Beach Counties, Florida, and a requirement that the Executive perform
his services to the Company from such relocated offices, in each case which
continues unremedied for a period of twenty (20) business days after the
Executive has given written notice to the Company specifying in reasonable
detail the relevant acts or omissions. It is expressly understood and agreed
that unless the Executive provides the written notice described in the
immediately preceding sentence within twenty (20) business days after the
Executive know or has reason to know of the occurrence of any act or omission of
the type described in clauses (i), (ii) or (iii) of the immediately preceding
sentence, the Executive shall be deemed to have consented
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thereto and such particular act or omission shall no longer constitute or be
capable of constituting Good Reason for purposes of this Agreement.
f. Provided that the Executive continues to comply with each of the
provisions of Sections 6, 7 and 8 of this Agreement during all applicable
periods, if the Employment Period is terminated by the Executive or otherwise
upon a Change of Control (as hereinafter defined) of the Company, the Executive
shall be entitled to receive from the Company as severance an amount equal to
the greater of (i) the Executive's then current Salary for the period of time
which would have been remaining in the initial Employment Period or any renewal
period, as the case may be, or (ii) two (2) year's Salary at the then current
rate, in each case payable in one lump sum within thirty (30) days following
termination, subject to all applicable withholding taxes and any other amounts
required by law to be withheld.
g. For purposes of the preceding subsection, a "Change in Control" shall
mean the occurrence of one or more of the following events:
(i) subsequent to December 31, 2003, a change in identity of a
majority of members of the Company's Board of Directors from
those individuals constituting the Board of Directors on such
date;
(ii) the acquisition of fifty (50) percent or more of the outstanding
voting securities of the Company, where the acquirer(s) own(s)
beneficially less than fifteen (15) percent of the outstanding
voting securities of the Company as of the date set forth in the
Preamble to this Agreement;
(iii) the sale of all or substantially all of the Company's assets,
including sale of more than fifty (50) percent of the stock or
all or substantially all of the assets of Phone1, Inc. or
Globaltron Communications Corporation, other than in a "form over
substance" reorganization;
(iv) a merger, share exchange or similar business combination where
the Company is not the surviving entity to such combination,
other than in a "form over substance" reorganization.
For purposes hereof, a Change in Control shall be deemed to have occurred on the
effective date of the event described in (i) through (iv) of this subsection g.
h. Provided that the Executive continues to comply with each of the
provisions of Sections 6, 7 and 8 of this Agreement during all the applicable
periods:
(i) if the Employment Period is terminated by (A) the Company without
Cause (i.e., the absence of an event described in Section 4.b.
hereof), (B) the Executive for "Good Reason", as defined in
Section 5.e. or (C) in connection with a Change in Control, as
defined in Section 5.g., all options previously granted to the
Executive that have not yet vested shall immediately vest and
shall be exercisable for a period of three years from the date of
termination, and any unregistered shares issuable upon exercise
of such options shall be accorded piggy-back registration rights
for the life of the options (except with respect to the filing of
a registration statement on Form S-4 or similar form);
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(ii) if the Employment Period is terminated by the Employee without
Good Reason, all outstanding options that have vested shall be
exercisable for a period of sixty (60) days following
termination;
(iii) if the Employment Period is terminated by the Company, for
Cause, all outstanding options shall be cancelled as of the date
of termination; and
(iv) if the Employment Period is terminated due to the death or
disability of the Executive, all outstanding options shall
continue in force to the extent provided, and in accordance with,
the instrument(s) of grant.
Notwithstanding the foregoing, in the event the Employment Agreement terminates
upon the occurrence of an event in which the Company is not the surviving
entity, then the Company shall provide the Executive with not less than thirty
(30) days prior written notice of the effective date of the event and, at the
option of the Executive (x) the option may be exercised on a cashless basis
prior to the effective date of the event, (y) the Executive may require the
Company to purchase the option, at a per share price equal to the difference
between (I) the fair market value of the underlying shares of common stock as of
the trading day immediately prior to the effective date of the event, and (II)
the per share exercise price of the option, or (z) the Executive may elect to
have the options treated in the same manner as other outstanding options are
treated under the agreement governing the subject event.
6. Restrictive Covenants.
a. The Executive's Acknowledgment. The Executive agrees and acknowledges
that in order to assure that the Company and its affiliates will retain their
respective value and that of the business of the Company and each of its
affiliates, it is necessary that Executive undertake not to utilize the special
knowledge of the Business the Executive has acquired or may acquire and the
relationships with their customers, suppliers and employees to compete with the
Company and its affiliates. The Executive further acknowledges that:
(i) the Executive is one of a limited number of persons who will
develop the business of the Company and its affiliates;
(ii) the Executive will occupy a position of trust and confidence with
the Company and its affiliates during the Executive's employment
under this Agreement, the Executive has and will continue to
become familiar with the proprietary and confidential information
of the Company and its affiliates;
(iii) the agreements and covenants contained in this Section 6 are
essential to protect the Company, its affiliates and the goodwill
of the Business and are an express condition precedent to the
willingness of the Company to sign this Agreement;
(iv) the Company and its affiliates would be irreparably damaged if
the Executive were to provide services to any person or entity in
violation of the provisions of this Agreement;
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(v) the Company operates its Business on an international basis and
the Company would be irreparably damaged if the Executive were to
provide services in the Business any where in the world;
(vi) the scope and duration of the provisions of this Section 6, and
of Section 7 and 8 are reasonably designed to protect a
protectable interest of the Company and its affiliates and are
not excessive in light of the circumstances; and
(vii) the Executive has a means to support the Executive and the
Executive's dependents, if any, other than engaging in the
activities prohibited by this Section 6.
b. Non-Compete. The Executive hereby agrees that for a period of two (2)
years from the date hereof (the "Noncompetition Period") or one (1) year after
the termination of the Employment Period, whichever is later, except on behalf
of the Company and its affiliates in accordance with this Agreement, the
Executive shall not, directly or indirectly, as employee, agent, consultant,
stockholder, director, partner or in any other individual or representative
capacity, own, operate, manage, control, engage in, invest in or participate in
any manner in, act as a consultant or advisor to, render services for (alone or
in association with any person, firm, corporation or entity), or otherwise
assist any person or entity that engages in or owns, invests in, operates,
manages or controls any venture or enterprise that directly or indirectly
engages or proposes to engage in the Business anywhere in the world
(collectively the "Territory"); provided however, that nothing contained herein
shall be construed to prevent the Executive from (i) investing in stock or other
securities of any public or private enterprise provided that such investment
does not require active participation by the Executive and such enterprise does
not engage in any activity competitive with the business now or hereafter
conducted by the Company ("Permitted Investments"), or (ii) attending to such
charitable and/or civic activities as are deemed appropriate by the Executive;
provided that such activities shall not detract from the Executive's duties and
obligations under this Agreement.
c. Non-Solicitation. Without limiting the generality of the provisions of
Section 6.b. above, the Executive hereby agrees that for a period commencing on
the date of this Agreement and ending on the later of (i) the expiration of the
Noncompetition Period or (ii) the date which is two (2) years from the effective
date of termination or expiration of this Agreement (such date of termination or
expiration of this Agreement is sometimes referred to as the "Termination
Date"), except on behalf of the Company and its affiliates in accordance with
this Agreement, the Executive will not, directly or indirectly, as employee,
agent, consultant, principal or otherwise, (A) solicit any Business from or in
any way transact or seek to transact any Business with or otherwise seek to
influence or alter the relationship between the Company or any of its affiliates
with any person or entity to whom the Company or any of its affiliates provided
Business related services (I) at any time during the one (1) year period
preceding the Termination Date or (II) if there has been no Termination Date, at
any time during the Employment Period or (B) solicit for employment or other
services or otherwise seek to influence or alter the relationship between the
Company or any of its affiliates of any person who is or was an employee of the
Company or any of its affiliates (I) at any time during the one (1) year period
preceding the Termination Date or (II) if there has been no Termination Date, at
any time during the Employment Period. Notwithstanding the foregoing, in the
event the Employment Period or this Agreement is terminated by the Company
without Cause pursuant to Section 4, the reference to "two (2) years" in clause
(ii) of this Section shall be deemed to read "one year."
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d. Blue-Pencil. If any court of competent jurisdiction shall at any time
deem the term of this Agreement or any particular Restrictive Covenant too
lengthy or the Territory too extensive, the other provisions of this Section 6
shall nevertheless stand, the period of restriction shall be deemed to be the
longest period permissible by law under the circumstances and the Territory
shall be deemed to comprise the largest territory permissible by law under the
circumstances. The court in each case shall reduce the period of restriction
and/or Territory to permissible duration or size.
7. Treatment and Ownership of Confidential Information.
a. Confidentiality. The Parties hereto acknowledge that the Executive
shall or may be provided access to, make use of, acquire and/or add to
Confidential Information (as that term is defined in subparagraph (b) below).
The Executive covenants and agrees that during the Employment Period and at all
times thereafter he shall not, except with the prior written consent of the
Company, or except if he is acting during the Employment Period solely for the
benefit of the Company or any of the affiliates in connection with the Company's
or any of the affiliates' business and in accordance with the Company's business
practices and policies, at any time, disclose, divulge, report, transfer or use,
for any purposes whatsoever, any such Confidential Information, including
Confidential Information obtained, used, acquired or added by, or disclosed to,
the Executive prior to the date of this Agreement. The Executive further
acknowledges that the Confidential Information constitutes valuable, special and
unique assets of the Company.
b. Confidential Information Defined. For purposes of this Agreement, the
term "Confidential Information" shall mean all of the following materials and
information which the Executive receives, conceives or develops or has received,
conceived or developed, in whole or in part, in connection with the Executive's
affiliation with the Company:
(i) The contents of any manuals or other written materials of the
Company or any of its affiliates;
(ii) The names of actual or prospective clients, customers, suppliers,
or persons, firms, lenders, or persons, firms, corporations, or
other entities with whom the Executive may have or has had
contact on behalf of the Company or any of its affiliates or to
whom any other employee of the Company or any of its affiliates
has provided goods or services at any time;
(iii) The terms of various agreements between the Company or any of
its affiliates, and any third parties;
(iv) The contents of actual or prospective customer or client records,
which customer and client lists and records shall not only mean
one or more of the names and addresses of the customers of the
Company or any of its affiliates, but shall also encompass any
and all information whatsoever regarding them;
(v) Any data or database, or other information compiled by the
Company or any of its affiliates, including, but without
limitation, information concerning the Company or any of its
affiliates, or any business in which the Company or any of its
affiliates is engaged or contemplates becoming engaged, any
company which the Company or any of its affiliates engages in
business, any customer, prospective customer, or other person,
firm or corporation to
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whom or which the Company or any of its affiliates has provided
goods or services or to whom or which any employee of the Company
or any of its affiliates has provided goods or services on behalf
of the Company or any of its affiliates, or any compilation,
analysis, evaluation or report concerning or deriving from any
data or database, or any other information;
(vi) All policies, procedures, strategies and techniques regarding
training, marketing and sales, either oral or written, and
assorted lists containing information pertaining to lenders,
customers and/or prospective customers; and
(vii) Any other information, data, training methods, formulae,
technology, business methods, know-how, show-how, source code,
subject code, copyright, trademarks, patents or knowledge of a
confidential or proprietary nature observed, received, conceived
or developed by the Executive in connection with the Executive's
affiliation with the Company.
c. Exclusions. Excluded from the Confidential Information and therefore
not subject to the provisions of this Agreement shall be any information which
(i) is or becomes generally available to the public through no breach or fault
of the Executive; provided that this exception shall apply only from and after
the date the information became generally available to the public, and (ii) the
Executive can establish by the Executive's written records was in the
Executive's possession at the time of disclosure and was not previously acquired
directly or indirectly from the Company, provided that this exception shall
apply only from and after the date that the information is disclosed to the
Executive by a third party or was in the Executive's possession. Specific
Confidential Information shall not be deemed to be within the foregoing
exceptions merely because it is embraced by, or contained or referenced in, more
general information in the public domain. Additionally, any combination of
features shall not be deemed to be within the foregoing exceptions merely
because individual features are in the public domain. If the Executive intends
to avail himself of any of the foregoing exceptions, the Executive shall notify
the Company in writing of his or her intention to do so and the basis for
claiming the exception.
d. Ownership. The Executive covenants and agrees that all right, title
and interest in any Confidential Information shall be and shall remain the
exclusive property of the Company and its affiliates, as the case may be. The
Executive covenants that the Executive has disclosed to the Company all
Confidential Information developed in whole or in part by the Executive within
the scope of this Agreement and has assigned or will assign to the Company any
right, title or interest the Executive may have in such Confidential
Information. The Executive covenants that the Executive has turned over to the
Company all physical manifestations of the Confidential Information in his
possession or under his control. The Executive agrees to promptly disclose to
the Company all Confidential Information hereafter developed in whole or in part
by the Executive within the scope of this Agreement and to assign to the Company
or any of the affiliates, as the Company determines in its sole discretion, any
right, title or interest the Executive may have in such Confidential
Information.
8. Inventions.
a. The Executive agrees to promptly inform and to disclose to the
Company, in writing, all inventions, concepts, developments, procedures, ideas,
innovations, systems, programs, techniques, processes, information, discoveries,
improvements and modifications and related documentations, other works of
authorship and the like (collectively the "Inventions"), which,
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during the course of the Executive's employment with the Company, the Executive
has created, made, conceived, written either alone or with others, while in the
Company's employ, or while performing services for the affiliates, whether or
not during working hours, and at all times thereafter, whether or not such
Inventions are patentable, subject to copyright protection or susceptible to any
other form of protection which (i) related to the actual Business or research of
development of the Company or its affiliates; or (ii) was suggested by or
resulted from any task assigned or to be assigned to the Executive or performed
by the Executive for or on behalf of the Company or any of its affiliates. In
the case of any "other works of authorship", such assignment shall be limited to
those works of authorship which meet both conditions (i) and (ii) above. The
Executive further acknowledges and agrees that the copyright and any other
intellectual property right in Inventions and related documentation, and other
works of authorship, created within the scope of my employment, are "works for
hire" and belong to the Company by operation of law.
b. In connection with any of the Inventions assigned by Section 8.a., the
Executive shall, on the Company's request, promptly execute a specific
assignment of title to the Company or its designee, and do anything else
reasonably necessary to enable the Company or such designee to secure a patent,
copyright or other form of protection therefor in the United States and in other
countries.
c. The Executive further acknowledges and agrees that the Company and its
affiliates, licensees, successors or assigns (direct or indirect) are not
required to designate the Executive as an author of any Invention which is
subject to Section 8.a., when it is distributed, publicly or otherwise, or to
secure my permission to change or otherwise alter its integrity. The Executive
hereby waives and releases, to the extent permitted by law, all rights in and to
such designation and any rights that the Executive may have concerning
modifications of such Inventions.
d. The Executive understands that any rights, waivers, releases and
assignments herein granted and made by the Executive are freely assignable by
the Company and are for the benefit of the Company and its affiliates,
licensees, successors and assigns.
e. The Executive affirms that the Executive has not disclosed and will
not disclose to anyone outside of the Company and its affiliates, or has used,
or will use, any Confidential Information or material received in confidence
from third parties, such as customers, by the Company or any of its affiliates,
other than as permitted by a written agreement between the Company and the third
party.
f. The Executive irrevocably appoints any Company-selected designee to
act as his agent and attorney-in-fact to perform all acts necessary to obtain
patents and/or copyrights as required by this Agreement if the Executive (i)
refuses to perform those acts or (ii) is unavailable, within the meaning of the
United States Patent and Copyright Laws. It is expressly intended by the
Executive that the foregoing power of attorney is coupled with an interest.
g. The Executive shall keep complete, accurate and authentic information
and records on all Inventions in the manner and form reasonably requested by the
Company. Such information and records, and all copies thereof, shall be the
property of the Company as to any Inventions within the meaning of this
Agreement. In addition, the Executive agrees to promptly surrender all such
original and copies of such information and records at the request of the
Company.
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9. Effect of Termination. If this Agreement or the Employment Period expires
or is terminated for any reason, then, notwithstanding such termination, those
provisions contained in Sections 6 through 10 hereof shall remain in full force
and effect.
10. Remedies. The Executive acknowledges and agrees that the covenants set
forth in Section 6, 7 and 8 of this Agreement are reasonable and necessary for
the protection of the business interests of the Company and its affiliates, that
irreparable injury will result to the Company and its affiliates if the
Executive breaches any of the terms of Sections 6, 7 or 8, and that in the event
of the Executive's actual or threatened breach of any provisions of Section 6, 7
or 8, the Company and its affiliates will have no adequate remedy at law. The
Executive accordingly agrees that in the event of any actual or threatened
breach by the Executive of any of the provisions of Section 6, 7 or 8, the
Company and its affiliates shall be entitled to seek injunctive relief, specific
performance and other equitable relief, without bond and without the necessity
of showing actual monetary damages, subject to hearing as soon thereafter as
possible. Nothing contained herein shall be construed as prohibiting the Company
and its affiliates from pursuing any other remedies available to them for such
breach or threatened breach, including but not limited to the recovery of
damages.
11. Indemnification. The Company hereby indemnifies and holds the Executive
harmless, to the fullest extent permitted by applicable law, from and against
all suits, actions, claims, actions, proceedings, costs and expenses, including
reasonable attorneys' fees, arising out of the Executive's performance of his
duties to the Company. In addition, the Executive shall be entitled to enter
into such Indemnification Agreements as the Company enters into with members of
its Board of Directors, and to receive benefits, to the extent reasonably
available, no less favorable with respect to indemnification than the benefits
provided to such Board members.
12. The Executive's Representations and Warranties.
a. The Executive represents and warrants to the Company that:
(i) he is not and has not been subject to any litigation or any
regulatory or administrative proceeding that could reasonably
have an adverse impact on the ability of the Executive to render
services under this Agreement,, and
(ii) he is free of known physical and mental disabilities that would,
with or without reasonable accommodations create an undue
hardship for the Company or any of its affiliates, impair his
performance hereunder and he is fully empowered to enter and
perform his obligations under this Agreement;
(iii) he is under no restrictive covenants to any person or entity
that will be violated by his entering into and performing this
Agreement; and
(iv) he is not the subject of any event described in Item 401(d)(1)
through (4) of Regulation S-B [or Item 401(f) of Regulation S-K,
if then applicable to the Company], promulgated by the Securities
and Exchange Commission.
b. The Executive shall indemnify the Company on demand for and against
any and all judgments, losses, claims, damages, expenses and costs (including
without limitation all legal fees and costs, even if incident to appeals)
incurred or suffered by the Company as a result of any breach by the Executive
of any of these representations and warranties.
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13. 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, heirs successors and permitted assigns; provided that
the Executive may not delegate any of his responsibilities under this Agreement.
14. Severability. If any provision of any of the Agreements is invalid, illegal
or unenforceable under any applicable statute or rule of law, it is to that
extent to be deemed omitted. The remainder of the Agreement containing the
invalid, illegal or unenforceable provision will be valid and enforceable to the
maximum extent possible.
15. Governing Law. This Agreement shall be governed and construed in accordance
with the laws of the State of Florida, without giving effect to any conflict of
law principles.
16. Entire Agreement. This Agreement contains the entire understanding between
the Parties concerning the Executive's employment by the Company and supercedes
all prior agreements or understandings of the Parties relating thereto. This
Agreement may not be changed or modified except by an Agreement in writing
signed by all the Parties hereto.
17. Notice. All notices under the Agreements are to be delivered by (i)
depositing the notice in the mail, using registered mail, return receipt
requested, addressed to the address set forth in the Agreements for the Party or
to any other address as the Party may designate by providing notice, (ii)
facsimile transmission by using the facsimile number set forth in the Agreements
for the Party or any other facsimile number as the Party may designate by
providing notice, (iii) overnight delivery service addressed to the address set
forth in the Agreements for the Party or to any other address as the Party may
designate by providing notice, or (iv) hand delivery to the individual
designated in the relevant Agreement or to any other individual as the Party may
designate by providing notice. The notice will be deemed delivered (i) if by
registered mail, four (4) days after the notice's deposit in the mail, (ii) if
by telecopy, on the date the notice is delivered, (iii) if by overnight delivery
service, on the day of delivery, and (iv) if by hand delivery, on the date of
hand delivery. The addresses for such communications shall be as follows:
If to the Executive:
Xxxxxxxx Xxxxxxx
0000 Xxxxx Xxxx Xxxxx, #000
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telefax: (___) ________
If to the Company:
Phone1Globalwide, Inc.
000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx, President
Telephone: (000) 000-0000
Telefax: (000) 000-0000
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Any Party may change the address to which notices, requests, demands, claims,
and other communications hereunder are to be delivered by giving the other
Parties notice in the manner herein set forth.
18. Venue. The Parties acknowledge that a substantial portion of negotiations
and anticipated performance and execution of this Agreement occurred or shall
occur in the City and County of Miami Dade, Florida, and that, therefore, each
of the Parties irrevocably and unconditionally:
(i) agrees that any suit, action or legal proceeding arising out of or
relating to this Agreement shall be brought in the courts of record of
the State of Florida in the City of Miami and County of Miami-Date or
the courts of the Southern United States of Florida, Southern
Division;
(ii) consents to the jurisdiction of each such court in any suit, action or
proceeding;
(iii) waives any objection which it may have to the laying of venue of any
such suit, action or proceeding in any of such courts; and
(iv) agrees that service of any court paper may be effected on such Party
by mail, as provided in this Agreement, or in such other manner as may
be provided under applicable laws or court rules in said state.
19. Prevailing Parties. If any legal action or other proceeding is brought for
the enforcement of this Agreement, or because of an alleged dispute, breach,
default or misrepresentation in connection with any provision of this Agreement,
the successful or prevailing Party or Parties shall be entitled to recover
reasonable attorneys' fees, sales and use taxes, court costs and all expenses
even if not taxable as court costs (including, without limitation, all such
fees, taxes, costs and expenses incident to arbitration, appellate, bankruptcy
and post-judgment proceedings), incurred in that action or proceeding, in
addition to any other relief to which such Party or Parties may be entitled.
20. Expenses. Each Party shall bear their own respective expenses incurred in
connection with this Agreement and with all obligations required to be performed
by each of them under this Agreement.
THE EXECUTIVE ACKNOWLEDGES THAT THE EXECUTIVE HAS READ THIS AGREEMENT,
UNDERSTANDS EACH OF ITS TERMS AND CONDITIONS INCLUDING ANY TAX OR OTHER
CONSEQUENCES, AND HAS THE OPPORTUNITY TO CONSULT INDEPENDENT LEGAL COUNSEL OF
THE EXECUTIVE'S CHOICE PRIOR TO EXECUTING THIS AGREEMENT.
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IN WITNESS WHEREOF, this Agreement has been duly signed by the Executive
and on behalf of the Company as of the day and year first above written.
THE COMPANY:
PHONE1GLOBALWIDE, INC.
By: /s/ Dario Echererry
-------------------
Xxxxx Xxxxxxxxx
President
THE EXECUTIVE:
/s/ Xxxxxxxx Xxxxxxx
--------------------
Xxxxxxxx Xxxxxxx
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