EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this
"Agreement"),
dated effective as of May 25, 2010, by and between INTELLIGENT COMMUNICATION
ENTERPRISE CORPORATION, a corporation organized and existing under the laws of
the State of Pennsylvania (the "Company"), and
SAROCHA HATTHASAKUL, an individual residing at [private address] (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company wishes to
employ the Executive upon the terms and subject to the conditions set forth
herein, and the Executive desires to enter into this Agreement and accept such
employment, upon such terms and conditions.
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:
(b) All
taxes associated to with this employment shall be the responsibility of the
Executive.
2
(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 Executive to substantially perform his duties, provided, however, that the
Board has delivered to the Executive a written demand to cure the breach or for
substantial performance, which demand specifically identifies the manner in
which the Executive has breached the Agreement or failed to substantially
perform his duties, and the Executive 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 Executive'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 Executive
of any dishonest or wrongful act or the gross negligence of the Executive
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 Executive 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 Executive that the Executive 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 Executive 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 Executive of any duties inconsistent in any material respect
with the Executive'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 Executive'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 Executive;
(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 Executive 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;
3
(C) a
material reduction in the Executive’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 Executive was entitled as of
the Effective Date;
(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 Executive under
this Agreement; and
(E) any
purported termination by the Company of the Executive's employment otherwise
than as expressly permitted by this Agreement.
(a) the
equivalent of three (3) month’s Base Salary; and
(b) any
Base Salary, cash bonuses, vacation and un-reimbursed expenses accrued but
unpaid as of the Termination Date.
(a) During
the Employment Term and for a period of one (1) year thereafter the Executive
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 one (1) year thereafter the Executive
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 Executive; provided that the Executive’s ownership of
securities of eight percent (8%) 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
Executive 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
Executive has no obligation, express or implied, to 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
Executive. All new processes, techniques, know-how, inventions, plans, products,
patents and devices developed, made or invented by the Executive, 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 Executive hereby assigns any and all
rights therein or thereto to the Company.
4
(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 Executive 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 Executive (including, without limitations, any copies thereof) upon
termination of this Agreement for any reason whatsoever.
(e) The
Executive 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 Executive 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 Executive 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
Executive agrees to cooperate with the Company, during the Employment Term and
thereafter (including following the Executive’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 Executive. The Company agrees to reimburse the Executive, on an
after-tax basis, for all expenses actually incurred in connection with his
provision of testimony or assistance.
(h) The
parties agrees that, during the Employment Term and thereafter (including
following the Executive’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.
5
If to the
Executive:
Sarocha Hatthasakul
|
[private address]
|
If to the
Company:
00
Xxxxxxxxxxxx Xxxx Xxxx
|
Xxxxxxxxx 000000
|
(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.
6
7
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:
31/05/2010
|
INTELLIGENT
COMMUNICATION
|
ENTERPRISE
CORPORATION
|
|
By
/s/ Xxxxxx X. Xxx
|
|
Name:
Xxxxxx X. Xxx
|
|
Title:
Chief Executive Officer
|
|
SAROCHA
HATTHASAKUL
|
|
Date:
31/05/2010
|
/s/
Sarocha Hatthasakul
|
8