EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS EMPLOYMENT AGREEMENT is
made effective as of the 14th day
of December, 2009 (the “Effective Date”).
AMONG:
Clicker Inc., a corporation
formed pursuant to the laws of the State of Nevada and having an office for
business located at 00000 XxxXxxxxx Xxxx, Xxxxx 000, Xxxxxx, XX 00000
("Employer");
AND
XXXXXX XXXXXX, an individual
having an address at 00000 XxxXxxxxx Xxxx Xxx 000, Xxxxxx, Xx 00000
(“Employee”)
WHEREAS, Employee has agreed
to continue to serve as an Employee of Employer, and Employer has agreed to hire
Employee as such, pursuant to the terms and conditions of this Employment
Agreement (the “Agreement”).
NOW THEREFORE THIS AGREEMENT
WITNESSETH THAT in consideration of the premises and the mutual
covenants, agreements, representations and warranties contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Employee and Employer hereby agree as follows:
ARTICLE
1
EMPLOYMENT
Employer
hereby affirms, renews and extends the employment of Employee as Chief Executive
Officer, and Employee hereby affirms, renews and accepts such employment by
Employer for the “Term” (as defined in Article 3 below), upon the terms and
conditions set forth herein.
ARTICLE
2
DUTIES
During
the Term, Employee shall serve Employer faithfully, diligently and to the best
of his ability, under the direction and supervision of the Board of Directors
(the “Board”) of Employer and shall use his best efforts to promote the
interests and goodwill of Employer and any affiliates, successors, assigns,
subsidiaries, and/or future purchasers of Employer. Employee shall render such
services during the Term at Employer’s principal place of business or at such
other place of business as may be determined by the Board, as Employer may from
time to time reasonably require of him, and shall devote all of his business
time to the performance thereof. Employee shall have those duties and powers as
generally pertain to each of the offices of which he holds, as the case may be,
subject to the control of the Board.
ARTICLE
3
TERM
The
“Term” of this Agreement shall commence on the Effective Date and continue
thereafter for a term of two (2) years, as may be extended or earlier terminated
pursuant to the terms and conditions of this Agreement. The Term of this
Agreement shall automatically renew for successive one (1) year periods unless,
prior to the 30th
calendar day preceding the expiration of the then existing Term, either Employer
or Employee provides written notice to the other that it elects not to renew the
Term. Upon delivery of such notice, this Agreement shall continue until
expiration of the Term, whereupon this Agreement shall terminate and neither
party shall have any further obligation thereafter arising under this Agreement,
except as explicitly set forth herein to the contrary.
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ARTICLE
4
COMPENSATION
Salary
4.1
Employer
shall pay to Employee an annual base salary (the “Base Salary”) of Three Hundred
Twenty-Five Thousand Dollars ($325,000.00). For each year of the Term
of Employment, the Annual Base Salary shall be increased by 10%. All payments
shall be made in equal monthly installments, in arrears, or such other
installments as may be consistent with the payroll practices of Employer for its
senior executives.
Benefits
4.2
During
the Term, Employee shall be entitled to participate in all medical and other
employee benefit plans, including vacation, sick leave, retirement accounts and
other employee benefits provided by the Employer to similarly situated employees
on terms and conditions no less favorable than those offered to such employees.
Such participation shall be subject to the terms of the applicable plan
documents, Employer’s generally applicable policies, and the discretion of the
Board of Directors or any administrative or other committee provided for in, or
contemplated by, such plan.
Expense
Reimbursement
4.3
Employer
shall reimburse Employee for reasonable and necessary expenses incurred by him
on behalf of Employer in the performance of his duties hereunder during the Term
in accordance with Employer's then customary policies, provided that such
expenses are adequately documented.
Preferred
Stock
4.4
Upon
execution of this Agreement, Employer shall designate a class of series A
preferred stock (the “Preferred Stock”), which shall be reasonably be acceptable
to Employee and Employer. The Preferred Stock shall consist of 100
shares to be issued to Employee. The Preferred Stock shall be
non-convertible and will be entitled to cast such number of votes equal to 51%
of all votes entitled to be cast at a meeting of all common
shareholders.
Bonus
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4.5
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In
addition to the Salary, Employee shall be eligible to receive bonuses, based on
the performance of the Employer, at the discretion of the Board of
Directors.
ARTICLE
5
OTHER
EMPLOYMENT
During
the Term of this Agreement, Employee shall devote substantially his business and
professional time and effort, attention, knowledge, and skill to the management,
supervision and direction of Employer’s business and affairs as Employee’s
highest professional priority. Except as provided below, Employer shall be
entitled to all benefits, profits or other issues arising from all work related
to company, services and advice performed or provided by Employee. Provided that
the activities listed below do not materially interfere with the duties and
responsibilities under this Agreement, nothing in this Agreement shall preclude
Employee from devoting reasonable periods required for:
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(a)
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Serving
as a member of any organization involving no conflict of interest with
Employer, provided that Employee must obtain the written consent of the
Board;
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(b)
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Serving
as a consultant in his area of expertise to government, commercial and
academic and business panels where it does not conflict with the interests
of Employer; and
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(c)
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Managing
his personal investments or engaging in any other non-competing
business
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(d)
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Acting
as a consultant for non-competing
business
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ARTICLE
6
CONFIDENTIAL
INFORMATION/INVENTIONS
Confidential
Information
6.1
Employee
shall not, in any manner, for any reasons, either directly or indirectly,
divulge or communicate to any person, firm or corporation, any confidential
information concerning any matters not generally known or otherwise made public
by Employer which affects or relates to Employer’s business, finances, marketing
and/or operations, research, development, inventions, products, designs, plans,
procedures, or other data (collectively, “Confidential Information”) except in
the ordinary course of business or as required by applicable law. Without regard
to whether any item of Confidential Information is deemed or considered
confidential, material, or important, the parties hereto stipulate that as
between them, to the extent such item is not generally known, such item is
important, material, and confidential and affects the successful conduct of
Employer’s business and goodwill, and that any breach of the terms of this
Section 6.1 shall be a material and incurable breach of this Agreement.
Confidential Information shall not include information in the public domain at
the time of the disclosure of such information by Employee or information that
is disclosed by Employee with the prior consent of the Board.
Documents
6.2
Employee
further agrees that all documents and materials furnished to Employee by
Employer and relating to the Employer’s business or prospective business are and
shall remain the exclusive property of Employer. Employee shall deliver all such
documents and materials, not copied, to Employer upon demand therefore and in
any event upon expiration or earlier termination of this Agreement. Any payment
of sums due and owing to Employee by Employer upon such expiration or earlier
termination shall be conditioned upon returning all such documents and
materials, and Employee expressly authorizes Employer to withhold any payments
due and owing pending return of such documents and materials.
Inventions
6.3
All
ideas, inventions, and other developments or improvements conceived or reduced
to practice by Employee, alone or with others, during the Term of this
Agreement, whether or not during working hours, that are within the scope of the
business of Employer or that relate to or result from any of Employer’s work or
projects or the services provided by Employee to Employer pursuant to this
Agreement, shall be the exclusive property of Employer. Employee agrees to
assist Employer, at Employer’s expense, to obtain patents and copyrights on any
such ideas, inventions, writings, and other developments, and agrees to execute
all documents necessary to obtain such patents and copyrights in the name of
Employer.
Disclosure
6.4
During
the Term, Employee will promptly disclose to the Board of Directors of Employer
full information concerning any interest, direct or indirect, of Employee (as
owner, shareholder, partner, lender or other investor, director, officer,
employee, consultant or otherwise) or any member of his immediate family in any
business that is reasonably known to Employee to purchase or otherwise obtain
services or products from, or to sell or otherwise provide services or products
to, Employer or to any of its suppliers or customers.
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ARTICLE
7
COVENANT
NOT TO COMPETE
Except as
expressly permitted in Article 5 above, during the Term of this Agreement, (a)
Employee shall not engage, directly or indirectly, in any business or activity
competitive to any business or activity engaged in, or proposed to be engaged
in, by Employer or (b) soliciting or taking away or interfering with any
contractual relationship of any employee, agent, representative, contractor,
supplier, vendor, customer, franchisee, lender or investor of Employer, or
using, for the benefit of any person or entity other than Employer, any
Confidential Information of Employer. The foregoing covenant prohibiting
competitive activities shall survive the termination of this Agreement and shall
extend, and shall remain enforceable against Employee, for the period of one (1)
year following the date this Agreement is terminated. In addition, during the
one-year period following such expiration or earlier termination, neither
Employee nor Employer shall make or permit the making of any negative statement
of any kind concerning Employer or its affiliates, or their directors, officers
or agents or Employee.
ARTICLE
8
SURVIVAL
Employee
agrees that the provisions of Articles 6, 7 and 9 shall survive expiration or
earlier termination of this Agreement for any reasons, whether voluntary or
involuntary, with or without cause, and shall remain in full force and effect
thereafter. Notwithstanding the foregoing, if this Agreement is
terminated upon the dissolution of Employer, the filing of a petition in
bankruptcy by Employer or upon an assignment for the benefit of creditors of the
assets of Employer, Articles 6, 7 and 9 shall be of no further force or
effect.
ARTICLE
9
INJUNCTIVE
RELIEF
Employee
acknowledges and agrees that the covenants and obligations of Employee set forth
in Articles 6 and 7 with respect to non-competition, non-solicitation,
confidentiality and Employer’s property relate to special, unique and
extraordinary matters and that a violation of any of the terms of such covenants
and obligations will cause Employer irreparable injury for which adequate
remedies are not available at law. Therefore, Employee agrees that Employer
shall be entitled to an injunction, restraining order or such other equitable
relief (without the requirement to post bond) as a court of competent
jurisdiction may deem necessary or appropriate to restrain Employee from
committing any violation of the covenants and obligations referred to in this
Article 9. These injunctive remedies are cumulative and in addition to any other
rights and remedies Employer may have at law or in equity.
ARTICLE
10
TERMINATION
Termination
by Employee
10.1
Employee
may terminate this Agreement for Good Reason at any time upon 30 days’ written
notice to Employer, provided the Good Reason has not been cured within such
period of time. Employee may terminate this Agreement at any time for
any reason upon 30 days’ prior notice to Employer.
Good
Reason
10.2
In this
Agreement, “Good Reason” means, without Employee’s prior written consent, the
occurrence of any of the following events, unless Employer shall have fully
cured all grounds for such termination within thirty (30) days after Employee
gives notice thereof:
(i) any
reduction in his then-current Salary;
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(ii)
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any
material failure to timely grant, or timely honor, any equity or long-term
incentive award;
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(iii)
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failure
to pay or provide required compensation and
benefits;
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(iv)
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any
failure to appoint, elect or reelect him to the position of Chief
Executive Officer Employer; the removal of him from such position; or any
changes in the reporting structure so that Employee reports to someone
other than the Board;
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(v)
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any
material diminution in his title or duties or the assignment to him of
duties not customarily associated with Employee’s position as Chief
Executive Officer of Employer;
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(vi)
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the
failure of Employer to obtain the assumption in writing of its obligation
to perform the Employment Agreement by any successor to all or
substantially all of the assets of Employer or upon a merger,
consolidation, sale or similar transaction of Employer
or;
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(vii)
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the
voluntary or involuntary dissolution of Employer, the filing of a petition
in bankruptcy by Employer or upon an assignment for the benefit of
creditors of the assets of
Employer.
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The
written notice given hereunder by Employee to Employer shall specify in
reasonable detail the cause for termination, and such termination notice shall
not be effective until thirty (30) days after Employer’s receipt of such notice,
during which time Employer shall have the right to respond to Employee’s notice
and cure the breach or other event giving rise to the termination.
Termination
by Employer
10.3
Employer
may terminate its employment of Employee under this Agreement for cause at any
time by written notice to Employee. For purposes of this Agreement, the term
“cause” for termination by Employer shall be (a) a conviction of or plea of
guilty or nolo contendere
by Employee to a felony, or any crime involving fraud or embezzlement;
(b) the refusal by Employee to perform his material duties and obligations
hereunder; (c) Employee’s willful and intentional misconduct in the performance
of his material duties and obligations; or (d) if Employee or any member of his
family makes any personal profit arising out of or in connection with a
transaction to which Employer is a party or with which it is associated without
making disclosure to and obtaining the prior written consent of Employer. The
written notice given hereunder by Employer to Employee shall specify in
reasonable detail the cause for termination. In the case of a termination for
the causes described in (a) and (d) above, such termination shall be effective
upon receipt of the written notice. In the case of the causes described in (b)
and (c) above, such termination notice shall not be effective until thirty (30)
days after Employee’s receipt of such notice, during which time Employee shall
have the right to respond to Employer’s notice and cure the breach or other
event giving rise to the termination.
Severance
10.4
Upon a
termination of this Agreement without Good Reason by Employee or with cause by
Employer, Employer shall pay to Employee all accrued and unpaid compensation as
of the date of such termination, subject to the provision of Section 6.2. Upon a
termination of this Agreement with Good Reason by Employee or without cause by
Employer, Employer shall pay to Employee all accrued and unpaid compensation and
expense reimbursement as of the date of such termination and the “Severance
Payment.” The Severance Payment shall be payable in a lump sum,
subject to Employer’s statutory and customary withholdings. If the
termination of Employee hereunder is by Employee with Good Reason, the Severance
Payment shall be paid by Employer within five (5) business days of the
expiration of any applicable cure period. If the termination of Employee
hereunder is by Employer without cause, the Severance Payment shall be paid by
Employer within five (5) business days of termination. The “Severance
Payment” shall equal the amount of the Salary payable to Employee under Section
4.1 of this Agreement from the date of such termination until the end of the
Term of this Agreement (prorated for any partial month).
Termination
Upon Death
10.5
If
Employee dies during the Term of this Agreement, this Agreement shall terminate,
except that Employee’s legal representatives shall be entitled to receive any
earned but unpaid compensation or expense reimbursement due hereunder through
the date of death.
Termination
Upon Disability
10.6
If,
during the Term of this Agreement, Employee suffers and continues to suffer from
a “Disability” (as defined below), then Employer may terminate this Agreement by
delivering to Employee thirty (30) calendar days’ prior written notice of
termination based on such Disability, setting forth with specificity the nature
of such Disability and the determination of Disability by Employer. For the
purposes of this Agreement, “Disability” means Employee’s inability, with
reasonable accommodation, to substantially perform Employee’s duties, services
and obligations under this Agreement due to physical or mental illness or other
disability for a continuous, uninterrupted period of sixty (60) calendar days or
ninety (90) days during any twelve month period. Upon any such
termination for Disability, Employee shall be entitled to receive any earned but
unpaid compensation or expense reimbursement due hereunder through the date of
termination.
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ARTICLE
11
PERSONNEL
POLICIES, CONDITIONS, AND BENEFITS
Except as
otherwise provided herein, Employee’s employment shall be subject to the
personnel policies and benefit plans which apply generally to Employer’s
employees as the same may be interpreted, adopted, revised or deleted from time
to time, during the Term of this Agreement, by Employer in its sole discretion.
During the Term hereof, Employee shall be entitled to vacation during each year
of the Term at the rate of three (3) weeks per year. Employee shall take such
vacation at a time approved in advance by Employer, which approval will not be
unreasonably withheld but will take into account the staffing requirements of
Employer and the need for the timely performance of Employee's
responsibilities.
ARTICLE
12
BENEFICIARIES
OF AGREEMENT
This
Agreement shall inure to the benefit of Employer and any affiliates, successors,
assigns, parent corporations, subsidiaries, and/or purchasers of Employer as
they now or shall exist while this Agreement is in effect.
ARTICLE
13
GENERAL
PROVISIONS
No
Waiver
13.1
No
failure by either party to declare a default based on any breach by the other
party of any obligation under this Agreement, nor failure of such party to act
quickly with regard thereto, shall be considered to be a waiver of any such
obligation, or of any future breach.
Modification
13.2
No waiver
or modification of this Agreement or of any covenant, condition, or limitation
herein contained shall be valid unless in writing and duly executed by the
parties to be charged therewith.
Choice
of Law/Jurisdiction
13.3
This
Agreement shall be governed by and construed in accordance with the laws of the
State of California, without regard to any conflict-of-laws principles. Employer
and Employee hereby consent to personal jurisdiction before all courts in the
State of California, and hereby acknowledge and agree that California is and
shall be the most proper forum to bring a complaint before a court of
law.
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Entire
Agreement
13.4
This
Agreement embodies the whole agreement between the parties hereto regarding the
subject matter hereof and there are no inducements, promises, terms, conditions,
or obligations made or entered into by Employer or Employee other than contained
herein.
Severability
13.5
All
agreements and covenants contained herein are severable, and in the event any of
them, with the exception of those contained in Articles 1 and 4 hereof, shall be
held to be invalid by any competent court, this Agreement shall be interpreted
as if such invalid agreements or covenants were not contained
herein.
Headings
13.6
The
headings contained herein are for the convenience of reference and are not to be
used in interpreting this Agreement.
Independent
Legal Advice
13.7
Employer
has obtained legal advice concerning this Agreement and has requested that
Employee obtain independent legal advice with respect to same before executing
this Agreement. Employee, in executing this Agreement, represents and
warranties to Employer that he has been so advised to obtain independent legal
advice, and that prior to the execution of this Agreement he has so obtained
independent legal advice, or has, in his discretion, knowingly and willingly
elected not to do so.
No
Assignment
13.8
Employee
may not assign, pledge or encumber his interest in this Agreement nor assign any
of his rights or duties under this Agreement without the prior written consent
of Employer.
[Signature
page follows]
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IN WITNESS WHEREOF the parties
have executed this Agreement effective as of the day and year first above
written.
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Employer:
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By:
/s/ Xxxxx
xx
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Xxxxx
le
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By:
/s/Xxxxxx
Xxxxxx
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Xxxxxx
Xxxxxx
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