EXHIBIT 10.26
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made by and between TechAlt,
Inc., a corporation duly organized and existing under the laws of the State of
Nevada (the "Company"), and Xxxxxx Xxxxxxx, an individual residing in the State
of Illinois ("Consulting Executive").
RECITALS
WHEREAS, the has experience and expertise in legal services regarding
litigation settlement and risk analysis for small and medium-size publicly held
companies; and
WHEREAS, the Company and Consulting Executive have determined that it
is in their respective best interest to enter into this Agreement on the terms
and conditions as set forth herein; and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and promises contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Nature of Agreement.
1.1. Cancellation of Prior Offers. Any and all prior oral
understandings, offers, and/or representations (if any) with respect to the
employment of Consulting Executive are deemed by the parties to be either
canceled and void and/or are deemed to be superseded by this final written
Agreement.
2. Employment Terms and Duties.
2.1. Term of Employment. The employment of Consulting Executive under
this Agreement shall be deemed to have commenced on October 15, 2005 (the
"Effective Date"), and shall continue for a period of one (1) year (the "Initial
Term"). This Agreement shall be automatically renewed for additional consecutive
one (1) year periods (the "Renewal Term," and together with the Initial Term,
the "Employment Term") unless written notice of the intention to let this
Agreement expire is provided by the Company to Consulting Executive thirty (30)
days prior to the expiration of the Initial Term (or prior to the expiration of
the Renewal Term in the event of a renewal).
2.2. Location. Consulting Executive agrees that he shall carry out his
duties and obligations under the terms of this Agreement at his home office, or
the Company's principal office as required by the Company.
2.3. Position and Primary Responsibility. It is understood that
Consulting Executive shall serve as Litigation Officer and Legal Analysis
Manager of the Company.
3. Compensation.
3.1. Base Compensation. In consideration for the services rendered to
the Company hereunder by Consulting Executive and Consulting Executive's
covenants hereunder, the Company shall, during the Employment Term, pay
Consulting Executive compensation at the initial rate of two hundred fifty
(250,000) options for the purchase of common stock of the Company (the
"Options"), which shares shall be registered on Form S-8 ("Base Compensation").
The Options shall have an exercise price of $.001 and shall be exercisable on a
cashless basis at the Consulting Executive's option. Shares issued pursuant to
the exercise of options in connection with this Agreement shall be issued to
Xxxxxx Xxxxxxx, the natural person performing the employment services for the
Company. All shares and certificates representing such shares shall be subject
to applicable SEC, federal, state (Blue sky) and local laws and additional
restrictions set forth herein.
3.2. Payment. All compensation payable to Consulting Executive
hereunder shall be subject to the Company's rules and regulations, and shall
also be subject to all applicable State and federal employment law(s); it being
understood that Consulting Executive shall be responsible for the payment of all
taxes resulting from a determination that any portion of the compensation and/or
benefits paid/received hereunder is a taxable event to Consulting Executive; it
being further understood that Consulting Executive shall hold the Company
harmless from any governmental claim(s) for Consulting Executive's personal tax
liabilities, including interest or penalties, arising from any failure by
Consulting Executive to pay his individual taxes when due.
3.3. Compensation Review. It is understood and agreed that Consulting
Executive's performance will be reviewed by the Company's Board of Directors on
a monthly basis during the Employment Term of this Agreement is in force for the
purpose of determining whether or not Consulting Executive's Base Compensation
should be modified and/or adjusted; it being further understood that the
decision to increase Consulting Executive's compensation shall be at the sole
and exclusive option of the Board of Directors.
4. Benefits.
4.1. Reimbursement for Business Expenses. The Company, subject to its
prior consent, shall reimburse Consulting Consulting Executive for all
reasonable business expense(s) actually incurred prior to and after the
Effective Date of this Agreement by Consulting Consulting Executive on behalf of
the Company in the performance of his duties hereunder upon prior presentation
by Consulting Consulting Executive of voucher(s), receipt(s) or other written
evidence(s) in accordance with the policies of the Company and the rules of the
Internal Revenue Service. This includes reimbursement for reasonable business
expenses incurred by Consulting Consulting Executive while working from his home
office, such as telephone, fax and internet services, and general office
supplies.
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5. Confidential Information and Records.
5.1. Consulting Consulting Executive represents that his employment
with the Company under the terms of this Agreement will not conflict with any
continuing duty(ies) or obligation(s) Consulting Consulting Executive has with
any other person(s), firm(s) and/or entity(ies). Consulting Consulting Executive
also represents that he has not brought to the Company (during the period before
or after the Effective Date of this Agreement) any material(s) and/or
document(s) of any former employer(s), or any confidential information or
property belonging to other(s).
5.2. Consulting Consulting Executive also represents that he will not
disclose to any person(s) or entity(ies) (other than to the Company's Board of
Directors, or to others as required in the performance of his duties) any
confidential or secret information with respect to the business or affairs of
the Company and/or its product(s).
6. Termination. Consulting Consulting Executive's employment and this Agreement
(except as otherwise provided hereunder) shall terminate upon the occurrence of
any of the following, at the time set forth therefor (the "Termination Date"):
6.1 Voluntary Termination. Fourteen (14) days following Consulting
Consulting Executive's written notice to the Company of voluntary termination of
employment; provided, however, that the Company may waive all or a portion of
the Fourteen (14) days' notice and accelerate the effective date of such
termination (and the Termination Date) (termination pursuant to this Section 6.2
being referred to herein as "Voluntary" termination); or
6.2 Termination For Cause. Immediately following notice of termination
for "Cause" (as defined below), specifying such Cause, given by the Company
(termination pursuant to this Section 6.2 being referred to herein as
termination for "Cause"). As used herein, "Cause" means (i) termination based on
Consulting Consulting Executive's conviction or plea of "guilty" or "no contest"
to any crime constituting a felony in the jurisdiction in which the crime
constituting a felony is committed, any crime involving moral turpitude (whether
or not a felony), or any other violation of criminal law involving dishonesty or
willful misconduct that materially injures the Company (whether or not a
felony); (ii) Consulting Consulting Executive's substance abuse that in any
manner interferes with the performance of his duties; (iii) Consulting
Consulting Executive's failure or refusal to perform his duties at all or in an
acceptable manner, or to follow the lawful and proper directives of the Board of
Directors or Consulting Consulting Executive's supervisor(s) that are within the
scope of Consulting Consulting Executive's duties; (iv) Consulting Consulting
Executive's breach of this agreement; (v) Consulting Consulting Executive's
breach of the Company's Confidentiality, Proprietary Information and Inventions
policies; (vi) misconduct by Consulting Consulting Executive that has or could
discredit or damage the Company; (vii) Consulting Consulting Executive's
indictment for a felony violation of the federal securities laws; or (viii)
Consulting Consulting Executive's chronic absence from work for reasons other
than illness. Any determination of for Cause termination shall be made by the
Board of Directors of the Company after having first given thirty (30) days
written notice to Consulting Consulting Executive of such determination, and
afforded Consulting Consulting Executive the opportunity to be heard by the full
Board of Directors. Notwithstanding any other provision in this Agreement, if
Consulting Consulting Executive is terminated pursuant to subsection (iii) of
this Section 6.2 for poor job performance, excluding refusal to perform his
duties, Consulting Consulting Executive shall have sixty (60) days to cure the
behavior upon which the threatened termination is based.
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6.3 Termination Without Cause. Notwithstanding any other provisions
contained herein, the Company may terminate Consulting Executive's employment
fourteen (14) days following notice of termination without Cause given by the
Company; provided, however, that during any such fourteen (14) day notice
period, the Company may suspend, with no reduction in pay or benefits,
Consulting Executive from his duties as set forth herein (including, without
limitation, Consulting Executive's position as a representative and agent of the
Company) (termination pursuant to this Section 6.4 being referred to herein as
termination "Without Cause").
6.4 Other Remedies. Termination pursuant to Section 6.3 above shall be
in addition to and without prejudice to any other right or remedy to which the
Company may be entitled at law, in equity, or under this Agreement.
7. Severance and Termination.
7.1. Voluntary Termination, Termination for Cause, Termination for
Death or Disability. In the case of a termination of Consulting Consulting
Executive's employment hereunder for Death in accordance with Section 6.1 above,
or Consulting Consulting Executive's Voluntary termination of employment
hereunder in accordance with Section 6.2 above, or a termination of Consulting
Consulting Executive's employment hereunder for Cause in accordance with Section
6.3 above, (i) Consulting Consulting Executive shall not be entitled to receive
payment of, and the Company shall have no obligation to pay, any severance or
similar compensation attributable to such termination, other than Base
compensation earned but unpaid, accrued but unused vacation to the extent
required by the Company's policies and any non-reimbursed expenses pursuant to
Section 4 hereof incurred by Consulting Consulting Executive as of the
termination date, and (ii) the Company's obligations under this Agreement shall
immediately cease. Provided further, in the event of Consulting Consulting
Executive's Voluntary termination of employment hereunder in accordance with
Section 6.2 above, or a termination of Consulting Consulting Executive's
employment hereunder for Cause in accordance with Section 6.3 above, Consulting
Consulting Executive shall tender back to the Company all unvested options
granted to Consulting Consulting Executive by the Company in connection with
Consulting Consulting Executive's employment.
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8. Severance Conditioned on Release of Claims.
The Company's obligation to provide Consulting Consulting Executive
with any severance payment shall be addressed in further good faith negotiations
and contingent upon Consulting Consulting Executive's execution of a
satisfactory release of claims in favor of the Company.
9. Inventions, Discoveries and Improvements.
Any and all invention(s), discovery(ies) and improvement(s), whether
protectible or unprotectible by Patent, trademark, copyright or trade secret,
made, devised, or discovered by Consulting Consulting Executive, whether by
Consulting Consulting Executive alone or jointly with others, from the time of
entering the Company's employ until the earlier of the Termination Date of this
Agreement or the actual date of termination of employment, relating or
pertaining in any way to Consulting Consulting Executive's employment with the
Company, shall be promptly disclosed in writing to the Board of Directors of the
Company, and become and remain the sole and exclusive property of the Company.
Consulting Consulting Executive agrees to execute any assignments to the
Company, or its nominee, of the Consulting Consulting Executive's entire right,
title, and interest in and to any such inventions, discoveries and improvements
and to execute any other instruments and documents requisite or desirable in
applying for and obtaining Patents, trademarks or copyrights at the cost of the
Company, with respect thereto in the United States and in all foreign countries,
that may be requested by the Company. Consulting Consulting Executive further
agrees, whether or not then in the employment of the Company, to cooperate to
the fullest extent and in the manner that may be reasonably requested by the
Company in the prosecution and/or defense of any suit(s) involving claim(s) of
infringement and/or misappropriation of proprietary rights relevant to
Patent(s), trademark(s), copyright(s), trade secret(s), processes, and/or
discoveries involving the Company's product(s); it being understood that all
reasonable costs and expenses thereof shall be paid by the Company. The Company
shall have the sole right to determine the treatment of disclosures received
from Consulting Consulting Executive, including the right to keep the same as a
trade secret, to use and disclose the same without a prior Patent Application,
to file and prosecute United States and foreign Patent Application(s) thereon,
or to follow any other procedure which the Company may deem appropriate. In
accordance with this provision, Consulting Consulting Executive understands and
is hereby further notified that this Agreement does not apply to an invention
which the employee developed entirely on his own time without using the
Company's equipment, supplies, facilities, or trade secret information.
10. Confidential Information.
Non-Disclosure. Consulting Consulting Executive represents and agrees
that during the term of this Agreement, and after the Termination Date, he will
not report, publish, disclose, use, or transfer to any person(s) or entity(ies)
any property or information belonging to the Company without first having
obtained the prior express written consent of the Company to do so; it being
understood, however, that information which was publicly known, or which is in
the public domain, or which is generally known, shall not be subject to this
restriction.
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11. Information of Others.
11.1 Consulting Consulting Executive agrees that the Company does not
desire to acquire from Consulting Consulting Executive any secret or
confidential information or "know-how" of others. Consulting Consulting
Executive, therefore, specifically represents to the Company that he will not
bring to the Company any materials, documents, or writings containing any such
information. Consulting Consulting Executive represents and warrants that from
the Effective Date of this Agreement he is free to divulge to the Company,
without any obligation to, or violation of, the rights of others, information,
practices and/or techniques which Consulting Consulting Executive will describe,
demonstrate or divulge or in any other manner make known to the Company during
Consulting Consulting Executive's performance of services. Consulting Consulting
Executive also agrees to indemnify and hold the Company harmless from and
against any and all liabilities, losses, costs, expenses, damages, claims or
demands for any violation of the rights of others as it relates to Consulting
Consulting Executive's misappropriation of secrets, confidential information, or
"know-how" of others.
12. Notice.
All notices and other communications under this Agreement shall be in
writing and shall be delivered personally or mailed by registered or certified
mail, return receipt requested, and shall be deemed given when so delivered or
mailed, to a party at his or its address as follows (or at such other address as
a party may designate by notice given hereunder):
If to Consulting Executive: Xxxxxx Xxxxxxx
0000 XX Xxxxxxxxxx
Xxxx Xxxxxxx, XX 00000
If to the Company: Xxxxx X. Xxxx
The Xxxx Law Group, PLLC
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
With a copy to:
The Xxxx Law Group, PLLC
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
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13. Suit, Jurisdiction.
Any controversy between the Company and Consulting Executive arising
out of or relating to any of the terms, provisions or conditions of this
Agreement shall be submitted to arbitration in accordance with the American
Arbitration Association's National Arbitration Rules for the Resolution of
Employment Disputes. On the written request of either party for arbitration of
such a claim pursuant to this paragraph, the Company and Consulting Executive
shall both be deemed to have waived the right to litigate the claim in any
federal or state court. To the extent that any claim or controversy arising out
of this Agreement cannot be submitted to arbitration as set forth above, each
party hereby agrees that any suit, action or proceeding with respect to this
Agreement, and any transactions relating hereto, shall be brought in the State
of Washington, King County,, and each of the parties hereby irrevocably consents
and submits to the jurisdiction of such Court(s) for the purpose of any such
suit, action or proceeding. Each of the parties hereby waives and agrees not to
assert, by way of motion, as a defense or otherwise, in any such suit, action or
proceeding; any claim that it (he) is not personally subject to the jurisdiction
of the above-named Court(s); and, to the extent permitted by applicable law, any
claim that such suit, action or proceeding is brought in an inconvenient forum
or that the venue of such suit, action or proceeding is improper or that this
Agreement or any replacements hereof or thereof may not be enforced in or by
such Court(s). The Company shall pay any and all costs associated with
arbitration.
14. Miscellaneous.
14.1. Post Termination Obligations. Notwithstanding the termination of
Consulting Executive's employment hereunder, the provision(s) of Section(s) "5,"
"9," "10," "11," and "14" shall survive the Termination Date.
14.2. Assignment. This Agreement shall be assigned to and inure to the
benefit of, and be binding upon, any successor to substantially all of the
assets and business of the Company as a going concern, whether by merger,
consolidation, liquidation or sale of substantially all of the assets of the
Company or otherwise. Consulting Executive understands and agrees, however, that
this Agreement is exclusive and personal to his only, and, as such, he will
neither assign nor subcontract all or part of his undertaking(s) or
obligation(s) under the terms of this Agreement.
14.3. Entire Agreement. Each party acknowledges that this Agreement
constitutes the entire understanding between them, and that there are no other
written or verbal agreement(s) or understanding(s) between them other than those
set forth herein; it being understood that no amendment(s) to this Agreement
shall be effective unless reduced to writing and signed by each party hereto.
14.4. Severability. In the event that any provision of this Agreement
shall be determined to be unenforceable or otherwise invalid, the balance of the
provision(s) shall be deemed to be enforceable and valid; it being understood
that all provision(s) of this Agreement are deemed to be severable, so that
unenforceability or invalidity of any single provision will not affect the
remaining provision(s).
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14.5. Headings. The Section(s) and paragraph heading(s) in this
Agreement are deemed to be for convenience only, and shall not be deemed to
alter or affect any provision herein.
14.6. Interpretation of Agreement. This Agreement shall be interpreted
in accordance plain meaning of its terms and under the laws of the State of
Washington.
14.7. Variation. Any changes in the Sections relating to salary, bonus,
or other material condition(s) after the Effective Date of this Agreement shall
not be deemed to constitute a new Agreement. All unchanged terms are to remain
in force and effect.
14.8. Unenforceability. The unenforceability or invalidity of any
provision(s) of this Agreement shall not affect the enforceability and/or the
validity of the remaining provision(s).
14.9. Collateral Documents. Each party hereto shall make, execute and
deliver such other instrument(s) or document(s) as may be reasonably required in
order to effectuate the purposes of this Agreement.
14.10. Written Policies and Procedures. The Company's written policies
and procedures, as codified and contained in the Company "Handbook," are deemed
to be incorporated herein by this reference.
14.11. Non-Impairment. This Agreement may not be amended or
supplemented at any time unless reduced to a writing executed by each party
hereto. No amendment, supplement or termination of this Agreement shall affect
or impair any of the rights or obligations which may have matured thereunder.
14.12. Execution. This Agreement may be executed in one or more
counterpart(s), and each executed counterpart(s) shall be considered by the
parties as an original.
14.13. Legal Counsel. Consulting Executive represents to the Company
that he has retained legal counsel of his own choosing, and was given sufficient
opportunity to obtain legal counsel prior to executing this Agreement.
Consulting Executive also represents that he has read each provision of this
Agreement and understands its meaning.
14.14. Effect of Merger, Transfer of Assets, Dissolution. This
Agreement shall not be terminated by any voluntary or involuntary dissolution of
the Company resulting from either a merger or consolidation in which the Company
is not the consolidated or surviving corporation, or a transfer of all or
substantially all of the assets of the Company. In the event of any such merger,
or consolidation or transfer of assets, the Company's rights, benefits, and
obligations hereunder shall be assigned to the surviving or resulting
corporation or the transferee of the Company's assets.
14.15. Transition. In the event that Consulting Executive's employment
with the Company terminates, Consulting Executive shall, through the last day of
employment, and at the Company's request, use Consulting Executive's reasonable
best efforts (at the Company's expense) to assist the Company in transitioning
Consulting Executive's duties and responsibilities to Consulting Executive's
successor and maintaining the Company's professional relationship with all
customers, suppliers, etc. Without limiting the generality of the foregoing,
Consulting Executive shall cooperate and assist the Company, at the Company's
direction and instruction, during the transition period between any receipt of
or giving of notice of the termination of employment and the final day of
employment.
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IN WITNESS WHEREOF, the parties hereto have set their hands the day and
year written below.
THE COMPANY:
TECHALT, INC.
Date:
------------------------------------ ----------------------------
By: Xxxxx X. Xxxx
Its: Director and Consulting Executive Officer
CONSULTING EXECUTIVE:
Date:
------------------------------------ ----------------------------
By: Xxxxxx Xxxxxxx
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EXHIBIT A
OPTION EXERCISE FORM
I, _____________________________, do hereby exercise the Option with a
Date of Grant of ___________________, ______ granted to me pursuant to the
Option Agreement. The Shares being purchased and the Total Exercise Price are
set forth below:
Number of Shares: ________________ Shares
Exercise Price Per Share x $ ____________ per Share
Total Exercise Price: = $ ____________.
The Total Exercise Price is included with this Form.
_____ By marking this with an "X", the Employee indicates his or her choice to
exercise these options on a cashless basis.
____________________________________ Date: ___________________
Signature
Send or deliver this Form with an original signature to
The Xxxx Law Group, PLLC
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
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