EMPLOYMENT AGREEMENT
This
Employment Agreement (the “Employment Agreement” or “Agreement”), dated this 10
day of May, 2007 (“Effective Date”), between Secure
Voice Communications, Inc.,
a Texas
corporation (the “Company”), and Xxxx Xxxxx (the “Executive”) an
individual.
WHEREAS,
the
Company desires to engage the service of the Executive; and
WHEREAS,
the
Executive is willing to enter into an agreement with the Company upon the terms
and conditions herein set forth.
NOW,
THEREFORE,
in
consideration of the premises and covenants herein contained, the parties hereto
agree as follows:
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1.
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Term
of Agreement; Termination of Prior Agreement.
Subject to the terms and conditions hereof, the term of employment
of the
Executive under this Employment Agreement shall be for the period
commencing on May 10, 2007 (the “Commencement Date”) and terminating on
May 09, 2010, unless sooner terminated as provided in accordance
with the
provisions of Section 5 hereof. (Such term of this agreement is herein
sometimes called the “Retained Term”).
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2.
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Employment.
As of the Commencement Date, the Company hereby agrees to employ
the
Executive as Chief Financial Officer
of
the Company with such duties as assigned from time to time by the
Company,
and the Executive hereby accepts such employment and agrees to perform
his
duties and responsibilities hereunder in accordance with the terms
and
conditions hereinafter set forth.
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(a)
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Duties.
Executive shall perform such duties as are usually performed by a
Chief
Financial Officer
with such duties as assigned from time to time by the Company
of
a business similar in size and scope as the Company and such other
reasonable additional duties as may be prescribed from time-to-time
by the
Company’s President and Chief Executive Officer which are reasonable and
consistent with the Company’s operations, taking into account Executive’s
expertise and job responsibilities. This agreement shall survive
any job
title or responsibility change. All actions of Executive shall be
subject
and subordinate to the review and approval of the President and Chief
Executive Officer and the board of directors. The President and Chief
Executive Officer of the Company shall be the final and exclusive
arbiter
of all policy decisions relative to the Company’s business (including
their subsidiaries).
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(b)
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Devotion
of Time.
During the term of this agreement, Executive agrees to devote the
necessary time to the business and affairs of the Company (including
their
subsidiaries) to the extent necessary to discharge the responsibilities
assigned to Executive and to use reasonable best efforts to perform
faithfully and efficiently such responsibilities. During the term
of this
Agreement it shall not be a violation of this Agreement for Executive
to
manage personal investments or companies in which personal investments
are
made so long as such activities do not interfere with the performance
of
Executive’s responsibilities with the Company and which companies are not
in direct competition with the
Company.
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(a) Salary.
Executive
will be
compensated by the Company at a monthly base salary of $ 5000.00, from which
shall be deducted income tax withholdings, social security, and other customary
Executive deductions in conformity with the Company’s payroll policy in
effect.
(b) Stock
Bonus.
Executive will receive a sign on stock bonus of 1,600,000 shares of the
Company’s common restricted stock which will be deemed earned as of the date
hereof.
(c) Lock-Up,
Leak-Out Agreement.
As
additional consideration for entering into this Agreement, Executive agrees
to
restrict the amount of shares of Company common stock that he can sell,
including shares previously acquired in the open market, through private
transactions, through previous employment agreements, as well as shares acquired
pursuant to this Agreement, by concurrently entering into the lock-up, leak-out
agreement attached hereto as Exhibit
A.
5.
Termination.
| (a) |
Executive's
employment under the Agreement may be terminated under any of the
following circumstances:
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(i)
Immediately
by the Company, upon 14 days written notice.
(ii)
By
the
Executive at any time, upon 14 days written notice.
| (b) |
Effects
of Termination.
In the event that the Agreement is terminated pursuant to
Section 5(a) or upon expiration of the term of the Agreement, neither
the Executive nor the Company shall have any further obligations
hereunder
except for (a) obligations occurring prior to the date of
termination, and (b) obligations, promises or covenants contained
herein which are expressly made to extend beyond the term of the
Agreement.
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6.
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Revealing
of Trade Secrets, etc.
Executive acknowledges the interest of the Company in maintaining
the
confidentiality of information related to its business and shall
not at
any time during the Employment Term or thereafter, directly or indirectly,
reveal or cause to be revealed to any person or entity the supplier
lists,
customer lists or other confidential business information of the
Company;
provided, however, that the parties acknowledge that it is not the
intention of this paragraph to include within its subject matter
(a)
information not proprietary to the Company, (b) information which
is then
in the public domain through no fault of Executive, or (c) information
required to be disclosed by law.
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7.
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Arbitration.
If a dispute should arise regarding this Agreement, all claims, disputes,
controversies, differences or other matters in question arising out
of
this relationship shall be settled finally, completely and conclusively
by
arbitration of a single arbitrator, which is mutually agreed upon,
in
Houston, Texas, in accordance with the Commercial Arbitration Rules
of the
American Arbitration Association (the "Rules"). Arbitration shall
be
initiated by written demand. This Agreement to arbitrate shall be
specifically enforceable only in the District Court of Xxxxxx County,
Texas. A decision of the arbitrator shall be final, conclusive and
binding
on the Company and the Executive, and judgment may be entered in
the
District Court of Xxxxxx County, Texas, for enforcement and other
benefits. On appointment, the arbitrator shall then proceed to decide
the
arbitration subjects in accordance with the Rules. Any arbitration
held in
accordance with this paragraph shall be private and confidential.
The
matters submitted for arbitration, the hearings and proceedings and
the
arbitration award shall be kept and maintained in strictest confidence
by
Executive and the Company and shall not be discussed, disclosed or
communicated to any persons. On request of any party, the record
of the
proceeding shall be sealed and may not be disclosed except insofar,
and
only insofar, as may be necessary to enforce the award of the arbitrator
and any judgment enforcing an award. The prevailing party shall be
entitled to recover reasonable and necessary attorneys' fees and
costs
from the non-prevailing party.
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8.
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Survival.
In the event that this Agreement shall be terminated, then notwithstanding
such termination, the obligations of Executive pursuant to Section
6 of
this Agreement shall survive such termination.
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9.
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Contents
of Agreement, Parties in Interest, Assignment, etc.
This Agreement sets forth the entire understanding of the parties
hereto
with respect to the subject matter hereof. All of the terms and provisions
of this Agreement shall be binding upon and inure to the benefit
of and be
enforceable by the respective heirs, representatives, successors
and
assigns of the parties hereto, except that the duties and responsibilities
of Executive hereunder which are of a personal nature shall neither
be
assigned nor transferred in whole or in part by Executive. This Agreement
nor any terms of their compensation can be amended except by a written
instrument duly executed by the parties and approved by the majority
shareholder or of the company’s successor if acquired.
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10.
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Severability;
Construction.
If any term or provision of this Agreement shall be held to be invalid
or
unenforceable for any reason, such term or provision shall be ineffective
to the extent of such invalidity or unenforceability without invalidating
the remaining terms and provisions hereof, and this Agreement shall
be
construed as if such invalid or unenforceable term or provision had
not
been contained herein. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity
or
question of intent or interpretation arises, this Agreement shall
be
construed as if drafted jointly by the parties and no presumption
or
burden of proof shall arise favoring or disfavoring any party by
virtue of
the authorship of any of the provisions of this
Agreement.
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11.
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Notices.
Any notice, request, instruction or other document to be given hereunder
by any party to the other party shall be in writing and shall be
deemed to
have been duly given when delivered personally; or five (5) days
after
dispatch by registered or certified mail, postage prepaid, return
receipt
requested; or one (1) day after dispatch by overnight courier service;
in
each case, to the party to whom the same is so given or
made:
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If
to the Company addressed to:
Secure
Voice Communications, Inc.
Attn:
____________________________
If
to Executive addressed to:
Xxxx
X. Xxxxx
00000
Xxxxx Xxxx
Xxxxxx,
Xxxxx 00000
Attn:
____________________________
or
to
such other address as the one party shall specify to the other party in
writing.
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12.
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Counterparts
and Headings.
This Agreement may be executed in one or more counterparts, each
of which
shall be deemed an original and all which together shall constitute
one
and the same instrument. All headings are inserted for convenience
of
reference only and shall not affect the meaning or interpretation
of this
Agreement.
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13.
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Governing
Law; Venue.
This Agreement shall be construed and enforced in accordance with,
the
laws of the State of Texas, without regard to the conflict of laws
provisions thereof. Venue of any dispute concerning this Agreement
shall
be exclusively in Xxxxxx County,
Texas.
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14. Waiver.
The
failure of either party to enforce any provision of this Agreement shall not
be
construed as a waiver or limitation of that party’s right to subsequently
enforce and compel strict compliance with every provision of this
Agreement.
Secure
Voice Communications, Inc. __________________________
By: /s/
J.
Xxxxxxx Xxxxx By: /s/
Xxxx X. Xxxxx
___CEO_______________
_Carl
A. Chase___________
EXHIBIT
A
LOCK-UP/LEAK-OUT
AGREEMENT
THIS
LOCK-UP/LEAK-OUT AGREEMENT
(the
“Agreement”) is made and entered into as of the date set forth on the signature
page below, between Secure
Voice Communications, Inc.,
a Texas
corporation (the “Company”), and Xxxx Xxxxx (“Holder”).
WHEREAS,
the
Holder has received 1,600,000 shares of Secure Voice Communications, Inc. common
stock (“Secure Voice Communications, Inc. Common Stock”) pursuant to an
Employment Agreement
dated May 10, 2007 (“Subscription Agreement”); and
WHEREAS,
the
Holder has agreed to enter into this Agreement and to restrict the sale,
assignment, transfer, conveyance, or hypothecation of the Secure Voice
Communications Common Stock, all on the terms set forth below.
NOW,
THEREFORE,
for
consideration of one dollar ($1.00) and in consideration of the foregoing
premises and the mutual covenants contained herein, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as
follows:
| 1. |
Commencing
eighteen months from the closing date of the acquisition of the Company
common stock the Holder may sell, pledge, hypothecate, transfer,
assign or
in any other manner dispose
of up to a maximum number of 5,000 shares of Secure Voice Communications
Common Stock per day up to a maximum of 3% of Holders’ Secure Voice
Communications Common Stock per 30-day period and does not exceed
7% of
Holders’ Secure Voice Communication Common Stock per 90-day period for
thirty-six (36) months from the date hereof. Subsequent to the thirty-sir
(36) month holding period, the Holder may sell a maximum of 1% of
the
issued and outstanding shares per quarter subject to the restrictions
of
the SEC rule 144.
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| 2. |
The
Holder agrees that it will not engage in any short selling of Secure
Voice
Communications Common Stock during the term of this
Agreement.
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| 3. |
Except
as otherwise provided in this Agreement or any other agreements between
the parties, the Holder shall be entitled to their respective beneficial
rights of ownership of Secure Voice Communications Common Stock,
including
the right to vote the Secure Voice Communication’s Common Stock for any
and all purposes.
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| 4. |
The
Secure Voice Communications Common Stock restrictions covered by
this
Agreement shall be appropriately adjusted should Secure Voice
Communications undergo a forward split or a reverse split or otherwise
reclassify its shares of Secure Voice Communications Common
Stock.
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| 5. |
The
resale restrictions on the Secure Voice Communications Common Stock
set
forth in this Agreement shall be in addition to all other restrictions
on
transfer imposed by applicable United States and state securities
laws,
rules and regulations.
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| 6. |
Secure
Voice Communications or each Holder who fails to fully adhere to
the terms
and conditions of this Agreement shall be liable to every other party
for
any damages suffered by any party by reason of any such breach of
the
terms and conditions hereof. Each Holder agrees that in the event
of a
breach of any of the terms and conditions of this Agreement by any
such
Holder, that in addition to all other remedies that may be available
in
law or in equity to the non-defaulting parties, a preliminary and
permanent injunction and an order of a court requiring such defaulting
Holder to cease and desist from violating the terms and conditions
of this
Agreement and specifically requiring such Holder to perform his/her/its
obligations hereunder is fair and reasonable by reason of the inability
of
the parties to this Agreement to presently determine the type, extent
or
amount of damages that Secure Voice Communications or the non-defaulting
Holder may suffer as a result of any breach or continuation thereof.
In
the event of default hereunder, the non-defaulting parties shall
be
entitled to recover reasonable attorney's fees incurred in the enforcement
of this Agreement.
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| 7. |
This
Agreement sets forth the entire understanding of the parties hereto
with
respect to the subject matter hereof.
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| 8. |
This
Agreement shall be governed by and construed in accordance with the
laws
of the State of Texas applicable to contracts entered into and to
be
performed wholly within said State; and Secure Voice Communications
and
the Holder agree that any action based upon this Agreement may be
brought
in the United States and state courts of Xxxxxx County, Texas only,
and
each submits himself/herself/itself to the jurisdiction of such courts
for
all purposes hereunder.
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IN
WITNESS WHEREOF,
the
undersigned have duly executed and delivered this Agreement as of the day and
year first above written.
Date:
_________________, 2007 Secure
Voice Communications, Inc.
By:
_______________________________________
J.
Xxxxxxx Xxxxx, Chief Executive Officer
HOLDER
By:
_______________________________________
Print
name: _________________________________
Number
of
Secure Voice Communications, Inc. Shares Subject to this Agreement:
___________________________