EMPLOYMENT AGREEMENT
This Employment Agreement, by and between MODAVOX, INC., a Delaware
corporation ("Modavox") and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇"), is effective as of the
date the Certificate of Merger relating to the merger of Kino Interactive, LLC
into Modavox is filed with and accepted by the Delaware Secretary of State (the
"Effective Date"). Modavox and ▇▇▇▇▇▇▇ are sometimes referred to individually as
the "Party" and collectively as the "Parties."
In consideration of the mutual benefits to be derived from this Agreement
and of the representations, warranties, conditions and promises hereinafter
contained, the Parties hereby agree as follows:
1. ENGAGEMENT.
1.1 EMPLOYMENT TERM. Modavox will employ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ will accept
such employment, for a period commencing on the Effective Date and
ending on December 31, 2008 (the "Term"), unless sooner terminated
under the circumstances set forth in Sections 6 and 8 below.
1.2 DUTIES AND RESPONSIBILITIES. During the Term and any extensions
thereof, Modavox will employ ▇▇▇▇▇▇▇ in the capacity of Director of
Technology or in such other capacity as the Board of Directors may
determine from time to time, reporting directly to the Chief
Executive Officer. ▇▇▇▇▇▇▇ will render exclusive services to Modavox
and devote his full time, effort and energies during business hours
to his responsibilities for Modavox, and faithfully and to the best
of his ability discharge those duties.
1.3 LOCATION. ▇▇▇▇▇▇▇'▇ services for Modavox will be based at Modavox's
headquarters in Phoenix, Arizona unless otherwise approved by the
Chief Executive Officer.
2. COMPENSATION.
2.1 SALARY. Subject to the full and complete performance by ▇▇▇▇▇▇▇ of
all of ▇▇▇▇▇▇▇'▇ material obligations hereunder, during the term of
this Agreement, Modavox will pay to ▇▇▇▇▇▇▇ a base salary of
eighty-five thousand dollars ($85,000) per annum. ▇▇▇▇▇▇▇'▇ salary
will be payable in accordance with Modavox's customary payroll
practices, which in no event will be less frequently than on a
monthly basis. All salary payments made to ▇▇▇▇▇▇▇ will be subject
to such deductions, withholdings and limitations as will from time
to time be required by law, governmental regulations or orders.
2.2 FRINGE BENEFITS. ▇▇▇▇▇▇▇ shall be entitled to participate, in
accordance with their terms, in all medical and health plans, life
insurance and pension plans and such other employment benefits or
programs that Modavox maintains for its executive employees from
time to time.
2.3 PARTICIPATION IN DEFERRED COMPENSATION AND STOCK OPTION PLANS.
▇▇▇▇▇▇▇ shall be entitled to participate in all executive bonus
plans and all employee qualified and non-qualified deferred
compensation plans or supplemental income plans or programs
maintained by Modavox, including any Section 401(k) plan adopted by
Modavox, according to the terms and conditions thereof. ▇▇▇▇▇▇▇
shall also be entitled to participate in all stock option and other
incentive plans, according to the terms and conditions thereof.
2.4 PAID VACATIONS. ▇▇▇▇▇▇▇ will be entitled to paid vacation in
accordance with Modavox's vacation policy (including, without
limitation, any restrictions on the amount of accrued time to be
paid at the expiration of the Term).
2.5 EXPENSES. In connection with ▇▇▇▇▇▇▇'▇ performance of ▇▇▇▇▇▇▇'▇
duties and obligations hereunder, ▇▇▇▇▇▇▇ will incur certain
ordinary and necessary expenses of a business character including,
without limitation, travel (including mileage reimbursement), meals
(excluding liquor), entertainment, lodging and cell phone expenses.
Modavox will reimburse ▇▇▇▇▇▇▇ for all such reasonable business
expenses within two (2) weeks following ▇▇▇▇▇▇▇'▇ presentation of
itemized statements therefor in accordance with Modavox's standard
policies.
3. FIDUCIARY OBLIGATIONS. ▇▇▇▇▇▇▇ acknowledges that, as an officer of
Modavox, he will be bound to exercise his corporate powers as a fiduciary
for the common benefit of all of Modavox's stockholders, to wit:
3.1 DUTY OF CARE. ▇▇▇▇▇▇▇ will at all times perform his services
hereunder honestly and in good faith, with sound business judgment
using the level of care that a reasonably prudent person would use
under the given circumstances to make informed decisions on
Modavox's behalf.
3.2 DUTY OF LOYALTY. ▇▇▇▇▇▇▇ will at all times perform his services
hereunder without divided loyalties or obligations to any other
person including, without limitation, to any person who may become
an employer of ▇▇▇▇▇▇▇ following the end of the Term. Accordingly,
and without limiting the generality of the principle set forth in
the preceding sentence, ▇▇▇▇▇▇▇ will breach this Agreement if during
the Term he does the following:
(a) Without prior written notice and written consent of the Board
of Directors, ▇▇▇▇▇▇▇ accepts employment with any business,
individual, partnership, corporation, trust, joint venture,
unincorporated association or other entity or person other
than Modavox at any time during the Term.
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(b) ▇▇▇▇▇▇▇ becomes financially interested in (other than as a
stockholder owning less than two percent (2%) of the
outstanding capital stock of any publicly traded corporation)
or directly associated with any other business or person
engaged in a business that is involved in any business that is
competitive with Modavox's business or activities without the
prior written consent of Modavox.
(c) During the Term, ▇▇▇▇▇▇▇, for any reason whatsoever, either
alone or jointly with or on behalf of others, either directly
or indirectly:
(i) Diverts or takes away, or attempts to divert or take
away, any of Modavox's customers or clients;
(ii) Solicits the employment or engagement of, or otherwise
entices away from the employment of Modavox or any
affiliated entity, any person who is then employed by
Modavox or any such affiliated entity, whether or not
such person would commit any breach of said person's
contract by reason of leaving the service of Modavox or
any affiliated entity; or
(iii) Solicits the employment or engagement of any person who
ceased being employed by Modavox or any affiliated
entity, within six (6) months of ▇▇▇▇▇▇▇'▇ solicitation.
4. EMPLOYEE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT.
▇▇▇▇▇▇▇ acknowledges and confirms his obligations with Modavox under the
Proprietary Information and Inventions Agreement attached hereto as
Exhibit A executed by Modavox and ▇▇▇▇▇▇▇ as of the date hereof (the
"Nondisclosure Agreement").
5. SUSPENSION/TERMINATION.
5.1 DISABILITY.
(a) If ▇▇▇▇▇▇▇ is unable to perform fully his material obligations
hereunder due to a long-term disability (as defined in
Modavox's disability insurance policy), Modavox may terminate
this Agreement on or after the date that ▇▇▇▇▇▇▇ receives his
first, periodic long-term disability payment from Modavox's
insurance carrier.
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(b) If Modavox does not have a long-term disability policy
covering ▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ is prevented from performing
fully his material obligations hereunder by reason of the
occurrence of a long-term disability for a period of twelve
(12) consecutive weeks or sixteen (16) weeks in the aggregate
within any given six (6) calendar month period, Modavox may
terminate this Agreement by giving thirty (30) days prior
written notice to ▇▇▇▇▇▇▇ and by providing a total of twelve
(12) months salary in severance benefits following the date of
the termination notice, payable in accordance with Modavox's
normal payroll policies but in no event in less than twelve
(12) monthly installments. An independent physician reasonably
selected by Modavox will determine the existence of ▇▇▇▇▇▇▇'▇
long-term disability.
5.2 TERMINATION FOR CAUSE.
(a) Modavox may terminate this Agreement immediately upon written
notice to ▇▇▇▇▇▇▇ for "Cause." For purposes of this Agreement,
"Cause" means: (i) ▇▇▇▇▇▇▇'▇ commission of a willful act of
fraud or dishonesty, the purpose or effect of which materially
and adversely affects Modavox; (ii) ▇▇▇▇▇▇▇'▇ conviction of a
felony (other than the first offense of driving under the
influence following the date hereof) or any admission thereof
(whether by plea of NOLO CONTENDERE or otherwise) or ▇▇▇▇▇▇▇'▇
being determined by a governmental authority to have violated,
or enjoined from violating, any federal or state securities
law; or (iii) ▇▇▇▇▇▇▇'▇ breach of any material covenant to
Modavox relating to noncompetition, nonsolicitation,
nondisclosure of proprietary information or surrender of
records, inventions or patents; (iv) ▇▇▇▇▇▇▇'▇ misconduct or
negligence, including conduct detrimental to SurfNet, its
reputation, properties, operations or activities; or (v)
▇▇▇▇▇▇▇'▇ unwillingness or inability to adequately perform his
job duties, or insubordination.
(b) In the event of ▇▇▇▇▇▇▇'▇ termination for Cause, Modavox is
obligated to pay ▇▇▇▇▇▇▇ only the specified salary, bonuses,
fringe benefits, expenses and vacation accrued through the
date of termination.
6. EQUITABLE RELIEF FOR BREACH.
▇▇▇▇▇▇▇ acknowledges that a violation of any of the provisions of Sections
4 and 5 will cause Modavox irreparable injury and damage, the exact amount
of which may be impossible to ascertain and that, for such reason, among
others, Modavox will be entitled, in addition to the remedy set forth at
Section 8, to seek injunctive relief, both PENDENT LITE and permanently,
against ▇▇▇▇▇▇▇ to restrain any further violation of such provisions.
▇▇▇▇▇▇▇ hereby (i) consents to any initiation by Modavox in a court of
competent jurisdiction of any action to enjoin immediately the breach of
Sections 4 and 5, and (ii) hereby releases Modavox from the requirement of
posting any bond in connection with temporary or interlocutory injunctive
relief, to the extent permitted by law. This provision will not, however,
be construed as a waiver of any other rights and remedies Modavox may have
against ▇▇▇▇▇▇▇, including, but not limited to, the recovery for damages.
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7. BREACH BY MODAVOX.
If Modavox breaches this Agreement, ▇▇▇▇▇▇▇ will give Modavox written
notice thereof. If Modavox does not cure such breach within thirty (30)
days of receiving written notice thereof, ▇▇▇▇▇▇▇'▇ remedy will be limited
to compulsory arbitration as set forth at Section 8; provided, however,
the foregoing will not be deemed a waiver of ▇▇▇▇▇▇▇'▇ statutory or common
law right to discontinue rendering services hereunder in the event of a
material breach by Modavox of this Agreement.
8. COMPULSORY ARBITRATION.
Except as provided in Section 6, any controversy, claim and/or dispute
arising out of or relating to this Agreement or the breach hereof or
subject matter hereof (including any action in tort) will be finally and
fully settled by arbitration in Maricopa County, Arizona in accordance
with the then-existing Commercial Arbitration Rules of the American
Arbitration Association (the "AAA"), and judgment upon the award rendered
by the arbitrators may be entered in any court having applicable
jurisdiction. Written notice of demand for arbitration will be given to
the other Party and to the AAA within six (6) months after the
controversy, claim or dispute has arisen or be barred, and in no event
after the date when the institution of court proceedings based on such
dispute would be barred by the applicable statute of limitations.
Controversies, claims and/or disputes will be resolved by one arbitrator
selected by the mutual agreement of the Parties or, failing that agreement
within forty-five (45) days after written notice demanding arbitration, by
the AAA. There will be limited discovery prior to the arbitration hearing
as follows: (i) exchange of witness lists and copies of documentary
evidence and documents related to or arising out of the issues to be
arbitrated, and (ii) depositions of all Party witnesses. Depositions will
be conducted in accordance with the rules or code of Civil Procedure of
the jurisdiction in which the arbitration is conducted, and a court
reporter will record all hearings, with such record constituting the
official transcript of such proceedings. All decisions of the arbitrator
will be in writing, and the arbitrator will provide reasons for the
decision. Each Party shall bear its own respective attorney's fees and
costs in accordance with any dispute or arbitration.
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9. MISCELLANEOUS.
9.1 OBLIGATIONS TO OTHER COMPANIES. ▇▇▇▇▇▇▇ certifies that his
employment with Modavox will not breach any existing agreement or
covenant that ▇▇▇▇▇▇▇ has signed with any other person or entity, or
violate any legal duty that ▇▇▇▇▇▇▇ owes to such other person or
entity. ▇▇▇▇▇▇▇ will not disclose to Modavox, or use on Modavox's
behalf, any trade secrets or proprietary information belonging to
any of ▇▇▇▇▇▇▇'▇ prior employers or any other person or entity.
9.2 ASSIGNMENT. This Agreement will not be assignable, in whole or in
part, by either Party without the written consent of the other
Party, except that Modavox may, without the consent of ▇▇▇▇▇▇▇,
assign this Agreement upon the consummation of (i) a merger or
consolidation of Modavox with any other corporation or entity or any
other form of business combination pursuant to which the outstanding
stock of Modavox is exchanged for cash, securities or other property
paid, issued or caused to be issued by the surviving or acquiring
corporation or entity; or (ii) a sale, transfer or lease by Modavox
of all, or substantially all, of Modavox's assets.
9.3 NOTICES. All notices and other communications required or permitted
under this Agreement will be delivered to the Parties at the address
set forth below their respective signature blocks, or at such other
address that they hereafter designate by notice to the other Party
in accordance with this Section. All notices and communications will
be deemed to be received in accordance with the following: (i) in
the case of personal delivery, on the date of such delivery; (ii) in
the case of facsimile transmission, on the date on which the sender
receives confirmation by facsimile transmission that such notice was
received by the addressee, provided that a copy of such transmission
is additionally sent by mail as set forth in (iv) below; (iii) in
the case of overnight air courier, on the second business day
following the day sent, with receipt confirmed by the courier; and
(iv) in the case of mailing by first class certified mail, postage
prepaid, return receipt requested, on the fifth business day
following such mailing.
9.4 GOVERNING LAW. This Agreement will be deemed to have been executed
in the State of Arizona and will be governed and construed as to
both substantive and procedural matters in accordance with the laws
of the State of Arizona, but excepting (i) any State of Arizona rule
which would result in judicial failure to enforce the arbitration
provisions of Section 8 hereof or any portion thereof and (ii) any
State of Arizona rule which would result in the application of the
law of a jurisdiction other than the State of Arizona. Any dispute
arising from this Agreement must be filed in Maricopa County,
Arizona.
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9.5 COMPLETE AGREEMENT. This Agreement, along with the ▇▇▇▇▇▇▇
Promissory Note and the Nondisclosure Agreement, contains the entire
agreement of the Parties relating to the subject matter hereof and
supersedes all prior agreements and understandings, whether written
or oral, with respect to such subject matter, and the Parties have
made no agreements, representations or warranties relating to the
subject matter of this Agreement which are not set forth herein. If
a conflict is determined to exist among any of the aforementioned
agreements, the terms of this Agreement will control.
9.6 AMENDMENT. This Agreement may not be amended, modified, superseded,
canceled or terminated, and any of the matters, covenants,
representations, warranties or conditions hereof may not be waived,
except by written instrument executed by the Parties or, in the case
of a waiver, by the Party to be charged with such waiver.
9.7 COUNTERPARTS. This Agreement may be executed by any one or more of
the Parties in any number of counterparts, each of which will be
deemed to be an original, but all such counterparts will together
constitute one and the same instrument.
9.8 WAIVER. The failure of a Party to insist upon strict adherence to
any term, condition or other provision of this Agreement will not be
considered a waiver or deprive that Party of the right thereafter to
insist upon strict adherence to that term or any other term,
condition or other provision of this Agreement.
9.9 HEADINGS. The headings of this Agreement are solely for convenience
of reference and will not affect its interpretation.
9.10 INDEMNITY. Modavox will indemnify and hold harmless ▇▇▇▇▇▇▇ from and
against any and all liability, costs, damages and expenses
(including reasonable attorneys' fees and court costs) which ▇▇▇▇▇▇▇
may sustain or suffer by reason of any third-party claim which is
not caused by a breach by ▇▇▇▇▇▇▇ hereunder.
9.11 SEVERABILITY. If any one clause or part of this Agreement is deemed
invalid, unenforceable or illegal by the arbitrators or court of
competent jurisdiction, then it is severed from this Agreement and
the rest of this Agreement remains in full force and effect. ▇▇▇▇▇▇▇
acknowledges the uncertainty of the law in this respect and
expressly stipulates that this Agreement be given the construction
which renders its provisions valid and enforceable to the maximum
extent possible under applicable law.
9.12 FURTHER ASSURANCES. The Parties will sign such other instruments,
cause such meetings to be held, resolutions passed and by-laws
enacted, exercise their vote and influence, do and perform and cause
to be done and performed such further and other acts and things as
may be necessary or desirable in order to give full effect to this
Agreement.
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9.13 ▇▇▇▇▇▇▇ ACKNOWLEDGES THAT THE DRAFTER OF THIS AGREEMENT IS A
LICENSED ATTORNEY, THAT SUCH PERSON DRAFTED THIS AGREEMENT WITH
▇▇▇▇▇▇▇'▇ FULL KNOWLEDGE AND CONSENT AND THAT ▇▇▇▇▇▇▇ HAS HAD THE
OPPORTUNITY TO CONSULT WITH THE ADVISOR OF HIS CHOICE AND THAT HE
HAS FREELY AND VOLUNTARILY ENTERED INTO THIS AGREEMENT.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
Modavox:
MODAVOX, INC.
By:
---------------------------
▇▇▇▇▇ ▇. ▇▇▇
Chief Executive Officer
▇▇▇▇▇▇▇:
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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EXHIBIT A
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
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PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
This Proprietary Information and Inventions Agreement by and between
MODAVOX , INC., a Delaware corporation ("Modavox") and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇"), is effective as of the date the Certificate of Merger relating to
the merger of Kino Interactive, LLC into Modavox is filed with and accepted by
the Delaware Secretary of State (the "Effective Date"). Modavox and ▇▇▇▇▇▇▇ are
sometimes referred to individually as the "Party" and collectively as the
"Parties." Capitalized terms not otherwise defined herein have the meaning set
forth at the end of this Agreement.
In consideration of the mutual benefits to be derived from this Agreement,
which is a material part of the consideration for ▇▇▇▇▇▇▇'▇ employment by
Modavox, and of the representations, warranties, conditions and promises
hereinafter contained, the Parties hereby agree as follows:
1. Modavox possesses and will possess Proprietary Information (as hereinafter
defined) and Documentation (as hereinafter defined) which is important to
its Business (as hereinafter defined).
2. ▇▇▇▇▇▇▇'▇ employment creates a relationship of confidence and trust
between Modavox and ▇▇▇▇▇▇▇ with respect to Proprietary Information (i)
applicable to the Business; or (ii) applicable to the business of any
customer of Modavox; or (iii) which Modavox is under a contractual
obligation to keep confidential which may be made known to ▇▇▇▇▇▇▇ by
Modavox or by any customer of Modavox, or learned by ▇▇▇▇▇▇▇ during the
period of ▇▇▇▇▇▇▇'▇ employment.
3. The Proprietary Information, whether now or hereafter furnished to ▇▇▇▇▇▇▇
in whole or in part, is confidential. Modavox's business and prospects
could be damaged if the Proprietary Information is disclosed to third
parties without Modavox's consent.
4. As a condition to sharing with ▇▇▇▇▇▇▇, whether in writing or orally,
Proprietary Information, in consideration of ▇▇▇▇▇▇▇'▇ employment by
Modavox and the compensation received by ▇▇▇▇▇▇▇ from Modavox from time to
time, ▇▇▇▇▇▇▇ hereby acknowledges and agrees as follows:
(a) All Proprietary Information and all intellectual property rights
associated therewith ("Rights") are the sole property of Modavox.
▇▇▇▇▇▇▇ assigns to Modavox any Rights ▇▇▇▇▇▇▇ may have or acquire in
such Proprietary Information. At all times, both during ▇▇▇▇▇▇▇'▇
employment by Modavox and after its termination, ▇▇▇▇▇▇▇ will keep
in confidence and trust and will not use or disclose (or permit the
use or disclosure of) any Proprietary Information or anything
relating to it for a purpose detrimental to the Business and without
the prior written consent of Modavox except as may be necessary and
appropriate in the ordinary course of performing ▇▇▇▇▇▇▇'▇ duties to
Modavox.
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(b) All Documentation constitutes the sole property of Modavox. During
▇▇▇▇▇▇▇'▇ employment by Modavox, ▇▇▇▇▇▇▇ will not remove any
Documentation from the business premises of Modavox or deliver any
Documentation to any person or entity outside Modavox for a purpose
detrimental to the Business and except as ▇▇▇▇▇▇▇ may be required to
do in connection with performing the duties of ▇▇▇▇▇▇▇'▇ employment.
Immediately upon the termination of ▇▇▇▇▇▇▇'▇ employment for any
reason, or during ▇▇▇▇▇▇▇'▇ employment if so requested by Modavox,
▇▇▇▇▇▇▇ will return all Documentation, equipment and other physical
property, or any reproduction of such property, excepting only (i)
▇▇▇▇▇▇▇'▇ personal copies of records relating to ▇▇▇▇▇▇▇'▇
compensation; (ii) ▇▇▇▇▇▇▇'▇ personal copies of any materials
previously distributed generally to stockholders of Modavox; and
(iii) ▇▇▇▇▇▇▇'▇ copy of this Agreement.
(c) ▇▇▇▇▇▇▇ will promptly disclose in writing to ▇▇▇▇▇▇▇'▇ immediate
supervisor or to any persons designated by Modavox, all Inventions
(as hereinafter defined) related to the Business made or conceived
or reduced to practice or developed by ▇▇▇▇▇▇▇, either alone or
jointly with others, during the term of ▇▇▇▇▇▇▇'▇ employment.
▇▇▇▇▇▇▇ will not disclose Inventions covered by this Agreement to
any person outside Modavox unless ▇▇▇▇▇▇▇ is requested to do so by
his duly authorized supervisor. All Inventions related to Modavox's
Business which ▇▇▇▇▇▇▇ makes, conceives, reduces to practice or
develops (in whole or in part, either alone or jointly with others)
during ▇▇▇▇▇▇▇'▇ employment belong solely to Modavox to the maximum
extent permitted by applicable law, and ▇▇▇▇▇▇▇ assigns such
Inventions and all Rights therein to Modavox and Modavox is the sole
owner of all Rights in connection therewith.
(d) ▇▇▇▇▇▇▇ will perform, during and after ▇▇▇▇▇▇▇'▇ employment, all
reasonable acts deemed necessary or desirable by Modavox to permit
and assist it, at Modavox's expense, in evidencing, perfecting,
obtaining, maintaining, defending and enforcing Rights and/or
▇▇▇▇▇▇▇'▇ assignment with respect to such Inventions in any and all
countries. Such acts may include, but are not limited to, execution
of documents and assistance or cooperation in legal proceedings.
▇▇▇▇▇▇▇ hereby irrevocably designates and appoints Modavox and its
duly authorized officers and agents, as ▇▇▇▇▇▇▇'▇ agents and
attorneys-in-fact to act for and in ▇▇▇▇▇▇▇'▇ behalf and instead of
▇▇▇▇▇▇▇, to sign and file any documents and to do all other lawfully
permitted acts to further the above purposes with the same legal
force and effect as if signed by ▇▇▇▇▇▇▇.
(e) ▇▇▇▇▇▇▇ has attached hereto, as Attachment A, a complete list of all
existing Inventions to which ▇▇▇▇▇▇▇ claims ownership as of the date
of this Agreement which are related to the Business and that ▇▇▇▇▇▇▇
desires to specifically clarify are not subject to this Agreement.
(f) ▇▇▇▇▇▇▇'▇ performance of all the terms of this Agreement will not
breach any agreement to keep in confidence proprietary information
acquired by ▇▇▇▇▇▇▇ in confidence or in trust prior to ▇▇▇▇▇▇▇'▇
employment by Modavox. ▇▇▇▇▇▇▇ has not entered into, nor ▇▇▇▇
▇▇▇▇▇▇▇ enter into, any Agreement either written or oral in conflict
herewith or in conflict with ▇▇▇▇▇▇▇'▇ employment with Modavox.
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(g) ▇▇▇▇▇▇▇'▇ obligation of secrecy and confidentiality with respect to
Proprietary Information which constitutes trade secrets under the
Uniform Trade Secrets Act (or other similar applicable law) will run
for as long as such information remains a trade secret. ▇▇▇▇▇▇▇'▇
obligation of confidentiality with respect to Proprietary
Information that is not covered under the Uniform Trade Secrets Act
(or other similar applicable law), will run for three (3) years from
the date ▇▇▇▇▇▇▇'▇ employment by Modavox ceases.
(h) This Agreement is not an employment contract and, as an employee of
Modavox, ▇▇▇▇▇▇▇ has obligations to Modavox which are not set forth
in this Agreement.
(i) Any dispute in the meaning, effect or validity of this Agreement
will be resolved in accordance with the laws of the State of Arizona
without regard to the conflict of laws provisions thereof.
(j) If one or more provisions of this Agreement are held to be illegal
or unenforceable under applicable Arizona law, such illegal or
unenforceable portion(s) will be limited or excluded from this
Agreement to the minimum extent required so that this Agreement will
otherwise remain in full force and effect and enforceable in
accordance with its terms.
(k) Wrongful disclosure or use of Proprietary Information in
contravention of the provisions of this Agreement will give rise to
irreparable injuries not adequately compensable in damages. If
preliminary injunctive relief to maintain the status quo is
required, Modavox may seek such relief from any court of competent
jurisdiction. ▇▇▇▇▇▇▇ is bound by any and all orders rendered by
such court.
(l) No failure or delay in exercising any right, power or privilege
hereunder will operate as a waiver thereof nor will any single or
partial exercise thereof preclude any other or further exercise
thereof or the exercise of any right, power or privilege.
(m) No modification of this Agreement is valid unless made in writing
and signed by ▇▇▇▇▇▇▇ and a duly authorized officer of Modavox.
(n) This Agreement will survive termination of ▇▇▇▇▇▇▇'▇ employment,
regardless of the circumstances of such termination.
(o) This Agreement is effective as of the first day of ▇▇▇▇▇▇▇'▇
employment by Modavox.
(p) This Agreement is binding upon ▇▇▇▇▇▇▇'▇ heirs, executors,
administrators or other legal representatives.
12
(q) Notwithstanding the foregoing, nothing contained herein will
prohibit ▇▇▇▇▇▇▇ from disclosing to anyone the amount of ▇▇▇▇▇▇▇'▇
wages.
(r) This Agreement constitutes the full, complete and exclusive
Agreement between Modavox and ▇▇▇▇▇▇▇ with regard to this
Agreement's subject matter. This Agreement supersedes any previous
agreements or representations, whether oral or written, express or
implied between Modavox and ▇▇▇▇▇▇▇ with respect to their subject
matter.
(s) The following terms have the following meanings:
(i) "Business" means the actual business of Modavox on today's
date, as well as any other business that Modavox acquires,
develops or initiates during the term of this Agreement,
including each of its current and future subsidiaries,
affiliates, business units and divisions.
(ii) "Documentation" means tangible paper or electronic media that
contain or embody Proprietary Information or any other
information concerning the business, operations or plans of
Modavox, whether ▇▇▇▇▇▇▇ or others have prepared such
documents. By way of illustration but not limitation,
Documentation includes blueprints, drawings, photographs,
charts, graphs, notebooks, customer lists, computer disks,
tapes or printouts, sound recordings and other printed,
typewritten or handwritten documents, as well as samples,
prototypes, models, products and the like.
(iii) "Inventions" means all data, discoveries, designs,
developments, formulae, ideas, improvements, inventions,
know-how, processes, programs, and techniques, whether or not
patentable or registerable under copyright, trademark or
similar statutes, and all designs, trademarks and
copyrightable works that ▇▇▇▇▇▇▇ made or conceived or reduced
to practice or learned, either alone or jointly with others,
during the period of ▇▇▇▇▇▇▇'▇ employment which (A) are
related or useful in Modavox's business, research, design,
development, experimental production, financing,
manufacturing, licensing, distribution or marketing activity,
or (B) result from tasks Modavox assigned ▇▇▇▇▇▇▇, or (C)
result from use of premises or equipment owned, leased or
contracted for by Modavox.
(iv) "Proprietary Information" means information from which Modavox
might derive economic value, actual or potential, from such
information not being generally known to, and not being
readily ascertainable by proper means by, other persons who
can obtain economic value from its disclosure or use, and
which is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy. By way of illustration
but not limitation, Proprietary Information includes: (A)
inventions, confidential knowledge, trade secrets, ideas,
data, programs, works of authorship, know-how, improvements,
discoveries, designs, techniques and sensitive information
Modavox receives from its customers or receives from a third
party under obligation to keep confidential; (B) technical
information relating to Modavox's existing and future products
and services, including, where appropriate and without
limitation, software, firmware, information, patent
13
disclosures, patent applications, development or experimental
work, formulae, engineering or test data, models, techniques,
processes and apparatus relating to the same disclosed by
Modavox to ▇▇▇▇▇▇▇ or obtained by ▇▇▇▇▇▇▇ through observation
or examination of information or developments; (C)
confidential marketing information (including without
limitation marketing strategies, customer names and
requirements and product and services, prices, margins and
costs); (D) confidential future product plans; (E)
confidential financial information provided to ▇▇▇▇▇▇▇ by
Modavox; (F) personnel information (including without
limitation employee compensation); (G) merger and acquisition
strategies (including without limitation target lists); and
(H) other confidential business information.
[Remainder of Page Left Intentionally Blank]
14
5. ▇▇▇▇▇▇▇ HAS READ THIS AGREEMENT CAREFULLY AND ▇▇▇▇▇▇▇ UNDERSTANDS AND
ACCEPTS THE OBLIGATIONS WHICH IT IMPOSES UPON HIM WITHOUT RESERVATION. NO
PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO ▇▇▇▇▇▇▇ TO INDUCE ▇▇▇▇▇▇▇ TO
SIGN THIS AGREEMENT. ▇▇▇▇▇▇▇ SIGNS THIS AGREEMENT VOLUNTARILY AND FREELY,
IN DUPLICATE, WITH THE UNDERSTANDING THAT ONE COUNTERPART WILL BE RETAINED
BY MODAVOX AND THE OTHER COUNTERPART WILL BE RETAINED BY ▇▇▇▇▇▇▇.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
Modavox:
MODAVOX, INC.
By:
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇
Chief Executive Officer
▇▇▇▇▇▇▇:
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
15
ATTACHMENT A
The following is a complete list of Inventions relevant to the subject
matter of ▇▇▇▇▇▇▇'▇ employment by Modavox, Inc. relating to Modavox's Business
that have been made or conceived or first reduced to practice by ▇▇▇▇▇▇▇ alone
or jointly with others prior to ▇▇▇▇▇▇▇'▇ employment by Modavox that ▇▇▇▇▇▇▇
desire to clarify are not subject to Modavox's Proprietary Information and
Inventions Agreement.
List of Inventions:
None.
▇▇▇▇▇▇▇ propose to bring to ▇▇▇▇▇▇▇'▇ employment the following materials and
documents of a former employer:
None.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇ has executed this Attachment A to the
Proprietary Information and Inventions Agreement with Modavox dated as of the
date first above written.
▇▇▇▇▇▇▇:
--------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
16
