Exhibit 10.39
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") dated effective
January 1, 2003, by and between PHONE1GLOBALWIDE, INC., a Florida corporation
with an address at 000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000, Xxxxx, Xxxxxxx 00000
(the "Company"), and XXXXXX XXXXXX, with an address at 000 Xxx Xxxxx Xx., Xxx
Xxxxxxx, Xx 00000 (the "Executive"). The Company and the Executive are sometime
individually referred to as a "Party" and collectively as the "Parties".
WITNESSETH:
WHEREAS, the Company is in the business of providing pay phone
telecommunications services to domestic and international markets (the
"Business") and the Company desires to induce the Executive to enter into the
employment of the Company for the period provided in this Agreement in
accordance with the terms and conditions set forth below; and
WHEREAS, the Company and the Executive intend for the Executive to
utilize his professional experience to assist the Company to implement its
business plan; and
WHEREAS, the Executive wishes to be engaged and employed by the Company
and the Company wishes to engage and employ the Executive, on the terms provided
herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and accepted, the Parties hereto
agree as follows:
1. Recitals. The above recitals are true, correct and incorporated herein by
reference.
2. Employment.
a. Engagement of the Executive. The Company agrees to employ the
Executive and the Executive accepts employment as Chief Operating Officer of the
Company.
b. Employment Period. The Company shall employ the Executive and the
Executive shall be employed by the Company, on the terms and conditions
hereinafter set forth, for a period commencing on the date hereof (the
"Effective Date") and ending December 31, 2005. Subject to the provisions of
this Agreement, the period of employment shall be automatically extended for
successive one-year terms of employment, unless either the Company or the
Executive notifies the other in writing at least ninety (90) days prior to the
end of the then current term that it or he does not intend to renew such
employment, in which case such employment will expire at the end of the then
current term. All references herein to the "Employment Period" shall refer to
both the initial term and any such successive renewal term.
c. Duties and Powers. During the Employment Period, the Executive will
serve in the capacity described above and will have such responsibilities,
duties and authorities and will render such services of an executive and
administrative character reasonably consistent with his title as shall be
reasonably directed by the Board, all in accordance with the terms and
conditions of this Agreement and the strategic plans and operating and capital
budgets of the Company as developed and approved by the Board. The Executive
shall devote the Executive's best efforts, energies and abilities and the
Executive's full business time, skill and attention to the business and affairs
of the Company and such of its affiliates as are specified by the Company. The
Executive shall perform the duties and carry out the responsibilities assigned
to the Executive to the best of the Executive's ability, in a diligent,
trustworthy, businesslike and efficient manner for the purpose of advancing the
business of the Company and its affiliates and shall adhere to any and all of
the employment policies of the Company. The Executive acknowledges that the
Executive's duties and responsibilities will require the Executive's full-time
business efforts and agrees that during the Employment Period the Executive will
not engage in any other business activity or have any business pursuits or
interests which interfere or conflict with the performance of the Executive's
duties hereunder, provided, that nothing in this Section 2 shall be deemed to
prohibit the Executive from making Permitted Investments (as defined in Section
6.b. below) or attending to such charitable and/or civic activities as are
deemed appropriate by the Executive; provided that such activities shall not
detract from the Executive's duties and obligations under this Agreement. The
Executive shall report to the Chief Executive Officer and the Board of Directors
of the Company.
3. Compensation and Benefits. As consideration for the services to be provided
by the Executive, the Company shall pay to the Executive, and the Executive
agrees to accept for all such services, compensation as follows:
a. Base Salary. Commencing on the date hereof and continuing through
the balance of the Employment Term, the Company shall pay to the Executive base
compensation at the rate of Two Hundred Twenty Thousand Dollars ($220,000) per
year (the "Salary"). Notwithstanding the foregoing, the Executive's salary shall
not be less than the base Salary paid, from time-to-time, to the Company's Chief
Financial Officer. The Salary, and all other compensation payable hereunder,
shall be paid in accordance with the Company's normal payroll policies, and
shall be subject to all applicable withholding taxes and any other amounts
required by law to be withheld. The Executive shall also be entitled to receive
such other salary increases as may be determined by the Board of Directors of
the Company and/or its Compensation Committee.
b. Bonus. The Executive may receive a bonus, if so determined by the
Board in its sole discretion. The payment of a bonus in any instance shall not
constitute an entitlement to a bonus on any other occasion.
c. Equity Participation Programs. The Executive shall be eligible to
participate in such option and/or equity participation programs as may be
implemented for employees of the Company. Such eligibility shall not constitute
an entitlement to a particular award under any such program, nor shall an award
on one occasion constitute an entitlement to an award on any other occasion.
Notwithstanding the foregoing, the Executive shall be entitled to receive
options in an amount at least equal to the number of options hereafter granted
to the Company's Chief Executive Officer or Chief Financial Officer, whichever
is greater, at an exercise price not greater than the exercise price of the
corresponding options.
d. Benefit Programs. The Executive will be eligible to participate on
substantially the same basis as provided to all of the Company's most highly
paid executive officers, as a group, in any life, health, hospitalization, or
disability insurance policy or program maintained by the Company, and any
401(k), profit sharing, retirement, or other fringe benefit program maintained
by the Company for such officers, in each case in accordance with the terms of
such policies, plans and programs.
e. Vacation. During the Employment Period, the Company will provide the
Executive three (3) weeks vacation per year (prorated for periods of less than a
full year); provided that all vacation must be used within the calendar year in
which the vacation accrues or it is forfeited.
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f. Business Expenses. During the Employment Period, the Company will
reimburse the Executive in accordance with Company policy for the Executive's
normal out-of-pocket expenses incurred in the course of performing the
Executive's duties hereunder. The Executive shall provide the Company with all
receipts and documentation supporting such expenses as may reasonably be
requested by the Company.
4. Termination.
a. Right to Terminate. In addition to the termination rights of the
Company set forth in Section 2, the Company has the right to terminate the
Employment Period (and, consequently, the Executive's employment under this
Agreement), by notice to the Executive in writing at any time, (i) for "Cause",
or (ii) without Cause for any or no reason, subject to the provisions of Section
5. Any such termination shall be effective upon the date specified in such
notice or, if no date is specified, on the date such notice is deemed served
pursuant to Section 17 below. In addition, the Executive shall have the right to
terminate the Employment Period as hereinafter provided.
b. Cause Defined. "Cause" as used herein means the occurrence of any of
the following events:
(i) the willful failure or gross negligence of the
Executive to perform the Executive's duties or comply
with reasonable directions of the Board consistent
with the Executive's title and duties that continues
unremedied for a period of twenty (20) business days
after the Company, by resolution of its Board of
Directors has given written notice to the Executive
specifying in reasonable detail the Executive's
failure to perform such duties or comply with such
directions;
(ii) the Executive's conviction of (A) a felony, (B)
criminal dishonesty or (C) any crime involving moral
turpitude;
(iii) the occurrence of any event applicable to the
Executive and set forth in Item 401(d)(1) through (4)
[or Item 401(f) of Regulation S-K, if then applicable
to the Company] of Regulation S-B, or other rule of
similar applicability promulgated by the Securities
and Exchange Commission;
(iv) a material breach by the Executive of any of the
provisions of Section 6, 7, or 8 of this Agreement;
or
(v) a material breach by the Executive of any of the
terms or conditions of this Agreement (other than
with respect to any provisions of Sections 6, 7 or 8
of this Agreement) that continues unremedied for a
period of twenty (20) business days after the
Company, by resolution of its Board of Directors, has
given written notice to the Executive specifying in
reasonable detail the Executive's breach of this
Agreement.
c. Death and Disability. Except as otherwise provided herein, this
Agreement and the obligations of the Company hereunder will terminate upon the
death or, at the Company's option, the disability of the Executive. For purposes
of this Section 4.c., "disability" shall mean that for a period of ninety (90)
consecutive days or four (4) months in any twelve (12) month period the
Executive fails to substantially fulfill the duties set forth in Section 2 or
hereafter assigned to him because of physical, mental or emotional incapacity
resulting from injury, sickness or disease, as determined by an independent
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physician (whose independence shall not be negated by reason of the payment of a
reasonable fee for his or her services) selected by the Company.
5. Compensation Following Termination.
a. If the Employment Period or this Agreement is terminated (i) by the
Company for Cause, (ii) through expiration of the Employment Period, or (iii)
pursuant to the provisions of Section 2, then the Company shall have no further
obligations hereunder or otherwise with respect to the Executive's employment
from and after the effective date of termination (except payment of the Salary,
bonus if any, and benefits described in Section 3 herein, in each case which
have accrued through the effective date of termination or expiration), and the
Company shall continue to have all other rights available hereunder, including
without limitation, all rights under any provisions of Sections 6, 7 and 8 at
law or in equity.
b. If the Employment Period or this Agreement is terminated by the
Company due to the disability of the Executive, as defined in Section 4.c., the
Executive shall be entitled to receive all Salary and other compensation earned
but unpaid through the date of termination, plus such amount(s), if any, as may
be payable to the Executive pursuant to any disability insurance maintained by
the Company.
c. If the Employment Period or this Agreement is terminated by the
Company due to the death of the Executive, the Executive's estate shall be
entitled to receive all Salary and other compensation earned but unpaid through
the date of termination, plus an amount equal to six (6) months' Salary at the
then current rate, to be paid in accordance with the Company's normal payroll
policies, and to be subject to all applicable withholding taxes and any other
amounts required by law to be withheld.
d. Provided that the Executive continues to comply with each of the
provisions of Sections 6, 7 and 8 of this Agreement during all the applicable
periods, if the Employment Period is terminated by the (i) Company without Cause
as described in Section 4 hereof or (ii) the Executive for "Good Reason", as
hereinafter defined, the Executive shall be entitled to receive as severance pay
an amount equal to two (2) year's Salary at the then current rate, payable in
one lump sum within thirty (30) days following termination, subject to all
applicable withholding taxes and any other amounts required by law to be
withheld.
e. For purposes hereof, "Good Reason" means (i) the material reduction
in, or the assignment of duties to the Executive which would be materially
inconsistent with, the Executive's responsibilities, duties and authorities
described in Section 2.c. (other than as a result of the Executive's failure to
perform the Executive's duties and responsibilities in accordance with this
Agreement), or (ii) a reduction in the Executive's Salary or failure to pay any
material amount owing to or provide a material benefit owing to the Executive
within ten (10) business days of the day such amount or benefit is due, or (iii)
the relocation of the Company's offices to a location not in Miami-Dade, Broward
or Palm Beach Counties, Florida, and a requirement that the Executive perform
his services to the Company from such relocated offices, in each case which
continues unremedied for a period of twenty (20) business days after the
Executive has given written notice to the Company specifying in reasonable
detail the relevant acts or omissions. It is expressly understood and agreed
that unless the Executive provides the written notice described in the
immediately preceding sentence within twenty (20) business days after the
Executive know or has reason to know of the occurrence of any act or omission of
the type described in clauses (i), (ii) or (iii) of the immediately preceding
sentence, the Executive shall be deemed to have consented thereto and such
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particular act or omission shall no longer constitute or be capable of
constituting Good Reason for purposes of this Agreement.
f. Provided that the Executive continues to comply with each of the
provisions of Sections 6, 7 and 8 of this Agreement during all applicable
periods, if the Employment Period is terminated by the Executive or otherwise
upon a Change of Control (as hereinafter defined) of the Company, the Executive
shall be entitled to receive from the Company as severance an amount equal to
two (2) year's Salary at the then current rate, payable in one lump sum within
thirty (30) days following termination, subject to all applicable withholding
taxes and any other amounts required by law to be withheld.
g. For purposes of the preceding subsection, a "Change in Control"
shall mean the occurrence of one or more of the following events:
(i) subsequent to December 31, 2003, a change in identity
of a majority of members of the Company's Board of
Directors from those individuals constituting the
Board of Directors on such date;
(ii) the acquisition of fifty (50) percent or more of the
outstanding voting securities of the Company, where
the acquirer(s) own(s) beneficially less than fifteen
(15) percent of the outstanding voting securities of
the Company as of the date set forth in the Preamble
to this Agreement;
(iii) the sale of all or substantially all of the Company's
assets, including sale of more than fifty (50)
percent of the stock or all or substantially all of
the assets of Phone1, Inc. or Globaltron
Communications Corporation, other than in a "form
over substance" reorganization;
(iv) a merger, share exchange or similar business
combination where the Company is not the surviving
entity to such combination, other than in a "form
over substance" reorganization.
For purposes hereof, a Change in Control shall be deemed to have occurred on the
effective date of the event described in (i) through (iv) of this subsection g.
h. Provided that the Executive continues to comply with each of the provisions
of Sections 6, 7 and 8 of this Agreement during all the applicable periods:
(i) if the Employment Period is terminated by (A) the
Company without Cause (i.e., the absence of an event
described in Section 4.b. hereof, (B) the Executive
for "Good Reason", as defined in Section 5.e. or (C)
in connection with a Change in Control, as defined in
Section 5.g., all options previously granted to the
Executive that have not yet vested shall immediately
vest and shall be exercisable for a period of three
years from the date of termination, and any
unregistered shares issuable upon exercise of such
options shall be accorded piggy-back registration
rights for the life of the options (except with
respect to the filing of a registration statement on
Form S-4 or similar form);
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(ii) if the Employment Period is terminated by the
Employee without Good Reason, all outstanding options
that have vested shall be exercisable for a period of
sixty (60) days following termination;
(iii) if the Employment Period is terminated by the
Company, for Cause, all outstanding options shall be
cancelled as of the date of termination; and
(iv) if the Employment Period is terminated due to the
death or disability of the Executive, all outstanding
options shall continue in force to the extent
provided, and in accordance with, the instrument(s)
of grant.
Notwithstanding the foregoing, in the event the Employment Agreement terminates
upon the occurrence of an event in which the Company is not the surviving
entity, then the Company shall provide the Executive with not less than thirty
(30) days prior written notice of the effective date of the event and, no more
than five days prior to the effective date, the Executive shall notify the
Company, in writing, that either: (x) the option is being exercised on a
cashless basis as of the date of notice, (y) the Executive requires the Company
to purchase the option at a per share price equal to the difference between (I)
the fair market value of the underlying shares of common stock as of the trading
day immediately prior to the effective date of the event and (II) the per share
exercise price of the option, or (z) the Executive elects to have the options
treated in the same manner as other outstanding options are treated under the
agreement governing the subject event.
6. Restrictive Covenants.
a. The Executive's Acknowledgment. The Executive agrees and
acknowledges that in order to assure that the Company and its affiliates will
retain their respective value and that of the business of the Company and each
of its affiliates, it is necessary that Executive undertake not to utilize the
special knowledge of the Business the Executive has acquired or may acquire and
the relationships with their customers, suppliers and employees to compete with
the Company and its affiliates. The Executive further acknowledges that:
(i) the Executive is one of a limited number of persons
who will develop the business of the Company and its
affiliates;
(ii) the Executive will occupy a position of trust and
confidence with the Company and its affiliates during
the Executive's employment under this Agreement, the
Executive has and will continue to become familiar
with the proprietary and confidential information of
the Company and its affiliates;
(iii) the agreements and covenants contained in this
Section 6 are essential to protect the Company, its
affiliates and the goodwill of the Business and are
an express condition precedent to the willingness of
the Company to sign this Agreement;
(iv) the Company and its affiliates would be irreparably
damaged if the Executive were to provide services to
any person or entity in violation of the provisions
of this Agreement;
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(v) the Company operates its Business on an international
basis and the Company would be irreparably damaged if
the Executive were to provide services in the
Business any where in the world;
(vi) the scope and duration of the provisions of this
Section 6, and of Section 7 and 8 are reasonably
designed to protect a protectable interest of the
Company and its affiliates and are not excessive in
light of the circumstances; and
(vii) the Executive has a means to support the Executive
and the Executive's dependents, if any, other than
engaging in the activities prohibited by this Section
6.
b. Non-Compete. The Executive hereby agrees that for a period of two
(2) years from the date hereof (the "Noncompetition Period") or one (1) year
after the termination of the Employment Period, whichever is later, except on
behalf of the Company and its affiliates in accordance with this Agreement, the
Executive shall not, directly or indirectly, as employee, agent, consultant,
stockholder, director, partner or in any other individual or representative
capacity, own, operate, manage, control, engage in, invest in or participate in
any manner in, act as a consultant or advisor to, render services for (alone or
in association with any person, firm, corporation or entity), or otherwise
assist any person or entity that engages in or owns, invests in, operates,
manages or controls any venture or enterprise that directly or indirectly
engages or proposes to engage in the Business anywhere in the world
(collectively the "Territory"); provided however, that nothing contained herein
shall be construed to prevent the Executive from (i) investing in stock or other
securities of any public or private enterprise provided that such investment
does not require active participation by the Executive and such enterprise does
not engage in any activity competitive with the business now or hereafter
conducted by the Company ("Permitted Investments"), or (ii) attending to such
charitable and/or civic activities as are deemed appropriate by the Executive;
provided that such activities shall not detract from the Executive's duties and
obligations under this Agreement.
c. Non-Solicitation. Without limiting the generality of the provisions
of Section 6.b. above, the Executive hereby agrees that for a period commencing
on the date of this Agreement and ending on the later of (i) the expiration of
the Noncompetition Period or (ii) the date which is two (2) years from the
effective date of termination or expiration of this Agreement (such date of
termination or expiration of this Agreement is sometimes referred to as the
"Termination Date"), except on behalf of the Company and its affiliates in
accordance with this Agreement, the Executive will not, directly or indirectly,
as employee, agent, consultant, principal or otherwise, (A) solicit any Business
from or in any way transact or seek to transact any Business with or otherwise
seek to influence or alter the relationship between the Company or any of its
affiliates with any person or entity to whom the Company or any of its
affiliates provided Business related services (I) at any time during the one (1)
year period preceding the Termination Date or (II) if there has been no
Termination Date, at any time during the Employment Period or (B) solicit for
employment or other services or otherwise seek to influence or alter the
relationship between the Company or any of its affiliates of any person who is
or was an employee of the Company or any of its affiliates (I) at any time
during the one (1) year period preceding the Termination Date or (II) if there
has been no Termination Date, at any time during the Employment Period.
Notwithstanding the foregoing, in the event the Employment Period or this
Agreement is terminated by the Company without Cause pursuant to Section 4, the
reference to "two (2) years" in clause (ii) of this Section shall be deemed to
read "one year."
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d. Blue-Pencil. If any court of competent jurisdiction shall at any
time deem the term of this Agreement or any particular Restrictive Covenant too
lengthy or the Territory too extensive, the other provisions of this Section 6
shall nevertheless stand, the period of restriction shall be deemed to be the
longest period permissible by law under the circumstances and the Territory
shall be deemed to comprise the largest territory permissible by law under the
circumstances. The court in each case shall reduce the period of restriction
and/or Territory to permissible duration or size.
7. Treatment and Ownership of Confidential Information.
a. Confidentiality. The Parties hereto acknowledge that the Executive
shall or may be provided access to, make use of, acquire and/or add to
Confidential Information (as that term is defined in subparagraph (b) below).
The Executive covenants and agrees that during the Employment Period and at all
times thereafter he shall not, except with the prior written consent of the
Company, or except if he is acting during the Employment Period solely for the
benefit of the Company or any of the affiliates in connection with the Company's
or any of the affiliates' business and in accordance with the Company's business
practices and policies, at any time, disclose, divulge, report, transfer or use,
for any purposes whatsoever, any such Confidential Information, including
Confidential Information obtained, used, acquired or added by, or disclosed to,
the Executive prior to the date of this Agreement. The Executive further
acknowledges that the Confidential Information constitutes valuable, special and
unique assets of the Company.
b. Confidential Information Defined. For purposes of this Agreement,
the term "Confidential Information" shall mean all of the following materials
and information which the Executive receives, conceives or develops or has
received, conceived or developed, in whole or in part, in connection with the
Executive's affiliation with the Company:
(i) The contents of any manuals or other written
materials of the Company or any of its affiliates;
(ii) The names of actual or prospective clients,
customers, suppliers, or persons, firms, lenders, or
persons, firms, corporations, or other entities with
whom the Executive may have or has had contact on
behalf of the Company or any of its affiliates or to
whom any other employee of the Company or any of its
affiliates has provided goods or services at any
time;
(iii) The terms of various agreements between the Company
or any of its affiliates, and any third parties;
(iv) The contents of actual or prospective customer or
client records, which customer and client lists and
records shall not only mean one or more of the names
and addresses of the customers of the Company or any
of its affiliates, but shall also encompass any and
all information whatsoever regarding them;
(v) Any data or database, or other information compiled
by the Company or any of its affiliates, including,
but without limitation, information concerning the
Company or any of its affiliates, or any business in
which the Company or any of its affiliates is engaged
or contemplates becoming engaged, any company which
the Company or any of its affiliates engages in
business, any customer, prospective customer, or
other person, firm or corporation to whom or which
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the Company or any of its affiliates has provided
goods or services or to whom or which any employee of
the Company or any of its affiliates has provided
goods or services on behalf of the Company or any of
its affiliates, or any compilation, analysis,
evaluation or report concerning or deriving from any
data or database, or any other information;
(vi) All policies, procedures, strategies and techniques
regarding training, marketing and sales, either oral
or written, and assorted lists containing information
pertaining to lenders, customers and/or prospective
customers; and
(vii) Any other information, data, training methods,
formulae, know-how, technology, business methods,
show-how, source code, subject code, copyright,
trademarks, patents or knowledge of a confidential or
proprietary nature observed, received, conceived or
developed by the Executive in connection with the
Executive's affiliation with the Company.
c. Exclusions. Excluded from the Confidential Information and therefore
not subject to the provisions of this Agreement shall be any information which
(i) is or becomes generally available to the public through no breach or fault
of the Executive; provided that this exception shall apply only from and after
the date the information became generally available to the public, and (ii) the
Executive can establish by the Executive's written records was in the
Executive's possession at the time of disclosure and was not previously acquired
directly or indirectly from the Company, provided that this exception shall
apply only from and after the date that the information is disclosed to the
Executive by a third party or was in the Executive's possession. Specific
Confidential Information shall not be deemed to be within the foregoing
exceptions merely because it is embraced by, or contained or referenced in, more
general information in the public domain. Additionally, any combination of
features shall not be deemed to be within the foregoing exceptions merely
because individual features are in the public domain. If the Executive intends
to avail himself of any of the foregoing exceptions, the Executive shall notify
the Company in writing of his or her intention to do so and the basis for
claiming the exception.
d. Ownership. The Executive covenants and agrees that all right, title
and interest in any Confidential Information shall be and shall remain the
exclusive property of the Company and its affiliates, as the case may be. The
Executive covenants that the Executive has disclosed to the Company all
Confidential Information developed in whole or in part by the Executive within
the scope of this Agreement and has assigned or will assign to the Company any
right, title or interest the Executive may have in such Confidential
Information. The Executive covenants that the Executive has turned over to the
Company all physical manifestations of the Confidential Information in his
possession or under his control. The Executive agrees to promptly disclose to
the Company all Confidential Information hereafter developed in whole or in part
by the Executive within the scope of this Agreement and to assign to the Company
or any of the affiliates, as the Company determines in its sole discretion, any
right, title or interest the Executive may have in such Confidential
Information.
8. Inventions.
a. The Executive agrees to promptly inform and to disclose to the
Company, in writing, all inventions, concepts, developments, procedures, ideas,
innovations, systems, programs, techniques, processes, information, discoveries,
improvements and modifications and related documentations, other works of
authorship and the like (collectively the "Inventions"), which, during the
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course of the Executive's employment with the Company, the Executive has
created, made, conceived, written either alone or with others, while in the
Company's employ, or while performing services for the affiliates, whether or
not during working hours, and at all times thereafter, whether or not such
Inventions are patentable, subject to copyright protection or susceptible to any
other form of protection which (i) related to the actual Business or research of
development of the Company or its affiliates; or (ii) was suggested by or
resulted from any task assigned or to be assigned to the Executive or performed
by the Executive for or on behalf of the Company or any of its affiliates. In
the case of any "other works of authorship", such assignment shall be limited to
those works of authorship which meet both conditions (i) and (ii) above. The
Executive further acknowledges and agrees that all copyright and any other
intellectual property right in Inventions and related documentation, and other
works of authorship, created within the scope of the Executive's employment are
"works for hire" and are the property of the Company.
b. In connection with any of the Inventions assigned by Section 8.a.,
the Executive shall, on the Company's request, promptly execute a specific
assignment of title to the Company or its designee, and do anything else
reasonably necessary to enable the Company or such designee to secure a patent,
copyright or other form of protection therefor in the United States and in other
countries.
c. The Executive further acknowledges and agrees that the Company and
its affiliates, licensees, successors or assigns (direct or indirect) are not
required to designate the Executive as an author of any Invention which is
subject to Section 8.a., when it is distributed, publicly or otherwise, or to
secure my permission to change or otherwise alter its integrity. The Executive
hereby waives and releases, to the extent permitted by law, all rights in and to
such designation and any rights that the Executive may have concerning
modifications of such Inventions.
d. The Executive understands that any rights, waivers, releases and
assignments herein granted and made by the Executive are freely assignable by
the Company and are for the benefit of the Company and its affiliates,
licensees, successors and assigns.
e. The Executive affirms that the Executive has not disclosed and will
not disclose to anyone outside of the Company and its affiliates, or has used,
or will use, any Confidential Information or material received in confidence
from third parties, such as customers, by the Company or any of its affiliates,
other than as permitted by a written agreement between the Company and the third
party.
f. The Executive irrevocably appoints any Company-selected designee to
act as his agent and attorney-in-fact to perform all acts necessary to obtain
patents and/or copyrights as required by this Agreement if the Executive (i)
refuses to perform those acts or (ii) is unavailable, within the meaning of the
United States Patent and Copyright Laws. It is expressly intended by the
Executive that the foregoing power of attorney is coupled with an interest.
g. The Executive shall keep complete, accurate and authentic
information and records on all Inventions in the manner and form reasonably
requested by the Company. Such information and records, and all copies thereof,
shall be the property of the Company as to any Inventions within the meaning of
this Agreement. In addition, the Executive agrees to promptly surrender all such
original and copies of such information and records at the request of the
Company.
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9. Effect of Termination. If this Agreement or the Employment Period expires or
is terminated for any reason, then, notwithstanding such termination, those
provisions contained in Sections 6 through 10 hereof shall remain in full force
and effect.
10. Remedies. The Executive acknowledges and agrees that the covenants set forth
in Section 6, 7 and 8 of this Agreement are reasonable and necessary for the
protection of the business interests of the Company and its affiliates, that
irreparable injury will result to the Company and its affiliates if the
Executive breaches any of the terms of Sections 6, 7 or 8, and that in the event
of the Executive's actual or threatened breach of any provisions of Section 6, 7
or 8, the Company and its affiliates will have no adequate remedy at law. The
Executive accordingly agrees that in the event of any actual or threatened
breach by the Executive of any of the provisions of Section 6, 7 or 8, the
Company and its affiliates shall be entitled to seek injunctive relief, specific
performance and other equitable relief, without bond and without the necessity
of showing actual monetary damages, subject to hearing as soon thereafter as
possible. Nothing contained herein shall be construed as prohibiting the Company
and its affiliates from pursuing any other remedies available to them for such
breach or threatened breach, including but not limited to the recovery of
damages.
11. Indemnification. The Company hereby indemnifies and holds the Executive
harmless, to the fullest extent permitted by applicable law, from and against
all suits, actions, claims, actions, proceedings, costs and expenses, including
reasonable attorneys' fees, arising out of the Executive's performance of his
duties to the Company. In addition, the Executive shall be entitled to enter
into such Indemnification Agreements as the Company enters into with members of
its Board of Directors, and to receive benefits, to the extent reasonably
available, no less favorable with respect to indemnification than the benefits
provided to such Board members.
12. The Executive's Representations and Warranties.
a. The Executive represents and warrants to the Company that:
(i) he is not and has not been subject to any litigation
or regulatory or administrative proceeding that could
reasonably have an adverse impact on the Company or
the ability of the Executive to render services under
this Agreement, and
(ii) he is free of known physical and mental disabilities
that would, with or without reasonable accommodations
create an undue hardship for the Company or any of
its affiliates, impair his performance hereunder and
he is fully empowered to enter and perform his
obligations under this Agreement;
(iii) he is under no restrictive covenants to any person or
entity that will be violated by his entering into and
performing this Agreement; and
(iv) he is not the subject of any event described in Item
401(d)(1) through (4) of Regulation S-B [or Item
401(f) of Regulation S-K, if then applicable to the
Company], promulgated by the Securities and Exchange
Commission.
b. The Executive shall indemnify the Company on demand for and against
any and all judgments, losses, claims, damages, expenses and costs (including
without limitation all legal fees and costs, even if incident to appeals)
incurred or suffered by the Company as a result of any breach by the Executive
of any of these representations and warranties.
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13. Binding Effect. Except as herein otherwise provided, this Agreement shall
inure to the benefit of and shall be binding upon the Parties hereto, their
personal representatives, heirs successors and permitted assigns; provided that
the Executive may not delegate any of his responsibilities under this Agreement.
14. Severability. If any provision of any of the Agreements is invalid, illegal
or unenforceable under any applicable statute or rule of law, it is to that
extent to be deemed omitted. The remainder of the Agreement containing the
invalid, illegal or unenforceable provision will be valid and enforceable to the
maximum extent possible.
15. Governing Law. This Agreement shall be governed and construed in accordance
with the laws of the State of Florida, without giving effect to any conflict of
law principles.
16. Entire Agreement. This Agreement contains the entire understanding between
the Parties concerning the Executive's employment by the Company and supercedes
all prior agreements or understandings of the Parties relating thereto. This
Agreement may not be changed or modified except by an Agreement in writing
signed by all the Parties hereto.
17. Notice. All notices under the Agreements are to be delivered by (i)
depositing the notice in the mail, using registered mail, return receipt
requested, addressed to the address set forth in the Agreements for the Party or
to any other address as the Party may designate by providing notice, (ii)
facsimile transmission by using the facsimile number set forth in the Agreements
for the Party or any other facsimile number as the Party may designate by
providing notice, (iii) overnight delivery service addressed to the address set
forth in the Agreements for the Party or to any other address as the Party may
designate by providing notice, or (iv) hand delivery to the individual
designated in the relevant Agreement or to any other individual as the Party may
designate by providing notice. The notice will be deemed delivered (i) if by
registered mail, four (4) days after the notice's deposit in the mail, (ii) if
by telecopy, on the date the notice is delivered, (iii) if by overnight delivery
service, on the day of delivery, and (iv) if by hand delivery, on the date of
hand delivery. The addresses for such communications shall be as follows:
If to the Executive:
000 Xxx Xxxxx Xx.
Xxx Xxxxxxx, Xx 00000
Telephone: (000) 000-0000
Telefax: None
If to the Company:
Phone1Globalwide, Inc.
000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx, President
Telephone: (000) 000-0000
Telefax: (000) 000-0000
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Any Party may change the address to which notices, requests, demands, claims,
and other communications hereunder are to be delivered by giving the other
Parties notice in the manner herein set forth.
18. Venue. The Parties acknowledge that a substantial portion of negotiations
and anticipated performance and execution of this Agreement occurred or shall
occur in the City and County of Miami Dade, Florida, and that, therefore, each
of the Parties irrevocably and unconditionally:
(i) agrees that any suit, action or legal proceeding
arising out of or relating to this Agreement shall be
brought in the courts of record of the State of
Florida in the City of Miami and County of Miami-Date
or the courts of the Southern United States of
Florida, Southern Division;
(ii) consents to the jurisdiction of each such court in
any suit, action or proceeding;
(iii) waives any objection which it may have to the laying
of venue of any such suit, action or proceeding in
any of such courts; and
(iv) agrees that service of any court paper may be
effected on such Party by mail, as provided in this
Agreement, or in such other manner as may be provided
under applicable laws or court rules in said state.
19. Prevailing Parties. If any legal action or other proceeding is brought for
the enforcement of this Agreement, or because of an alleged dispute, breach,
default or misrepresentation in connection with any provision of this Agreement,
the successful or prevailing Party or Parties shall be entitled to recover
reasonable attorneys' fees, sales and use taxes, court costs and all expenses
even if not taxable as court costs (including, without limitation, all such
fees, taxes, costs and expenses incident to arbitration, appellate, bankruptcy
and post-judgment proceedings), incurred in that action or proceeding, in
addition to any other relief to which such Party or Parties may be entitled.
20. Expenses. Each Party shall bear their own respective expenses incurred in
connection with this Agreement and with all obligations required to be performed
by each of them under this Agreement.
THE EXECUTIVE ACKNOWLEDGES THAT THE EXECUTIVE HAS READ THIS AGREEMENT,
UNDERSTANDS EACH OF ITS TERMS AND CONDITIONS INCLUDING ANY TAX OR OTHER
CONSEQUENCES, AND HAS THE OPPORTUNITY TO CONSULT INDEPENDENT LEGAL COUNSEL OF
THE EXECUTIVE'S CHOICE PRIOR TO EXECUTING THIS AGREEMENT.
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IN WITNESS WHEREOF, this Agreement has been duly signed by the
Executive and on behalf of the Company as of the day and year first above
written.
THE COMPANY:
PHONE1GLOBALWIDE, INC.
By: /s/ Xxxxx Xxxxxxxxx
---------------------
Xxxxx Xxxxxxxxx
President
THE EXECUTIVE:
/s/ Xxxxxx Xxxxxx
-------------------------
Xxxxxx Xxxxxx
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