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:
1. Employment. Subject
to the terms and conditions set forth herein, the Company shall employ the
Executive as Chief Financial Officer of the Company and the Executive accepts
such employment for the Employment Term (as defined in Section
3). During the Employment Term, the Executive 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. During
the Employment Term, the Executive 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 Executive shall devote his best talents, efforts and
abilities to the performance of his duties hereunder.
3. Employment
Term. Unless earlier terminated pursuant to Section 6, the
employment term shall begin on May 25, 2010 (the "Effective Date"), and
shall continue for a period of one (1) year from such date (the "Initial Term");
provided that such term shall be automatically extended for additional periods
of one (1) year commencing on May 25, 2011 and each March 16th 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 sixty (60) 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 Executive’s other agreements hereunder, during the
Employment Term, the Company shall pay the Executive a base salary, payable in
accordance with the customary payroll practices of Company procedures, at a
monthly rate of S$7,000.00 (based upon full time employment), 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) All
taxes associated to with this employment shall be the responsibility of the
Executive.
5. Benefits. During
the Employment Term, the Company shall provide the Executive with the following
benefits:
(a) Vacation. The
Executive shall be entitled fourteen days 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, unless
approved by the Company. Unused vacation may not be carried over to
successive years.
(b) Expenses. The
Executive 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.
(c) Dues and Professional
Development. The Executive shall be reimbursed for expenses
actually incurred or paid by him in connection with maintaining her professional
designations including payment of dues and attendance at professional
development courses.
6. Termination. The
employment hereunder of the Executive 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 Executive for Good Cause (as such term is defined in
Section 6(h)(ii)) by written notice to the Executive specifying the particulars
of the circumstances forming the basis for such Good Cause.
(b) Termination upon
Death. The employment of the Executive hereunder shall
terminate immediately upon her death.
(c) The Company's Options upon
Disability. If the Executive becomes physically or mentally
disabled during the Term so that she is unable to perform the services required
of her 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 Executive's employment hereunder pursuant
to Section 6(a); or (B) continue the employment of the Executive hereunder upon
all the terms and conditions set forth herein. During the Disability
Period, the Executive 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 Executive is a beneficiary or
recipient.
(d) Voluntary Resignation by the
Executive. The Executive 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 Executive's employment hereunder without Good Cause by written
notice to the Executive, but the obligations placed upon the Company in Section
7 will apply.
(f) Resignation by the Executive
for Good Reason. The Executive 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.
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(g) Termination
Date. The "Termination Date" is
the date as of which the Executive'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:
(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;
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(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.
7. Obligations of Company on
Termination. Notwithstanding anything in this Agreement to the
contrary, the Company's obligations on termination of the Executive's employment
shall be as described in this Section 7. In the vent that prior to
the expiration of the Employment Term, the Company terminates the Executive's
employment, pursuant to Section 6(a), (b), (c) or (e), or the Executive resigns,
pursuant to Section 6 (d) or 6(f), within thirty (30) days following the
Termination Date, the Company shall pay the Executive a single lump sum cash
payment (the "Severance Payment")
equal to the sum of the following:
(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.
8. Covenants of the
Executive
(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.
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(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.
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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
Executive’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 Executive 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
Executive:
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Sarocha Hatthasakul
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[private address]
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If to the
Company:
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00
Xxxxxxxxxxxx Xxxx Xxxx
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Xxxxxxxxx 000000
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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.
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(c) Performance;
Assignability. The Executive represents and warrants to the
Company that the Executive has no contracts or agreements of any nature that the
Executive has entered into with any other person, firm or corporation that
contain any restraints on the Executive’s ability to perform his obligations
under this Agreement. The Executive may not
assign his interest in or delegate his duties under this
Agreement. This Agreement is for the employment of the Executive,
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 Executive to
compensation from the Company in the same amount and on the same terms as if the
Executive 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 Executive 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 Executive 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.
(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 Executive 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.
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(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.
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Date:
31/05/2010
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INTELLIGENT
COMMUNICATION
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ENTERPRISE
CORPORATION
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By
/s/ Xxxxxx X. Xxx
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Name:
Xxxxxx X. Xxx
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Title:
Chief Executive Officer
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SAROCHA
HATTHASAKUL
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Date:
31/05/2010
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/s/
Sarocha Hatthasakul
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